In “A Christian Perspective on the Child Discipline Referendum,” Rev Dr Margaret Mayman presents a theological justification for retaining the amended section 59 of the Crimes Act 1961, which has criminalised force used against a child for the purposes of parental correction.
Mayman began by offering three standard arguments for repealing the old section 59, the defence of reasonable force for the purposes of parental correction. The first is that, “Prior to the law change, there had been terrible cases of child abuse that had not resulted in an assault conviction because of the use of this defence.” The second is that, “New Zealand has appalling rates of lethal and non-lethal child abuse and there is strong evidence that abuse often occurs as an escalation of physical punishment.” The third is that, “The law needed to be changed to ensure that the children received equal protection.” Despite their popularity and repetition in the media, these arguments are seriously flawed.
Some Accuseds Get Off
Turning to the first, it may be true that the existence of the defence of reasonable force meant that some child abusers escaped conviction. What Mayman fails to note is that this is true of any defence in Criminal Law. Section 48 of the Crimes Act allows a person to use reasonable force in defence of oneself or another from assault. Undoubtedly some serious assaults have not resulted in criminal prosecution as a result of the existence of this defence. Similarly, the law allows those accused of rape to mount a defence that the victim consented; this defence undoubtedly has lead to serious rapes not resulting in conviction. In fact, the very existence of a requirement for the prosecution to prove an assault has occurred, beyond reasonable doubt, has resulted in untold number of serious criminal actions not resulting in criminal convictions. Hence, if the mere fact that the former s59 occasionally resulted in criminals not being convicted entails that it should remain abolished then all defences should be abolished; clearly this is an absurd conclusion.
Criminalisation Because of Escalation
The second argument fares no better. Mayman asserts that, “abuse often occurs as an escalation of physical punishment.” This may be true. It is also true that spousal abuse often occurs as an escalation from a verbal argument between spouses. Does it follow that we should criminalise verbal arguments with one’s spouse.
Mayman’s third argument, that children must receive “equal protection” under the law, is also problematic. It is true that the law does not allow a parent to smack an adult. However, it is also true that the law does not allow an adult to prevent another adult from leaving the house; to do this would be to commit false imprisonment. The law also does not allow an adult to confiscate the property of another adult; this is the crime commonly known as theft. Nor does the law allow an adult to subject another adult to medical treatment without their consent; this would be both a form of assault and a violation of the Bill of Rights’ protection of life and security of the person.
If we were to truly give children equal protection under the law then it should be illegal for parents to send their children to their room, to ground them, to confiscate their property or keep their immunisations up to date. Clearly no sensible person advocates this because no sensible person really believes that children should receive equal protection under the law.
After presenting these ill-thought out arguments, Mayman offers a theological case for her position. Mayman cited Jesus, “Let the little children come to me, and do not stop them; for it is to such as these that the kingdom of heaven belongs. And he laid his hands upon them and went on his way” (Matthew 19: 13-15). She also cited, “Take care that you do not despise one of these little ones; for, I tell you, in heaven their angels continually see the face of my Father in heaven. … So it is not the will of your Father in heaven that one of these little ones should be lost.” (Matthew 18:10, 14). Mayman then drew two conclusions from these passages. First, these passages call us to a “radical respect for the personhood, and therefore the bodily integrity of children.” Second, that Mayman finds, “no justification for physical punishment, let alone any directive for it.”
Personhood and Bodily Integrity
Turning to the first, I agree that we should respect the personhood and bodily integrity of children. I also think (as I am sure Mayman does) that we should also respect the personhood of adults. Mayman assumes, without argument, that the use of force for correction is always incompatible with respecting someone’s personhood or their bodily integrity. This claim is clearly false. Certain forms of physical punishment that cause injury or harm can damage a person’s personhood or bodily integrity but not all forms do. Moreover, if correction by force always contradicts our duty to respect personhood or bodily integrity then Mayman would have to conclude that criminal punishment of child abusers themselves is unjustified. Such criminals often do not voluntarily go to jail; they have to be forced to. The fact that Mayman supports laws against child abuse shows that she does not believe her own argument; she accepts that sometimes physical force for correction is justified (for adults anyway).
No Directive for Physical Punishment
Her second argument is equally problematic. Mayman states she finds, “no justification for physical punishment, let alone any directive for it.” Here she is correct; nothing in the passages she cited provides any justification for physical punishment or any directive for it. Nor, for that matter, do these particular passages provide any justification for refraining from rape, kidnapping, adultery or theft. That is because these particular passages do not address these issues; they have nothing to say about them at all. Whether such things are justified or not depends on other passages or arguments that are actually about those things. Hence, appealing to them in this context is irrelevant.
Interestingly, immediately after citing these passages, Mayman notes that another passage in scripture does seem to imply the permissibility of corporal punishment. She provides four responses to this, none of which hold any weight.
First she notes that people have historically appealed to the book of Proverbs, “Those who spare the rod hate their children, but those who love them are diligent to discipline them”, to justify “physical violence and assaults.” This may be true but only in the same way that historically people have appealed to notions of equality to murder millions of people in Gulags. Does it follow that all appeals to equality are wrong (and should be criminalised)? Incorrect use or application of an idea tells us nothing about whether the idea itself is true.
Second Mayman states this passage needs to interpreted in light of the “knowledge about child development and of the damage caused by physical punishment” that we have acquired since “the scriptures were written.” I agree that one should take into account relevant empirical facts when interpreting scripture. The problem is that Mayman simply assumes that it is an empirical fact that “physical punishment” causes damage; the problem is that this is far from obvious. In “Corporal Punishment,” Professor David Benatar surveys several studies and notes,
Although there is evidence that excessive corporal punishment can significantly increase the chances of such psychological harm, most of the psychological data are woefully inadequate to the task of demonstrating that mild and infrequent corporal punishment has such consequences.
Moreover, he goes on to note that, “even the data suggesting that very rare instances of mild corporal punishment do have some negative effects also suggest that the effects are not substantial.” In fact, the empirical data is nowhere near as conclusive as Mayman suggests; several studies found little or no adverse effects of physical correction once the difference between severe and abusive types of physical punishment was distinguished from other, milder forms. Theologians should take into account empirical data; they should not, however, uncritically accept unsubstantiated empirical claims about what science allegedly shows.
Mayman also attacks the idea that one should take the Bible literally. She backs this up by citing Deuteronomy 21: 18-21. Mayman claims that this verse teaches that parents are required, “to put to death the persistently disobedient youth.” In fact, Mayman’s interpretation of this verse is flawed. As Christopher Wright notes, in the Ancient Near East it was common for fathers to have rights of life and death over their adult children. Deuteronomy 21, in this context, actually subverts this by taking these decisions out of the hands of fathers. The passage probably refers to adult sons, not children as it describes the sons and gluttonous drunks. Moreover, many scholars have provided evidence that penal sanctions, like those recorded in this passage, serve a rhetorical function of denouncing the action and are not intended to be taken literally.
Even if one ignores these problems, Mayman’s position remains erroneous. Mayman assumes that if one should not take Deuteronomy 21 literally it follows that one should not take any other part of Scripture literally. This is mistaken. Such a conclusion would follow, only if, one assumed that either every statement in Scripture is to be taken literally or none is. Almost any piece of writing will contain a mixture of metaphor, figures of speech, hyperbole and so on, alongside literal comments. In any event, Mayman seems to want it both ways, in several places in her article she takes the teachings of Jesus literally in an attempt to substantiate her view on corporal punishment!
Similar contradictions inflict the rest of Mayman’s exegesis. She dismisses the Epistle to the Hebrews on the grounds that “Nowhere does the author invoke the teaching of Jesus to confirm his beliefs.” She then immediately cites Paul’s commands to “provoke your children, or they may lose heart,” despite the fact that Paul does not, in this verse, “invoke the teaching of Jesus” to confirm this instruction. Even if Mayman’s exegesis were coherent (which it is not) the claim to not provoke one’s children is not the same as the claim to never physically correct them.
Mayman finally asserts “that Paul accepted the institution of slavery” but that “Nineteenth century Christians realised that to take seriously the teaching of Jesus about the dignity of all people, required that slavery be ended.” Even if Mayman’s exegesis of Paul and her historical claims about abolitionists were correct (which scholar’s dispute) it again proves nothing at all. Even if Paul was mistaken on one issue, it does not mean he was mistaken on all issues nor does it mean he is mistaken on this issue (Mayman authoritatively quotes Paul elsewhere herself). To show Paul is mistaken on this matter requires an actual argument.
Slogans About Violence
After the above dubious moral theology Mayman turns to a series of slogans. She suggests that physical punishment constitutes violence, she insinuates that violence is always wrong and that violence begets violence. In fact, none of these claims are true.
The Oxford Shorter Dictionary defines violence as “the use of physical force so as to inflict injury on others or cause damage to property.” However, not all force inflicts injury or damages property. Further, violence does not always beget violence; sometimes violence stops violence. The existence of the police force, army, armed offenders squad, courts and prisons show that even civilised societies recognise that violence and force can be justly used against others and are necessary to stop and deter further violence. Therefore, while it is correct to suggest that force and violence are often unjustified, sometimes they are not, and a sensible and just social policy will recognise the difference.
David Benatar “Corporal Punishment” in Social Theory & Practice (Summer 1998) Vol 24, Issue 2, 237.