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We’re Confused about the Anti-Smacking Referendum Question

June 19th, 2009 by Madeleine

… we’re confused that anyone could find it confusing. The referendum question is:

Should a smack as part of good parental correction be a criminal offence in New Zealand?

Should it or shouldn’t it? It seems pretty simple to me.
According to TVNZ,
Labour leader Phil Goff says the question implies that if you vote ‘yes’ that you’re in favour of criminal sanctions being taken against reasonable parents, when actually nobody believes that. [Emphasis added]

Section 59 of the Crimes Act 1961, the defence to the criminal charge of assault (“Every parent or person in place of a parent of a child is justified in using force by way of correction towards a child if that force is reasonable in the circumstances”) was part of our c r i m i n a l code. To reinstate s59 of the Crimes Act (or not) is the question.

If Mr Goff wants anyone to believe that removing a defence from the Crimes Act will not have any bearing on criminal sanctions against those charged with assault he needs to stop being a legislator.

Does making something a criminal offence mean that criminal sanctions should not be brought against those who commit the offence? If yes then it does not follow that giving a yes vote in the referendum means that you support criminal sanctions against those who smack their children. If the answer is no then it is already the case that criminal sanctions can be brought against offenders who smack their children because it is currently a criminal offence to do so – Goff’s claim that nobody advocates this is false because the Crimes Act does.

The only people confused here are Goff, Key, Bradford who seem to not understand that if your action crosses the Crimes Act then your action is criminal. Twits.

The only ambiguous, confusing thing about the law is the convoluted crap they inserted in place of s59. It reads like the sort of thing those who think they know a few things about the law write to impress their friends; read subsection (4) and see if you can work out what it means, it’s the bit that starts “to avoid doubt…” but then doesn’t (one wonders if Bradford wrote it herself, if someone with a law degree wrote it they should be up before the Bar).

Crimes (Substituted Section 59) Amendment Act 2007 No 18, Public Act

New section 59 substituted
Section 59 is repealed and the following section substituted:

“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.

“(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.
“(3) Subsection (2) prevails over subsection (1).
“(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”

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12 responses so far ↓

  • The thing about the "inconsequential" and "public interest" part is that every single case has been in the media's interest and proclaimed as assault, even if it wasn't, and so it was in the public interest too since they read the papers. It's like a dog chasing it's own tail.

  • Absolutely.

    Police have always had the discretion to not pursue a prosecution – look at the Dunedin MP's from last term, both were found to have committed technical criminal offences but the public interest, blah, blah meant no prosecution.

    And as this legislative change passes into distant memory and public interest shifts in accord with the law (as it always does) we will see an increase in prosecutions of good parents who are not beating their children but simply smacking them. Already smacking has almost vanished from public places. Parents I know only confess to smacking to close, trusted, friends and always say it quietly, looking both ways – which is ridiculous – good parents being made to feel guilty of criminal action for sorting their misbehaving kid out.

    Given time smacking will become a criminal offence that few will bat an eyelid at; in this political climate it isn't yet but the fact that there is no defence to smacking means that as things settle people will be prosecuted.

    Recent blog post: We're Confused about the Anti-Smacking Referendum Question

  • <h3> One wonders if Bradford wrote it herself, if someone with a law degree wrote it they should be up before the Bar
    Actually, a guy called Geoffrey Palmer wrote it. You nay have heard of him, he was a former PM. As far as I'm aware he has some legal training..

    Recent blog post:

  • One wonders if Bradford wrote it herself, if someone with a law degree wrote it they should be up before the Bar

    Actually, a guy called Geoffrey Palmer wrote it. You may have heard of him, he was a former PM. As far as I'm aware he has some legal training..

    Recent blog post:

  • The only people who believe the statement is confusing are the people that have the most to lose. In my view John Key has shown his true colours on this issue. Frankly I am a little disappointed.

    You are correct. It is already social unacceptable to smack in public places. Soon we will have good parents being charged and a nation of young people without any understanding about right and wrong.

  • No way! Really? Can you corroborate that?

    Palmer did write the ridiculous opinion on compulsory student associations not being in breach of freedom of association due to conscientious objection policies so one can understand to some degree.

    Recent blog post: We're Confused about the Anti-Smacking Referendum Question

  • I wondered how long his true colours would take to come out. No one is all things to all men and Key always had a much stronger side to him as evidenced in his GayNZ interview and in the few comments that got reported here and there on certain issues.

    People who are up front and clear about what they believe, who they are and where they stand have my respect – I respect Bradford more than Key. While she too lies and attempts to deceive the public about the function of the Criminal code there is less bull about who she really is and what she really thinks than what he tries to pass off.

    Removing smacking as an option in my parenting bag of tricks doesn't really affect my parenting; there are plenty of other options for teaching my kids right and wrong but it is the invasion of that bag of tricks by the state that irks me coupled with the conflation of child abuse with a smack.

    Recent blog post: We're Confused about the Anti-Smacking Referendum Question

  • You know how the crazy-liberals changed the minds of the masses? They told us that we wouldn't hit an adult, therefore we shouldn't hit children.

    What they neglected to say was that a police officer is justified in using physical force against a mentally unstable, intoxicated adult; therefore a parent is justified in using physical force against a child throwing a hissy fit!

    The only reason it's wrong for an adult to hit another is because it is wrong for a child to hit his siblings.

    Authority Figures: Police officer/Parents
    In their submission: Adults/Children

    Only someone devoid of all common sense can't see the difference.

    Their dishonest analogy confused a lot of people into thinking that disciplining children is a bad thing!

  • Andy D, I agree entirely that the question is confusing in the way you describe. That was Matt's and my initial objection to it way back when signatures were being collected but it is not confusing in the way that Goff, Bradford, et all claim.

    However, while I agree that there is a sense in which the question is slanted the context of the debate about what the law should be makes it clear. The question is not seeking to ask is smacking/not smacking on par with good/poor parenting, the question relates to what the law should be and criminal law is not going to have a section on best parenting practices.

    Given this I don't think this ambiguity is fatal or that problematic. Questions are rendered like that all the time and typically only those trained in critical analysis spot the ambiguity – I recall the numeracy and reasoning testing I had to do in the interviewing stage for my position at Sanitarium, I swear some of the few things I got wrong were wrong because the questions had this sort of subtle ambiguity to them and I wasn't sure if I was supposed to spot that and answer accordingly or not. (It turned out I was not)

    Recent blog post: No Defences Permitted for the Accused

  • I agree that Goff's claim is strange. However, I do think that the question is confusing. In particular, this 'as part of good parental correction' clause. I interpret the question as saying "Should a smack IF it is part of good parental correction be a criminal offence in New Zealand'.

    Let us suppose that I am confused as to whether smacking is part of good parental correction. I'm agnostic on this matter. However I accept that, IF it is part of good parental correction, then it should not be a criminal offence. So I would answer no to the referendum question.

    But, I might also think that smacking should be an offence. Because I am not sure whether smacking is part of good parental correction I err on the side of making it an offence. I have a belief that, on the face of it, all application of force to others should be an offence (this of course means there can be exceptions, such as self-defence etc).

    I worry though, that by answering 'no' to this referendum question I would be taken to support a change in the current law, which clearly do not.

    Now, my interpretation might be viewed as strange. However, many otherwise intelligent people (both in the media and in discussion with various friends) have also claimed to be confused about what the question is asking. I take that as good evidence that the question is, in fact, confusing.

  • I agree that the context does give a reasonable indication at what the question is getting at. However, I don't think the strange wording of the question is accidental. I believe, based on the public attitude of Baldock et al that this was a deliberate attempt to misuse the referendum process. We can all think of much simpler ways to frame the question if one wanted to genuinely know what the public thought about the law change.

    So, even if one wanted a law change I would be tempted to ignore this referendum. In answering the question one is, in some sense, supporting the subversion of a democratic process.

  • I agree as well. The statement is a little confusing.

    However isn't the statement just applying the new law to a particular situation.

    To me the referendum statement is only as confusing as the new law. That is why it needs to be looked at and changed.

    Rather than argue about changing the referendum statement (which our media seem to be focussing on) shouldn't we spend our energy looking at the law.