Editorial: Law rewrite to protect the young

Youth Affairs Minister John Tamihere is right. It is inappropriate to use the death of Coral-Ellen Burrows to promote changes to that section of the Crimes Act that gives parents a legal defence for physically punishing children. The Prime Minister and the Social Services Minister have commented on violence toward children in response to reporters' questions over the 6-year-old's death. In fairness to both ministers, however, their comments also follow a damning report from the United Nations children's agency, Unicef. It is likely that this report has been more of a trigger to a reactivation of concern over mistreatment than the tragedy that played out in Featherston.

Leave aside Coral's death. That is now a matter for the courts. But we should not allow the case to stifle public debate on the wider issue, one that the Unicef report last week brought into stark relief.

This country has the third-worst levels of child abuse among 27 nations in the developed world. That is an indictment with which none of us should be prepared to live. The New Zealand rate of 1.3 child deaths per 100,000 was 13 times greater than that of Spain, which headed the table. Only the United States and Mexico - with 2.2 deaths per 100,000 - were worse than this country. The statistics have drawn attention to section 59 of the Crimes Act, which allows a parent to discipline a child with force that is deemed "reasonable in the circumstances". The legal defence that creates has led to calls for a change that would amount to a smacking ban. Is it necessary to go that far? Probably not.

Surely the quality of law draughtsmanship is sufficient to pen an amendment that clarifies the law without creating a legal nightmare for normal, loving parents who occasionally find it necessary to deliver a short and not-too-sharp piece of discipline. A single smack on the seat of the pants that delivers a message but not pain does a child no harm. If it did, the world would be populated by emotional cripples. The need is to protect children not from that sort of mild discipline but from assault that hurts, injures and sometimes kills.

Mr Tamihere is right when he says the law does not stop behaviour, attitudes do. The need, he says, is for cultural and societal defences. However, he is wrong if he thinks that section 59 should go unaltered. It has proven to be a legal defence that is neither intended nor warranted. Repeal is not the answer. A substantial rewriting is what is required.

The existence of section 59 has never been the reason children have been mistreated. Indeed, until a defence lawyer earned his fee by using that law to free his client it was probably not even part of the public consciousness. What has contributed to the worrying statistics on mistreatment has been public reticence. Child, Youth and Family, commenting on the Unicef report last week, pointed out that only a fraction of the children who died of maltreatment annually came to its attention. In other words, too few speak out about these little victims until it is too late.

Society cannot legislate for public vigilance but it can set some clear guidelines that will warn citizens if the boundaries are being overstepped. The need is not merely to prevent children dying. It is to ensure that they are raised in environments where their physical and mental wellbeing is not put at risk. That requires more than a smacking ban.

By dealing with the issue within the Crimes Act, Parliament would send the clearest of signals. Go beyond clearly defined boundaries, it would say, and you commit a crime. By imposing heavy penalties under the revised law, it would signal how seriously that crime was viewed. Such a signal is needed now.