Southerly by David Haywood

More Arguments

Last week my esteemed whisky-drinking colleague, Russell Brown, posted an article on Hard News which discussed the debate surrounding Section 59 of the Crimes Act. Entitled ‘The Arguments’ this post has generated a phenomenal amount of discussion on Public Address System.

Along the way, my own very first Public Address post has also been in the firing line. ‘A Modest Proposal’ was an attempt to question our attitudes towards physical punishment of children in New Zealand, and it seems that least one person really didn’t like it. Peter Cox has posted a nice summary of the article here, and a detailed analysis of the logic here.

One thing we can all agree on -- perhaps the only thing -- is that punishment of children is an emotive issue. Public opinion on the subject has changed considerably over recent years. A few decades ago physical punishment was employed in almost all pre-tertiary educational institutions. At the school I attended children were regularly beaten until they were severely bruised and (on at least one occasion) bleeding. This was seen as quite normal, and an entirely acceptable method of enforcing discipline.

But today -- for better or worse -- corporal punishment is no longer permitted in schools. And now, as we all know, Sue Bradford is proposing to abolish corporal punishment in all situations. She hopes to achieve this by amending Section 59 of the Crimes Act to give children the same legal protections against physical punishment as adults. Despite the thousands of words written on this subject, the actual text of the proposed amendment is rarely (if ever) quoted by the media.

Here is the original version of Section 59 of the Crimes Act:

  1. Every parent of a child... is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.
  2. The reasonableness of the force used is a question of fact.

Here is Bradford's proposed amendment:

  1. Every parent of a child... is justified in using force if the force used is reasonable in the circumstances and is for the purpose of:
    1. preventing or minimising harm to the child or another person; or
    2. preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
    3. preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
    4. performing the normal daily tasks that are incidental to good care and parenting.
  2. Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
  3. Subsection (2) prevails over subsection (1).

The word 'correction' in this context means punishment intended to rectify behaviour. Bradford's amendment allows the use of force against children in the course of preventing harm, offensive behaviour, criminal acts, and so on -- but not for the administration of punishment.

To give an example: your four-year-old son runs onto a busy road. The amended Section 59 permits you to forcibly pick up your son (against his will) and remove him to a safe location. But it does not permit you to punish him with a good walloping afterwards.

The amended Section 59 effectively removes what some see as the parental 'right' to physically punish their child. Unsurprisingly, this has generated an enormous amount of controversy. Amidst all the emotional shouting it can be difficult to separate out the valid arguments from the dross.

As a starting point, however, it may be helpful to consider the issue as two separate debates. The first debate is about human rights and physical punishment. The second debate (which is only somewhat related to the first) is about Section 59 of the Crimes Act.

Debate 1: Human Rights and Physical Punishment

The question in this debate is whether or not children have the same human rights as everyone else in terms of physical punishment (note: we are only talking about the specific case of human rights with respect to physical punishment -- we are not talking about all human rights). Article 5 of the Universal Declaration of Human Rights Rights states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".

Proponents of this argument would point out that we don't permit physical punishment of criminals. Our society has decided that it would be "cruel, inhuman or degrading" to beat or hit them. So why do we allow physical punishment of children? Sue Bradford obviously falls into this school of thought. She thinks that what is "cruel, inhuman or degrading" for an adult is also "cruel, inhuman or degrading" for a child.

Bradford's way of thinking has strong parallels to one of the arguments that saw corporal punishment removed from schools. The fact that teachers were in loco parentis had previously allowed them the right (under Section 59) to enact physical punishment upon children. However some people argued that children had certain human rights in terms of freedom from "cruel, inhuman or degrading" punishment. They maintained that the rights of the child trumped the rights of the teacher to fully enact the parental freedoms that they had previously enjoyed.

An important question in settling this argument is whether non-physical forms of punishment are truly effective in disciplining children. If they aren't effective, then children are in a special human rights category (with regard to punishment) that is different from adults. They must be physically punished for their own good. In other words, the harm they might experience from ineffective parental discipline is worse than the "cruel, inhuman or degrading" punishment.

It's worth noting that some people will say that they are "personally anti-smacking" but "pro-choice in terms of a parent's right to choose to smack". But, of course, this is indefensible if you subscribe to the idea that children have the same human rights (in terms of punishment) as an adult. It is nonsensical to say: "People should be allowed to choose whether or not they abuse someone else's human rights". That misses the whole point of human rights.

Debate 2: Problems with Section 59

The second debate is about perceived problems with Section 59 of the Crimes Act. Although it is related to children's rights it is actually a somewhat different issue. The question here is: does the "reasonable force" provision under Section 59 allow parents to get away with physical punishment that (most of us can agree) is genuinely abusive?

There are at least three possible viewpoints on this debate:

  1. You favour the status quo because you think that Section 59 is already totally effective in protecting children.
  2. You agree with Bradford's conclusion that children have ordinary human rights in terms of physical punishment. In this case you will think that Section 59 is inherently wrong because it does not prohibit the physical punishment of children.
  1. You think that Section 59 is ineffective but disagree with Bradford's analysis, i.e. you think that children's rights are in a special category where physical punishment is permissible. In this case you will think that the issue can be resolved by explicitly defining what is reasonable physical punishment. This is the approach favoured by some members of the National Party, e.g. Chester Borrows. He thinks that bruises, welts or bleeding should be classed as abuse, as well as any punishment that involves an 'implement' -- but that physical punishment causing "transitory and trifling discomfort" should not.

It's worth noting that all three viewpoints involve the government legislating for external interference in the parent/child relationship. At one extreme to pass judgement on the limits of reasonable force; at the other extreme to ban physical punishment altogether.

Sorting out the various arguments can be very tricky. It's fair to say that proponents of all three viewpoints are guilty of clouding the issue with red-herring statements. It has been claimed that granting normal human rights (in terms of punishment) for children will reduce the murder rate. It has been claimed that un-smacked children will become criminals. It has been claimed that parents who don't employ physical punishment are going against the will of God. It has even been claimed that the abolition of physical punishment will result in a generation of 'girly-men' who will be unsuitable All Black material.

There's not much about this that's based on scientific fact. In fact, it's very difficult to get concrete proof on any of these topics.

Even evaluating the performance of Section 59 is tricky. Do I think that it has occasionally allowed people to get away with child abuse? Yes, I do. But that's just based on my own personal definition of "reasonable force". In other words, it's just my opinion.

But let's say that I'm right -- and, after all, every major New Zealand organization that works with children agrees -- what are the respective merits of the alternatives proposed by Bradford and Borrows?

Bradford's amendment makes the physical punishment of children into a crime. But she acknowledges that 'mild' smacking should not be a police matter. As stated in her bill: "We would not expect prosecutors to bring trifling matters [such as minor acts of physical punishment] before the court". In other words, minor acts of physical punishment would be considered in the same class as stealing a pen from work, or copying a DVD for a friend -- a crime so trivial that it would be unlikely to result in anything but a warning or caution.

Borrows's amendment makes most forms of physical punishment of children into a crime. The only exceptions would be punishments that cause only "transitory and trifling discomfort" and that do not involve implements. This would limit parental correction to 'mild' smacking and (presumably) 'mild' kicking and so forth.

If we are to take Bradford and Borrows at their word then in both cases the practical result is actually the same. The more forceful punishments that were previously allowed under Section 59 are no longer legal. Minor acts of physical punishment are effectively permitted.

What remains is a matter of principle. From Sue Bradford's perspective the principle is for the law to recognize that children have the same human rights as everyone else in terms of physical punishment. From Chester Borrows's perspective the principle is that the letter of the law does not criminalize parents who only engage in 'mild' smacking.

It is perhaps useful to make an analogy between physical punishment and the trivial crime of stealing a pen from work:
Bradford's principle: All stealing is wrong, but stealing a pen from work is too trivial to be prosecuted.
Burrows's principle: All stealing is wrong, except in the trivial case of stealing a pen from work.

I have considerable sympathy for Bradford's argument, and (for what it's worth) I think she has a point -- in theory. I understand why she thinks that Borrow's amendments are objectionable. But in practice the important thing is to protect children and lower the bar on what's currently permitted under Section 59.

The worst outcome would be for Bradford to throw a hissy fit and withdrew her bill in the event that Borrow's amendments are successful -- as she has threatened to do. In my opinion either of the proposed amendments to Section 59 would make this country better for children.

But that's just my opinion.


I'd like to acknowledge the comments made by Graeme Edgeler and Danyl Mclauchlan which have helped me form an opinion on some of this issues.

DISCUSS THIS POST on Hard News 'The Arguments' thread.