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Dear Cabinet,

August 24th, 2009 by Madeleine

I am a mother of 4; I am currently doing the last few papers of my law degree at Auckland Uni, I voted “no” in the referendum, I voted for you to govern at the last election. I am sure you are getting a lot of emails, however, as you deliberate as to how to respond to the results of the recent referendum, please take a moment to consider my thoughts.

It used to be clear in New Zealand that a light smack for the purposes of parental correction was lawful. Then s59 of the Crimes Act was amended.

Whether a light smack was lawful or not became confusing. Experts in legal interpretation agree that, as worded, the new s59 could be read either way. I have been in the same room as John Key and I have heard him concede that the new s59 was poorly worded. I have sat in the same room with Sue Bradford and heard her give contradictory answers, as to whether she intended to make smacking illegal or not and whether it is or not. When I read the law, even with my legal training, I cannot decipher it clearly – I can run conflicting arguments as to what it means. Small wonder the populace was confused.

The government would not listen. A referendum was successfully called and the result is in, 88% of those who voted want it made clear that a light smack is not illegal; had the entire voting population voted I doubt there would have been a significant variation in that majority and I doubt that you doubt the truth of this. The majority of voting adults in this country feel very strongly about this issue and they have sent you a message.

Now not for a moment do I expect you to simply follow the whim of the majority; as MPs I helped to elect you to parliament because I expected you to do what you, hand on your heart, truly believe is right and I recognise that sometimes that might mean standing against the majority. That said, in considering what is right, I would hope you would rely on solid research, well reasoned arguments and consider the concerns of the people you represent. If you ignore the referendum message or pretend you do not understand it, you will not only become the epitome of what was despised about the government before you but more importantly you will leave us confused as to what the law is.

The state has a duty to ensure that the law is clear enough for the citizens to be able to understand it; if it is not then it is not just to demand their obedience to it. It is not enough to issue a clarificatory statement or guidelines to the public, police and relevant state agencies as to what the law really means as that affords us, the citizens, no certainty as to what it might mean in the future when you may no longer be governing us. If I find myself before a court or investigated by the police or a state agency it is the black letter of the law I should be able to reach for to know whether I stand on the side of guilt or innocence not some pamphlet or tv campaign or media release.

You didn’t write this law, you tried to save it, yet it still came out poorly drafted; now you have the power to make the law clear. In doing so I would hope you would consider the peer reviewed studies that differentiate between a light smack and abuse which show the former is not child abuse as this would enable you to listen to the referendum result and act on it.

With great respect for the very tough job you do and many kind regards,

Madeleine Flannagan

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7 responses so far ↓

  • Madeleine

    this is well thought out, and clearly articulated – thank you for sharing it with us

    thanks also for your comment on my letter on my blog

    we await the government's response

  • In the US, there is THEORETICALLY a legal doctrine that an ambiguous criminal law must be construed in the interest of the criminal defendant. That would be one line of defense for a parent charged with the crime of smacking (we call it spanking in the US).

    A jury trial in a criminal case in the US would almost certainly result in an acquittal.  Unfortunately for otherwise-good parents, cases involving children in the US almost never go to criminal court.  They are handled as quasi-criminal cases where the safety of the child is paramount.  Althoug we still presume that indicted criminals over here are innocent, there is no such presumption of innocence in a child abuse proceeding–because the parents are not being criminally charged.  The court will decide whether the parents get their children back, not whether the parents go to jail.

    Having seen this in practice, I'd love to see the US go back to prosecuting child abuse as a crime.  There are many parents who deserve to be in jail who aren't.  And there are many children in foster care who deserve to be back home.

  • TOG are you able to tell me more about that? Or point me to anything in Westlaw on it? I am not familiar with anything like that in NZ law but that doesn't mean it does not exist or is not possible.

  • Madeleine, if you have a criminal law handbook, you should be able to dig it up.  In my crim law class, we studied it right after the "doctrine of legality," which says you can't be punished for a crime that isn't written down.  (No "common law crimes.")  Now that I think of it, the doctrine of legality may be an American addition to English law…

    The way I recall it being presented was, "proof beyond a reasonable doubt includes reasonable doubts about the law," but I don't think you could find that phrase in a Westlaw search.

    Unfortunately, I can pretty well guarantee that this legal doctrine won't help parents who are accused under this vague law.  I've been there–way too many court cases defending innocent parents in child abuse cases.  The only precedent that truly explains what happens there can be found in Franz Kafka's "The Trial."

    I'm not kidding.

  • I'll have a look but I think you are right, it won't fly. Courts really try to avoid making statements that amount to this sort of thing, especially in New Zealand where courts do not have anything like the powers of your courts.

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