Law reform: Kiwi-style II – the child smacking debate
Prior to 2007, s 59 of the Crimes Act of 1961 provided a defence to parents who applied force to discipline their children, provided that only reasonable force for the purposes of correction was used. Over the years, parents who had in some cases been charged with serious forms of assault successfully relied on the section and escaped conviction. In 2005, Sue Bradford, a Green Party MP, introduced a bill that would have repealed s 59. The eventual amendment to the Crimes Act, however, was rather more complex and equivocal.
The amended (and current) version of s 59 states in subsection 1 that parents may use reasonable force for the purposes of (a) preventing or minimising harm to the child or another person; (b) preventing the child from engaging in conduct that amounts to a criminal offence; (c) preventing the child from engaging in offensive or disrputive behaviour; or (d) performing the normal daily tasks that are incidental to good care and parenting.
Ladies and Gentlemen, start your factual hypothetical generators … But wait, there’s more. Subection 2 states that nothing in the previous subsection or any common law rule justifies the use of force for the purposes of correction; subsection 3 states that subsection 2 prevails over subection 1. So what about situations where a parent smacks a child for partly preventive and partly corrective purposes? The law’s application in such cases is unclear. Finally, subsection 4 affirms that police have the police have the discretion not to prosecute in cases that are so inconsequential that there is no public interest in prosecuting (prosecutorial agencies have a discretion not to prosecute by default.)
My assessment of the New Zealand national character is that in general, Kiwis do not get very worked up about things – I base this empirically unsubstantiated claim on my comparative observations of people being delayed in New Zealand and American airports, and also the extent to which I can say outlandish things in my classes before I get any reaction out of my students. Pretty much the only exception to this is the national sport/obssession of rugby (think American football with fifteen players a side who all play two ways, minus the forward pass, minus the pads, minus most of the stoppages in play, and minus the timeouts). When the national team – generally the best (or close to it) in the world – bomb out in the World Cup of Rugby, as has occurred five out of six times, then there is a national backlash: coaches get death threats, players are criticised as being over-coddled prima-donnas, the country goes into a national funk.
The debate over smacking children can now be added to the list of exceptions to my empirically unsubstantiated claim. The law change in 2007 was accompanied by widespread public debate about smacking children that frequently (and predictably) descended into name-calling (“child beaters”, “nanny-staters” etc). There were of course genuine legal concerns about the appropriate boundaries of the criminal law, and particularly the issue of discretionary enforcement. At the eleventh hour, the Prime Minister at the time, Helen Clark (currently chair of the UN Development Group and the 61st most powerful woman on earth according to Forbes), and John Key, the leader of the opposition at the time and current Prime Minister, negotiated a compromise that is embodied by subsection 4. The law was enacted 113-7.
This did not end the debate. Those opposed to the new law initiated a non-binding referendum under the relevant legislation. The referendum question that was put to the voting public at the cost of several million dollars was: “Should a smack as part of good parental correction be a criminal offence in New Zealand?” So, somewhat paradoxically, a “no” vote expressed a desire to change the 2007 law in some way, while a “yes” vote expressed the desire to leave the law as is. The result of the referendum was clear: the vast majority (88%) of those who voted (about 56% of eligible voters) voted “no”.
John Key’s government is now faced with the issue of how to best respond politically to this result. Key and the ruling National Party have decided to oppose a bill that proposes to legalise a light smack by parents, meaning that the bill will in all likelihood die a quick death early in the legislative process. The Prime Minister’s position is based on his view that the law, as amended in 2007, is working satisfactorily.
This may be too rosy a view to take. Considerable weight is being placed on the common sense of police to correctly exercise their discretion to ignore inconsequential smacking. As my old jurisrpudence professor Jim Evans points out, regardless of one’s views of the merits of smacking or not smacking children, the clarity of the current version of s 59 – part of the criminal law – is hardly ideal.