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Submissions on bill to repeal Section 59

Family Integrity representatives attended the first sitting of the Justice and Electoral Select Committee last Thursday to consider submissions on MP Sue Bradford's Bill to repeal Section 59.

It was a showcase of the "heavies" lined up in favour of repeal: Save the Children, EPOCH, Familes Commission, UNICEF, Parent.org, Barnardos, Relationship Services, CCS, IHC and the Commissioner for Children. Each of these was totally in favour of repeal, and each was also absolutely opposed to any amendment or attempt to define what constitutes "reasonable force". It was almost as if they were reading from the same script as each one mentioned the following:

1. Smacking is spanking is hitting is beating is violence is abuse.

2. This is not an anti-smacking Bill, it was an anti-violence Bill.

3. The repeal of Section 59 will not criminalise parents, and that is not our intention. We are sure the police will not prosecute light smacks.

4. Any attempt to define what constitutes "reasonable force" only validates the use of violence.

All of these arguments are inconsistent and illogical.

First, conflating the terms smacking, hitting, beating, violence and abuse as though they all mean the same is an old muddle-the-language propaganda ploy. We have the different words because they mean different things. The batsman never spanks the ball, he hits it.

Second, even though the Parliamentary Committee Chair, Lynne Pillay herself, was keen to establish that this was not an anti-smacking Bill (Families Commissioner Dr Prasad obliged and called it an anti-violence Bill), all the presenters spoke out clearly against smacking in any form. The IHC folks said "smacking" was often a euphemism for a real beating. UNICEF's Beth Wood said Section 59 means you can be excused if you beat your child. Jeff Sanders of Relationship Services said that Section 59 affirmed violence against children is acceptable. That means they assume Section 59's wording ("Every parent...is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances") allows for beatings and other violence against children. Does this wording allow for such violence? No, these zealots are stretching things a fair bit. And the actual use of Section 59 in real court cases, a rare event at about 1.4 cases per year, most of those being found guilty of abuse, shows that it most definitely does not justify child violence.

So how do they come to such a ridiculous conclusion that "reasonable force" does equate with violence? Because they are religiously committed to the ideology of the United Nations Committee for the Rights of the Child, the group that monitors how well each country is conforming to the UN Convention on the Rights of the Child (UNCROC). This Committee, according to Frances Joychild of the NZ Law Commission, has said that a smack, no matter how light, constitutes violence and abuse by definition. Now this UN Committee is made up of people from, among other places, Saudi Arabia, Qatar, Thailand, Egypt and Burkina Faso: not exactly showcases of children's rights when they practise things such as intense suppression of religious minorities, beheading and stoning and cutting off of hands for various crimes, no political parties, no voting, child torture, child floggings, child death sentences, child slavery, child prostitution. Why should New Zealand listen to such no-hopers?

Third, the obvious can no longer be ignored: repealing Section 59 will criminalise even the pacifist's favourite method of discipline, "time out". They all know it, especially since it is precisely the intention Bradford had in mind when she wrote the Bill, for she says so in the Bill's Explanatory Note: "The effect of this amendment is that the statutory protection for use of force by parents and guardians will be removed. They will now be in the same position as everyone else so far as the use of force against children is concerned. The use of force on a child may constitute an assault under section 194(a) of the Crimes Act."

What they intend is irrelevant, anyway, and they know that too: what counts is what wording in finally enacted.

What mystified Family Integrity observers was how every single presenter declared with such certainty that the Police would not prosecute parents who used force to correct their children when the whole object of the Bill is to remove any legal justification for doing just that. Select Committee Member Anne Tolley commented to the Children's Commissioner Cindy Kiro that it was going to be quite a challenge to pass a law that wasn't expected to be enforced. Kiro agreed. In addition, nobody offered to contact the Police Commissioner to get his opinion on it. That is because Dr Andrew Jack, PhD, the legal expert of the Police Commissioner's Office wrote Family Integrity a letter on 11 August 2005 saying quite clearly, "If Section 59 was repealed in its entirety, parents would not be authorised to use reasonable force by way of correction....smacking of a child by way of corrective action would be an assault." So if Section 59 is repealed, what discretion can Police use when all smacks are assaults and there is no longer any legal justification for reasonable smacks or light smacks (such as what Section 59 currently provides for parents)? They can use the same discretion they use now. So since Section 59 ain't broke, why are these child advocacy groups so keen to fix it, especially when the parents of the children consitently poll at 80% in favour of leaving it as it is?

Fourth, every single one of these presenters was adamant that the Committee must not make any attempt to define "reasonable force", as it only calibrates degrees of violence against children. Now think about this for a moment: they are not talking about calibrating or defining "unreasonable force": that is already ruled out of bounds. They are opposed to calibrating "reasonable force" for that is the same as calibrating violence. "Reasonable force" is the same as violence is what they are saying. And they don't want to calibrate it. But in the next breath they calibrate violence into a category known as "light smacks" which is so acceptable they do not intend for the police to prosecute it. And yet the IHC folks said force against children was very seldom reasonable. The Save the Children presenter said no force was ever reasonable.

The anti-smacking lobby is now trying to be on both sides of the argument at the same time. This is either hypocrisy or muddle-headedness of the first order. "Light smacks" apparently qualify as "reasonable force" for the anti-smacking lobby does not want to criminalise it or see the police prosecute it. But they do not want to define "reasonable force", for that is calibrating violence. They are keen to justify "light smacks" as "reasonable force", calibrate it into a category which should not be criminalized or prosecuted when the whole objective of this Bill is to get rid of any legal justification for using "reasonable force"!

The picture that is emerging appears to show that Bradford, Kiro and co. do not want PARENTS to have the LEGAL justification, the LEGAL authority, to freely use reasonable force with their children. They appear to favour a system of selective application of the law wherein specific people, families and people groups can be targeted. We were told at the hearing that Police will use discretion based on guidelines they develop from time to time. Cindy Kiro in fact volunteered to help Police develop these guidelines which, one would presume, will further calibrate force beyond the vague term "light smacks"....even though she strongly disagrees with such calibration as it only validates the use of violence.

These so called child advocates do more flipping and flopping than a fish out of water.



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