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My Draft Submission

reporter: Jonathan, 23.2.06

SUBMISSION

To the Justice and Electoral Select Committee

On the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill 2005

Introduction

1. This is a personal written submission from Jonathan P Willis, ** ***** ****, ********, Auckland, New Zealand.

Stance

2. I do not support the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill 2005.

Statements

3. Section 59 is not protecting abusers. It is clearly stated in this very same crimes bill that assault on a child is a crime. Assault is defined as an attempt or threat to cause injury on another. A smack that is administered using reasonable force is not intending to cause injury but is to correct the child. If a person is intending to cause injury when they use force on a child then they have already broken the law as it stands. There is no need to add, remove or change anything.

4. Removing Section 59 will turn good parents into criminals and take away from them some of the authority they need to raise their own children. Without Section 59 a parent is legally no more entitled to use force on their own child as they are to use force on anyone else. For example, should a child refuse to get into bed, the parent cannot use any physical force on the child. Picking up the child and placing them in their bed against their will is using force. The parent no longer has the law to protect them in doing this if Section 59 is repealed.

5. 'The police won't prosecute' argument. There is a common statement from supporters of this bill that the police won?t prosecute parents who lightly smack their children or that the police are too busy to investigate a small claim such as a smack. But these statements are irrelevant. Weather they do prosecute or if they don?t. Whether they have time to investigate or not. If section 59 is removed from the crimes act the law will still stand against any parent who uses any force as a way of correction. The fact remains that the police could prosecute people, and will be obliged to do so should a complaint be laid, making criminals out of people who are good parents.

6. Parent/Child relationships are important and unique. The relationship between a parent and a child is not the same as other relationships. The parent is responsible to care and nurture and protect their Child. To bring them up as someone who is useful to society. Because of the role the parent has in this relationship they need to be able to correct the child. It is quite clear to children that if they receive a smack that what they are doing is not what they are mean to be doing. Section 59 is special as there are not many other people who are given protection from the law to use force like parents are. Removing this section is, by law, making the Parent/Child relationship the same as any other and ignoring the important role the parent has to instruct and discipline the child. This will be detrimental to the family and to society overall.

Recommendation

7. I recommend that this bill is dismissed and that section 59 remains as part of the Crimes Act. The law already stands against those who abuse their children. Section 59 does not protect child abusers. It simply protects the role of the parent which is vital to the upbringing of future generations in a way that will be of benefit to society in the years to come.

9 Comments:

Good stuff jono!

reporter - Blogger Scotty, at 11:20 am, February 23, 2006 

Hey- good on you for exercising your democratic right! I also disagree with fully repealing Secton 59. It will technically make criminals out of parents who lightly smack their child regardless of assurances from the powers that be.

However the section 59 defence has been successfully raised in cases where parents has been prosecuted for hitting their child with a bamboo stick, hitting their child with a belt, hitting their child with a hosepipe, hitting their child with a piece of wood and chaining their child in metal chains to prevent them leaving the house. I wonder if the law should be better defined to stop this type of defence in the court room?

reporter - Blogger Anita, at 2:09 pm, February 24, 2006 

Hey thanks Anita. I do see your point but would tend to disagree. I don't have a problem with someone hitting their child with a belt, bamboo stick, hosepipe or piece of wood, providing that it is for the purpose of discipline, it is using resonable force and is in a way that does not cause injury to the child.

If a parent injures their child then it's quite obvious that the force they used was too great and was not resonable. The law does not protect parents from abusing their children. If Judges and Jurys are misinterpreting the current law to allow parents to get away with abuse then we are in a sad situation. But this in not a problem with the law however. It's a problem with the interpretaion of the law. Clarification of this law can be done without changing anything

reporter - Blogger Jonathan, at 2:49 pm, February 24, 2006 

Fair enough. I personally think that using a hosepipe etc to discipline a child is to harsh and has the ability to injure a child much more than a hand. I may be a big softie, but I feel sad to think of a child being hit with wood and pipes. But hey differing opinions which is fine. I am never been a fan of using 'a weapon' to smack a child. A hand should suffice- why would you need to use greater force?

The trouble is once a judge makes a decision that decision becomes law. It is called case law. You can't just tell judges 'hey this is how to do it now'. The only way to overturn case law to to update the legislation and therefore give judges a new clearer standard. You are exactly right- it is the problem in interpreting the law. I am suggesting that maybe the law should be made clearer.

Don't misunderstand- I don't agree with repealing Section 59. I scares me that I may not be able to discipline my child as the bible call me too, but I feel sad that people are getting away with pretty much abuse under an unclear law.

reporter - Blogger Anita, at 4:24 pm, February 28, 2006 

thanks again for your comments Anita. The arguement over how you choose to use reasonable force could be a big one and could go round in circles. After all most instances I can recall in the news lately of children being abused it has been with someone's (usually a stepfather or the mothers boyfriends) hands. The point is that we should not injure our children by using force that is greater than reasonable.

Also... do you have any information on cases in New Zealand where parents have deliberately abused children and been excused by Section 59? As one case I do know which has been used by supporters of this bill has been protrayed by media as abuse. However when you look at the evidence that was actually brought forward and read inverviews with those involved it was quite clearly a matter of discipline, no injury was caused nor did abuse take place.

reporter - Blogger Jonathan, at 4:45 pm, February 28, 2006 

Hey- I found a list of all cases that the 'reasonable force' argument had been used successfully and they had summaries attached of the judges decision. It didn't come from the media- I think it was a law society or something

That is were I got this sentence 'successfully raised in cases where parents has been prosecuted for hitting their child with a bamboo stick, hitting their child with a belt, hitting their child with a hosepipe, hitting their child with a piece of wood and chaining their child in metal chains to prevent them leaving the house'

I didn't save the link but will have a hunt for it again -should be easy to find.

reporter - Blogger Anita, at 8:49 am, March 01, 2006 

Found it! Did this link work?

http://www.acya.org.nz/site_resources/library/Documents/Reports_to_UN/S59_report_UNCROC_28Aug2003.rtf

It is put together for the UN which are anti smacking but it is still useful and interesting

reporter - Blogger Anita, at 9:04 am, March 01, 2006 

Yeah the link did work thanks.

I had a look through the case summaries. And I could only find one case where it appears s59 was used to protect someone who had abused their child.

Reported: The Dominion 22/02/2001

A jury in Napier District Court acquitted a man who struck his son several times on the buttocks with a piece of wood. A pediatrician stated that the injuries the boy received must have been caused by ?considerable force?.

This case is interesting...
Sadie v Police (AP 50/95, 26/10/95, HC Williams J)

A parent who rough-handled and smacked a toddler in public without causing marks was found guilty of assault on a child at trial. On appeal, the High Court rejected the appellants? section 59 parental discipline defence.

reporter - Blogger Jonathan, at 9:30 am, March 01, 2006 

I be honest I would say the that summary of cases doesn't show that s59 protects child abusers. It show's more that the s59 defence does not protect child abusers.

reporter - Blogger Jonathan, at 12:54 pm, March 01, 2006 

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