Smacking "Inconsequential", Police Still Prosecute
7 MAY 2007
Smacking Crime "Inconsequential" - Yet Police Still Prosecuted
The Society is deeply shocked that West Coast police goaded by several over-zealous and misguided ideologues in Child Youth and Family Services (CYFS), prosecuted a mature West Coast couple, Don and Anne Eathorne, for disciplining their 10 year-old CYFS foster boy for causing over $5,000 worth of damage (wilful vandalism) to farm equipment owned by their employer and a car owned by the boy's school principal. CYFS refused to cover costs when approached by the Eathornes, who ended up having to foot the entire bill. On 30 January 2006 Judge Colin Doherty heard in the Greymoth District Court from the Doherty's defence lawyer, Doug Taffs, how Anne in 2002, had applied two judicial smacks, using reasonable force for the purpose of correction, on two separate occasions, to the foster boy's open palm, as punishment for the "extensive" vandalism. The boy willingly complied to the "domestic discipline", genuinely apologised, accepted his wrongdoing and the appropriateness of the punishment, and desisted from all further acts of wilful vandalism. The Society believes the actions of the police in their application of "discretion" leading to the laying of charges, sound "warning bells" over the flawed Anti-Smacking legislation sponsored by Green MP Sue Bradford and now supported by the National Party leader John Key.
Judge Doherty, who accepted Mr Taff's description of the smacks (supported by facts from the deposition hearing) as being "benign" and had listened to his well-argued and convincing case that the foster parents should be discharged without conviction, issued them both with a conviction for assault against a child under s. 194(a) of the Crimes Act (1961), fined them each $500 and Court costs of $130. It was accepted by the Judge that only Anne had been present at two brief discipline sessions with the 'victim' and yet Don too was criminalised for assaulting him, based only on the facts of the incident involving his wife. Neither Anne nor Don can ever work again with children in any professional role, let alone with foster children. CYFS, Director of National Operations, Ms Lorraine Wiliams denigrated both their characters when this story was covered on Sunday's TV One Documentary (9/04/06), when she affirmed CYFS' view that they were both child abusers.
While the Society acknowledges that a breach of CYFS policy guidelines (not to use corporal punishment) was committed by the Eathornes, it is more than surprising that both foster parents, who had an unblemished record with CYFS prior to their convictions, having previously successfully fostered over 26 kids in their home, were not simply dealt with by CYFS internally. The police were persuaded by evidence (evidential interviews), not proferred by the 'viictim' in the first instance, nor by CYFs or the 'victim' at the time of the smacking two years earlier, but first registered with CYFS two years after the smackingr by another foster boy who heard about the incident from the 'victim' while he was staying short-term with the Eathornes, on a CYFS placement (commenced on 7/04/05). The Society is concerned that CYFS removed the 'victim' of the historic smacking, as well as his younger foster sister, from the foster parents, within just a few days of the claimed assault being reported to a CYFS social worker. The Eathornes have never seen the children again, children whom they loved and still do love dearly. CYFS have never bothered to return to the Eathorne's home and retrieve the children's toys and personal effects, over the 18 months since they were convicted of the assault in the Greymouth District Court.
This is a 'crime' involving two tiny smacks to the hand for "correction", administered on two separate occasions using a tiny wooden spoon, by a loving foster mother, and yet the police did not treat it as involving only "inconsequential force" (to use the spurious term now inserted into Bradford's flawed anti-family bill), and have charged the Eathornes when there seemed to be little, if any, public interest in doing so. However, the Judge chose to use the occasion in Court to deliver a dramatic warning signal to other would-be foster parent smackers, without any reference to the fact that s. 59 offers a legal defence to all parents and those in the place of parents (including foster parents) against spurious charges of asault laid by police who fail to apply proper discretion. He may made no mention of this statute in his judgment, perhaps thinking that it had no relevance to the Eathornes. They did choose to plead guity to asssault, so technically the defence in s. 59, which can only be used when one pleads "not guilty" to a charge, was in fact not open to them. They pleaded guilty, following implicitly the advice of their lawyer, and sincerely believing that they would be more than likely, discharged without conviction, based on, among other things, their unblemished track record with foster children over so many years.
The Society says that the interpretation of "inconsequential" force proposed by John Key, Rt. Hon. Helen Clark and Sue Bradford, now to be inserted into police discretionay guidelines when considering whether or not to lay a conviction for assault, will send shivers through the spines of good parents who are concerned about the flawed anti-smacking legislation being supported through parliament by most politicial parties.
John Key stated that his support of the amended anti-smacking bill was to "give parents confidence they will not be criminalised for lightly smacking their children." He has placed his trust in the police's interpretation of what "is considered to be so inconsequential that there is no public interest in pursuing a prosecution" according to the new amendment.
Yet the police's interpretation of "inconsequential" in this case involving a "benighn" smack shows that good parents are not able to share Key's optimism.
The Society believes that John Key and Helen Clark should make good their promise that parents will not be criminalised for lightly smacking their children. This should be explicitly spelt out in the legislation - not left to the Police. This would avoid good parents coming under the weight and stress of an investigation by the police and CYF if a malicious or unecessary complaint is made against them.
"Good parents deserve the protection of the law," says the Society President Graham Fox.
For additional Information see:
(1) "Removal of S.
59 Defence Will Split up Families". SPCS Media Release
Friday, 23 March 2007, 5:15
TVNZ Sunday documentary that screened on 9 April 2006
(producer Chris Harrington TVNZ).
BSA Decision Re: Sunday item about former foster parents who had pleaded guilty to smacking a foster child on the hand with a wooden spoon.
(4) Vast majority of complaints lodged against TVNZ