26 May 2006

Anti-smackers use scare mongering tactics

Society President Mike Petrus says that all of “the ten child advocacy organisations that presented their cases for the repeal of s. 59 of the Crimes Act 1961 before the Justice and Electoral Committee yesterday, along with the bill’s proponent Green Party MP Sue Bradford, are using unethical scaremongering tactics in a desperate to win support for their erroneous and misguided views. (A number of Polls show that over 80% of New Zealanders do not want s. 59 repealed)”.

The NZPA report on their presentations states: “The bill's supporters say section 59, which gives parents who physically punish their child a legal defence of "reasonable force", has allowed some to dodge conviction for attacks on children with whips, pipes and pieces of wood.” (Dom. Post 26/05/06).

The Society responds:

What these lobby groups are doing is trying to scare politicians and the public into believing that if s. 59 is not repealed, then more and more parents who commit serious assaults against children, will continue to be able to dodge convictions with impunity, using a s. 59 defence, emboldening them and other abusers to continue their criminal behaviour.

This is absolutely false for the following reasons:

1. S. 59 has not been successfully used in the Courts to allow any parent, to avoid conviction for the use of “unreasonable force” against their child. In the tiny number of cases it has been used, the jury has conclusively determined, based on the facts of the case, that “reasonable force” in “the circumstances” - for the purpose of “domestic discipline” - was used: therefore the action was neither “child abuse” nor “common assault”. Advocacy groups have failed to cite a single conclusive example from the Courts where a s. 59 defence has enabled a child abuser to successfully “dodge conviction”.

2. The number of cases in New Zealand involving child abuse or assault where a s. 59 defence has actually been used in the Courts are not significant. They are almost negligible. They amount to on average about 1.4 cases per year, based on a thorough analysis spanning 13 years of records, by Youth Law Solicitor John Hancock (Action for Children & Youth Aotearoa).

3. SO-CALLED “HORSE WHIPS”. Child Advocacy expert, Dr Cindy Kiro, Children’s Commissioner, referred the Committee to the case of the Timaru women (her name remains suppressed by the Courts) who was acquitted by a jury for the use of a “horse crop” to discipline her boy. Kiro conveyed her deep disappointment that the jury acquitted the woman and has in the past suggested that a s. 59 defence should never have been open to her. Dr Kiro has made it clear that she considers the woman to have committed “child abuse” and so does not support the finding of the jury. What Kiro failed to point out was that: (a) the boy complied willingly with the discipline given for serious offending, (b) his behaviour improved so dramatically for the better, as a result of the discipline, that school authorities recognised this, (c) the prosecution did not appeal the case, (d) the jury took just over one hour to acquit the mother based on the facts of the case, (e) the woman made no statement in her own defence nor did she or her lawyer call any witnesses, and (f) she left the prosecution to prove her innocent … which they did, even though trying to prove her guilty!

4. The mother used a “riding crop” not a “horse whip” as reported in earlier media stories. Advocacy groups seeking the repeal of s. 59 have persisted in citing the case of the Timaru woman and her “whip” as a clear example of “child abuse” despite the fact that she was promptly acquitted by a jury of her peers. The police were very reluctant to advance this case to Court but were doggedly pushed by CYFS child advocates to seek a prosecution. If there had been good cause to challenge the jury’s finding, the case would have been pursued to appeal. It was not. End of story.

5. SO-CALLED “PLANKS OF WOOD”. One of the most frequently cited cases by advocates of the repeal of s. 59. is the one that involved a father disciplining his boy for stealing money and lying about the theft. It was dealt with in the Napier District Court. Here the so-called advocacy groups claim the boy was hit by a “4 by 2” piece of wood and the serious abrasions on his back, noted by a paediatrician, were caused by the attack. They claim that the father was acquitted because he used a s. 59 defence and that’s good reason for repealing it. These claims are nonsense. A defence using s. 59 was not even used as the basis for his acquittal by the jury. So how can this case be relevant for those demanding the repeal of s. 59? The boy testified in Court that the injuries had been sustained by serious abrasions caused by an accident that occurred several days earlier while roller-skating. This accident, apparently not disclosed by the boy to the father prior to the discipline, made his skin very sensitive to any subsequent force. The implement used by the father was NOT a “4 by 2” but a splinter of wood 30 cms in length and 2-3 cms thick (the dimensions of a child’s wooden ruler). The father’s action was not an “attack” on his son. It was a disciplinary action and the boy willingly complied. The reference to a “4 by 2” that has been gleefully used by the ‘anti-smackers’ came originally from an opinion piece by former Anglican Bishop of Dunedin, Penny Jamieson, that was published in the Otago Daily Times in 2001. This error has found its way into the propaganda put out by the ‘anti-smackers’.

6. SO-CALLED ROBUST ‘HOSE-PIPES’. The dishonesty of those seeking to repeal s. 59 is also highlighted by their use of the Court case involving what they claim was a “hose pipe” in corporal punishment. The implement used was not a rigid “hose pipe” as reported in the NZ Herald (3/11/01), but a relatively innocuous soft PVC type sheath. The jury, on the facts of the case, accepted a s. 59 defence, acquitted the father in the Hamilton District Court.

7. Child Advocacy Expert, Beth Wood, of Unicef who presented her organisation’s case for the repeal of s. 59 is reported as saying, “Unicef was against smacking”. If the repeal of s. 59 goes ahead, she claimed that “existing police guidelines would protect parents who smacked from prosecution. They stated that prosecutions should proceed only if they were in the public interest and were not counterproductive.” (Dom. Post 26/06). She asserted today: “We expect police and CYF will exercise the same discretion they use now when investigating allegations of assault. Neither the court, nor CYF take action for a simple, one-off smack of a child. Each case is assessed individually and both agencies use their discretion in determining whether a case is trivial or not.” (Scoop 26/06). Beth Wood is quite wrong. We only need to look at the case of Don and Anne Eathorne from Karamea who were convicted of “common assault” on 30 January 2006 in the Greymouth District Court under s. 196 of the Crimes Act 1961 with respect to Anne’s discipline of their 9 year-old foster boy. She gave him two light smacks with a small wooden spoon to his open palm as punishment for committing $16,000 of wilful damage against other people’s property. The boy, who complied with the discipline, had been in their home for about four years, placed there by CYFS, the agency that doggedly pursued the prosecution against them by ‘assisting’ the police.

8. If s. 59 is repealed there is no reason to suggest that CYFS and other child advocacy agencies who consider all forms of smacking to constitute acts of “assault”, will not intensify their efforts to have parents like the Eathournes prosecuted for “common assault” on the basis of ‘evidence’ that they smacked a child. With s. 59 gone, there will be no longer any defence in law for parents facing spurious charges of assault. Furthermore, CYFS and all its relating foster child placement agencies, already pursue a policy of removing children from foster parents when they find that these caregivers apply corporal punishment to their children.

9. Another case dishonestly hailed by advocates of repeal involves the father who caused extensive bruising to his child’s bottom following domestic discipline and used a s. 59 defence to try and dodge conviction. What they don’t tell us is that the defence was unsuccessful. The facts of the case were clear. He had transgressed the line – he used unjustified force. This outcome proves that a s. 59 defence does not provide an easy escape route for child abusers. When used by them, and the cases are rare, it is tantamount to them ‘clutching at straws’. The outcome of this case supports the retention of s. 59 rather than the reverse.

10. The Society shares with all child advocacy groups a deep concern about the growing levels of child abuse in New Zealand Society. It commends the great work they are doing for children. However it does not believe that the repeal of s. 59 will make one iota of difference to the problem in a positive sense. Rather it will have a very negative impact. “It is a direct attack on good parenting and the family,” says Society president Mike Petrus.

ENDS

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