Law Society wants smacking rule changed, not scrapped

A section of the Crimes Act, which allows parents to use "reasonable force" to punish their children, should be amended rather than scrapped, the Law Society says.

Supporters of a bill proposed by Green MP Sue Bradford say allowing parents a legal defence for hitting their children sanctions violence, but opponents say simply repealing section 59 of the Crimes Act would outlaw smacking.

Law Society family law section spokesman Simon Jefferson today told MPs that allowing juries to define reasonable force had led to some "startling" acquittals of adults for violence against children.

The society strongly favoured change, but a majority of members believed simply repealing the section without any kind of replacement would create a legal vacuum.

The society's written submission to Parliament's justice committee, which is holding hearings on Sue Bradford' bill, said the vacuum would give too much discretion to police.

This, it said, could potentially result in more prosecutions against poor parents, who were already in contact with the law, than against middle-class white parents.

Failing to replace the section also gave parents little guidance on what was acceptable.

Mr Jefferson said the society favoured a definition of reasonable force that specifically banned any discipline causing "bodily harm" and striking of any kind above the shoulder.

Other physical discipline would be subject to a "reasonable force" provision, but judges should have greater power to direct the jury on what was acceptable.

Corrective action would also have to be the "sole" cause for the discipline. Any other factors found to be involved would negate the defence.

Ms Bradford is against defining reasonable force, which she has said would create a threshold of "state sanctioned violence" against children.

She has said repealing section 59 would not lead to a rash of assault cases against parents for smacking.

While smacking would become a technical assault, it would be too trifling to meet police prosecution guidelines, which state a prosecution must be in the public interest. Legal advice to Cabinet supports her view.

She has suggested a commentary accompanying the bill making it clear it does not seek to outlaw smacking.

The bill passed its first reading in Parliament last year with Labour's support. National opposed it.

Labour is now reserving further support until it sees the final shape of the bill.

National has said it may support the bill if acceptable amendments are adopted.

- NZPA