Hard News by Russell Brown

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Hard News: Stop the Enabling

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  • Steve Parks,

    the pro-rule-of-law-ers who think Parliament shouldn't be passing legislation it really doesn't want enforced.

    That's Graeme making the point, a page or two back.

    Neither he nor Dave mean that parliament doesn't want the legislation as a whole enforced **at all*, just that they don't really want anyone to be charged with assault for a light corrective smack on the hand.

    Before, that was not illegal; now, it is (cf. the debate between Graeme and Brickley Paiste that started about page two).

    Wellington • Since May 2007 • 1165 posts Report Reply

  • Graeme Edgeler,

    Is it possible Graeme might re-state his point, I'd appreciate it?

    My point was that I didn't really like being referred to by Russell as a pro-smacker, indeed, I suggested I was an anti-smacker who opposed the amendment to section 59 on the Crimes Act for other reasons:

    1. That I did not think that a light smack was sufficiently serious that the criminal law should be implicated in dealing with it; and
    2. That, given that Parliament clearly did not think parents who lightly smack are criminals, it shouldn't have passed a law making them criminals.

    Parliament knew when it passed the amendment to section 59 that any parent who lightly smacked a child would be committing a criminal offence (an offence not being committed prior to the amendment); Parliament did not want those parents charged, and it did not want the law it was passing enforced. When Parliament does that, the rule of law is diminished. In my opinion it should have passed a law that it would have been happy to see enforced instead.

    Wellington, New Zealand • Since Nov 2006 • 3212 posts Report Reply

  • Kyle Matthews,

    the pro-rule-of-law-ers who think Parliament shouldn't be passing legislation it really doesn't want enforced.

    I think this is a argument which leads to no victory point.

    Even if parliament did amend laws but then not want them to be enforced, which is a matter of debate...

    Laws will be interpreted by police policy, police action, judges, lawyers, and juries. It is the mixture of those things that will determine how laws will and won't be enforced, and what will lead to a conviction and what won't, what will lead to an arrest and what won't.

    It's the same for all the other incidents of assault and many other crimes.

    To me this argument runs full smack into the counter point of "well even if that's true it doesn't matter because [two paras above]".

    It's no victory because it's been assumed for many other incidents. When the assault laws were put in the crimes act parliament didn't want them to apply to many things that happen on the sports field. They didn't explicitly put a statement along those lines in.

    This is an argument that we only have because it's about children and some people think that children have less rights in this area. They should front up and defend that belief rather than the 10 other arguments (laws they don't want enforced, light smacks don't harm kids, government shouldn't interfere in parenting) they make.

    Lets have a referendum on "parents should have the right to assault their kids as part of parenting because children don't have the right not to be subject to physical violence like an adult does" which is what we're really doing. Put that question out to the public and see if 80% say yes.

    Since Nov 2006 • 6243 posts Report Reply

  • Kyle Matthews,

    I suggested I was an anti-smacker who opposed the amendment to section 59 on the Crimes Act for other reasons

    Graeme, would you agree that there are other incidents that take place in society which the law makes criminal, but which, if parliament was to debate/vote on them, it would agree that it also wouldn't want those people convicted?

    Since Nov 2006 • 6243 posts Report Reply

  • ScottY,

    Parliament knew when it passed the amendment to section 59 that any parent who lightly smacked a child would be committing a criminal offence (an offence not being committed prior to the amendment); Parliament did not want those parents charged, and it did not want the law it was passing enforced. When Parliament does that, the rule of law is diminished. In my opinion it should have passed a law that it would have been happy to see enforced instead.

    I understand your argument, though I don't agree with it. The crimnal law has always operated this way.

    For example, by law anyone who shoves another person has arguably committed an assault, unless a defence exists. And yet Parliament surely never intended that a person who shoved another in an inconsequential manner (say during a rugby field scuffle) should be hauled before the courts. In such circumstances the police will just exercise their discretion not to prosecute.

    West • Since Feb 2009 • 794 posts Report Reply

  • Russell Brown,

    My point was that I didn't really like being referred to by Russell as a pro-smacker ...

    I wasn't meaning to refer to you personally.

    1. That I did not think that a light smack was sufficiently serious that the criminal law should be implicated in dealing with it; and

    So you'd have favoured a change to Section 59 that dramatically reduced latitude in the meaning of "reasonable force"? Because I think it's quite clear that abusive parents have been able to use the defence.

    As I explained above, I understand your point, but it does not sway me, for the reasons I gave. Frankly, there are too many parents out there who cannot be left to exercise their own version of "reasonable force".

    2. That, given that Parliament clearly did not think parents who lightly smack are criminals, it shouldn't have passed a law making them criminals.

    But corporal punishment is only a custom, no more. Customs change. If the prevailing custom was for parents to beat their children with implements, would you simply allow for that in the law?

    The actual justification for hitting a child at all as a form of parenting is extremely meagre on the evidence -- that's why nearly all expert groups say it's a bad idea. I'm not sure why, on that basis, it should be enshrined in its own special defence in law.

    Auckland • Since Nov 2006 • 22848 posts Report Reply

  • Graeme Edgeler,

    Parliament surely never intended that a person who shoved another in an inconsequential manner (say during a rugby field scuffle) should be hauled before the courts...

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

    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.

    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.

    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.

    Wellington, New Zealand • Since Nov 2006 • 3212 posts Report Reply

  • Graeme Edgeler,

    So you'd have favoured a change to Section 59 that dramatically reduced latitude in the meaning of "reasonable force"? Because I think it's quite clear that abusive parents have been able to use the defence.

    Yes. I think I was reasonably clear at the time this was all happening that something along the line of Chester Borrow's amendment would have been a vast improvement over the status quo ante . I probably have gone even further and adopted Joh Key's final rejected suggested (it may have used words like 'light smack'?).

    I'd note that this line is also that adopted by Family First, and is the reason they've gone for the particular wording of their referendum. Their concern isn't that there was a change to the laws around child discipline, but that the change went as far as it did. They don't want to defend what was happening under the old law any more that most people here.

    Frankly, there are too many parents out there who cannot be left to exercise their own version of "reasonable force".

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

    But corporal punishment is only a custom, no more. Customs change. If the prevailing custom was for parents to beat their children with implements, would you simply allow for that in the law?

    Again, it's a difference between a prevailing custom one thinks should be criminal, and a custom one does not think should be criminal. If there's a custom Parliament thinks should be illegal, I've no problem (from a rule-of-law perspective) with them making it illegal; it's when they pass laws criminalising things they don't should be criminal that I get a little miffed.

    Wellington, New Zealand • Since Nov 2006 • 3212 posts Report Reply

  • 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 • 22848 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 • 1165 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 • 22848 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 • 5441 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 • 1165 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 • 22848 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 • 1165 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

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