Hard News by Russell Brown

Read Post

Hard News: Stop the Enabling

554 Responses

First ←Older Page 1 19 20 21 22 23 Newer→ Last

  • 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 • 3212 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 • 3212 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 • 3212 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

  • Sacha,

    undermines parental rights

    Here we go again. Just where does this "right" to hit your children come from? And why are you so concerned about it?

    Ak • Since May 2008 • 19740 posts Report Reply

  • Graeme Edgeler,

    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.

    Not guilty, in that you haven't been convicted; but convicted or not, charged or not, parents who lightly smack have broken the law.

    If I were to rob a bank, and never get caught, my actions would be criminal, not potentially criminal .

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

  • Sacha,

    Graeme, I get where you're coming from in principle. However I can't see how it makes much practical difference and I don't imagine most of our fellow citizens losing sleep over it - excepting some of our present guests of course.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Paul Williams,

    Not guilty, in that you haven't been convicted; but convicted or not, charged or not, parents who lightly smack have broken the law.

    That's a different point to the one you made earlier. You said:

    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.

    It was the use of the word criminal that I disagreed with. The amendment does not criminalise ordinary every day parents, it's not strict liability, various other defences may apply and unless there's a public interest in a charge being laid, parents may not ever be charged. Chuck and dave, I can understand, being confused about the difference.

    Whether parents are "guilty" or have broken the law in a legal rather than philosophical sense is also debatable. You're innocent of a crime until proven guilty, surely you're also innocent if you've not even been charged?

    If I were to rob a bank, and never get caught, my actions would be criminal, not potentially criminal.

    I think that's absurd and hardly a reasonable comparison. Moreover, I can't imagine the Police not investigating and attempting to lay charges in the case of a bank robbery. The two situations just aren't alike.

    How about two people involved in a minor fracas at a bar; I've seen plenty of these where the Police have simply moved people along and not, though they could have, detained or charged either party.

    The amendment merely removes a defence, not all defences, from parents/care-givers etc and in so doing, simply gives children the same rights their parents enjoy.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • robbery,

    You're innocent of a crime until proven guilty, surely you're also innocent if you've not even been charged?

    put that idea to the test.
    if you shoplift a can of coke and don't get caught, are you innocent of shoplifting?

    if you run over a cyclist and no body sees you do it and you drive away are you innocent of hit and run?

    new zealand • Since May 2007 • 1882 posts Report Reply

  • 3410,

    You're innocent of a crime until proven guilty, surely you're also innocent if you've not even been charged?

    You are to be considered innocent until proven guilty. That doesn't mean you are innocent.

    Auckland • Since Jan 2007 • 2618 posts Report Reply

  • Paul Williams,

    Thanks 3410, that is what I meant. The presumption of innocence is a legal presumption, not absolute.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Steve Parks,

    Paul, the example of the bank robbery was just Graeme pointing out that not being convicted isn't the same as saying the act isn't a criminal act. Beyond that, he wasn't saying it was a good analogy.

    The amendment does not criminalise ordinary every day parents,

    Yes it does, in the sense Graeme has been talking about pretty consistently. It might be worth you taking the time to read the exchange between Graeme and Brickley Paiste (or something like that - typing the name from memory) that starts page two and takes a 2 or 3 pages. Its pretty clear to me that Graeme established that, prior to the law change, the act of hitting your child lightly for the purpose of correction was not illegal, but now it is: it is an illegal act. An act "ordinary everyday parents" are committing, presumably.

    Wellington • Since May 2007 • 1165 posts Report Reply

  • Sacha,

    I believe this conversation has largely been about what's legal rather than what's moral. Innocence and guilt do not mean the same things in both those worlds.

    There's a difference between doing something wrong and being convicted of a crime. I suspect most New Zealanders would readily call the convict a criminal, but it seems remarkably far-fetched to claim that any parent who smacks their children every now and then is going to feel all criminalised because they no longer have a special legal defense if they happen to whack their kid hard enough to end up in court.

    It's simpler than understanding the motivation of those who obsessively campaign against the law change as if they've lost something really important. Their fragile sense of masculinity must have departed a long time before Sue Bradford had anything to do with it.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Steve Parks,

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

    I think this is getting there...

    I'd re-word that to say something like: I suspect that parliament doesn't want minor incidents of pushing or hitting on the rugby field to be a criminal level of assault. (I mean ones outside the rules of the game.)

    I don't think most people consider a routine (but not rule-protected) shove in a game is really an illegal act. Technically it is, (in that it doesn't have a specific defence, as with light smacking now). But in a day to day sense, we don't think of it that way.

    I'll have to expand on this later, I've gotta go. I'm away for the weekend so might not post for a while. Get this thread to 100 pages in the meantime, okay guys?

    Wellington • Since May 2007 • 1165 posts Report Reply

  • Sacha,

    Well we have one of the right ingredients. :)

    Ak • Since May 2008 • 19740 posts Report Reply

  • Andy Moore,

    I would have thought it was quite simple Russell... I'm either a self-professed Christian soldier or I'm not...

    Christchurch, NZ • Since May 2009 • 4 posts Report Reply

  • Sacha,

    Yep, it's all about you.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Paul Williams,

    Graeme pointing out that not being convicted isn't the same as saying the act isn't a criminal act.

    Agreed. It's not what I meant to argue however. My point is that amendment does not make smacking your child a strict liability offence, so to say all parents who smack their kids are criminal is to ignore the defences that remain available.

    The amendment does not criminalise ordinary every day parents,


    Yes it does, in the sense Graeme has been talking about pretty consistently. It might be worth you taking the time to read the exchange between Graeme and Brickley Paiste (or something like that - typing the name from memory) that starts page two and takes a 2 or 3 pages. Its pretty clear to me that Graeme established that, prior to the law change, the act of hitting your child lightly for the purpose of correction was not illegal, but now it is: it is an illegal act. An act "ordinary everyday parents" are committing, presumably.

    I'll re-read it but I didn't think it was on the same issue. I accept that the removal of the special defence exposes smacking parents to criminal charges (for which discretion around charges and other defences are available as per above).

    I'd re-word that to say something like: I suspect that parliament doesn't want minor incidents of pushing or hitting on the rugby field to be a criminal level of assault. (I mean ones outside the rules of the game.)

    It doesn't matter a whole lot what Parliament wants, the acts may well be prima facie assaults, what keeps them out of the courts is likely practical constraints relating to evidence, various defences and the lack of public interest.

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • ScottY,

    Might have been more convincing had his analysis of section 59 not been so flawed.

    West • Since Feb 2009 • 794 posts Report Reply

  • Sacha,

    For Roughan, that was quite coherent.

    Ak • Since May 2008 • 19740 posts Report Reply

  • Sacha,

    Not that I'm a lawyer.

    Ak • Since May 2008 • 19740 posts Report Reply

First ←Older Page 1 19 20 21 22 23 Newer→ Last

Post your response…

Please sign in using your Public Address credentials…

Login

You may also create an account or retrieve your password.