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Dishonesty in Anti-Smacking Brigade


Press Release 27 July 2005

Dishonesty in Anti-Smacking Brigade

Society President Mike Petrus describes Children’s Commissioner Dr Cindy Kiro’s position, as reported (Dominion Post 27 July), that the repeal of s. 59 of the Crimes Act “would mean one group in society could no longer be legally assaulted,” as downright dishonest.

Section 59 states: “Every parent of a child and every person in the place of a parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances.”

Mr Petrus says there is nothing in our law that gives a right to “one group in society”, namely parents or caregivers, to legally assault any other group, including their children, or children under their care, as Dr Kiro claims. Nor is there a law that allows for or condones children or any other group being assaulted by any other group. Ms Kiro deliberately misrepresents the law, conflates the act of “assault” with that of “reasonable use of force” in the context of discipline and is using her publicly funded statutory position to mislead the public.

Section 59 does allow for a legal defence, albeit one rarely used, in those situations when charges are brought against a parent or caregiver for assaulting their child and the defendant asserts that the force used constituted “reasonable force” in “circumstances” such as those involving parental discipline. It is not a provision in law that legalises parents or caregivers to actually “assault” children. Its intention is to safeguard the rights of parents and caregivers against a charge of “assault” in those rare cases, when the facts of the case can be established to the satisfaction of a 12 member jury that the force applied was appropriate in the circumstances and did NOT constitute assault.

Dr Kiro who has teamed up with the Plunket in her public support of Green MP Sue Bradford’s private members bill that seeks to repeal s. 59, claims that it is not about criminalising ordinary parents. It will simply remove a legal defence that is used when parents seriously assault their children - a defence that is not available in situations of assault against adults, animals or any other group in our society.

However, the Bill’s supporters are absolutely wrong to suggest that s. 59 was put into the Crimes Act so that parents or caregivers who seriously assault their children can take refuge in this provision to give legal support to their criminal actions against children. On the contrary it is there so that serious allegations of assault against parents and caregivers are dealt with in the proper context of the adult-child relationship that may justify a “reasonable” use of “force” in “circumstances” involving for example parental correction and discipline.

S. 59 parallels the provision in law under s. 60 that allows for “the use of force” for specific purposes by aircraft and ship masters or officers against members of the public, including children.

Section 60 says: “Discipline on ship or aircraft -
The master or officer in command of a ship… or the pilot in command of an aircraft… is justified in using and ordering the use of force for the purpose of maintaining good order and discipline… if he believes on reasonable grounds that the use of force is necessary, and if the force used is reasonable in the circumstances.”

NZ Law recognises that Parents, Pilots and Masters need to have the authority and powers of discipline to properly care for their charges, be they children or passengers. The "Repeal Section 59 lobby" wants to remove this authority only from the parents, not from pilots and masters. The repeal lobby appears not to trust parents to come to the same narrow conclusions they hold: that no force at all should be applied to children. Lobby leaders like Sue Bradford MP are quite clear as to their long-term social-engineering goals: they want smacking and all forms of physical discipline abandoned by ALL parents and caregivers, even if it means legislating against it.

A Survey reported on in the Dominion carried out by The Littlies Lobby in conjunction with the Childrens Commission, is headlined as providing support for the end of smacking. “Survey supports end to smacking … Child advocates say the findings suggest support for a law change is increasing”.

“This is nonsense,” says Mike Petrus. “The study only had one question in it that related to smacking and had nothing to do with the repeal of s. 59. The finding only shows that 71% of the 1367 readers of “The Tots to Teens” magazine who took part in the survey believed that "smacking when they [children] do things wrong" was the least effective way to guide children to behave well. However, this question failed to differentiate between the nature and level of seriousness of the wrongdoing and the commensurate use of smacking as one discipline tool used. Many opponents to the repeal of s. 59 who use smacking sparingly for certain types of “wrongdoing”, would probably agree with the statement that smacking as a discipline measure to deal with ALL or MOST wrongdoing is the least effective way to guide children to behave well. The survey question is flawed as are the so-called findings drawn from the survey by Dr Kiro and the Plunket officials,” Petrus said.

Plunket president Kaye Crowther is quoted in the Dominion Post as saying: “We’re not talking about smacking. We’re talking about belting and hitting children with implements. In recent times I am aware of at least two cases where [Section 59] has been used as a defence where the child had been really abused.”

“When challenged to identify these two cases by our Society secretary who phoned her today,” said Petrus, “she cited the recent case of the Palmerston (south Omaru) woman who Sue Bradford described on the recent national television programme (“Eye to Eye”) has having assaulted her son using a horse whip. The Timaru woman’s lawyer defended the mother’s actions under s. 59 of the Crimes Act. Crowther also cited the recent case of a father who used a 4 by 2 wooden plank to ‘discipline’”.

“Both cases are inadmissible as evidence in support of Sue Bradford’s repeal bill,” says Petrus. “The Timaru woman was acquitted by the jury and the facts of the case when presented without the negative self-serving media spin, established that she had used reasonable force in the context of disciplining her son. Mrs Crowther may disagree with the opinion of 12 jurors, but she has no right to tour the country spreading malicious lies that the boy “had been really abused”. Those who stand trial in our country for child abuse and who are subsequently acquitted of charges against them, by a jury, should not be derided as “child abusers” in the media by either a Plunket president, an MP or a Commissioner of Children,” Petrus said.

The case involving the timber plank resulted in the father being convicted of assault. His lawyer was entitled to seek to use s. 59 as a defence but the facts convinced the jury that real assault rather than discipline by means of reasonable force, had in fact taken place. The use of s. 59 as a line of defence is very rare. In this case its use by the defence lawyer was tantamount to clutching at straws.

S. 59 does not need to be repealed on the basis that the lawyers of a few callous child abusers have tried to appeal to it to defend their clients. Considering the very rare situations where some may seek to use it contrary to its clearly defined intentions never makes good law. Repealing s. 59 in order to supposedly close the claimed ‘escape route’ it offers real child abusers, can be compared to trying to crack open a walnut using a sledgehammer. The effect of any repeal would be to disempower parents from all modes of discipline using reasonable force (e.g. smacking) as parents would be open to charges of criminal action for all uses of force. This is an abrogation of the rights of parents to discipline their children, for whose actions they are accountable under law. If Section 59 is ever repealed, any show of force with our
children becomes illegal, an act of criminal assault according to
Section 194(a) of the Crimes Act

The anti-smacking brigade is intent on imposing their narrow view of the options of discipline that should be open to parents, upon others who believe smacking has a place in disciplining children.

Sue Bradford claims that her bill removes the legal defence for a parent to physically assault their child and ‘reasons’ that just like adults and pets, children should be protected against assault. Interestingly she advocates a culture of violence by her continued strong support for the abortion industry. During the term of the present Labour government 100,000 defenceless innocent unborn human beings have been murdered by abortionists, aided and abetted by government (financially and in law).

Children are already protected against assault. The task of government agencies is to promptly bring real child abusers to justice and punish them, educate parents and caregivers about how to effectively discipline and nurture their children, and avoid interfering in the lives of good parents who choose to apply physical discipline where required. “Yes, there are many positive parenting strategies for disciplining children aside from smacking. However, these can go hand-in-hand with physical discipline where appropriate,” says Society president Mike Petrus.


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