Posts by Graeme Edgeler
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I should clarify that I've little doubt that judicial corporal punishment would be degrading treatment, I was suggesting surprise at the idea the school corporal punishment would have breached Article 5.
However, it - along with even light smacking - would certainly fall outside the expanisve interpretation that seems to be preferred by the UN of article 19 of the Convention on the Rights of the Child.
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Beaten as punishment? Possibly, but as I noted, this case was the first to find a breach of s 9.
So numerous cases for misuse of pepper spray, illegal strip searches, and violent assaults by police or prison guards, have all fallen short.
New Zealand is not a signatory to the UDHR. No country is a signatory to the UDHR - it's a declaration agreed to by the UN to which no country has (or can) sign up to. Are you sure you're not getting mixed up with the ICCPR? (which NZ has signed up to).
Article 5/ Section 9/ Article 7(ICCPR) prohibits really really reprehensible behaviour. I would be very suprised if even a return to government-sanctioned caning or strapping in state schools would violate these provisions.
Article 19(1) of the Convention on the Rights of the Child - quite possibly, but the UDHR/BORA/ICCPR? No. Not even close. And certainly not "cruel" - which is one step short of torture.
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Those are the right articles if one is using the UDHR.
Article 5 (which has no lawful force) is very similar to s 9 of the New Zealand Bill of Rights Act (which does), which reads:
Everyone has the right not to be subjected to torture or to cruel, degrading or disproportionately severe punishment or treatment
What this actually means was the subject of much discussion in the Taunoa litigation (that's the one where the prisoners got lots of money). The courts have found that (among other things) requiring inmates to share underwear, restricting access to toilet paper, locking prisoners in solitary for 23 hours a day, requiring prisoners to clean their own cells (incl the toilet) with rags that had already been used by other prisoners, and routine unnecessary strip searches (often in public view) was not even disproportionately severe, let alone the higher standards of degrading, cruel, or torture.
The standard of ill-treatment in section 9 is very very high. Only once in New Zealand history has a court found a breach of that right (in relation to one of the Taunoa plaintiffs, a mentally ill inmate whose illness was exacerbated by the treatment).
You may find that a lesser right in the Convention on the Rights of the Child is involved here, but there is absolutely no way your Article 5 has application.
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Deborah point is good: shouldn't we presume all human rights extend to children, and roll them back one-by-one in a considered manner?
We shouldn't roll them back at all.
The question to ask is whether light smacking (as would be allowed under the Borrows' amendment) would breach any human rights.
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I believe clever lawyers would soon have juries interpreting Chester Borrows proposed amendments in much the same way as the present law is interpreted.
There's undoubtedly some scope, but not much. The explicit prohibition on implements gets rid of every case Sue Bradford and others have pointed to as evidence of the failings of the current law.
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Me too. When I was a kid though, no one consulted me about my choice. Seemed to be a bit of a one sided choice to me.
I suspect the pro-choice phrasing was adopted so you couldn't come back with this argument (i.e. it's less one-sided than abortion).
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I'm obliged to pay attention to the moral argument Bradford makes: is there in fact a good justification that we should sanction - in whatever detail - an act against a child that we would not sanction against an adult?
I might finally get to the actual pro-spanking argument Russell's been after a little later, but I'd like to extend my tobacco analogy for the mo'.
We have laws that permit the sale of cigarettes. And we have laws that expressingly exclude dwelling-houses from the reach of the Smoke-free Environments Act. I understand that part of Sue Bradford's opposition to the Borrows' amendment is that she doesn't think it right that there is an actual law which says - you are permitted to smack your children (no matter how narrowly that "sanction" is couched).
Is there any good justification for laws that expressly permit the smoking of tobacco products in dwelling-houses (... where children live)?
What kind of message are we sending with this law?
At least arguably some (light) smacking might be better in some circumstances than the alternatives to it - we still might be reluctant to sanction it, but why do we we sanction smoking inside in front of children, which under absolutely no circumstance could ever be better than the alternative of not smoking?
Now this isn't a good argument for why you should spank your children.
And it's not a good argument for why light smacking should be legal in the way the Chester Borrows' proposes, however, I think at least in part addresses the question of the moral imperitive against having a statutory sanction for light smacking.
If we recognise that something shouldn't be criminal (like smoking inside, or lightly smacking one's kids), then it is appropriate that however the law is drafted (positively or negatively) that it allows for this (i.e. you can have a law making assualt illegal, but with an exception for light smacking, or you can have a law which makes everything other than a light smack of one's children illegal.
We should not make things we consider should be lawful, unlawful just because the easiest method of writing the appropriate laws is in a positive (you have a right to ...) sense.
[drastically over-simplifying - it deals primarily with employment]The Smoke-Free Environments Act makes it illegal to smoke inside, but excludes dwelling-houses (and prison cells etc.) from this. This arguably sends a message that smoking inside one's house is 'good' behaviour. From Sue Bradford's moral imperitive it would be better if the law said you may not smoke inside a restaurant, or a workplace, or a marae, or a ... (and listed the hundreds of classes of place where it's not permitted), rather than have the law say you may not smoke inside except ... (and then list the half-dozen or so where it's acceptable, 'though not encouraged).
As a matter of legislative practice, I think that, although it may send a slightly less acceptable message, the "you may not assault your children, except with a light smack" formulation is better and more sensible (espeically from a legal perspective) than the alternative, phrased entirely negatively.
The general statement, followed by the specific exceptions to it, is a far preferable form of legislation than an extensive list of specifics (as my drastically over-simplified Smoke-free Environments Act hopefully demonstrates).
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The problem with the way the study is quoted is that it takes "good" smacking, separates it out, and declares that it doesn't seem to do any harm. But the bad smacking is, well, bad. It's a retrospective classification that generates its own result. The parents who did the bad smacking were presumably under the impression they were doing good smacking too.
I think that's a little unfair. It rather separates out "light" smacking and finds that it is good (does not harm and does less harm than absolutely no smacking).
Being a longitudinal study it will have have to determined the questions in advance of getting the data (e.g. it asks parents about their lives at ages 5, 7 and 9 and then sees how the kids are doing at 15). It cannot ask about good smacking or bad, but instead about light or frequent etc.
Retrospective classification of pre-set variables is the only way a longitudinal study can work. E.g a study to determine the effectiveness of daily aspirin in reducing heart attacks might separate people into those who take none, those who take a low dosage, those on a normal dosage and those on a high dosage. The validity of the study is not diminished by the fact that it determines that a low dosage is a good level, just as the validity of this study is not undermined by the fact that it evidence that occasional light smacking is a good level.
You're doubtless right that many of those who thought they were smacking at a good level were wrong. The utility of this study is that we now have evidence they are wrong. We can tell them they are wrong - that the most they should do is occasional light smacking.
the difference between good smacking and bad smacking is reliant on the perception of the smacker
Thus we have the Borrows' amendment - light smacking is fine and does no harm, so would be permitted and harmful smacking would not. The difference between good smacking and bad smacking with the Borrow's amendment is no longer reliant on individual perception, but reliant on a statutory definition that, though couched in legal language, is relatively easy to understand and easy to explain.
We have a study that evidences that X is fine, Y is okay, and Z is bad. So we might ban Z. We shouldn't ban X because it's kinda like Z, just like we don't ban low dosage daily aspirin because high dosage daily aspirin is bad for you.
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Woah. I presume you have in mind some qualifications to that right, stopping short of say, female circumcision.
It is not an absolute right, and as I said this morning, I do not regard religious justification as an argument. If I do, what do I say the man whose religious leader says it's okay to slap the wife?
Yes. Stopping short of female circumcision. As I may have noted above, I support the Borrows' amendment (pdf). Any force that can be said in any meaningful sense to be harmful is out.
I do not seek to use a religious justification for spanking. I seek to use religious freedom as a reason for not banning spanking.
Much like I might not use a religious justification for smoking pot, I might still use the religious freedom of those who profess such a belief as one reason for not banning pot.
The most persuasive evidence the pro-smacking lobby can present is the New Zealand longtitudinal study showing, at the best, marginally better outcomes for children who were "lightly smacked". Outcomes for those more than lightly smacked tailed away.
Knowing that smacking does little, if any, good, would you then continue to sanction it on religious or other grounds, knowing that in some homes it will inevitably - and demonstrably - lead to more serious assaults, which we know to be damaging? Is it a custom worth keeping?
I'm not a member of the pro-smacking lobby. I'm a member of the anti-anti-smacking lobby.
Just like I'm a member of the anti-anti-smoking lobby.
I do not counsel anyone to smoke, I just don't think it should be illegal. In fact, please don't smoke. You will save money, look hotter, and live longer.
It's a little unfortunate that someone like me is being called upon to defend spanking. Would someone like to defend smoking? Smoking in a house where children live? Smoking inside in the presence of children?
I wouldn't, but I'd still be kinda reluctant to ban any of them. And they're all demonstrably, irrefutably, harmful to children. Harmful to anyone. To everyone.
Perhaps someone in the Green Party would like to defend smoking pot on religious grounds. Just because something cannot be justified on religious grounds, or because we reject a religious justification for something, does not mean it should be illegal.
But onto a specific point of yours - the longitudinal study that suggested that in terms of life results, light smacking was better as discipline than anything else (but not much better than no smacking).
I know it's not your point, but it's interesting that we are considering banning something not because it is harmful, but because it isn't beneficial enough - as though we might ban all toothbrushes without the flexi-head, indicator bristles and gum massagers. And although it's not higly beneficial, it is arguably (so that study goes) better than all of the alternatives.
It won't surprise you that I'm not a big fan of the argument that in some homes light smacking is followed by child abuse, so we should criminalise light smacking. In some homes there is no light smacking, and that absence is followed by child abuse, and I don't think we should ban an absence of light smacking either. It sounds a little glib, I know. I do think that if we're trying to send a message then the message that would be sent by the Borrows' amendent would reach just as many people, probably as effectively.
At the moment "reasonable force" is permissible, what does that mean? Different things to different people, I'm sure. Borrows' amendment will reach those who presently take reasonable force beyond what we consider acceptable and who would also be dissauded by Sue Bradford's full repeal.
Some people will not get the message, whichever form the law takes. I suggest that those who would get Bradford's message that no smacking is legal, and therefore stop crossing the line society draws will also get Borrows' message that nothing more than a light smack is legal and also stop crossing the line.
There is more to say - I've yet to really defend spanking, and I'd like to expand upon the smoking/smacking dichotomy more, but I've been at this for a while this evening...
Righto, big day tomorrow ...
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If the bill, in removing the social sanction for hitting children, does in fact stay the hand of parents who currently have a strange understanding of reasonable force (because, really, not everything that happens under that defintion is a "light smack"), would that trump your legal argument?
Potentially - I think you'd need a little more evidence however.
I'd note that I opposed the move to raise the drinking age even though it would probably have made it harder for under 18s to get alcohol. And I think the analogy is apt.
Rights, such as freedom religion - which at international law acceded to by New Zealand includes the freedom to raise your children according to your religion - can be subject to limits, but those limits must be demonstrably justifiable in a free and democratic society.
So, as a matter of law, if it could be established that removing a legal right of parents to lightly smack their children would save lives and/or reduce actual child abuse, then yes, it might well be permissible.
I'd note that a lot of people (including you?) didn't think that the ALAC, Drug Foundation, and others' evidence in the drinking age debate was sufficient to remove the right of 18 and 19 year-olds to purchase alcohol, and I'd suggest that the standard would be even higher where you've got an actual right (like raising your children according to your religion) involved, rather that a "right" to purchase alcohol (which might be nice, but wasn't exactly considered important enough to include in something as fundamental as the ICCPR).