John Key's rejection of the smacking referendum is yet another political cost being exacted by a law that few understand, and the fundamentalists are using that confusion to their advantage
Do we dare to hope that the smacking debate is fading? I doubt it, but before the week is out I wanted to comment on the vast amount of political capital spent on this curious piece of legislation.
It was a bill launched by the Greens, yet both major parties have put their political necks on the block to back a bill that, while worthy, is really only a very small step on the long road towards making this country a safer place for children.
Helen Clark put aside her conservative instincts, even after the risks she had already taken with prostitution and civil union reform, and again put her party ahead of the public mood. John Key, in a brave act that would suggest the pragmatism to come, did a deal with Clark to grand coalition on the bill. Yes, both had the eye on women and Auckland voters, but it was a heck of a gamble in both instances.
This week the Prime Minister has again taken a firm position on the bill, a position at odds with majority opinion; he now owns this law in a way he never had before. It's an unusual stance for the anti-conviction politician that Key has so far shown himself to be. Like Clark before him, he is spending a significant amount of political capital for little political gain. LBJ pushing the civil rights bill through Congress, this ain't.
While I voted yes in the referendum, my view is that it will take us a decade to really undermine the culture of child violence in this country and this law does little more than draw a line in the sand.
Politically, Key can assume a fair bit of latitude with the Kiwi battlers most likely to be unimpressed with his stance on the referendum. For now. They still like him more than anyone else on the scene. But he can only turn on them so many times. His political capital is finite. (The fact he's also risked his growing Maori support with his stance on the Auckland super city council seats suggests to me that he knows something we don't; that is, the Maori Party are going to get some kind of win over the Foreshore and Seabed legislation. He's got an ace up his sleeve there).
Why is this such a politically costly law? Largely because most New Zealanders still don't understand the act. And that's not an elitist statement intended to diminish the intelligence of most voters. It simply states the fact that it's a horribly misunderstood law.
It begins with is common name, the anti-smacking law. The act does not ban smacking. If your child is about to harm himself or herself, or harm someone else, for example, it's fine to smack. I suspect most New Zealanders are hazy on that at best.
The law could more accurately be called the anti-reasonable force act, because it's that defence in cases of assaults on children that it did away with, not smacking. But the politicians and media have done us a disservice in the way it was framed, and once a perception has been created, it's hard to remove.
Do New Zealand voters understand that no-one has been convicted of smacking their child? And, given the intent and wording of the act, do they understand that such a prosecution is highly unlikely?
No, what most voters understand is that they or someone they know have smacked a child or been smacked at some stage in their lives, and they don't see themselves or those friends as criminals. It's a classic case of 'the other'. I smack, but it's only those other people who are criminals... therefore smacking can't amount to criminal behaviour because I'm not one of 'them'.
The politicians have spent hours and months understanding the law; the public have a knee-jerk reaction to the concept. In the meantime they're talking past each other.
All of which has been fuel to the fire for the religious right in this country. The religious aspect of the campaign hasn't received much attention, but while the mainstream churches either supported the yes vote or stayed neutral, the drive and organisation behind the no vote came from the fundamentalist churches of this country. All because of a proverb about sparing the rod.
Consider the story by Matt Nippert this past Sunday showing that the local arm of Focus on the Family, a major no vote supporter and the employer of referendum initiator Sheryl Savill, receives around $200,000 a year from its American parent organisation.
Focus on the Family began in 1977 in America, founded by James Dobson and is now a $130 million a year conservative evangelical organisation with huge political influence over the Republican party. In the 2008 election they were major supporters of Mike Huckabee and Sarah Palin.
Dobson has strong views on smacking. In his controversial book Dare to Discipline, he encouraged parents to use belts and switches on their children. He wrote that smacking should be used sparingly, but added:
"It is not necessary to beat the child into submission; a little bit of pain goes a long way for a young child. However, the spanking should be of sufficient magnitude to cause the child to cry genuinely."
The no vote campaign backed away from such advice, but the conservative Christian churches will see this as a successful foray into politics and it will be interesting to see whether that encourages further action.
They can't sustain a parliamentary presence (they've tried and failed), but referendums and the like a perfect ways for them to flex their numerical and financial muscle.
And so at the end of the week we're left with a popular Prime Minister digging in his heels and a conservative religious movement plotting its next move. No, I'm afraid we can't say that this is over.
Comments (19)
Much as I agree about people's descriptions of the law, I can't back yours. The critical removal isn't 'resonable force' but 'for the purpose of correction'. This is rather underlined by the way two out of four clauses in the new version state
- nothing in the law, even if it's not written down, justifies force for the purpose of correction.
- including this law.
I was always of the opinion this meant the preventing harm/annoyance/etc options relate to removing the child from the situation rather than hitting them. (Though I can imagine a few cases where hitting them might be, directly, preventative).
Personally, it all seems like a weirdly expicit way to give children the same protection against violence as an adult.
Just though I'd try to get in before Graeme...
"- nothing in the law, even if it's not written down, justifies force for the purpose of correction."
I'll let you tell the Dept. of Corrections =)
Section 59 reads:
'anti-thrashing' bill, perhaps?
Great summary Tim. I had an ironic letter to the editor published in our local paper last week, asking that (paraphrased) now the Antismacking referendum was over, how about a new one that questions whether it is OK to use whips or sticks or fists for the purpose of correction? Yes/No.
I was sure that many voting NO in the referendum were in favour of the Repeal and thought it was working well but....
And the pro-smacking ads showing a girl being pulled back from danger on the road, and then getting a smack, seemed wrong. The pull back was the cure to the problem. The smack for coorection was pointless.
Quite seriously Sam, even an emotive phrase like anti-thrashing does seem more accurate than anti-smacking. And that fact that it does reflects bacly on both the old law and the way the section 59 amendment has been discussed.
Another great article from what's shaping up to be one of the best political/social blogs around.
One key reason the public and politicians have such divergent views of the section 59 repeal is the extreme lengths the Christian right have gone to to characterise this as anti-family, anti-smacking, take away parents rights etc. The mainstream media have been no better, calling it "anti-smacking" and repeating the Christian message verbatim.
So many lies have been spread about this subject it's no wonder people are confused. I bet if you surveyed the public, a significant percentage would report that innocent parents had been victimised by overzealous police etc. It's high time actual facts, such as discussed in your article, were made more widely public.
Thanks Nukefacts, welcome aboard. We're here every day. Have a look around. Enjoy the buffet. Help yourself.
What that re-write of the law says to me is that you can use reasonable force in these few areas – which are the 'my child needs to learn not to stick a fork in the socket' defence for smacking most commonly made – but not in any other way. So, as I said, the law change isn't anti-smacking – it clearly permits it in said circumstances. What it does is take a stance against the reasonable force defence.
I would argue you couldn't (legally) use reasonable force so that a child will learn not to stick a fork in the socket. That would be a corrective application of force and the remaining defence in section 59 would not apply to it.
You can use reasonable force to prevent harm - e.g. reasonable force to stop a child putting a fork in a socket may be okay, but when you've moved beyond preventing to teaching you're outside the scope of the defence.
Also, I think it's a little misleading to say the bill isn't anti-smacking. It may not be solely anti-smacking, but a big part of it was. Numerous occasions in which a smack of a child would previously have been legal are now illegal. A major point of the bill for some was about sending a message that people can raise children without beating or smacking them etc.
Graeme:"You can use reasonable force to prevent harm" yes. Too true. I think that that was put in because otherwise it seemed to some alarmists that if you grabbed a kid to stop him doing something dangerous, or picked him up to carry him to time-out then you were assaulting him. It does not mean that you should smack her for the above crimes.
I think that that was put in because otherwise it seemed to some alarmists that if you grabbed a kid to stop him doing something dangerous, or picked him up to carry him to time-out then you were assaulting him. It does not mean that you should smack her for the above crimes.
That is absolutely why it was put in there.
I'm entirely confident that it was not the intention to allow smacking to be lawful in the above situations. Sue Bradford is quite clear that smacking is now illegal. On the most reasonable interpretation of your examples, I'd say a smack given in such circumstances would have correction among its intentions - and it would thus be illegal.
But when people point out that the sections begins "Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances..." and that this is the same as the status quo ante, I can see a powerful argument.
It is one of the great ironies of the whole debate that Sue Bradford - driven in part by jury decisions that implied that the use of a riding crop or piece of wood could be used as part of reasonable force - staunchly opposed any attempt to narrow the definition of reasonable force.
Reasonable force means now what it always has - it's just that the circumstances in which it may be used are different. If a beating with a riding crop could be reasonable force under the old law, it can be reasonable force under the current law. The only difference is that under the old law it had to be used for corrective purposes and under the current law it can't be used for correction. But that same reasonable force - whether a light smack, or the use of a riding crop - is still otherwise legal for:
Graeme,
Re the name of the legislation, I can't get over the oxymoron of an 'anti-smacking bill' that actually spells out when you can smack. Surely that section makes the name ridiculous whatever the intent of some.
I take your point that a smack so as to teach a child not to stick a fork in a socket could be viewed as 'correction' and therefore deemed an offence. However it comes down to timing. If it's a matter of, 'wait until you father gets home'... and then there's a smack of correction, then I'd agree. But I'd argue from a behavioural point of view that teaches a child next to nothing... not about forks and light sockets anyway. If they're too young to reason with and have the danger explained, then (psychologically) they're too young to absorb a lesson hours removed from the event. Ie, a delayed smack for correction is pointless and I have no problem with it being forbidden in law.
The only time a child could learn anything about forks and sockets from a smack would be in the same time frame that you're acting to prevent or minimise harm. So while the parent might see it as correction ("I wanted my child to learn not to do that again"), a lawyer could always claim harm minimisation.
Re the name of the legislation, I can't get over the oxymoron of an 'anti-smacking bill' that actually spells out when you can smack. Surely that section makes the name ridiculous whatever the intent of some.
I suppose we could start with the argument the bill was anti-smacking. And that Sue Bradford introduced it as such when she put it into the ballot.
But I think that even as finally amended the law change can be fairly be described as anti-smacking. It's intention is to reduce the amount of smacking - it's not pro-smacking, and it's not smacking-neutral. Yes, it probably defines circusmstances in which smacking will be lawful, but it narrows those circumstances from the previous law and its purpose is to decrease the incidence of physical punishment of New Zealand children - including by smacking.
Similarly, I think the laws against homicide can properly be described as anti-shooting, despite the fact section 48 (self-defence) allows for circumstances in which killing by shooting is acceptable.
If you want to use the argument that it is oxymoronic, then I'd argue that "the anti-thrashing bill" is just as misplaced an epithet. If one is of the opinion - as Sue Bradford is - that the previous law allowed thrashing, then the present law also allows thrashing. It just - as with smacking - changes the circumstances in which a thrashing is lawful.
So while the parent might see it as correction ("I wanted my child to learn not to do that again"), a lawyer could always claim harm minimisation.
I'm not sure that's true. I'd argue that to be able to rely on the defence now contained in section 59 determing that the aim was harm minimisation would not be sufficient. I think one's lawyer would have to argue that it was for harm minimisation to the complete exclusion of correction.
Graeme, I would have thought that the lawyer would have to argue that it was for harm minimisation, where that minimisation was not for the purpose of correction, not to the complete exclusion of a possible corrective element.
dave - I'm not sure there's a terribly great distinction between your phrasing and mine - yours is just another way of putting it.
My interpretation of the new legislation is that even light smacking is unlawful. The bit that says nothing in subsection 1 etc justifies the use of force for the purpose of correction makes that clear.
Graeme is right when he says that reasonable force is there to allow a parent to prevail physically, for example to put the child in his or her room or, as in Tim's example to prise the fork from the child's fingers before he or she puts it back in the light socket.
A light smack even in the circumstances Tim describes would not be lawful in my view, though prosecution would be extremely unlikely.
However it apparent that the assurance that prosecution is unlikely where "the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution" does not satisfy the majority of NZers. They do not want their corrective actions, whether light smack, strap on hand or, caning with riding crop, to be considered an offence at all. They want the ability to chastise their children and still be considered absolutely law abiding and morally justified.
Its depressing.
new activity until assuredly currently,Ralph Lauren Outlet as it has been apprenticed to go ticket, Ralph Lauren Shirts bookings alternating with altered gifts.Because Polo Ralph Lauren Outlet that the antecedent few yrs, the bulk of humans Ralph Lauren Men that baddest attire
Louis Vuitton Sale In faddy Louis Vuitton articles are awful admired internationally. Louis Vuitton Bags Outlet They could be finishing touches, boundless reveals and achievement affable yield a attending at. Louis Vuitton Outlet Some women ascertain a amount of if not added silpada? Louis Vuitton ladies backpack are amid in throughout their spectrum. To added advance them a abundant added accommodate with some added areas accustomed application appropriate from these phones carry. Creator? Louis Vuitton Bags Outlet are advised central of the able-bodied accepted designers and even creators.
Post new comment
You must be logged in to post a comment.