In, The referendum campaign is underway, No Right Turn’s Idiot/Savant gives an excellent example of an argument we see coming up a lot in the debate around the upcoming referendum on smacking. In addition to trotting out the standard ad hominem, that everyone who supports the reinstatement of the old section 59 of the Crimes Act is a “child-beater,” I’d like to examine the emphasised part:
Over the next month I expect to see a succession of unhinged press releases from the child-beaters claiming that the law somehow impinges on their religious freedom or has caused the widespread persecution of parents. It does nothing of the sort. What it has done is prevent parents who punch their children in the face or beat them with a soup ladle from claiming a defence of “reasonable force”. And that is unequivocally a Good Thing. The only people who oppose that are people who wish to abuse children in that way – and we should treat them with the contempt they deserve.
Essentially Idiot/Savant here claims the parent in his example are guilty, apriori, and as such, when they go to trial, they should not be able to attempt to raise a defence. The problem is that the whole point of having a trial is to determine guilt or innocence. Even when it seems pretty obvious, trials are still necessary and the right to due process still applies. This right to due process includes, alongside the presumption of innocence, a right to raise a defence, no matter how stupid or implausible, and have the court assess it. The importance of this concept can be summed up by Blackstone’s Ratio, “Better that ten guilty persons escape than that one innocent suffer.”
Supporters of the anti-smacking law do not seem to get this. This ‘claiming a defence’ issue has been raised a lot ever since Sue Bradford first began promoting her bill to remove the old s59 defence, of reasonable force for the purposes of correction, from the Crimes Act. If you read the Vote Yes site, if you read the media releases and the articles and listen to the interviews you will hear it a lot.
Of course what Idiot/Savant, Bradford, the Vote Yes people, et al miss is that there is a world of difference between claiming a defence and succeeding in doing so. The court is not stupid and the people making the determinations of guilt or innocence in our courts are normal, everyday people. If it is so obvious to all of us that hitting a child across the face with a soup ladle is child abuse, and it is obvious to all of us, a court, made up of people like us, is not going to rule that such an action is an example of reasonable force.
The 34 reported cases on the old s59 are readily available in any law library and if you read them, instead of the media reports and politicians and websites and blogs, you will see time and time and time again child abusers failing in their attempts to raise the defence of reasonable force. The majority resulted in convictions and the few that did not were more often than not due to things like it not being proven who abused the child – which is terribly sad for the child, but you can’t just convict anyone so that you can chalk up a conviction! Wrongly decided cases are a fact of life. Just like doctors making mistakes on the operating table, just like us making driving errors. We should try very hard to ensure that these do not happen but to remove a defence entirely and risk the prosecution of the innocent is not the answer. Besides, some of the cases cited in the media as being wrongly decided were not even cases where s59 was raised, other defences like self-defences were in play… shall we remove self-defence as defence?
The contempt for due process does not stop here; statements like Idiot/Savants that, “The only people who oppose that are people who wish to abuse children in that way,” show that he is willing to accuse anyone of being a supporter of child abuse because they support the right of an accused to a fair trial.
Chilling. Basically once accused of something heinous, one should not be allowed to defend oneself and anyone who disagrees is morally on par with a child abuser.
There is another patently obvious flaw in Idiot/Savant’s argument; removing the defence doesn’t just prevent people who seriously abuse children from raising the defence it also prevents the wrongly accused from being able to raise it. However, without defences there is no way of separating the two. I am not speaking here of those who can stand up in court and honestly state ‘I did not touch my child,’ such accused could plead ‘not guilty,’ I am speaking of those who end up in court for smacking their children, not hitting them with soup ladles across the face; I am speaking of those who with an open hand, lightly, smack a child on the bottom once, not out of anger or in the midst of rage but in response to disobedience on the part of child. Such people cannot plead not guilty if accused of assault, they have no legal defence if they end up before a court. To remove legal defences from people innocent of child abuse to ensure that the net catches everyone is wrong.
Hat Tip: HalfDone
 William Blackstone Commentaries on the Laws of England (Clarendon Press: Oxford, 1760).