Logic of smacking ban flawed

(from New Zealand Herald)

Green MP Sue Bradford's Private Members Bill that aims to repeal section 59 of the Crimes Act is currently being considered by a select committee after submissions closed in February.

Our laws currently allow parents to physically discipline their children with reasonable force for corrective purposes. In past years parents have been acquitted for smacking with implements such as riding crops and pieces of wood because juries deemed the force was reasonable in the circumstances.

This disgusts child advocates who consider all smacking is child abuse, whatever the circumstances. However they never mention these circumstances. In one case, a boy swung a baseball bat at his stepfather's head, while verbally threatening him with a permanent head injury. Fortunately he was able to block the blow and disarm the boy. The boy's mother disciplined him with a riding crop and was subsequently acquitted using section 59 as a defence.

Child advocates never inquire as to why the prosecution has not appealed any of the successful section 59 defences. Nor do they reveal that most people who use the defence are subsequently convicted for assault, a good proportion appeal, and their conviction remains. The law is serving its purpose.

Ms Bradford wants to stop child abuse under the pretence that such abuse could result from smacking. However the bill states its purpose is "to stop force… under the pretence of domestic discipline."

Let's stop the pretence. The bill promotes a legal ban on parental smacking, leading to the possibility of a criminal record for assault even for a light smack. Police have formally confirmed this. But it is not Ms Bradford's intention to ban smacking; furthermore she has said that police are unlikely to charge parents for light smacking.

That's not the point. She has been advocating for a law she is happy for parents to break, provided they don’t get convicted. What Ms Bradford intends is irrelevant. What is more important is what the law says. Since when has a law been made on the basis that it is not enforced?

Currently, the bill is unworkable which is why Ms Bradford is talking up an amendment to clarify that it is not her intention to ban smacking. There are two options for amendments - in the bill itself or in the Explanatory Note or commentary, the latter being her preferred option.

Any amendment in the Explanatory Note is for explanation only. If section 59 were to be repealed, only the repeal of that section, not the Explanatory Note, would have legal effect. But it makes no sense to repeal section 59 to eradicate unlawful child abuse, as it does not even extend to child abuse.

The National party wants to outlaw child abuse while allowing parents to have the option of physically disciplining their children. To do this they maintain, "reasonable force" has to be defined. This may be difficult to draft, and would not give sufficient clarity to an already arbitrary law.

A more helpful option would be to amend the law to clearly define the threshold
for criminal conviction while preventing the possibility of unnecessary intrusion of
the state with regards to parental discipline. Courts could convict if a reasonably
instructed jury could not find that an accused was reasonably justified in using force.

Alternatively, an amendment could state that prosecutions in parental discipline cases must prove criminal intent to secure conviction.

This would mean that parents would continue to have the option of lawfully disciplining their children, while abusers will be convicted.

Ms Bradford wants to get rid of abuse, but maintains she does not intend to ban smacking. Therefore all smacking cannot be abuse. To pass law which would remove this privilege from parents on the grounds that it is abuse is fallacious and illogical.

Case study on smacking: Sweden

a ban on smacking did not change public attitudes to corporal punishment

In 1979, Sweden passed legislation that effectively abolished corporal punishment as a legitimate child rearing practice. The primary reason for the ban was to change attitudes to corporal punishment.

In 1957 the statutory defence was completely removed from the Swedish Penal Code in order to provide children with the same protection from assault that adults received. However the Parent's Code, a civil code governing family law, still contained a paragraph permitting parents to use physical discipline that would not be assault under the Penal Code.

In 1966 a parent's right to use corporal punishment was removed from the Parents Code, although not explicitly banned, until 1979.

The reason for a legislative ban, rather than a ban with penalties, was because the primary purpose of the law was to change attitudes in society regarding physical discipline, rather then punish for trivial smacking.

Should physical chastisement met out to a child cause bodily injury or pain which is more than of a very temporary duration it is classified as assault and is on offence punishable under the criminal code.. although as before, trivial offences will remain unpunished, either because they cannot be classified as assault or because an action is not brought ( Min of Justice 1979)

Assault is categorised into three levels in Sweden. Aggravated assaults are serious warranting prison sentences up to 10 years, Common assaults carry a maximum of two years prison and petty assaults are the mildest level and are punishable by fines.

Child advocate Joan Durrant has said this: "Although the actual child physical abuse rate can never be known, it can be estimated through an examination of child criminal deaths" - which did not increase for the ten year period before and after the 1979 ban.

Durrant has noted that the "Child criminal deaths rates, which have remained at a constantly low rate since 1974, suggest that child physical abuse has not increased in the wake of the corporal punishment ban. In fact by the late 1980s, infant homicide was the lowest in the world. "

What Durrant failed to state was that Swedish infant homicide has been the lowest in the world for many years before the late 1980's, and the corporal punishment ban had no effect on child abuse and infant homicide rates. The following illustrates how the percentages of smacking approval have been tabled, and is compared with figures in a report written by Julian V Roberts, from the Department of Criminology in the University of Ottawa in Canada.

Durrant Roberts
Year percentage percentage
(na=did not state)
1965 53 53
1968 42 42
1971 35 35
1979 na 26
1980 na 29
1981 26 26
1994 11 na
1995 na 34


As you can see from the above, decline in public support of corporal punishment was more significant before 1979 than after, reducing from 53 percent to 26 percent in 1979/1981, and actually rising to 34 percent in 1995. It is significant that Durrant does not include the statistics for 1979, 1980 and 1995 in her analysis.

Furthermore Durrant has compared the 1994 figure with the 1965 one despite different questions being asked on the surveys. From 1965 to 1981 the question to respondents was, " A child has to be given corporal punishment from time to time". In other words, physical punishment is some times necessary.

But in 1994, a national survey was commissioned by the Ministry of Health and Social Affairs and carried out by Statistics Sweden. This study revealed that only 11% of Swedes now support the use of corporal punishment in child rearing (Lundgren, 1994). The 11% cited by Durrant in 1994 were “positively inclined to milder forms of physical punishment”, while a further 22% were “in principle against all forms of physical punishment, but can use such punishment if upset enough.”

Only 56% were against all forms of physical punishment, and the remaining 10% did not choose any of the three options. The survey also included the following item, which was closer to the wording used between 1965 and 1981: “Mild or moderate physical punishment is sometimes necessary as a child rearing method, but should be carefully considered and not the result of anger.” Thirty-four per cent agreed partly or fully with this item, an increase from the 26% support in 1978, just before the 1979 ban

So the 11% figure Durrant was using compares apples with oranges.

The question in the 1995 poll was "Respondents were asked to agree fully, partly or not at all with the statement that "mild or, moderate (my emphasis) smacking physical punishment is sometimes necessary as a child rearing method, but should be carefully considered and not the result of anger".

Durrant conveniently omits this in her analysis.

In 1995 34 percent agreed partly or fully with the statement (Statistics, Sweden 1996) with 11 percent "didn’t know". In 1981 only 3 percent responded with "didn’t know".

Between 1965 and 1971, the proportion of Swedes who believed that children should be brought up without the use of corporal punishment increased from 35% to 60% (SIFO, 1981), further indicating that public attitudes had changed well before reform.

In New Zealand fewer than 20 percent of people believe that children should be brought up without the use of corporal punishment.

If the 1979 law had indeed changed public attitudes, rather that reflected them, it would be reasonable to expect the percentage of respondents endorsing this use of corporal punishment to have declined from 1979-1995. In fact, in 1991 the Swedish statistical agency asked a random sample of mothers a number of questions about the ways they punished their children. Slightly more than half (51%) admitted to using some kind of physical punishment.

The Swedish reform did not reduce the level of public support for parental use of corporal punishment as a means of disciplining children. Support for physical punishment began declining years before the reform was passed - since 1965 at least - and the decline was in no way accelerated by the law reform. Changes in public opinion may have generated the legal reform, but the reverse is not true.

Changing people’s attitudes towards physical discipline is not a valid justification for legislative change. It didn’t work in Sweden when support for smacking was just 26 percent of the population in 1979, and it won`t work in New Zealand where 80 percent of our population support the option of smacking their kids.

Positive parenting means a smack free zone

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SKIP stands for Strategies with Kids – Information for Parents campaign will work with community groups to provide resources and training for parents and caregivers of children up to five years old. SKIP will fund approved agencies suggesting that more authority lies with approved "experts", rather than parents. It works with Plunket and Barnardos, the two key organisations that want to ban smacking.

SKIP even has a newsletter. It outlines grants given to various groups that promote positive parenting - or in other works groups that ban smacking. One group even got a grant to ensure that their community was a "smack-free zone", and the group didn’t just work with under five year olds either so it is debatable that is should have got tax payer funding in the first place.

It is clear that Every Child Count's main answer to politicians for promoting positive parenting for children over five is to ban smacking. If you are from Plunket or Barnardos and are reading this, you may want to leave a note stating what the alternatives are when "positive parenting" doesn’t work.

Every Child Counts campaigns for the removal of s59

Every Child Counts, an organisation that denies that it was set up to ensure that all parents do not have the option of physically disciplining their parents, have denied that they exist to ban parental smacking. It says that their campaign to repeal section s59 of the Crimes Act is a marginal issue and it has not adopted a formal policy position on s59.

However the Every Child Counts website is campaigning for s59 to be removed and not all affiliated groupls like this.THe others arent aefen aware that it is happening as no communicatin is provided to affiliated groupls and individuals. Banning smacking is a formal position, even though it is not a formal policy position. On its questions for political candidates page is this question:

New Zealand and international research shows that children who experience harsh parental punishment practices have much higher rates of conduct problems, substance abuse, depression, anxiety and violent crime in early adulthood than those children whose parents did not use physical punishment. Does your party agree with this research? If so, will your party promote non-punitive, positive parenting practices and how?

And here is the ideal reply sought from political candidates at meetings:

Yes. It is convincing We will ensure that there is full and informed public debate about repeal of s59 of the Crimes Act and will develop and expand programmes such as the SKIP initiative, that
promote positive parenting,

Campaigning to amending law is a different matter to promoting positive parenting.

Every Child Counts has no policy on Section 59

Every Child Counts is a lobby group set up to repeal Section 59 of the Crimes Act - or so it would have you believe. This section permits reasonable force for parental physical discipline.

The lobby group is headed by a project team and a steering group but the chief spokespeople come from individuals in three organisations: Plunket, Barnardos and the Institute of Public Policy at AIT.

Every Child Counts has four key policy issues which all the 300 plus affiliated organisations have agreed to. These are putting the child at the centre of policy development, giving children a good start, ending child poverty and reducing child abuse and neglect. Everyone at Every Blogger Counts supports these aims, because many bloggers have children too.

The trouble is that most of its publicity lately is about an issue that none of the groups of Every Child Counts has signed up to. Much of the talk from Every Child Counts is about banning smacking and supporting a repeal of Section 59 of the Crimes Act. However this is not one of their key policy issues - in fact it is not even a policy issue at all. Every Child Counts has not adopted a formal position on banning smacking - or anything related to Sue Bradford's Bill banning smacking. Sue Bradford didn’t appear to be aware of this as she acknowledges the assistance of Every Child Counts in her campaign to ban smacking.

So when people started noticing that all of a sudden Every Child Counts was putting out media releases supporting Bradford's bill, and saying it should go to a select committee, a number of these affiliated organisations got a bit annoyed as they did not support a smacking ban. They advised the coordinators of Every Child Counts that they had no right speaking on behalf of affiliated groups as the position was not in the policy overview. These releases were issued to the media from Barnardos under the banner of Every Child Counts.

As a result of the concerns raised, those at Every Child Counts desisted in putting out such media releases. Sort of anyway. What they do instead is get a media release done from the policy wonks at the AIT. Once the release is written it then goes off to Barnardos. Then it gets forwarded on to Deborah Morris- Travers from the NZ Plunket Society and - hey presto - it’s a release from the NZ Plunket Society.

But whose web site runs the media release: Every Child Counts of course. It is not even on Plunket's website.

What do all the groups affiliated to Every Child Counts think of this?

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4. Reduce child abuse and neglect without banning smacking.
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Because Every Blogger Counts. Every Blogger should be able to have the choice to physically discipline their children.