Tuesday, 1 May 2007

1 May 2007 - SPCS - Cracks Widen in ‘Anti-Smacking’ Bill Support


The Society for Promotion of Community Standards Inc.

P.O. Box 13-683 JohnsonvillePress Release

1 May 2007

Cracks Widen in ‘Anti-Smacking’ Bill Support

MPs must relegate Bradford’s bill to the trash can if parents cannot be assured in the legislation that its purpose is NOT to have parents and those in the place of parents charged with an assault on a child for applying a smack with "reasonable force" for the purpose of "correction". Bradford and the Prime Minister Helen Clark are expecting the public to believe their word that they will not be charged and prosecuted because "police will use their discretion" and will not charge them following formal complaints for smacking. That’s not good enough for the vast majority of thinking New Zealand parents. As the Dominion Post editorial points out today: "opponents of her [Bradford’s] legislation are entitled to take at face value the provision that states nothing in the exemptions of the legislation "justifies the use of force for the purpose of correction". That, however, much she may deny it, is a ban on what people would regard as smacking." (1 May, B4).

The traffic speeding analogy is often used by Bradford’s supporters to support their claim that the police will not prosecute parents who continue to smack their kids for correction, in the same way that police have discretion in whether they criminalise a speeding motorist. Katherine Rich, spokesperson for Education no less, has relied on this poor analogy to defend the bill that no one else in her caucus is supporting. She used this flawed analogy in the weekend:

"Many extreme - and public - cases of child abuse involved parents who thought they were using appropriate force, said Rich. The repeal of Section 59 would send a message that using physical force against children was not appropriate.

"Criminalising is such an emotive word. If you drive at 101km/h, that doesn't make you a criminal. But if you drive at 140km/h, then it's far more clear-cut." (NZ Herald 29 April).

Rich falsely claims that police officers deciding whether to investigate and lay charges for a reported smacking incident will be in the same position as traffic officers have who make decisions based on discretion whether or not to lay a criminal charge for speeding, rather than just issuing an infringement notice. This is a false analogy.

The police cannot only lay a criminal charge once a driver is recorded as having exceeded any given speed limit by 40 kms/hr or more. An automatic 28-day suspension of the driving licence is applied and the driver faces a criminal charge in Court. At sentencing there will be a minimum further disqualification of the licence of 3 months and furthermore, the possibility of a fine and/or imprisonment.

Police cannot lay criminal charges for speeding when a vehicle is driven at less than 40 km/hr over the speed limit so have no discretion in such cases. Such a charge can only be laid if other aspects of the law are broken (e.g. dangerous driving).

Motorists will generally incur a fine and demerit points for speeds between 111 and 140 kms/hr. Again, there is no discretion to lay criminal charges unless there are other factors involved (proximity to schools, careless driving etc.).

The only area under current policy where discretion on the part of police can apply for cars is where speeds of up to 11 kms/hr over the speed limit are recorded. In issuing a warning, rather than an infringement notice (fine) in such circumstances, the police are NOT suggesting that the action of the driver is reasonable or acceptable of lawful. Quite the opposite. ALL SPEEDNG IS AGAINST THE LAW. It constitutes either a traffic offence or a criminal offence. There is no justification offered in law for a member of the public to travel at over 140 kms/hr and escape conviction and no provision in law informing them that it is lawful to exceed 100 kms/hr.

The police authorities have confirmed that all formal complaints of smacking for correction will have to be treated as potential criminal offences (domestic violence) and will require thorough investigation (police statements from witnesses, victim and child abusing parents to be recorded and the collecting of medical evidence that may need to be submitted at a deposition hearing etc.). If the law’s purpose as stated is "abolishing the use of parental force for the purpose of correction" the police will have to be vigilant in exterminating the last vestige of any smacking culture in New Zealand by using the full force of the law. Good parents who break the rules against smacking will need to have the force of the law applied to make them comply.

Bradford and Clark know full well that the effect of Bradford’s bill is to make all forms of force used by parents for correction, illegal. Parents have a right to know if their actions constitute an offence in law, just as drivers have a right to have speed limits regularly notified to them by way of traffic signs, and made clearly visible from the driving lane. If the Ministry of Transport is not prepared to inform drivers by proper signs, then it has no right to prosecute drivers for breaking speed limits known only to the authorities! Failure to do so means in practice that drivers cannot be convicted.

Parents have a right to know in law what level of force, if any, can be used for "correction". In the existing law s. 59 sets the limit: "reasonable force in the circumstances". This is perfectly fine. However, if that provision is removed then they potentially face prosecution for using ANY level of force. Bradford argues that no limit needs to be set because police will not be enforcing charges against minor force such as smacking, even though her law declares such actions illegal and need to be abolished. She is relying on some sort of de facto law that the police will come up with to set limits of force. This is a nonsense law.

If the term "reasonable care" meant nothing drivers could never be prosecuted for reckless driving. Unreasonable care involves placing the driver or passengers and others or in danger etc. Ironically the term "reasonable force" is a term Bradford has still retained to provide limits for use of force in the four exemptions under section (1).

The boundary between reasonable and unreasonable use of force is determined by the police before laying charges for assault under the existing section 59, taking into account the facts of the case and the circumstances involved in the domestic discipline etc. The amended Bradford bill recognises that such boundaries do exist and can be defined with respect to force used in the four situations covered in section 1 (a-d). However, it is the view of the bill’s proponents that no force is reasonable when used for correction and this is enshrined in the bill by the specific removal of the existing defence applying to force for correction. Its removal, for the first time, makes all forms of smacking for correction illegal.

Under Bradford’s bill all use of reasonable force for correction, including smacking, becomes a criminal offence. The law does not have a special provision for light smacks - worthy only of a mere traffic infringement notice (to use the flawed analogy she relies on). That there is no lesser category for "light smacks" comparable to traffic infringements proves that the purpose of the bill is to abolish ALL use of force for correction.

If Bradford’s bill becomes law she knows that one of its effects will be to make it legal to use reasonable force on a child to minimise harm (s. 1a). Why would it be legal one might ask? Because under the new law there would be a specific justification for the use of reasonable force in such circumstances ("…every parent…. Is justified….").

But the same justification exists in current law for the use of such force for correction – including smacking. And yet Bradford and Clark have repeatedly claimed publicly that under current law lightly smacking a child for correction is illegal. When asked why it is illegal they respond: Because any form of smack applied for any reason constitutes an "assault" under s. 2 of the Crimes Act (1961)? This statement is false. In the above example involving harm minimisation (s. 1 a) Bradford affirms that the force is used legally, but then contradicts herself when considering force used for correction under current law. The same justifications are used which mean that the actions are legal.


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