Hard News by Russell Brown

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Hard News: Stop the Enabling

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  • Jolisa,

    Smacking was generally legal because there was a defence.

    Ignorant semantic-philosophical question: was the defence as coded in s.59 keyed to the target of the smack, i.e. it was legal because they were a minor? Or was it keyed to the deliverer of the smack, i.e. it was legal because the perpetrator was a parent?

    And/or was the defence also applicable inside a broader caregiving relationship? (Grandparent, babysitting auntie, etc).

    I'm just thinking that substituting "addled elderly relative" for "child" might have rendered most of the objections to the repeal pretty moot. As in, if you wouldn't wallop your Alzheimic great-aunt to teach her not to spill her soup or talk back to you, you shouldn't do it to a four year old...

    (Not that elder abuse doesn't happen; just that people don't phone talkback shows to happily defend their right to smack granddad for stealing bickies off the bench or wandering down to the dairy wearing only a singlet, y'know?).

    Auckland, NZ • Since Nov 2006 • 1410 posts Report Reply

  • Brickley Paiste,

    I think you're wrong AND we're talking at cross-purposes.

    "In general, acting in self defence is currently legal, there are hoops one needs to jump through to be legally be "acting in self defence" - the force used must be reasonable in the circumstances, etc. - but, in general, force used in self defence is legal."

    It cannot be legal before the legal hoops have been jumped through. You're argument makes it sound legal from the outset.

    The accused is charged with assault on a child. The accused is of course innocent but has been arrested and charged. The action is not legal until the trier of fact (and in the case of self-defence at least, the trier of law) are satisfied that the the defendant has established the factual and legal requirements of the defence. If they are so satisfied, then no crime.

    You're argument makes it sound as if the action is legal and then there are some legal hoops. Wrong. Legal hoops -- then legality.

    So, in effect, you're committing the same flaw of reasoning as that newspaper in Auckland.

    "As, previously, parental smacking was legal - there were hoops (reasonableness of force in the circumstances, purpose of the force being corrective, etc.) - but, in general, parental smacking was legal."

    Again, legal provided the defence was established and not before. I suppose, using the principle of charity, that you might be arguing that it was not illegal because a judge/jury had not pronounced on the guilt of the accused. However, assault/murder is still an indictable offence under the Crimes Act and anyone arrested would have shown probable cause or a warrant would have convinced a judge that there was a reasonable chance of a successful prosecution. So yes, in reality, at the time of the offence the action was allegedly illegal.

    However, that does not mean that the action was legal at the time it was committed because no one had decided that issue yet -- hundreds of years of settled law or not.

    "The idea that the amendment to section 59 was only repealing a defence (and that smacking was always illegal, just that there was a defence) goes against several hundred years of settled law. If there is a full defence (cf. provocation), there is no crime. Smacking (where that smacking was reasonable in the cirucmstances, etc. etc.) used to be legal, it is no longer."

    No, it was illegal. The law simply provided a defence to the accused to argue that the actionw as justified. Assault was still a crime regardless of whatever defences were available. Yet I repeat myself...

    A defendant could still argue compulsion against a charge of assaulting a child. Does the existence of compulsion as a potential defence now make smaking legal again. On your argument, it would have to. You've gotta wear that one at the very least.

    I'm not sure how much further I can take this. Simply put, the existence of a defence does not a legal action make -- that is until the defence has been run successfully.

    "You can write < quote> in front of it and< /quote> after the bit you're quoting (but without the additional spaces. You can copy these from the left of the comment box (which also explains how to do links, bold, and italics)."

    Thanks.

    Since Mar 2009 • 163 posts Report Reply

  • Emma Hart,

    forgive me but i do not understand what is meant here, exactly!
    "..the numberr of times ANY BDSMer will be told.." told by whom?

    this doesn't correspond to much in my own experience!

    You're quite right, I used the word 'any', therefore my distress must be entirely invented. Perhaps you'd like to tell us about 'your own experience' as a BDSM practitioner? Or you could follow the link to Renegade's blog I provided above and follow the links from there...

    Wait, I just detected myself wasted keystrokes. As you were.

    Christchurch • Since Nov 2006 • 4340 posts Report Reply

  • Brickley Paiste,

    Arg. Grey and cool. I just can't do it...!

    Since Mar 2009 • 163 posts Report Reply

  • dave crampton,

    WHats BDSM? Brown Doth Smack McCoskrie?

    welli • Since Jan 2007 • 143 posts Report Reply

  • Steve Barnes,

    Ian

    In fact, the verb gruntle has been around since the turn of the 15th century with the first meaning above: "Several members of the choir are gruntling about the new organist's refusal to wear a robe over her flashy dresses." Because it is intransitive, we have to use a preposition like about with it: "There is no pleasing Andy Madder; he gruntles about everything."

    Here

    Wonder what a gruntle looks like?

    Apparently it is a Windows application and looks like
    this
    ;-)

    The wireless north ;-) • Since Dec 2006 • 4671 posts Report Reply

  • Rich of Observationz,

    Would anyone really risk a download from a site that didn't know that software is both a singular *and* plural noun and does not take an 's'?

    Back in Wellington • Since Nov 2006 • 4421 posts Report Reply

  • dave crampton,

    isn't it time for journalists to take Family First, the Sensible Sentencing Trust and my old chum Greg O'Connor off the speed dial until they STOP MAKING SHIT UP.

    No. They just have to discern what is stuff that is made up and what is not made up -and publish accordingly. But, going by recent reports, the media can simply make stuff up by reproducing made up stuff other newspapers publish - and not just in news reports either.

    http://big-news.blogspot.com/search/label/Leighton%20Smith

    welli • Since Jan 2007 • 143 posts Report Reply

  • Scott,

    The proposed referendum, which will ask the quetion: "Should a smack as part of good parental correction be a criminal offence in New Zealand?" will have a fairly predictable outcome.

    However, should the referendum instead pose the question asked of NZ Herald readers today: "Is a conviction appropriate for punching a child?" it might offer a very different, and more valuable outcome.

    I'm sure there are plenty of 'ordinary New Zealanders' who would happily answer 'no' to the first question, but would be far less comfortable answering "no" to the second.

    Auckland • Since May 2009 • 1 posts Report Reply

  • Mark Easterbrook,

    However, should the referendum instead pose the question asked of NZ Herald readers today: "Is a conviction appropriate for punching a child?" it might offer a very different, and more valuable outcome.

    That's not the question being asked on the Herald as far as I can see. Poll of the day is: Has the anti-smacking legislation reduced assaults on children?

    Who, without full access to research data, court records, police files etc, knows that? Your average Herald reader, apparently.

    Auckland • Since Nov 2006 • 244 posts Report Reply

  • Graeme Edgeler,

    It cannot be legal before the legal hoops have been jumped through. You're argument makes it sound legal from the outset.

    The accused is charged with assault on a child. The accused is of course innocent but has been arrested and charged. The action is not legal until the trier of fact (and in the case of self-defence at least, the trier of law) are satisfied that the the defendant has established the factual and legal requirements of the defence. If they are so satisfied, then no crime.

    Um ... no.

    Defendants are not required to establish the factual and legal requirements of a defence. A defendant simply has to have their lawyer say "it was self defence" and then the onus goes on the prosecution to establish beyond all reasonable doubt the the factual and legal requirements of the defence are not there.

    The hoops are not merely there to determine legality or eligibility for sentence down the track at some trial, they are there so that people can moderate their behaviour, and behave lawfully at the time. And they are there so police can look at a particular factual circumstance and conclude, "okay this person was acting in self defence, therefore they didn't break the law and we won't charge them".

    My argument is supposed to make it sound legal from the outset, because (the hoops having been met at the time of the actions) the behaviour was legal at the outset.

    Smacking (where that smacking was reasonable in the cirucmstances, etc. etc.) used to be legal, it is no longer."

    No, it was illegal. The law simply provided a defence to the accused to argue that the actionw as justified. Assault was still a crime regardless of whatever defences were available. Yet I repeat myself...

    Do you think surgery - say an emergency apendectomy - is illegal? Or is it 'still a crime regardless of' the defence of "surgical operations' contained in section 61 of the Crimes Act?

    I happen to think that an emergency apendectomy (if conducted with reasonable care and skill, and for the benefit of the patient having regard to the patient's state and all the circumstances at the time) is not criminal.

    If I was to put you under an anaesthetic, and cut into you with a scalpel and (perfectly safely) removed your appendix, I would be committing a pretty damn serious crime. If you were doubled over in pain and unable to speak having been taken in an ambulance to an emergency room before being diagnosed with acute appendicitis and an ER surgeon operated on you to do the same there would be no crime.

    The surgeon does not commit a crime for which some defence is available meaning he won't get in trouble at trial; the surgeon is acting lawfully.

    Just as people who defend themselves with reasonable force are acting legally, and parents who applied reasonable force to correct their children were acting legally.

    "You can write < quote> in front of it and< /quote> after the bit you're quoting (but without the additional spaces. You can copy these from the left of the comment box (which also explains how to do links, bold, and italics)."

    Thanks.

    If you're trying to work it out, I can suggest practice using the "preview" button. I use it even now when I've got a whole bunch of different formatting in comments.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Graeme Edgeler,

    That's not the question being asked on the Herald as far as I can see. Poll of the day is: Has the anti-smacking legislation reduced assaults on children?

    Who, without full access to research data, court records, police files etc, knows that? Your average Herald reader, apparently.

    Lot of people could have insight into this.

    People who no longer see children smacked in public, might think that the anti-smacking legislation has had an effect. People who no longer smack their own children because of the law change might be able to say quite categorically that there a fewer assaults. etc.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Lyndon Hood,

    Brown Doth Smack McCoskrie?

    Normal people don't do that kind of crap and so don't know of the other meanings.

    Wellington • Since Nov 2006 • 1095 posts Report Reply

  • Sam F,

    Normal people don't do that kind of crap and so don't know of the other meanings.

    Actual witty deployment of that gag in the wild! Lol out of 10 for me.

    Auckland • Since Nov 2006 • 1550 posts Report Reply

  • Brickley Paiste,

    You're right about the evidential burden. But you're getting a shade technical.

    You have, however, clarified the argument helpfully.

    Police discretion is a different thing. Crimes are one thing. Offences that can lead to arrest and charges are another. I think that gets to the nub of things.

    1. Action

    2. Action comes to the attention of police

    2a. Police exercise discretion against laying charges; or

    2b. Police lay charges

    3. Therefore on 2b: action committed was an alleged offence.

    And you ignored my point about compulsion.

    This gets me back to my original point that made so annoyed about the so-called 'anti-smacking' debate. Using force against another person is an offence -- provided, as you pointed out, it is serious enough to merit the intervention of the law and the police discretion does not favour letting it go. If charged for using violence against children, the law provided a justification.

    So, that answers your point about surgery. Of course, a doctor performing surgery is not committing a crime. But she might commit an offence if she fucks it up but even if she does she can argue the defence.

    More broadly, and returning to my original point, the legislation was about taking away a defence. That's it. Somewhere in that, the entire discourse became about whether or not people should be smacking their kids around or punching them in the face. It should have been about whether, when the law intervened, defendants should have recourse to a defence that they would not have had if they had assaulted an adult.

    You will at least concede that point got lost in the mix and that the repeal of s59 was directed to that issue, no?

    In the final analysis, your point that s59 meant that smacking was legal has to be wrong. It might have informed the use of police discretion and it might have provided a successful defence at trial. But smacking was still an assault and therefore an offence.

    If you're trying to work it out, I can suggest practice using the "preview" button. I use it even now when I've got a whole bunch of different formatting in comments.

    Will do. Thanks.

    Since Mar 2009 • 163 posts Report Reply

  • Dinah Dunavan,

    I do hope the repeal of s59 reduces children being hit and I hope it encourages more people to call the police when they see a chiild being hit.

    20+ years ago while I was relxing in Manners Mall I saw a toddler being hit so hard in the head that s/he was thrown back at least a metre. No-one did a thing. The fact that the person who hit the child was large and scary looking might have had something to do with it. Or that by the time anyone had found a public phone, made a call, and explained the issue to an indifferent policeman, the family would have been long gone. Or just that, although many people would have been a bit disturbed by the incident, most people probably thought that it was nothing to do with them and that parents had a 'right' to hit their children.

    Dunedin • Since Jun 2008 • 171 posts Report Reply

  • Graeme Edgeler,

    This gets me back to my original point that made so annoyed about the so-called 'anti-smacking' debate. Using force against another person is an offence -- provided, as you pointed out, it is serious enough to merit the intervention of the law and the police discretion does not favour letting it go. If charged for using violence against children, the law provided a justification.

    And this is what made me so annoyed about the argument advanced in favour of the amendment. Using force against someone is only an offence if there is no defence, it s only illegal if there is no defences, and it is only a crime if there is no defence.. The law has been this way for hundreds of years. And because it helped to win the argument, hundreds of years of legal understand were simply ignored.

    So, that answers your point about surgery. Of course, a doctor performing surgery is not committing a crime. But she might commit an offence if she fucks it up but even if she does she can argue the defence.

    I don't see how it does. I still think the two are analogous:

    1. Cutting someone with a scalpel is applying force to them. In certain circumstances - those laid out in section 61 of the Crimes Act - that force fulfils the requirements of the defence of "surgical operations", and is thus not illegal, does not amount to an offence, and is not criminal.

    2. Smacking someone is applying force to them. In certain circumstances - those formerly laid out in section 59 of the Crimes Act - that force fulfilled the requirements of the defence of "parental discipline", and was thus not illegal, did not amount to an offence, and was not criminal.

    You seem to think that my second example above inaccurately describes the that effect having a defence has on a situation, but that the first one does. I'm not really seeing a distinction.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Sofie Bribiesca,

    most people probably thought that it was nothing to do with them

    Yep easier to walk away. I often get into trouble over my "big mouth" when trying to defend others. Even been knocked sideways for standing up for a stranger being attacked in public. It will never stop me trying though. I am reminded of a friend who witnessed an elderly man making good use of his walking stick as a weapon against a woman he was sitting next to at the Airport. She shoved him, public ran over to him to make sure he was ok, left the injured woman sitting nursing herself. My friend, seeing the whole thing, went over to the woman to enquire if she needed help, she replied it was her father and he had done it to her all her life so far. I guess she finally had enough and pushed back.

    here and there. • Since Nov 2007 • 6010 posts Report Reply

  • James Littlewood*,

    Even rank idiots have that right.

    Even Rankin idiots.

    Oops, wrong thread

    Uhhh: Spankin' Rankin?

    Auckland • Since Mar 2008 • 193 posts Report Reply

  • Brickley Paiste,

    What about compulsion!??!? It exists for all crimes including beating the poo out of a child. So, assault isn't a crime?

    That's the second time you ignored my point, counsel.

    Using force against someone is only an offence if there is no defence, it s only illegal if there is no defences, and it is only a crime if there is no defence..

    No, it's an offence if the police have PC or a warrant issued by a judge based on a reasonable chance at a successful prosecution. It's even an offence before, only one that has eluded the attention of the police.

    You have to be wrong there, dude. Yes. There is an offence whether the cops notice or not. The accused is only guilty of a crime if no defence has been successful. There is still an offence.

    You're arguing that crimes/offences have an existential relationship to the availability of defences. That's whack.

    Take rape. Under-reported and under-prosecuted. You could argue compulsion against rape. But there has still been , whether reported or not, whether prosecuted or not, an offence against the criminal law.

    The tree makes a sound.

    You're examples blur a simple issue.

    Answer my point about compulsion.

    Since Mar 2009 • 163 posts Report Reply

  • dave crampton,

    And this is what made me so annoyed about the argument advanced in favour of the amendment. Using force against someone is only an offence if there is no defence, it s only illegal if there is no defences, and it is only a crime if there is no defence

    And with this section of the Crimes Act there is now no defence. So it is an offence. But because the courts don't have the discretion to let someone off after the have corrected their child, it is effectively " illegal" only if the Police say so. So, if the Police don't think it is consequential, they are not compelled to prosecute.

    welli • Since Jan 2007 • 143 posts Report Reply

  • Graeme Edgeler,

    What about compulsion!??!? It exists for all crimes including beating the poo out of a child. So, assault isn't a crime?

    ...

    Answer my point about compulsion.

    Assault is a crime when committed in circumstances that do not involve an applicable defence.

    If I push you because I was instructed to by a person holding a gun to my head, I have assaulted you. However, I have not committed a crime, I have not commited an offence, and have not done something illegal ... because I have a defence.

    No, it's an offence if the police have PC or a warrant issued by a judge based on a reasonable chance at a successful prosecution. It's even an offence before, only one that has eluded the attention of the police.

    There is an offence if there is an offence. Just because the cops reasonably believe there is an offence, does not automatically mean there is one.

    I have a dvd player. The police believe on reasonable grounds that it is stolen, and I have received it illegally (the player and the serial number match one listed as missing from a burglary). A warrant for my arrest is issued. It goes to trial; in the end, it turns out that I can prove it was legally purchased by me. The person who transcribed the stolen items' report on the missing dvd player transposed two digits in the serial number.

    Even though there was PC, and a warrant issued by a judge based on a reasonable chance at a successful prosecution, there was no offence. The same applies to instances where there is a defence, as distinct from a straight negation of an element of the charge.

    You're examples blur a simple issue.

    Answer my point about compulsion.

    My examples make this a simple issue.

    Only one of the following can be correct; either:

    1. smacking occurring in circumstances that would have allowed a defence of "parental discipline" was not an offence; or
    2. surgery occurring in circumstances that would allow a defence of "surgical operations" is an offence.

    I believe that the former is the law. Which do you believe?

    On compulsion ... of course there is an offence. But it is committed by the person doing to the compelling, not the person being compelled.

    Wellington, New Zealand • Since Nov 2006 • 2996 posts Report Reply

  • Lyndon Hood,

    I would assume the official idea is that illegality of a particular act is defined by the law (hence the name) and the justice system enquires into the existence of that illegality.

    And if there is a defence for that particular act, the way it was done in that case, codified in the law, that means it's not against the law, and hence not illegal or an offence against the law.

    If, in what I assume relates to BP's example, I hit someone as a result of an involuntary spasm, whatever one might personally call it, it wouldn't legally be an assault.

    But if one removed the 'spasm' defence, it would have the effect of making spasm-hitting illegal.

    IANAL. Graeme is tho.

    Wellington • Since Nov 2006 • 1095 posts Report Reply

  • p forrester jarvie,

    btw Emma Hart - wenn ich darf so sagen, a fearsome enough Name in itself, just drumskin-tight with tautness/tartness - i came in out of earlier context before; whole-heartedly agree with you that there is no *necessary* causal continuity at all between what happens with one as a small being and what you find you like as a bigger one... uh huh, merely being human is the only pre-requisite for entry!

    me, i just saw da piccies and thought wow, that looks worth looking into, and presto, no looking back after that..

    but by the looks of this discussion thus far this parenting deal looks to entail something almost ultra-human!

    Since Feb 2009 • 84 posts Report Reply

  • Christopher Nimmo,

    TV One just described the face-punching as an "alleged assault", then handed over the floor to Mason to peddle his rubbish.

    I'm astonished, appalled, and not surprised at all.

    Wellington • Since May 2009 • 97 posts Report Reply

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