A Point To Consider On s59 ‘Anti-Smacking’ Debate

By   /   June 20, 2017  /   19 Comments

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There’s a point to be made on this whole ‘Anti-Smacking’/s59 debate which New Zealand First has brought back to the limelight, that I don’t think I’ve seen anyone else making.


There’s a point to be made on this whole ‘Anti-Smacking’/s59 debate which New Zealand First has brought back to the limelight, that I don’t think I’ve seen anyone else making.

The reason why it’s passed ‘below the radar’ thus far [with the sole exception of an article penned by a certain errant renegade penman a few months back], is because it’s actually a ‘liberal’ argument which just so happens to bolster a ‘conservative’ position. Therefore, neither ‘side’ have really sought to draw upon it.

And it’s this: At the moment, the way s59 works is that what constitutes ‘reasonable force’ under subsection (1) of the law is subjective – and the decision on whether a parent gets prosecuted is pretty much entirely a matter for the discretion of Police [see subsection (4)]. Now, on the face of it, this might appear eminently reasonable. There are perhaps legitimate quibbles to be had with Police operational guidelines determining what’s a crime rather than the black-letter law of Parliament – but that is another issue.

As it stands, there’s another area of law wherein Police have an incredibly broad power of discretion about whether or not to prosecute somebody – and that’s low-level cannabis possession. You might be forgiven for thinking, given my previous background, that this is something I’d be massively in favour of. And to a certain extent, I guess I am. It’s in everybody’s interests for folk who might happen to be snapped with a tinny or a fifty to not be clogging up our nation’s court system after all.

But a look at the actual statistics resulting from this low-key ‘discretionary-de-facto-decriminalization’ approach is illuminating; in that it adduces quite the disparity along racial lines in who gets let off with a pre-charge warning or other lack of serious legal consequence, versus who finds themselves in first The Cells, and then The Dock.

Unfortunately, the New Zealand Police have not exactly been forthcoming in response to my own previous attempts to get data off them about how various cannabis offenders may or may not wind up with different outcomes on the basis of their socio-economic background, and other such factors. So it’s difficult to truly substantiate how much of a wider problem this might be.

Although we already know that it’s not just cannabis-law enforcement where Maori often wind up having a rather different experience of the criminal justice system than other New Zealanders; with even the New Zealand Police themselves admitting they’re often subject to “unconscious bias” when it comes to Maori.

With that in mind, when it comes to the sorts of situations s59 was designed to cover, even a moment’s cynical consideration serves to suggest that an articulate upper-class chap in a suit standing at the door of a flash home in a well-heeled suburb is probably going to have a better chance of convincing a policeman who turns up at his door that nothing’s amiss, as compared to an ordinary working-class man living through no fault of his own in a glorified garage Out West.

My point, then, is that there are very real reasons to be concerned about any law whose application hinges almost entirely upon the discretion of an individual person – and their own best judgement as to what words like “reasonable force” mean. Particularly given that the historic way we test these sorts of things is to err on the side of caution, bring somebody before a judge and jury, and ask the latter to decide on which side of the legal ‘grey area’ an alleged offender’s conduct falls [c.f cases of force used in ‘self defence’].

And that’s presumably the ‘chilling effect’ which NZ First MP Tracey Martin was talking about in her televised discussion [I hesitate to call it a ‘debate’] with former Greens MP Sue Bradford on Q&A on Sunday. The concern some parents have that they’ll somehow fall afoul of an overzealous policeman whilst doing something that’s theoretically still allowed by law, and find themselves put to all the time, expense, and potential public-shaming of having to defend themselves against a perhaps unnecessary prosecution.

It’s perhaps easy to write that scenario as fear-mongering on the part of New Zealand First; but the legal analysis provided by flashy law-firm Chen-Palmer on whether parents were being criminalized for utilizing relatively light force for the purposes of correction … does appear to suggest that some are.

Although despite this, I am not entirely sure that I would call New Zealand First entirely vindicated over this issue.

Tracey’s comments on Q&A appear to suggest that NZ First wishes for greater clarity in the law, whilst still legally prohibiting parents from engaging in the sort of brutal conduct with horse-whips and the like which lead to the law’s enactment in the first place. That’s fair enough, and I would even go so far as to suggest it’s difficult to argue against [unless you want smacking legally prohibited entirely – which is definitely NOT what the s59 bill was sold to us as doing].

But in that case, it would surely make greater sense for New Zealand First to put forward our own amendment bill to deliver this greater clarity – rather than potentially adding to the murkiness by calling for a Referendum which might result in the extant s59’s repeal with no clear view as yet as to what may replace it.

Either way, it seems curious to me in the extreme that the ‘side’ of politics which is usually so ardently suspicious [whether rightly or otherwise] of policemen and laws which can be ‘flexibly applied’ on the basis of race or class … are instead pretty emphatically adamant that the law we’ve got is problem-free.

Are they right to be enthusiastic about what we have at the moment? Depends what you prioritize. Certainly, the argument has been made from a number of quarters that child-abuse rates in New Zealand remain endemic regardless of s59’s passage. [something which I personally view as being fairly directly tied with the ongoing deterioration of economic outcomes for many thousands of New Zealanders thanks to three decades of worsening Neoliberal misrule]

Ordinarily, this is where I’d make my level-best attempt at penning a strong conclusion.

But with the very real possibility that New Zealand First’s increased salience on the political landscape this year will make for an actual re-referendum on the subject … it’s fair to say that any ‘conclusion’ reached on this issue is very much a tenuous one.

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19 Comments

  1. Samwise says:

    “Reasonable force”? What’s that, Curwyn? One of your NZDF members is already advocating using belts and bits of wood to beat kids with.

    I think it’s time forTDB to drain the swamp and cull the NZF conservatives fry his forum. This is not progressive by any definition.

    Shame on you,Curwyn for advocating a return to 1817.

    • Andrewo says:

      The ‘reasonable man’ test is common in law. It allows a jury to decide what is reasonable rather than the cops.

      You’re 100 % right Curwen – the law as it stands is very poor and allows the cops too much scope for wielding excessive powers under the act as a punishment in itself.

      Kafkaesque in fact: The process becomes the punishment

      There are lots of examples around of the cops doing exactly this – look around the internet for recent correspondence on their behaviour over the firearms act.

      One must bear in mind that ‘assault’ includes ‘technical assault’ and holding your child’s hand is technical assault as is restraining them when the misbehave.

      • The ‘reasonable man’ test is common in law. It allows a jury to decide what is reasonable rather than the cops.

        And how does that help a kid who has been beaten black and blue by some so-called “parent” who thinks a belt, stick, etc, is ok to use against a small child?

        That’s as ridiculous as saying “don’t worry if you are killed in a workplace accident due to employer negligence – your family can sue on your behalf, posthumously”.

        I’d rather have a safety barrier at the top of a cliff, rather than an A&E ward at the bottom, treating beaten kids.

        • Andrewo says:

          ….and how does giving the cops the power to abuse people help anyone?

          Really Frank, you seem to be slowly losing your grip on reality.

  2. Siobhan says:

    Thats a very interesting piece Curwen.
    The point I would make, from conversations had with people who I suspect are drawn to NZ First, is; they don’t read the small print (and who does really).
    They appear to think Winston is handing them a moral pass card to whack the kids again with a wooden spoon, to their hearts desire, living like its 1976 all over again.
    “Stuff all that PC nonsense like the time-out and long life light bulbs and Asian drivers careening all over the motorways……”
    Yup, Winston is going to do very well this year, and word is, from those who claim to have attended his meetings, that he’s telling his supporters he’ll go with National.
    This may or maynot be a case of people hearing what they want to hear, as I know a few ex Labour baby boomers who have gone to Winston in the belief he supports Labour, so who knows.

    • mjh says:

      Winston is not telling people he will go with National. That is nonsense.

      • J S Bark J S Bark says:

        It might be ‘nonsense’ but I bet you $14 that is exactly what he will do.

        Some of us know Winston for whom he really is:

        A National Party enabler.

  3. Hi Curwen.

    I was smacked. So was my brother. We turned out fine.

    Any good parent will know the difference between smacking and abuse. Sue Bradford could/would not understand this and this wrote a silly bill that to the best of my knowledge has not stopped or reduced the physical severity of child abuse in a single case to this day.

    A smack on the rear was what we got. Delivered by the hand in the first instance and a wooden spoon if we didn’t get the message the first time. It was also only ever used as a last resort or if we had done something that needed on the spot discipline – e.g. throwing stones at cars, or damaging/dangerous behaviour.

    S. 59 contrary to a lot of peoples thoughts actually has nothing to do with child abuse. The abusers that come to court are always found to have done much worse – putting children in a clothes dryer, pegging them to washing line and spinning the crap out of the line among other dreadful things.

    So whilst sending it to a referendum might be helpful, at the end of the day S. 59 is just a very shiny thing that the moths have been drawn too whilst the real problem thunders on the background.

    • garibaldi says:

      Robert Glennie.
      Do you train a puppy by smacking it? A quick path to failure.

      Have you not learnt that violence begets violence?
      There are far better remedies than violence.

      Child abuse will always be with us so long as some people are brought up on violence.

    • J S Bark J S Bark says:

      Utter right wing crap Mr Glennie.

      Try some good reading for a change.

    • Bryan Sellars says:

      I agree with you I wonder sometimes if these people have actually brought up any kids, how would they deal with a child that pulled away from it’s mother who had a baby in a pram and was trying to pay the butcher and ran out onto the A6 motorway running through our village in the UK with mother in hot pusute, well it happened to my wife just opposite to were her brother was killed and not far from were the butchers sister was also killed so she shouldn’t have smacked him, he could have killed them both.

      Since the Greens spent so much time on that bill I will never vote for them again, climate change is far more dangerous than the odd smack and something they should have been focusing, and we still have child abuse that results in real harm to the children and an order of magnitude beyond a smack on the bottom.

      • That scenario makes no sense, Bryan. If a kid runs out on the motorway, you don’t just stand there in the middle of the road whacking it. You pull it back.

        I’ve heard that excuse a thousand times. It didn’t make sense then, it doesn’t make sense now.

        • Bryan Sellars says:

          She did take him of the road but a smack on the bottom is not child abuse when a child does something dangerous, her brother was 7 years old when he was run over by the local doctor but to this day my wife has tears in her eyes when ever she talks about her brother even though it was 60 years ago.

          Since the time in the 1960’s when my children were small villages have had bypasses put in but it took them 30 years to do it.

          I hope you never are put in the situation but how you react is instinctive but the talk from the likes of Sue Bradford make my age group into criminals when all we did was love our children, my wife stayed at home and looked after ours and didn’t send the of to preschool and kindergarten something the parents of today seem all to happy to do.

          • Strypey says:

            “a smack on the bottom is not child abuse when a child does something dangerous”

            Killing a child is not child abuse when a child does something dangerous. See the problem with this logic?

            As for the comment by Robert Glennie:

            “I was smacked. So was my brother. We turned out fine.”

            I was smacked too, so were my four siblings. 3 out of 5 have spent time in residential mental health wards, and 1 has been in and out of counselling since their teenage years. Does it then make sense to conclude, using the same style of extrapolation Robert uses, that smacking causes chronic mental health problems? No, because
            * correlation does not automatically equal causation
            * the plural of anecdote is not data

            However, if you consult the research on:
            * the long term mental (and physical) health consequences of children being physically attacked by their parents
            * the likelihood that an abusive parent was physically attacked by their own parents during childhood
            * how to interrupt the intergenerational cycle of abuse that abusive parents are almost always part of
            * the anthropological literature comparing outcomes for societies that don’t use capital punishment to those that do

            You’ll find that outcomes for people who aren’t physically attacked by their parents as children, and for the societies in which they live, are significantly better. But hey, who needs rigorous social science research when you can make policy decisions based on prejudice, party politics, and vague grumbling?

            • Indeed.

              Here’s is an instance of a child being hit by a wooden spoon – as advocated by ‘Red Buzzard’ and others;

              The child was beaten with a kitchen ladle.
              […]
              Judge Callaghan said the girl was subject to several beatings. He did not accept that Kuru was a bystander. During her pre-sentence interview she admitted hitting her daughter with kitchen implements.

              Sound reasonable?

              Only until one reads the full story here: http://www.stuff.co.nz/national/crime/75321909/mother-and-partner-jailed-for-beating-child

              A couple who text messaged each other about beatings given to a 3-year-old girl have been jailed for the “cowardly attacks”.

              Michael Raymond Miles, 23, and the girl’s mother, Krystal Anne Kuru, 22, were jailed for 22 months on Monday by Christchurch District Court Judge Brian Callaghan.

              One of Miles’ texts read: “She can cry all she likes. It won’t stop me.”

              Kuru, replied: “I know, Baby.”

              “My boot is looking good,” Miles wrote.

              “Can’t wait,” Kuru replied.

              Miles ended with the line: “Yep. She will be getting it till she stops, eh.”

              Judge Callaghan described the assaults on the 3-year-old as “sustained and cowardly”.

              The pair pleaded guilty to charges of intentionally injuring the child from November 30 to December 3, 2014.

              The judge said the text messages made “sinister and upsetting reading”.

              he child was beaten with a kitchen ladle. Judge Callaghan said he believed Miles had probably used his work boots on her.

              The child was found with extensive bruising, including injuries to the head and ear.

              “The text messages raise a very sinister overtone showing a propensity for both of you to subject this child to physical abuse,” said the judge.

              Defence counsel for Kuru, Margaret Sewell, said the woman had not caused the bruising but did not prevent the assaults.

              For Miles, Bridget Ayrey said there was no way of knowing who had caused the injuries.

              Judge Callaghan said the girl was subject to several beatings. He did not accept that Kuru was a bystander. During her pre-sentence interview she admitted hitting her daughter with kitchen implements.

              Fortunately for the child, there was no permanent damage or broken limbs.

              “But it was sustained and cowardly and hugely inappropriate towards a 3-year-old child,” said Judge Callaghan. “I don’t suggest for a moment that there may not have been behavioural issues, but there are other ways of dealing with them.”

              Since the offending, Kuru had done part of a parenting course.

              We don’t allow spouses to hit each other, do we? Why not?

              Why can’t spouses use “corrective force” on each other? Especially if one of them does something “wrong”.

              Well, because violence doesn’t solve anything. It perpetuates more violence.

              It’s also the reason we don’t have public canings, floggings, and other corporal punishment against criminals. Why not?

              Well, because violence doesn’t solve anything. It perpetuates more violence.

              So why we should expect children to grow up non-violently when adults are allowed to use violent “correction” against them, is unclear to me. It flies in the face of logic, common sense, and intuition.

              After all, what do we get if dogs are brutalised through violence?

  4. J S Bark J S Bark says:

    If, as you claim Curwen, Uncle Winston’s aim is to get ‘reasonable force’ defined and out of the hands of the pigs, why isn’t the referendum centred around that?

    Instead, as usual, the old fraud is throwing out the baby with the bathwater and thereby completely negating your arguments in favour of this insanity.

    Sometimes a dog-whistle is just a fucking dog-whistle..

  5. CLEANGREEN says:

    We should revisit the original bill that past with lots of controversy and it was a stupid bill to give police and authorities lots of more ways to control us all.

    When the hell are we going to break free of the chain of the “nanny state” Nactional always complained about when Labour was running the show????

    Look back to when there was must negative debate about this bill.

  6. Strypey says:

    I agree that the whole “s59” thing should be revisited. I’d be happy to see a binding referendum, with the referendum questions determined by a non-partisan group (eg the Electoral Commission). That way, the whole electorate could turn up to give their answers to a set of simple, non-manipulative policy questions, and put to rest this interminable grumbling by the “right to smack” lobby.

    One of those questions should be something like:
    “Should it be a crime under NZ law to use violence, or the threat of violence, to make a child comply with an adult?”

    To me, the obvious answer is yes, for the same reason that it’s illegal now to use violence to make another adult comply (unless you’re a police officer using legitimate powers of arrest). The legal tests of whether a use of force is violence (and therefore illegal assault), just need to be the same for all people, regardless of age. Any use of force that is legal under the current law when the subject of that force is an adult, like pulling someone out of the path of a moving vehicle, is not violence and would remain legal if the subject is a child. Simple really.

    • Indeed, Strypey.

      It’s insightful into the minds of conservatives that they suggest that a child in the path of moving traffic should be hit, where logic dictates pulling the child off the road, out of harms way.

      It shows the desperation of the pro-hitting lobby that the only justification they can come up with is easily demolished with a modicum of common sense.

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