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Mon 8th August 2005

Bradford’s Repeal of s59 Criminalises all Parents

Filed under: Law & Courts — JohnPotter @ 11:13 am

Press Release: Society For Promotion Of Community Standards Inc.
Bradford’s Repeal of s. 59 Criminalises all Parents

Ms Bradford’s private members bill – the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill — that repeals section 59 of the Crimes Act 1961, was referred to the Justice and Electoral Committee last week following its first reading. Ms Bradford is no doubt well intentioned in wanting to address the serious problem she calls “the culture of violence” against children in our country. However, the Society believes the repeal of s. 59 will do nothing to address the root causes or shocking symptoms of this violence. Instead it will have a seriously negative impact on many families whose parents seek to and effectively apply good parenting techniques in the discipline of their children.

Ms Bradford and her supporters such as Ms Beth Wood, spokeswoman for UNICEF and anti-smacking group Epoch (End Physical Punishment of Children), Dr Cindy Kiro, Children’s Commissioner and Kaye Crowther, Plunket president, are determined to remove all legal protections to good parents who choose to smack their kids for serious wrongdoing as a means of discipline. The Explanatory note to the bill states that “the repeal of section 59 ought not revive any old common law justification, excuse or defence [for the use of “reasonable force” including smacking] that the provision may have codified.”

The vast majority of New Zealand parents deeply love their children, do all they can to correctly discipline their children so they learn that there are consequences to wrongdoing and abhor all forms of child abuse and violence against children. It is these outstanding loving parents who would be criminalised if Ms Bradford’s bill became law. She and her misguided supporters deliberately conflate the controlled and measured use of smacking with “abuse” and “violence”. By the fallacious substitution of some pejorative noun such as “hitting”, “violence”, “assault” or “abuse” for “smacking”, they have attempted to subvert the use of language. Their linguistically strained rhetoric is dishonest.

Children’s Commissioner Dr Cindy Kiro argues that the repeal of s. 59 of the Crimes Act “would mean one group in society could no longer be legally assaulted,” and this provision in law allows for “state sanctioned violence” against children. This claim is fallacious. It is deliberately misleading as it fails to recognise the clear distinction in law between a technical “assault” and an action which is a criminal offence – due to its real nature (a criminal assault for which the offender is or could realistically be convicted after circumstances are taken into full account). The statutory and common-law defences for “assault” recognise these distinctions.

A seriously flawed survey reported on in the Dominion Post (27/7/05) carried out by The Littlies Lobby in conjunction with the Childrens Commission, is headlined as providing support for the end of smacking. “Survey supports end to smacking … Child advocates say the findings suggest support for a law change is increasing”.

Such a headline is nonsense. The study involving a self-selecting group of participants only had one question in it that related to smacking and had none dealing with the repeal of s. 59. The finding only showed that 71% of the 1367 readers of “The Tots to Teens” magazine, who chose to take part in the survey, believed that “smacking when they [children] do things wrong” was the least effective way to guide children to behave well.

Plunket president Kaye Crowther is quoted in the Dominion Post as saying: “We’re not talking about smacking. We’re talking about belting and hitting children with implements. In recent times I am aware of at least two cases where [Section 59] has been used as a defence where the child had been really abused.”

When challenged to identify these “two cases” by our Society secretary David Lane (who phoned her on the day of the report), Ms Crowther cited the recent case of a “Timaru woman” who Sue Bradford alluded to on national television programme (“Eye to Eye”) as having assaulted her son using a “horse whip” (it was actually a riding crop). The woman’s lawyer defended her actions in the Timaru District Court under s. 59 of the Crimes Act. Crowther also cited the recent case of a father who used a 4 by 2 wooden plank to ‘discipline’ a child.

Both cases are inadmissible as evidence in support of Sue Bradford’s s. 59 repeal bill. The Timaru woman was acquitted by the jury and the facts of the case when presented without the negative self-serving media spin, established that she had used “reasonable force” in the context of disciplining her son. She was exonerated by the jury after their deliberations that took only one hour and ten minutes. Mrs Crowther may disagree with the opinion of 12 jurors, but she has no right to tour the country spreading malicious lies that the boy “had been really abused”. Those who stand trial in our country for child abuse and who are subsequently acquitted of charges against them, by a jury, should not be derided as “child abusers” in the media by either a Plunket president, an MP like Ms Bradford, or a Commissioner of Children. Such libellous comments made also denigrate the jurors suggesting they were incompetent and supportive of “child abuse”.

The case involving the use of 2 by 4 timber plank resulted in the father being convicted of assault. His lawyer was entitled to seek to use s. 59 as a defence but the facts convinced the jury that real assault rather than discipline by means of “reasonable force”, had in fact taken place. The use of s. 59 as a line of defence is very rare (see below). In this case its use by the defence lawyer was tantamount to clutching at straws.

S. 59 does not need to be repealed on the basis that the lawyers of a few callous child abusers have tried to appeal to it to defend their clients. Considering the very rare situations where some may seek to use it contrary to its clearly defined intentions never makes good law. Repealing s. 59 in order to supposedly close the claimed ‘escape route’ it offers real child abusers, can be compared to trying to crack open a walnut using a sledgehammer. The effect of any repeal would be to disempower good parents from all modes of discipline using reasonable force (e.g. smacking) as parents would be open to charges of criminal action for all uses of force. This is an abrogation of the rights of parents to discipline their children, for whose actions they are accountable for under law.

The ‘anti-smacking brigade’ is intent on imposing their narrow ideological view of the options of discipline that should be open to parents, upon others who believe smacking has a place in disciplining children.

2 Responses to “Bradford’s Repeal of s59 Criminalises all Parents”

  1. Stephen says:

    Thanks for posting this John.
    It sheds much needed light on Bradford’s proposed kiddy bill and it’s advocates.

  2. Ethos says:

    A sad, sad day in New Zealand when this bill becomes law…the concept of a Family Friendly New Zealand will have been well and truly slaughtered by Bradford et al.

    Bring on the Dark Ages!

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