Child beaters, round two

[Winston001]

The amendment says that no prosecution by the police needs to proceed if ‘the offence’ – that is, the use of force for the correction of children – is inconsequential. If the correction doesn’t correct the child and doesn’t change their behaviour, then you won’t be prosecuted, but if the correction does correct the child and does change their behaviour, as is intended by the correction, you will be prosecuted!

Mmmmm...good thoughtful post.

Your point (as in bold) is exactly what most decent people fear - but it doesn't happen.

Think about it. The law has been in place for 2 years now. There are 4 million people in NZ of which 300,000 are under the age of 10. I guess that every day at least 3000 smacks are given. 1%. Probably too low.

So where are all of the hundreds, or thousands of good middle-class people rolling through our courts for this??

[Phurrball]

So where are all of the hundreds, or thousands of good midle-class people rolling through our courts for this??

Well, the 'floodgates' argument has once again been proven fallacious - sounds like our friend the de minimis principle at work...the law is not concerned with trifling breaches.

The same principle that prevents speeding tickets for 55km/hr etc.

*sigh* The referendum reminds me of Winnie's compulsory savings referendum a few years back - another linguistically piss-poor question IIRC.

Something is amiss with our citizens' initiated referenda process when questions like that get through. Apparently ACT's John Boscowen is on record as being a yes voter. More likely he didn't comprehend the question with a quick glance :ROFL:

[Winston001]

The same principle that prevents speeding tickets for 55km/hr etc.

Actually I got a ticket for 53k a couple of years ago..... near a school. Bugger.

[Phurrball]

Actually I got a ticket for 53k a couple of years ago..... near a school. Bugger.

See - children get near any of these issues and all reason goes out the window...

[MisterD]

So where are all of the hundreds, or thousands of good middle-class people rolling through our courts for this??

Just because you haven't been prosecuted, does not mean you are not a criminal. The shoplifting analogy I heard yesterday is good:

I go into a shop take something small and walk out without paying and without being noticed. Am I a criminal, because I haven't been caught and I haven't been prosecuted, but I have broken the law...

[MSTRS:Me]

It's very clear and in black and white.

Current law.

Section 59 states:

"(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of –

(d) performing the normal daily tasks that are incidental to good care and parenting.

There is nothing in the current act that needs changing.

ACT New Zealand MP John Boscawen is just jumping on the bandwagon trying to get himself noticed.

Skyryder

There most definitely is...

(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

This part in particular. I understand it to mean that a 'smack' is not allowed AFTER a naughty event. The preceding Part 1 is concerned only with the prevention of naughty/harmful behaviour.
And I still call for 'reasonable' to be clarified, in black and white.

[Winston001]

And I still call for 'reasonable' to be clarified, in black and white.

Fair enough, here you are. It goes back to Roman Law.


A v A - [1998] NZFLR 72

Section 59 of the Crimes Act 1961 is but a codification of the Common Law which in turn had its origins in Roman Law, under which by the time of Justinian in the 6th century, the Patria Potestas amounted to a right of reasonable chastisement. In determining what is reasonable force, care should be exercised when considering older decisions of the Courts. Social conditions and child-rearing practises are not static, as is obvious from s 59 itself which, when originally enacted, included schoolmasters as having parental rights of correction. As Judge Inglis QC said in Kendall v Director General of Social Welfare (1986) 3 FRNZ 1; at 10:

What is “reasonable” must be a matter of degree and will depend in large measure on what can be perceived to be the current social view at any given time.

Although the Court has an unfettered discretion, it is reasonably plain that, in determining whether or not the degree of force used was reasonable, the Court should have regard to:
[1998] NZFLR 72 page 80

* •
The age and maturity of the child
* •
Other characteristics of the child, such as physique, sex and state of health
* •
The type of offence
* •
The type and circumstances of punishment.

Not only must the force used be reasonable but the purpose for which it is used is crucial. It is to be borne in mind that s 59 authorises the application of force which would otherwise be an assault and that it is the purpose for which it is used which is the principal ground of defence. As the New Zealand Court of Appeal said in R v Drake (1902) 22 NZLR 478, 487:

The self-same act may be either an obviously just act of parental correction or an act of revenge.

In his article “Parental Physical Punishment and the Law” Caldwell says at p 373 after quoting the above paragraph from R v Drake:

This means that even if the act of force should at first sight appear reasonable, it will be held unlawful if it has arisen out of “spite, rage, fury, anger or ill will”. Arbitrariness or caprice on the part of the parent could similarly remove the parent from the protection of s 59. In making an assessment of parental motive at the time of the infliction of force, the Courts will regard evidence of the relationship of the parent and child prior to the incident as admissible and relevant.

With respect, I adopt this passage as correctly setting out the current state of the law in New Zealand.

In inflicting punishment the parent must act in good faith, having a reasonable belief in a state of facts which would justify the application of force. In such a case the parent would be protected from liability even though the factual position as he reasonably believes it to be is not actually the case. The purpose of the punishment must therefore be both subjectively and objectively reasonable.

[Pixie]

As much as he needs one its not my place to do it eh.I really feel for the bloke to be honest,hes only a wee fella and his 2 boys are as big if not slightly bigger than him and on more than one occasion they have been asked to do something and all hes got back is a load of abuse,the conversation always ending with "get fucked" seems he just gives up.As i said earlier personally i believe its doing them more harm than good and once out in the real world some big falls are coming for both of them.At what expense to others though before it does eh?

He should kill 'em all and blame it on the paperboy

[MSTRS:Me]

Fair enough, here you are. It goes back to Roman Law.

Aieee...it's a minefield.
The Romans thought it was reasonable to break the legs of a crucifixion victim if they didn't die 'quick enough'.
The Victorians thought it was reasonable to beat one's wife with a stick, as long as that stick was no thicker than the beater's thumb.

So, according to part of your post, 'reasonable' is a sliding scale, dependent on the seriousness of the waywardness. Fair enough. So why can't there be a codicil to S.59 that states the upper limit of the day, changeable as social mores change?

[Hinny]

A point that has been overlooked by those wishing to politicise this debate.
In the leaders debate before the last election, Both leaders clamoured to be regarded as the earliest adopters of Sue Bradfords bill.
The irony of this situation was not missed by John Campbell.

[Winston001]

This is how I see the referendum and the indignation over Section 59. There are three groups involved.

1. Some Christian people who believe firmly in the literal meaning of "spare the rod and spoil the child". They find this a direction from God to physically discipline their children.

These people are not able to change their minds.

2. Family First and similar groups who believe that "discipline" includes physically striking a child. Indeed they do not accept that discipline can exist without the right to strike.

The wording of the referendum question clearly demonstrates this.

3. Parents who resent the government telling them how to raise their children.

I think the change of law, had it happened 15 years ago, would have passed unremarked. However today there is a strong backlash in the community against "Nanny State" and S. 59 has become a touchstone issue - a cause celebre. Enough is enough.

The result is that responsible parents who would never harm their children, have been scared into believing they are criminalised by the law.

Actually the reverse is true. Assault on any person, young or old, is a crime. So any hitting etc is first and foremost unlawful. However S. 59 provides a getout defence for parents.

And once again, the test of the law is how many responsible parents are rolling through the courthouse doors.....??

[MSTRS:Me]

And once again, the test of the law is how many responsible parents are rolling through the courthouse doors.....??

Enough that shows there is (still) an issue with at least the semantics of 'reasonable'.

[Hitcher]

There is no place for badly drafted law. The intent of any law should be clear. If nothing else that would reduce the need for lawyers and courts.

Just because a law doesn't raise issues on a day to day basis doesn't necessarily mean that it's good law.

In the case of smacking legislation, I am not sure how the intent of "reasonability" can be effectively captured. The law, as drafted (whether it "works" or not), effectively criminalises parents who "smack" a child. The consequences of this are severe (such as the confiscation of children by CYFS) and potentially way out of whack (scuze the pun) with the purported offence. I do not offer that example as a straw man defence.

While I understand and support the intent of the current legislation I don't support the way it's written. I understand why some parents are concerned about it.

[James Deuce]

Heather broke her foot on Tuesday.

I've been getting 2-4 hours sleep a night for weeks. I'm off work trying to organise the "household" so I can Get back to work and run things in terms of getting kids to school and picking them and meeting work obligations. My employer has been brilliant.

The community suck.

Someone collared me yesterday afternoon during school pickup and demanded to know where Heather was. Not concerned for Heather, aggro that she'd "disappeared". She asked me what I'd done. I refused to answer, and yelled out to the kids to get into the car. Not yelled "at", yelled "out", they were a good 50 metres away.

No word of a lie, the bitch (sorry, there is no other word) said, "Section 59 was designed for people like you".

Section 59 has empowered bullies, radical feminists, and Government depts in ways that have nothing to do with courtrooms. It's just another weapon in a bully's arsenal. The threat is enough.

[Skyryder]

SO what is the definition of reasonable force? When you relate it to the Crimes Act - Section 2 - Assault:

Reasonable is used in many acts but the defining it's meaning is complex.

I think the best way to try and understand the context of the word is what it does not mean.

Some juries adjucated that reasonable force when used in child assault was an injury that left a mark on the childs skin.

Parlimentarians voted overwhelmingly that an injury that left a mark (bruise?) could not be defended on the grounds of reasonable force. If memory serves me correctly this was 113 to 8.

Ultimatley it is the public (juries) that decide what reasonable means, however in the case of child assault, the public (jurys) appear to have put the parents rights to assault, above all else, than punish the parent for inflicting injury to their child.


Skyryder