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No Defences Permitted for the Accused

June 19th, 2009 by Madeleine

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.”[1]

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

[1] William Blackstone Commentaries on the Laws of England (Clarendon Press: Oxford, 1760).

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36 responses so far ↓

  • But what I found interesting is that I/S's own words on Juries convict him. He's very keen on juries but isn't keen on them being allowed to differentiate between reasonable parenting and abuse.

    Recent blog post: Schools “Too Safe”

  • It is like the knee jerk reaction to lawyers who defend accused rapists – 'how could they?' Such accused are 'clearly guilty' and deserve to be punished harshly, everyone gets angry at the lawyer and wonders how they can sleep at night…

    Now sometimes it does appear that an accused is clearly guilty and it smacks of desperation on that accused's part to attempt a not-guilty route in such cases the defences offered sound half-baked – look at the case we are waiting to hear back on currently, Nai Yun Xue is trying to sell an erotic asphyxiation defence which on the basis of what we have heard via media (we were not in the court room) seems, on the face of it, ludicrously desperate. Should someone so 'obviously guilty' be allowed to attempt a defence?

    If you can see what is wrong with that line of reasoning then surely you can see it here in these child abuse cases… apparently not. People like Bradford, Idiot/Savant, etc let their emotion at what has happened to the victim get in the way of their ability to reason through the ethical and jurisprudential contexts. Rights to a fair trial, the right to a defence are important for everyone, even the 'obviously guilty.'

    Idiot/Savant should read my post In Defence of the Defence.

    Recent blog post: No Defences Permitted for the Accused

  • the guy who was accused of punching his kid in the face claimed a defence of 'innocence' – he says he didn't do it

    even if the old s59 had been in play, I doubt he would have claimed 'reasonable force', he would stil have claimed 'innocence'

    Recent blog post: Do You Maintain Balance in Your Life?

  • This doesn't stop anyone defending themselves in a court of law? As Gavin Knight points out. It stops the loophole that they can get through? Seems common sense to me. More power to the battered child is my position. I know you don't support the abuser, nobody would. But the result of your position does, if you care to look ahead.

  • Most issues are on a continuum. One can be for consuming alcohol and against intoxication though there is not a clear demarcation at exactly which point one gets drunk.

    The old law allowed prosecution of child abuse. The new law prevents smacking as discipline but still allows holding a child from walking in front of a car. The point is that the line of physical force as been shifted on the continuum (to very minimal force).

    To talk about preventing punching children in the face is disingenuous as this is not close to the point of smacking. We are not arguing over whether someone was more than a bit tipsy versus slightly drunk. Adult fist to child face is nothing like a switch to the bottom.

    Why can't they just be honest and say they are morally opposed to physical discipline. Their refusal to do so and their red-herring claims just reveal there intrinsic dishonesty. Why anyone should take heed of moral arguments of liars is beyond me.

    Recent blog post: Untying the binding

  • Yeah, I'll be honest, I am morally opposed to physical discipline. Why use physical discipline on anyone?
    I wouldn't hit my wife, mother, father or child.
    But I obviously have different morals to others, so I try to convince them in other ways.
    Perhaps I should start hitting people till I get them to do what I want? (joke)

  • There is no loophole.

    You could never walk into court and say your honour, I beat my kid around the head with a frying pan, the neighbours saw me do it through the window, but I'm gonna beat the rap because s59 is my get out of jail free card. If I say it was reasonable, the evidence doesn't matter.

    Raising a defence of reasonable force does not mean that you will succeed in raising it. Most accuseds of any crime get convicted because the police don't tend to get it wrong that often in pushing for a conviction. Accuseds can raise all manner of defences; it does not mean that a court will believe them.

    You can't have it both ways. Removing the defence of reasonable force for the purpose of correction to assault criminalises everyone who engages in a technical assault those who smack lightly through to those who beat with frying pans. Pretending that it doesn't is self-deception.

    No one accused of a light smack who in fact did administer a light smack to a child can honestly raise the innocence defence. Right now police discretion is being exercised in such cases. Police discretion is no guarantee; the law says there is no defence for any assault for the purpose of correction. This law criminalises those who smack.

    Do I need to define assault for you? You do realise that touching anyone without consent is assault and in fact threatening to but not actually doing it can be too.

    Recent blog post: No Defences Permitted for the Accused

  • Thankyou for your honesty. I too do not like smacking, and have always preferred to use non-smacking alternatives to parenting. I find conversations with parents who have a casual attitude to smacking uncomfortable. However, I can see the difference between a light, controlled smack and a beating, I can also see that the removal of the old s59 criminalised both and I can see plain as day that the referendum question is not confusing.

    Recent blog post: No Defences Permitted for the Accused

  • The old law was not a loophole, anymore than the test of "beyond reasonable doubt" is a loophole. Testing if force is abusive is surley as important as the test of whether or not it happened or not. That's what the law *should* do.

    Simply saying "force was used, therefore a criminal assault occurred" (which is what the law now effectively says) is silly. Parents have a very different relationship with their children than any other in society, and physical contact is a very common occurrence.

    Gavin: defense of innocence – yes, exactly the point I made in the linked post 🙂

    Recent blog post: You don’t smack a stranger

  • "The old law was not a loophole, anymore than the test of "beyond reasonable doubt" is a loophole."
    Exactly, that was my original point, anyone still has the right to defense. But it makes it more difficult to get away with abuse.
    We all have different points of view on what abuse is. For people who posted here, we can probably all agree that a smack is different to a hit. But for some people of society, a beating is discipline in their eyes. There is no definite consensus, never will be.
    I think we could make use of force illegal. We can teach our kids through other forms of punishment.
    Where does this determination to have the right to smack our kids come from? Why would bob spend so much effort, money and time into ensuring he has this right? I do struggle to understand this?
    Is it "Parents have a very different relationship with their children than any other in society, and physical contact is a very common occurrence."?
    I accept this, parents need to teach children right and wrong, but don't see it as an excuse to use physical force.
    If we teach them right and wrong with force, we teach them that they can control people with fear and intimidation (they will pick this up subconsciously).
    If bob put his time and energy into a campaign for 'stop family violence' (doesn't have to be about smacking) he would make a world of difference, and reduce child abuse. But instead he is all about having the right to use force to discipline children.
    I think some believe that if we change the law, people who did hit their kids will be seen as being violent unloving parents? But this is not true.
    Is that maybe an underlying issue here?

  • "touching anyone without consent is assault"

    Surely not. Is it assault when I pick my child up when he doesn't want to be picked up?

  • Yes it is but parents have always had a defence to it, the old s59, reasonable force, and the new s59:

    59 Parental control
    1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

    a) preventing or minimising harm to the child or another person; or
    b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or
    c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or
    d) performing the normal daily tasks that are incidental to good care and parenting.

    Recent blog post: No Defences Permitted for the Accused

  • I think what you are missing is people's objection to the intrusion of the state into the lives of good citizens.

    Some people have a political view where they don't mind the state being all over their lives, others, like me, have the view that the state should have nothing to do with the choices I make in my life unless I am harming someone or doing something terribly wrong.

    A law has been passed that makes a great number of good parents into criminals. Whether they are prosecuted or not, whether the police exercise discretion or not is not the point, if a law catches far more people than it should it is a bad law. It should be adjusted to, as close as possible, catch those whose actions are harmful to others and it should miss those whose actions fall outside that standard.

    The old law did not permit those who beat their children to get away with it. Such people attempted to use the old s59 but failed. Like any court case occaisionally the decision went the wrong way but that happens accross the board not just with this offence and the number of such cases is very small. Most were decided correctly.

    Recent blog post: No Defences Permitted for the Accused

  • Regarding this loophole thing; I just logged into Brookers and searched for any reported case that cited s59 of the Crimes Act. I got 34 hits, at a glance they all seem to be on topic.

    If it would help, I am happy to go through each one, see if I can find and link to each one on the publicly available case sites and summarise the outcome of each as a stand alone blog post.

    That way we can see just how many cases there have ever been where someone has attempted to raise s59 as a defence (apparently only 34) and of those attempts, how many were successful, and then you can each read the cases for yourselves and see what you think of the reasoning, whether s59 ever was used as a loophole. Court records are far more accurate than politician spin and media reporting.

    This will be a bit of work for me but is this a resource that people would find useful?

    Recent blog post: No Defences Permitted for the Accused

  • Parents should have more rights but when it is taken too far a judge should be able to make a decision on a case by case basis without mandatory rulings.

  • Gavin there is no "defence" of innocence to assault. What you are describing is the plea of not guilty.

    A defense occurs when a person has performed an action that fits the definition of the crime (in this case assault) but did so in circumstances where it was justifable or reasonable. For example a person who punches an assaliant in self defence has commited assault, they have punched someone, however the they can argue that the force was reasonable in the circumstances because it was self defence. They cannot plead not gulity to the charge of assault because they did commit assault, they hit the assaliant.

    Similarly a person who touches a child with out that childs consent in any way has commited an assault. They cannot plead not guilty to assault they can only raise a defence.

    Recent blog post: No Defences Permitted for the Accused

  • I do think smacking a child is wrong, but not terribly wrong.
    True, I wish the govt would keep out of my life too. I find it strange that people who are for smacking don't use this argument when other laws are passed. While government controlling our lives may have some thing to do with it, I think its more about ingrained beliefs. Beliefs that have been shaped by our environment, and not a result of our own logical thinking.
    Other laws challenge our rights more than this, but they didn't get the reaction this one did.
    Another issue here is that its Sue Bradford who put it through, many people have a strong hatred of her that they can't see past.
    I accept the view of too much government intervention, but I think people use it as an excuse to cover up other reasons.
    If you can find out some facts on this loophole claim it would be useful, if you can be bothered.
    I know this may seem stubborn, but the fact that I think it is wrong means I can't be convinced that smacking should be legal. I can understand your and other people's argument, and don't think smackers are bad parents. I just believe its something we should make illegal and put in our past and we should promote more positive forms of punishment.

  • maybe my use of the word 'defense' was technically incorrect, but my point is simple, and is that this case is irrelevant to the debate over s59 … they guy says he didn't do it, he wasn't claiming it was justified under either the new s59, and I doubt whether he would have claimed it was justified under the new s59

    that said, I don't accept his claim as I doubt the case would have gone as far as it did if he had simply flicked his kid around the ear as he claims

    Recent blog post: Do You Maintain Balance in Your Life?

  • Gavin

    I don’t recall either Madeleine or I referring to the ear flicking case. Madeleine was simply questioning Idiot/Savants claim that it’s a good thing that those guilty of crimes can not attempt to make a defence. In a society where people are innocent until proven guilty this kind of attitude is an egregious error, and the fact Savant makes it by accusing all who disagree with him of child abuse without any evidence at all. simply underscores his and others who make this arguments own contempt for the need for due process

    However your suggestion he wasn't claiming it was justified under either the new s59, and I doubt whether he would have claimed it was justified under the new s59 actually raises an important point, Bradford herself has said this case is irrelevant because even under the old law he would have been prosecuted. She is correct, in other words contrary to her repeated claims and the claims of others the former s59 did not allow a person abuse their child, the law change does not alter the status of abusers, it alters the legal status of those who use force but do not abuse.

    Recent blog post: No Defences Permitted for the Accused

  • Yeah, I'll be honest, I am morally opposed to physical discipline. Why use physical discipline on anyone? </>

    Because they have done something wrong and there conduct warrants it.

    I wouldn't hit my wife, mother, father or child.

    You wouldn’t confiscate property of your wife or father, nor you send your father to his room or ground him either. I assume then you think these things should be illegal.

    Perhaps I should start hitting people till I get them to do what I want? (joke)

    Jokes aside I think this kind of comment is naïve. First no one states you can hit people to get what you want the claim is its justified to use force against a person who disobeys an authority (their parents) and does something wrong.

    Second, this claim is actually uncontroversial and accepted by adults, if you disagree with me tell the government you refuse to obey there authority and start breaking their laws. I assure you the state will use force if necessary to stop you. They will not ask you and try and reason wuith you, you will be taken to curt by force and forced to go to jail. It you rsist you will be hit or tasered.
    Even in the adult world when a person disobeys authority they can be corrected with force. Those who think otherwise live in la la land.

    Recent blog post: No Defences Permitted for the Accused

  • understand/agree … yes, the comment was a little off topic, apologies

    but the 'ear flick' case has been raised by some new-s59 opponents as an example of the new s59 not working when it is not even relevant to s59

    I would hope that if the police genuinely thought a father had punched his child in the face then they would prosecute, whichever s59 was in force at the time – the father could defend himself against the charge by claiming he didn't do it, but that is a factual matter for a court/jury to decide whether it agrees with the police/prosecution

    Recent blog post: Do You Maintain Balance in Your Life?

  • You state I wouldn't hit my wife, mother, father True, and probably would not ground them, send them to their room, confiscate their property, or make medical decisions for them without your consent either. So I assume that you support making it illegal for parents to ground their kids as well.

    But I obviously have different morals to others, so I try to convince them in other ways.
    Perhaps I should start hitting people till I get them to do what I want?

    Well that might be a good point if people actually had argued it was OK to hit someone merely to get them do what they want. But no one has argued this, what has been claimed is that if a person refuses to obey a legitimate authority then that authority can if necessary use force to gain compliance.

    Do you deny this claim? If so I take it you do not support prisons or a police force or a courts system or laws, all of which back up the commands of the government with force. In fact those who support the repeal of s59 do so precisely to force child abusers to comply with their commands.

    Recent blog post: Not Voting is a Vote for Keeping Smacking Criminalised

  • True, I wish the govt would keep out of my life too. I find it strange that people who are for smacking don't use this argument when other laws are passed.

    Irrelevant, the fact that someone is inconsistent in their support for a principle does not mean the principle is false. Some people are inconsistent in their opposition to racism, does that mean racism is OK.

    If you can find out some facts on this loophole claim it would be useful, if you can be bothered

    Here you again *assume* it’s a loophole, its not it’s a defence there is a big difference. As I have pointed out, the law allows people to use reasonable force in self defence, sometimes people use lawyers to exploit this and get away with murder. Does it follow we should abolish the defence of self defence and self defence is a loop hole. The law does not allow a person who has consensual sex to be charged with rape, as a result of this large numbers of rapists have been aquitted by claiming the women consented. Is consent a loop hole that should be abolished? No, Why then does the fact ( if it is a fact ) that some people have escaped prosecution for child abuse under s59 mean s59 is a loophole that needs to be abolished?

    I think its more about ingrained beliefs. Beliefs that have been shaped by our environment, and not a result of our own logical thinking.

    Actually these “ingrained beliefs” can and have been defended rationally and logically in academic journals ( see for example here http://www.corpun.com/benatar.htm from the journal of social theory and practise) the fact that some people ignore these arguments does not make those who do not illogical.

    know this may seem stubborn, but the fact that I think it is wrong means I can't be convinced that smacking should be legal. I can understand your and other people's argument, and don't think smackers are bad parents.

    Ok two things, first you contradict your self here, you say smacking is wrong but that parents who smack are not bad parents. That does not make sense, a bad person is a person who engages in wrongdoing a good person is someone who does not. The claim that a parent who ( on your view) unjustifiably assaults his children is a good parent is absurd.

    Second your claim the fact that I think it is wrong means I can't be convinced that smacking should be legal. Well Lying is wrong so I take it then you think it should be illegal, loosing your temper and insulting someone is wrong, so I take it that should be illegal to. Unfairly leaving the dishes for your wife to do is wrong, so I take it you think this should be subject to prosecution and so on.

    If these are the silly arguments that are needed to defend your position its indefensible.

    Recent blog post: Not Voting is a Vote for Keeping Smacking Criminalised

  • Gavin,

    The old law did not allow a father to punch his child was illegal then and still is now. Of course under the old law a parent could try to argue that their actions were reasonable correction just as they can currently argue that their actions are reasonable acts of self defence. Neither argument however is likely to succeed, both in light of the case law, the facts of the case, and also the improbabilty of a jury buying the argument.

    When Bradford was in Dunedin a few years ago I had the following exchange with her which went something like this

    B. Under S 59 there have been cases where child abusers have escaped justice by convincing a jury there actions are reasonable. Therefore we should abolish this defence

    Me. Do you accept that some assailants have escaped justice by convincing a jury that there actions were self defence.

    B. Yes

    M Do you therefore think we should abolish the defence of self defence

    B No

    M. Why not?

    B. Because that logic is silly you should not ban a defence just because some people exploit it to get off.

    M. Why then should we ban s59

    B. Because some people have got away with child abuse by using s59.

    M. You don’t think that logic is in your words ‘silly’

    B. No, my positions perfectly logical, next question.

    This says it all.

    Recent blog post: Not Voting is a Vote for Keeping Smacking Criminalised

  • Matt! you do jump to conclusions!

    "Irrelevant, the fact that someone is inconsistent in their support for a principle does not mean the principle is false. Some people are inconsistent in their opposition to racism, does that mean racism is OK."

    -I never said the principle is false, I just think people choose it as a base for their argument, and completely deny it in others. I actually state that this may have something to do with your argument (read carefully)

    "The law does not allow a person who has consensual sex to be charged with rape, as a result of this large numbers of rapists have been aquitted by claiming the women consented. Is consent a loop hole that should be abolished?"

    -This is a pointless comparison, to make consenting to sex illegal, you have to make sex illegal, not the consenting (or have everyone stop having sex). You are comparing two acts, one has two people consenting, the other has one.

    "I think its more about ingrained beliefs. Beliefs that have been shaped by our environment, and not a result of our own logical thinking."

    -Sorry, maybe I didn't make myself clear here, I'm not accusing you (or pro smackers) of being illogical. I shouldn't have used that word, it altered my sentence. My point is people come to the conclusion that smacking is ok through normalisation. What they believe in is what is normal to them, they don't challenge these beliefs though their own thinking. eg, if we were in the Netherlands, would you be anti-smacking, pro decriminalisation marijuana? Would I? Would most people? Because that is normal over there. That's what they grow up with. I'm saying our beliefs are a result of our environment, not that your argument is illogical…..

    "Ok two things, first you contradict your self here, you say smacking is wrong but that parents who smack are not bad parents. That does not make sense, a bad person is a person who engages in wrongdoing a good person is someone who does not. The claim that a parent who ( on your view) unjustifiably assaults his children is a good parent is absurd."

    -I don't contradict myself at all and this is not an absurd point of view. Try thinking a bit out of the box. A school teacher from 1960, used to strap kids in class. Do you consider that teacher to be a bad person, or a bad teacher? No, they're just a product of their environment. A strict Muslim thinks women should wear a headscarf, he thinks you are a bad person because you go outside with your wife and her head is not covered? Are you a bad person? Or is he close minded? The belief that a person that does bad things (in our view) is a bad person is simplistic and closed minded. I think smackers are doing something wrong, but they do it because they consider it normal behaviour. If I call them a bad person for that, I'm stupid!

    "Second your claim the fact that I think it is wrong means I can't be convinced that smacking should be legal. Well Lying is wrong so I take it then you think it should be illegal, loosing your temper and insulting someone is wrong, so I take it that should be illegal to. Unfairly leaving the dishes for your wife to do is wrong, so I take it you think this should be subject to prosecution and so on."

    -Ohh, come on, you aren't serious? Don't take everything so literally, I'll make it clearer for you: I think smacking is wrong for many reasons, therefore shouldn't be legal. Dirty dishes illegal? You can do better than that…

    "If these are the silly arguments that are needed to defend your position its indefensible."

    -They're not that silly if you think a bit more…

  • "Do you therefore think we should abolish the defence of self defence "
    Its an irreverent comparision.
    Self defence is for when someone is about to hurt you, your only option to protect yourself is to hurt them, and only hurt them to a certain degree.
    Your comparison would only be relevant if the law states, "a smack can be used by a parent if it is used in self defence when a child puts you in danger"
    It is illogical.
    If we are going to start comparing apples with oranges, I'll start comparing a smack to a beating.

  • "You state I wouldn't hit my wife, mother, father True, and probably would not ground them, send them to their room, confiscate their property, or make medical decisions for them without your consent either. So I assume that you support making it illegal for parents to ground their kids as well."

    -You've taken that out of context, again (your out of context comparisons are getting tiresome, on every point I make). I was referring to using physical force on a loved one. The fact I powder my baby's bum, does not mean I powder my mums!

    "Well that might be a good point if people actually had argued it was OK to hit someone merely to get them do what they want. But no one has argued this, what has been claimed is that if a person refuses to obey a legitimate authority then that authority can if necessary use force to gain compliance."

    -First of all that was a joke (you can tell that because I put the work JOKE in brackets), I'll try not to have a sense of humour on page (another joke). I do not have problem with authority, I have a problem with smacking children (striking them with your hand to control them).
    And yes, I do support prisons, the police force, court of law and laws (but they could be better). They are not smacking children, so whats your point?

  • Matt You state I wouldn't hit my wife, mother, father True, and probably would not ground them, send them to their room, confiscate their property, or make medical decisions for them without your consent either. So I assume that you support making it illegal for parents to ground their kids as well.

    Guest You've taken that out of context, again (your out of context comparisons are getting tiresome, on every point I make). I was referring to using physical force on a loved one. The fact I powder my baby's bum, does not mean I powder my mums!

    What? Your comparison may have been that these are people you loved, but Matt pointed out that the reason one smacks is not related to "love" rather "authority" And he showed this with the example. He is not taking you out of context, he is showing your context for smacking is irrelevant. And you tacitly agree with Matt with your example of powdering your baby's bum.

    You powder your baby and not your mother. You love you baby and your mother. Thus powdering is not directly related to love, it is related to ability (ie. the inability of your baby).

    You don't use (or not use) physical force on a loved one (directly) because they are loved. You use it because you are in a position of authority. You support other authorities using force, why do you not support parental authorities using force.

    Recent blog post: Untying the binding

  • "You powder your baby and not your mother. You love you baby and your mother. Thus powdering is not directly related to love, it is related to ability (ie. the inability of your baby)."
    -Yeah fair enough, I made a bad comparison. But you ignore my point that I wouldn't smack anyone I love. Which is a valid point.

    "You support other authorities using force, why do you not support parental authorities using force."

    I support police using force to restrain someone for others safety ONLY! I hate police brutality, don't support it at all (not saying a smack is brutality), I'm saying police, prisons have authority to used force to protect public. Children answering back are not endangering the public.

    "You don't use (or not use) physical force on a loved one (directly) because they are loved. You use it because you are in a position of authority."

    -I challenge the belief that parents use it in a position of authority, its more a position of power, which is different. I got smacked until I was 14, after that I got told off, grounded and other privileges taken away. I was under my parents authority till I was 18, yet their power had gone at 14, because I was now bigger than them. I support allowing parents to exercise their power / authority in other ways, not through smacking.

    We all know how quickly children learn things from adults, e.g. bad language. Are you worried about what your child is learning from your smacking?
    Your child will learn about violence, fear and intimidation. They learn you can control people that hold less power than you. I want a violence free society, it starts at a young age.

  • "You powder your baby and not your mother. You love you baby and your mother. Thus powdering is not directly related to love, it is related to ability (ie. the inability of your baby)."
    -Yeah fair enough, I made a bad comparison. But you ignore my point that I wouldn't smack anyone I love. Which is a valid point.

    "You support other authorities using force, why do you not support parental authorities using force."

    I support police using force to restrain someone for others safety ONLY! I hate police brutality, don't support it at all (not saying a smack is brutality), I'm saying police, prisons have authority to used force to protect public. Children answering back are not endangering the public.

    "You don't use (or not use) physical force on a loved one (directly) because they are loved. You use it because you are in a position of authority."

    -I challenge the belief that parents use it in a position of authority, its more a position of power, which is different. I got smacked until I was 14, after that I got told off, grounded and other privileges taken away. I was under my parents authority till I was 18, yet their power had gone at 14, because I was now bigger than them. I support allowing parents to exercise their authority in other ways, not through smacking.

    We all know how quickly children learn things from adults, e.g. bad language. Are you worried about what your child is learning from your smacking?
    Your child will learn about violence, fear and intimidation. They learn you can control people that hold less power than you. I want a violence free society, it starts at a young age.

  • Guest

    You seem to misunderstand my argument. As is evident from the context of my comments, I am not comparing the action of self defence with the action of “smacking” and saying these two actions are on are on par.

    I am suggesting that the argument Bradford gave for abolishing s 59 (the defence of reasonable force for correction, is analogous to an argument for abolishing s48 ( the defence of reasonable force for defence) and suggesting the arguments are on par. Both have the same structure and both have true premises, hence if one is a sound argument so is the other and if as Bradford says the “logic” of one is silly so is the other.

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  • -You've taken that out of context, again (your out of context comparisons are getting tiresome, on every point I make). I was referring to using physical force on a loved one. The fact I powder my baby's bum, does not mean I powder my mums!

    Not at all, you like many people who for the impermissibility of any form of corporal punishment , suggested that because something is assault when done to an adult its assault when a parent does it to a child. This is false and your example shows it, babies don’t consent to having their bums powdered, now if I touched an adult women’s bum without consent it would be assault, its not when I do it to my baby.

    Your love analogy does not work either btw, an analogous argument would lead to all kinds of silly conclusions. I do not take my wife’s property because I love her. I do not prevent her from leaving the house because I love her. I make love to her because I love her. Does it follow therefore that its unloving to confiscate a child’s property, to ground the child or that its loving to have sex with a child? Of course not.

    The point is that the parent child relationship is disanalogous to the husband wife relationship and so you can’t as so you can’t, as many commentators do, automatically infer moral rules about parenting from rules about marital relations

    -First of all that was a joke (you can tell that because I put the work JOKE in brackets),

    I know it was a joke, however the joke was used to express a point, and I responded to the point. The fact that something is a joke does not mean it does not express ideas. Humour has in fact been used to transmit political, ethical ideas for centuries.

    I do not have problem with authority, I have a problem with smacking children (striking them with your hand to control them). And yes, I do support prisons, the police force, court of law and laws (but they could be better). They are not smacking children, so whats your point?

    Well if you put my comments in context ( something you claim I don’t do) then you will see what my point is. I wrote:

    what has been claimed is that if a person refuses to obey a legitimate authority then that authority can if necessary use force to gain compliance.
    Do you deny this claim? If so I take it you do not support prisons or a police force or a courts system or laws, all of which back up the commands of the government with force. In fact those who support the repeal of s59 do so precisely to force child abusers to comply with their commands.

    Here my point is clear, the fact you support prisions shows that you do accept the contention that: if if a person refuses to obey a legitimate authority then that authority can if necessary use force to gain compliance.

    You position appears to be however that certain types of force (imprisonment) are acceptable if while others (smacking) are not. I doubt this can be coherently defended, after all many of the practises involved in imprisoning a person are actually far more intrusive, degrading and harmful than smacking are.

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  • parents need to teach children right and wrong, but don't see it as an excuse to use physical force. If we teach them right and wrong with force, we teach them that they can control people with fear and intimidation (they will pick this up subconsciously).

    Actually the article I linked to deal with this argument this "wrong message" argument has several flaws.

    First, it proves to much after all couldn’t someone give a precisely analogous argument against parents having a right to confiscate childrens property as a form of discipline. After all aren’t we teaching them its ok to control people by threatening their property. Or what about groundings aren’t we teaching kids its ok to control people by threatening their liberty.

    Second, there are at least two possible messages children could learn from physical punishment one is (a) that its permissible for anyone to use force to control others and the second that (b) its permissible for those in authority to use force to punish those who do wrong. The assumption you make is that corporal punishment sends (a) and not (b) but why assume that? After all children will observe that not just anyone can discipline them only their parents can. So why would they come to (a) as opposed to (b)

    Benatar notes this point.

    The objection takes too crude a view of human psychology and the message that punishment can impart. There is all the difference in the world between legitimate authorities — the judiciary, parents, or teachers — using punitive powers responsibly to punish wrongdoing, and children or private citizens going around beating each other, locking each other up, and extracting financial tributes (such as lunch money). There is a vast moral difference here and there is no reason why children should not learn about it. Punishing children when they do wrong seems to be one important way of doing this. To suggest that children and others cannot extract this message, but only the cruder version that the objection suggests, is to underestimate the expressive function of punishment and people's ability to comprehend it. (David Benatar: Corporal Punishment a Philosophical Study)

    I actually think my children are smart enough to tell the difference between what a private person does to another and what a lawful authority does to those who break reasonable rules and hence can distinguish (b) from (a). I also think that children should learn that when they break reasonable rules that authorities will use force to stop them doing so, that after all is the real world.

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  • Hi Guest,

    <span>I think smackers are doing something wrong, but they do it because they consider it normal behaviour. If I call them a bad person for that, I'm stupid!  </span>

    Then the discussion is back to where it was … why do you think that smackers (not child beater, not child abuser, but parent who lightly smack their children as a correction) are doing something wrong?

    Throughout this thread, you have failed to argue that smacking is wrong. Again, we're talking about the use of reasonable force (let's say a little slap on the hand, not hitting or using wood kind).

    <span>Where does this determination to have the right to smack our kids come from? Why would bob spend so much effort, money and time into ensuring he has this right? I do struggle to understand this?  </span>

    It comes from the fact that kids are kids, they are not adults. There are times when you just can't communicate with kids, they just don't listen. If your kids are such perfect angels and they always listen to you, then good on you, but don't take the rights of other parents with more challenging kids to discipline theirs.

    In other parts of the worlds, if you're caught stealing, the mass will likely to beat you to comma, many times to death, or to a point where you wish you'd died. Even in western nations, if you go to jail, you'll meet with some inmates that would do you. If not, the criminal record is enough to say good bye to any decent future.

    You think smacking is cruel? It is way more cruel to not discipline your kids at the age when they are teachable.

    This is not children vs adults. Your children will become adults too and when you give away your parental rights, you're giving away your children's rights when they become parents later in their lives.

    Further more, the law as John Key himself said is a 'dog breakfast'. So many good parents are made criminals by this law. Just because they have not arrested you, doesn't mean you are not being criminalised, and definitely doesn't mean you won't get arrested in the future.

  • […] good post covering these points can be read at mandm.org.nz) It was an outdated law which had its roots in the historical period when it was legal to hit a […]