Sunday, 31 May 2009

Treat as a criminal

Family First are at it again, proving their love of teh children by advocating for hitting them. They've got full page ads in the Sunday papers today [PDF] calling on the Prime Minister* to make good on his promise to change the law (back) if "good parents" are "criminialised for lightly smacking their children for the purposes of discipline."

They give four examples of how the law is being enforced in a manner that has criminalised some parents. I see they have stopped using the example of the ear-flicker father who punched his four year old child in the face.

Now to my mind criminalised means treat as a criminal; find someone guilty in a court of law and sentence them for the crime (warning, diversion, community service, prison sentence, home detention, reparations, that kind of thing) in a manner designed to dissuade others, punish the guilty party, rehabilitate the offender and hopefully deliver some justice to the victim.

In the examples Family First were any of the parents found guilty of a crime and then sentenced?
  1. Investigations were undertaken and no charges laid.
  2. The parent was charged and then chose to plead guilty. The sentence is not mentioned.
  3. Charged, convicted (does not say whether he plead guilty or not) and discharged without penalty (which I assume means a s19 discharge, ie no conviction on his record either?)
  4. Charged, police offered no evidence, case dismissed when it got to court.
So actually we can rule out examples 1 and 4, as the parents concerned were not convicted (and thus criminalised). In the case of example 2 the parent plead guilty himself, which makes it hard to argue fully that it was the law that made him a criminal, rather than his actions (either hitting a child and/or pleading guilty to a charge of assault).

That leaves us with example 3. Without knowing more about the facts, in particular whether the parent plead guilty or not, it's pretty hard to say much about whether this person was really "criminalised" or not, but a discharge without penalty is what some in Family First would dismiss as a slap on the wrist with a wet bus ticket in other circumstances.

These examples are not presented in a strictly factual manner, but are coloured by the cause that Family First uses them for, i.e. to reinstate the defence s59 previously gave parents who hit their children. These four cases still don't show the law is criminalising good parents, despite all the wordsmithing of the Family Firsters.

There are many many people who believe physical punishment of children is not necessary. Family First are trying to create the impression that the law isn't working and that all those child advocacy agencies that continue to support the changes to s59 are wrong. If these four examples are the best Family First can come up with then they've got a long way to go to make their case.

* John Key. I still can't get used to this.


katy said...

There are a few current issues that make me want to flee this country. This is one. The Whanganui/Wanganui "debate" is another. Gah!

QoT said...

It's very interesting, too, that in cases 2 and 3 they very carefully do not mention the *ages* of the children involved. Especially given certain groups' tendency to rely on the argument that it's young children who need to be smacked sometimes because they can't be reasoned with.

In fact, ALL of those cases involve children over 5. Not that I expect that particular rubbish argument to be going away any time soon.

Psycho Milt said...

This is just sophistry. If a particular activity you have been known to engage in is made illegal, that activity has been criminalised, hasn't it? The activity isn't only criminal if you get caught, tried and convicted, it's criminal at the point you carry it out - that's the entire basis on which the cops can arrest you for it.

Consider this scenario: the govt now moves to give children the same protection as adults by counting time out as kidnapping and unlawful detention (which it is). Every time you used time out from that point you would be committing a criminal act, whether the Police had actually apprehended you and convicted you for it or not - in exactly the same way that a murderer is a criminal even if they were never caught. Would you feel like a criminal? Would you be grateful to the govt for making you one?

Anonymous said...

They give four examples of how the law is being enforced in a manner that has criminalisedHow can a criminal law - with no defence - be enforced and not end up in crimalising?

Anonymous said...

I'm with Family First, I agree with them, and I will welcome the referendum on smakcing, it's time the nation's views were polled, once and for all. Child abuse has not come down and good parents are being penalised. What a handwring lot you are, namny pamby, do gooders, and I bet, childless. These are the people that think they know it all!

Anonymous said...

I haven't looked into the matter recently, but I remember from my days at law school that a s19 discharge without conviction is different from being convicted and discharged.

A s19 discharge was used in circumstances where having a conviction on the person's record would cause a disproportionate effect on the person's future, compared with the crime that was committed. For example, if a law student committed some minor offence, the effect of a conviction could be that the law student would not get a practising certificate after graduating, and therefore could never practise their profession. This might be a disproportionate result compared with the actual offence committed. It was most often used for young, white, upper-middle class males.

On the other hand, being convicted and then discharged means that a conviction is recorded, but there is no further penalty imposed (such as a fine, or community service).

Psycho Milt said...
This comment has been removed by the author.
Psycho Milt said...

...and I bet, childless.

Er, one suspects you haven't spent a lot of time actually reading posts on this blog, illiterate anon.

Chris Nimmo said...

Great post Julie. Once again that noble organisation Family First takes up the fight against child abuse by spending untold amounts of money on trying to protect child beaters.

AWicken said...

On a wider note (given that I'm not hugely committed either way on s59) frankly I think this sort of thing is the epitome of the politics of today.

Rather than political parties having complete and consistent manifestos, each party is a gathering of single-issue politicians, each proudly conjoined to a lobby group or think tank that proffers "independent" support and advertising.

"I don't like [x], so I will introduce a bill to the House to [introduce/repeal] one section of one exhaustive act".
[new MP]
"I don't like [not-x], so I will [repeal/re-introduce] that section"
[continue ad infinitum]

Just my (semi-relevant) 10c

T said...

I'm so over the "good parents" argument. How do you know they're good parents? Is the only requirement of being labelled a 'good parent' that you have to hit your child and claim you're being demonised by the anti-smacking brigade?

katy said...

AWicken, I don't think the Greens position represents a random hobby-horse, rather it is based on the fundamental principle of non-violence. This was one of the few examples of when the law considered violence acceptable.

Anita said...


Oddly enough I'm giving a paper in a couple of week on the notion of the "good family" and the section 59 debate. I'd argue that both sides of debate used the concept of a "good family" to claim moral superiority for their own position. Neither overtly defined a "good family", but their meanings were clear and quite judgemental; both implicitly claimed that the other's families were not "good".

Unsurprisingly people on both sides of the debate felt attacked by the unspoken exclusion of their families.

IMO the debate would have been less damaging if everyone had just fronted up with their prejudices and we had been able to address them. As it was the debate was full of deniable attacks, shadow boxing and defensiveness.

Anita said...

katy, AWicken,

Nor, to be fair, is Boscawen's attempted amendment the action of a single-issue MP.

Well unless concentrating power in the hands of the already powerful by taking away legal protection from the more vulnerable can be seen as a many tentacled single issue.

Psycho Milt said...

I see no-one's claiming the post isn't sophistry...

AWicken said...

Okay, maybe I overstepped the mark. I am sure that everybody in parliament cares about more issues than just the s59 debate.

But fundamentally, when we are talking about minor party or back bench MPs, the amount of effort that they put into essentially minor legal tweaks like this seems to me to be disproportionate.

Secondly, even if a bill is obviously consistent with party "principles", it is usually an appendix to the issue, rather than in any way helping to solve the wider "problem" the principle represents. E.g. the repeal of s59 punishes a small number of people in a very small way for very small assaults (child custody ramifications notwithstanding), while a re-introduction would at worse allow a small number of minor assaults that otherwise would have been prevented or punished. There is no wider ramification unless caregiver assaults on children automatically incur parental ed courses.

I would actually respect ACT (not vote for, but still)if they still argued for 0% tax and fiscal fascism, but their main headlines (and achievements) come from personalities and issues incidental to the core beliefs they originally espoused.
Same problem for the Greens.

Oh, and the s59 repeal was consistent with a principle of “non-violence”? But s59 WAS consistent with the principle of “appropriate decision making [...] decisions will be made directly at the appropriate level by those affected”. Sounds like parents and juries to me, rather than government.

But of course all this is irrelevant to the Green Charter , a purely materialist document that only addresses scarce resources and environmental stability. “Non-violent conflict resolution” is the means by which the other materialist principles are to be achieved – there is no requirement that humans should be free from torture, for example.

But I don’t want to particularly mess with the Greens – almost every party is guilty of having broad “principles” that sound nice to everybody, and can be used to justify *any* action the party MP chooses to take if they torture the language long enough.

Specific action plans (real "manifestos") are needed, and previous actions can help people judge the truth of those plans.

Sadly, the larger parties aren’t much better – they try to keep a foot on either side of the fence and hope that the fence isn’t electric.

Julie said...

Here's the Yes Vote campaign's take on the Family First ads.

Psycho, I had to look sophistry up and I think maybe you are giving me some devious motives that I truly don't possess. By all means disagree with the points I raise (and yes I see you have), but you could at least take me at face value and not accuse me of being deceptive. Feel free to tell me why you think I am being deceptive of course.

And if you become a criminal at the point where you carry out the crime then it doesn't matter whether there is a s59 defence or not does it? Or does that mean you immediately switch from being a criminal to not again?

I defined what being criminalised means to me in the post.

Psycho Milt said...

OK, let's leave aside the fact that I consider it utterly unambiguous that the previous govt made smacking a crime and that any parent facing charges for smacking is doing so only because of that criminilisation of smacking by the previous govt. Unambiguous though I find it, you may genuinely not.

So, leaving that aside, consider the examples you dismiss. These are all people being "treated as criminals," aren't they?

1. Investigated, no charges laid. Not enough evidence to convict, in other words.

2. Plead guilty. Well, duh - the point of S59 was to take away any defence to the charge. If you smacked the kid, guilty is all you got. In what sense is this not precisely an example of what Family Nutbars are talking about?

3. Charged, convicted. A criminal conviction is pretty conclusive proof of having been criminalised, I would have thought. We certainly look on it that way when looking at people's job applications. Again, the perp smacked the kid so has no defence, but the judge considers the matter so trivial he discharges without sentence. The Yes Vote simperers you link to consider saddling this poor sap with a criminal record to be an excellent result, which to my mind makes them nutbars of equal standing with Family First.

4. Charged, case dismissed because the cops presented no evidence. I dunno about you, but if I was charged with a nonsensical criminal offence, dragged to court and then found the cops had no evidence to present, I'd not only be feeling criminalised but feeling distinctly less than chuffed.

Basically, the smackers' points are correct. These people were all "treated as criminals." If anyone thinks they weren't, how did you feel about those political activists rounded up by the cops following the Urewera anti-terrorist fiasco? Also "not treated as criminals?

Anonymous said...

Ha I see you also write for the Yes Vote website.

Anita said...

Psycho Milt,

I'm interested in your comment that you think the new s59 makes it "utterly unambiguous" that smacking is a crime.

I think the new s59 is ambiguous (as the old one was - one of the many criticisms of it) and that it appears to protect a parent who smacks a child's hand away from stove element as the child reaches out to burn themself, for example.

stargazer said...

i have to say i don't get your point either psycho. the old s59 provided a defence to a crime, the defence being "reasonable force". using that defence successfully would get you off conviction and punishment. the changed s59 does the same, except that the defence has been tightened up to a few specific areas. if there is a difference in approach, i don't see it.

Anonymous said...

I think the new s59 is ambiguous ... that it appears to protect a parent who smacks a child's hand [ to keep it] away from stove element
No.Prevention is allowed.Correction isn't. Correction as "part of" prevention is not allowed either.

Hardly ambigious.

Subsection 1 of the legislation alows prevention.Here's subsectin 2:
(2)Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
(3) Subsection (2) prevails over subsection (1).

Anita said...


I think it's ambiguous in that both correction and prevention are left undefined, and there seems to be grey between them.

Anyhow, my example stands, protected by (1), not unprotected by (2).

Psycho Milt said...

What's ambiguous in it? Smacking as commonly understood by most parents is about correction, not prevention - nothing to do with smacking people's hands away from a fire, everything to do with giving them a whack because they won't stop whatever it is they shouldn't be doing. As anonymous points out above, that's now unambiguously a crime. You're free to find the fact that it's now a crime to be a good thing, but don't pretend there's ambiguity as to whether it's a crime or not.

stargazer said...

it's now a crime.

can you please explain how it wasn't a crime under the old s59?

Anita said...

A 2 year old leaves his mum and 4 year old sister on the footpath and walks onto the road. Mum grabs him and pulls him back and goes back to putting the 6 month old into the car. The 2 year old trundles off onto the road again, mum grabs his arm and pulls him roughly back. Third time he tries mum grabs his had, pulls him back and smacks him hard enough on his nappied behind and upper legs to give him a fright and sit him down hard but not enough to do damage or leave marks.

Which of those three actions are protected by (1)? Are any unprotected by (2)?

I think the third is in the grey area: prevention or correction?

Anonymous said...

Anyhow, my example stands, protected by (1), not unprotected by (2).

Not unprotected means protected.

You are wrong, under law. In your example, if you are not protected by (2). You are not "not unprotected."

Protection by (1) is irrelevant due to the corrective "smack", for reasons outlined earlier.

To put it into plain english: A person who smacks a kids hand for correction is breaking the law even if he one second ago he pulled his kid's hand away from a burning element.

So to turn to your question:

Which of those three actions are protected by (1)?

The first action, maybe the sencond if it is unreasonable in the circimstances, not the third.

Are any unprotected by (2)

Possiblet the second for reasons just outlined, definately the third. It is a smack. Its not prevention as that action had already been done. Prevention does not justify correction.Giving someone a fright is not prevention. It is a scare tactic. It is no grey area.

Psycho Milt said...

can you please explain how it wasn't a crime under the old s59?

Because reasonable force for the purpose of correction was a defence against the crime of assault under the old S59. The whole point of Bradford's bill was to remove that defence, making smacking a crime.

As an analogy, think of self-defence. Killing in self-defence is currently not a crime because the law declares it a defence against the crime of murder. However, if idiot politicians were to remove self-defence as a defence against murder, killing in self-defence would become a crime. If you then killed someone in self-defence you would be charged with murder and have no option but to plead guilty.

Third time he tries mum grabs his had, pulls him back and smacks him hard enough on his nappied behind and upper legs to give him a fright and sit him down hard but not enough to do damage or leave marks.

This is smacking of exactly the type Bradford and Clark wanted to make a crime, and the current law quite clearly does make it a crime - it is reasonable force for the purpose of correction, ie "don't do that again."

Julie said...

V quickly, Anon at 4.13pm (back later I hope to respond to some of the rest), I don't write for the Yes Vote campaign site, and I had already linked that article earlier in the thread. This blog has chosen to register as a supporter of the Yes Vote campaign, which is why we appear on the supporter list and feature their campaign ad in our sidebar. So any suggestions of a lack of transparency, which I think is what you are getting at maybe, are weird.

stargazer said...

The whole point of Bradford's bill was to remove that defence

but it didn't remove the defence, it just tightened it up. a defence is still there, it's just not so open-ended. so any of your arguments that the new law criminalises parents and the old one didn't don't hold water really.

Psycho Milt said...

but it didn't remove the defence, it just tightened it up. a defence is still there, it's just not so open-ended.

It's this kind of trying to weasel out on a technicality that prompts me to use words like "sophistry," because it's hard to accept people genuinely believe something so clearly false.

The defence of reasonable force for the purpose of correction is not still there, it's explicitly removed - gone - and its use is now a crime. There is a defence still there for reasonable force for prevention (ie, the "smack a child's hand away from the fire" scenario), but the fact is that nearly every smack every parent ever gave a kid has been for the purpose of correction, ie is specifically and explicitly made a crime by this legislation.

When I think back on the occasions I smacked my children (years ago now), they would all have been criminal acts under the current S59 but weren't under the old one. No technicalities you can think of alter that fact.

stargazer said...

sophistry again? sorry, but your smacks were still criminal under the old law, you just had a defence if you got charged with it. that's why this notion that the new law criminalises parents is crock. they were criminalised before, but they could get off a lot easier. i think it's you who is using sophistry to make the new law out to be worse than what it is.

Psycho Milt said...

They were not criminal under the old law because they were explicitly defended against under that law - just as killing in self-defence is not criminal under existing law because the defence is written in. Quite simply, it is not a crime. It may be that you end up in court to clarify whether you're covered by that defence or not, but if you are no criminal act has occurred.

If you take that defence out of the law then the act in question, whether smacking or killing in self defence, becomes a criminal act, regardless of whether you get caught and prosecuted or not. It's reasonably straightforward.