Hard News by Russell Brown

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Hard News: Stop the Enabling

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  • Sofie Bribiesca,

    Sports people - especially rugby players - get into fights all the time, often in front of large crowds and tv cameras.

    Now excuse my ignorance of the game with balls but as I understand it, if a fight is deemed against the rules, there is disciplinary action, which, is dealt with pretty quickly by the appropriate authority. If it is considered a scuffle of less significance do they not sit on the Bench or get to the showers sooner?Either way this is not considered acceptable behaviour.Also parents who partake in sideline brutish activity is not allowed, At the bigger games, Police are on patrol.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Russell Brown,

    I'd note that this line is also that adopted by Family First ... They don't want to defend what was happening under the old law any more that most people here.

    Well, they've got a very strange way of showing it. In fact, I'd go so far as to say that that statement is quite unsustainable on the evidence.

    Auckland • Since Nov 2006 • 22825 posts Report Reply

  • Rich Lock,

    The best counter may be the one made earlier (by Kyle, I think). Sports people - especially rugby players - get into fights all the time, often in front of large crowds and tv cameras.

    Although this analogy falls down somewhat when you take into account that all the people engaged in, say, a game of rugby went onto the field of their own free will and knowing that things can on occasion get a little heated.

    Most rugby players would probably be reasonably accepting of some handbaggy-type fisticuffs from time to time. Having a thumb pushed deliberately and forcefully into your eye socket in the middle of a maul? Not so much.

    Similarly, Evander Holyfield almost certainly anticipated having his head punched a few times when he stepped into the ring with Mike Tyson. But he probably wasn't thinking that the fight would end with his ear missing.

    Thus, an amendment to the law to make it a lot clearer that what some considered reasonable force is unacceptable.

    A very interesting point in your post. It is unfortunate that the debate has now become so mired in bad faith, equivocations and downright lies that these sort of points are more or less academic.

    back in the mother countr… • Since Feb 2007 • 2728 posts Report Reply

  • Sofie Bribiesca,

    If one then considered football. Say Man U plays Arsenal. Have you seen what is involved in first getting to the game, let alone watching it and then getting out alive? Police are handy in some situations.

    here and there. • Since Nov 2007 • 6796 posts Report Reply

  • Steve Parks,

    Now excuse my ignorance of the game with balls but as I understand it, if a fight is deemed against the rules, there is disciplinary action, which, is dealt with pretty quickly by the appropriate authority. If it is considered a scuffle of less significance do they not sit on the Bench or get to the showers sooner?Either way this is not considered acceptable behaviour.

    No, it is not considered acceptable behavior, but I don't think anyone was suggesting otherwise.

    Wellington • Since May 2007 • 1164 posts Report Reply

  • Russell Brown,

    I think a better point is that the entire game of rugby consists of actions that would be considered assault off the field.

    Auckland • Since Nov 2006 • 22825 posts Report Reply

  • giovanni tiso,

    I don't know about in NZ, but in Italy sports players agree formally not to take opponents to court for altercations that might occur in the normal course of an event - say, a reckless tackle in soccer. There was the case a few years ago of a forward taking a goalkeeper to court for kicking him in the head as a result of a very clumsly challenge durnig play (think Battiston in the semi against Germany in 82) and he was actually sanctioned by the soccer federation for doing so.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • Kumara Republic,

    Similarly, Evander Holyfield almost certainly anticipated having his head punched a few times when he stepped into the ring with Mike Tyson. But he probably wasn't thinking that the fight would end with his ear missing.

    Nuclear Teeth vs the Real Meal (may be NSFW):

    The southernmost capital … • Since Nov 2006 • 5429 posts Report Reply

  • Steve Parks,

    I think a better point is that the entire game of rugby consists of actions that would be considered assault off the field.

    More explicitly so with boxing! But I think there are laws in NZ that cover actions that would otherwise be assault, such as a tackle in rugby, or a punch in boxing, if you voluntarily enter into it. Graeme made this point on another thread on this subject, I think.

    I doubt it would cover actions that are not part of the rules of the game, however, hence the back-shoves and punches etc in rugby and other sports being used as the example.

    Wellington • Since May 2007 • 1164 posts Report Reply

  • Russell Brown,

    While we're discussing Chester Borrows' amendment, Barnados' amendment, Barnado's has an interesting briefing on what it thinks is wrong with it.

    Objections range from a lack of legal clarity (we'll all have our own idea of what "transitory and trifling" means, won't we?) to the fact that it still allows children of any age (babies included) to be hit in the head -- but only, of course, in a transitory and trifling fashion.

    It simply is not the solution people like to think it is.

    Auckland • Since Nov 2006 • 22825 posts Report Reply

  • Steve Parks,

    Just for the sake of argument: what do you think of this definition of an allowable 'corrective smack'?

    - Open hand only (no punches, no implements)

    - Must be on the arm/hand, or legs/backside

    - Does not cause bruising

    Workable?

    Wellington • Since May 2007 • 1164 posts Report Reply

  • ScottY,

    I'll continue with the assault analogy, though some people have pointed out that maybe the sportsfield is not the best analogy to apply (ie the small matter of consent).

    There are other examples of petty assault that don't involve consent. Here's an example of an assault that Parliament would surely never want to see prosecuted: you're minding your own business standing on the escalator at the mall. Some impatient clown shoves past you, causing you momentary discomfort and annoyance. An assault? Probably. Will the police prosecute if you complain? Surely not.

    If the guy shoved his fist in your face as he passed, however, then the police would act.

    So couldn't you argue that by passing a law criminalising all perpetrators of minor and inconsequential assaults (absent a defence), Parliament passed a law that it never intended should be used?

    So is section 59 really so remarkable?

    West • Since Feb 2009 • 794 posts Report Reply

  • giovanni tiso,

    Just for the sake of argument: what do you think of this definition of an allowable 'corrective smack'?

    - Open hand only (no punches, no implements)

    - Must be on the arm/hand, or legs/backside

    - Does not cause bruising

    Workable?

    Sounds a bit too close to "make sure you don't leave any marks" for my level of comfort.

    I'd personally say that 'don't hit your children, ever' is a pretty good rule, but I accept that has a country we haven't had that conversation.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • ScottY,

    Workable?

    The difficulty with trying to set an acceptable standard is that you would need to not just define the type of acceptable action, but also the amount of force to be used, and the frequency of use.

    An occasional light slap might not cause permanent trauma, but 50 light slaps a day for a year might.

    West • Since Feb 2009 • 794 posts Report Reply

  • giovanni tiso,

    An occasional light slap might not cause permanent trauma, but 50 light slaps a day for a year might.

    Plus let's not forget the negotiated smack with a ruler followed by cuddle that came up a little while ago. That was disturbing on so many levels I quickly lost count.

    Wellington • Since Jun 2007 • 7473 posts Report Reply

  • ScottY,

    There could be a business opportunity in Steve's idea though. A guide to what is and what isn't appropriate would probably end up being the size of the Dog And Lemon Guide. And need updating every year.

    West • Since Feb 2009 • 794 posts Report Reply

  • Chuck Bird,

    Just for the sake of argument: what do you think of this definition of an allowable 'corrective smack'?

    I think it is workable. Do you?

    Since Apr 2007 • 55 posts Report Reply

  • Graeme Edgeler,

    It simply is not the solution people like to think it is.

    Thus my preference for actually using the words "light smack".

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Paul Williams,

    Thanks Graeme, I appreciate your clarifications. A few points for you to consider.

    There is obviously a place for prosecutorial discretion in a crimnal justice system.

    Agreed and the guidelines and public interest are significant factors in the exercise of this discretion.

    I also think there is a difference between:

    1. passing a law making people criminals whom you do not think are criminals and do not want to be criminals; and

    2. passing a law making people whom you think are (minor) criminals criminals, and allowing that the full force of the criminal law not be brought into play in all circumstances.

    You're second scenario, which I assume is what you think Parliament did, doesn't quite make sense to me. The criminality of an act is not determined at its commission, unless it's strict liability, or even at the point of it being the subject of a criminal charge. It's determined only at the point when there is a conviction.

    Could you mean, "passing a law that exposes people whom you think are (minor) criminals criminals, and allowing that the full force of the criminal law not be brought into play in circumstances the Police consider meet guidelines and in which the public has an interest."


    My additions are in bold.

    If you do, then, yes, that is what I understand Parliament did, and I completely agree with it.

    I would suggest that - on the whole - Parliament might be reasonably accepting of the idea that someone who decks their opponent on the rugby field has committed an offence. In some/many/most circumstances this won't result in criminal charges, and they're also happy with that. So am I.

    I wonder how relevant the rugby analogy is in all this. Parent's are legally responsible for their kid's wellbeing, rugby players are participating in a contact sport. There's a huge difference is the parties expectations of each other, their ability to engage/disengage from the situation and the public interest.

    I also happen to think that an act of violence outside the rules in rugby should be prosecuted as an assault if it is in the public interest to do so and Police have a reasonable case. For instance, I think Richard Loe should have been prosecuted for eye-gouging Greg Cooper circa 1993.

    Parliament passed the amendment to section 59 of the Crimes Act while telling people that good parents wouldn't be criminalised, and that the law change wouldn't make light smacking illegal.

    Those are your words, possibly even a faithful interpretation of what various MPs said, however, what acts end up being determined criminal by the courts will take a while to establish.

    In the end, I take the view that the amendment establishes rights for kids that have long been enjoyed by adults and any confusions about when and how they arise can be progressively worked out by the courts. My hope is that the courts hold parents/caregivers to a higher standard.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Graeme Edgeler,

    Could you mean, "passing a law that exposes people whom you think are (minor) criminals criminals, and allowing that the full force of the criminal law not be brought into play in circumstances the Police consider meet guidelines and in which the public has an interest."

    If you do, then, yes, that is what I understand Parliament did, and I completely agree with it.

    Not really. What I think Parliament did with its amendment to section 59 was number 1. The 2nd one was what I think they did when they passed a law banning assault and didn't include a "how's your father?" rugby-player exception.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Paul Williams,

    I don't see how scenario 1 applies at all: Bradford et al removed the defence because they wanted criminal chargest/convictions to not be avoided simply cause the assailant was the parent of the victim.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Graeme Edgeler,

    I don't see how scenario 1 applies at all: Bradford et al removed the defence because they wanted criminal chargest/convictions to not be avoided simply cause the assailant was the parent of the victim.

    Bradford may have wanted to make parents who lightly smack their children criminals (although I believe she's denied that), but I am quite confident the Parliament did not believe parents who lightly smack their children are or should be considered criminals.

    Despite a majority in Parliament believing rightly or wrongly that light smacking should not be criminal, Parliament passed a law which made it criminal.

    Wellington, New Zealand • Since Nov 2006 • 3205 posts Report Reply

  • Paul Williams,

    Graeme, I fear we're talking past each other.

    I don't accept that my interpretation of the amendment automatically makes parents who "lightly smack" criminals. It removes a defence, yes. It exposes parents to the risk of a charge, yes. But you're not guilty of a crime simply because you "lightly smack"; it's not a strict liability offence and the Police have discretion over laying charges.

    Despite a majority in Parliament believing rightly or wrongly that light smacking should not be criminal, Parliament passed a law which made it criminal.

    Only potentially criminal.

    Parliament amended the law to expose the physical discipline of a child to the possibility of criminal charges by removing a special defence - one that applied only to care-givers/parents/guardians.

    Incidentally, they removed one defence, not all defences. Parents presumably have other defences such e.g. self defence.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Chuck Bird,

    Graeme, it would appear that I agree with most of what you say. I think Section 59 resulted in a few rouge juries – quite possibly both ways, if by chance 2 or 3 fanatical anti-smackers were on a jury they could come up with a guilty verdict where it would have been not guilty if jury had been more balanced.

    Section 59 was a sensible piece of legislation. It involved concepts like determining what reasonable force in reasonable circumstances was. If the ordinary members of the public (let us call them peasants) are not capable of determining what is reasonable force or reasonable circumstances how can they determine what is reasonable doubt. If they cannot determine what is reasonable doubt we should get rid of juries forthwith.

    Section 59 will never be restored but some reasonable compromise should take its place. I have not spoken to Bob McCroskie recently but am sure he could live with a compromise like most others opposed to legislation that we believe undermines parental rights. I am not nominated to speak for anyone but think many share my view, with the exception of the ideological driven anti-smacking lobby, that a comprise supported by the general public would be a better law. The current law brings the law, the police and Parliament into disrepute

    Chester Burrow’s amendment is now obsolete. I feel John Boscawen’s Bill would be a good starting point to go to a Select Committee.

    http://section59.blogspot.com/2009/05/john-boscawens-private-members-bill.html

    I would value and appreciate your input.

    Since Apr 2007 • 55 posts Report Reply

  • Kyle Matthews,

    Parliament doesn't want rugby fights brought before the courts, and it has left prosecutorial discretion intact to allow this to occur. Parliament doesn't want light smacking brought before the courts and it has left prosecutorial discretion intact to allow this to occur, but it also doesn't want light smacking to be criminal, and yet passed a law making it so.

    I suspect that parliament doesn't want minor assaults on the rugby field to be criminal.

    I play a contact sport, which doesn't involve people punching me, and I certainly play it with the expectation that people won't punch me. If someone assaulted me in a serious manner while playing it then I sure would be talking to the police and I'd expect them to take it seriously.

    I think the analogy still holds.

    Since Nov 2006 • 6243 posts Report Reply

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