True that the law change is no silver bullet for solving violence against children, and there will be few court cases in which it will actually make a difference.

But as has been pointed out so many times, it’s the message that it sends to child abusers that’s important – as with so many issues in politics it’s the threat of force wich is important for deterance not its actual use (see nuclear weapons).

First I don’t know much about the positive parenting education that is in place (and given I have two children under 5 I would have expected to know, since I am in the target audience). But if as you say, behaviour has been changing, then what is the real issue? By which I mean why was Sue Bradford so adamant that the law had to be changed anyway? In my understanding of the way the law had been working, the reasonable force defence was seldomly used, and that the judge was ultimately responsible for deciding if it was valid. The issue in that case would seem to be that guidelines for the judiciary were what needed to be changed if people were able to use that defence for beating their children.

I think though we are talking about change over generations. For one generation physical discipline was the norm, for the next generation they may use it sparingly and in conjunction with other methods, the generation of parents to come may be ‘the one’ where smacking just isn’t considered. The Bradford bill in itself can’t be lauded as having achieved this, but the debate about it certainly can.

And I agree on the rhetoric being counter-productive. I’ll brazenly predict the referendum result will be over 75% (of those that make a valid vote) voting No.
Not because they ‘want to beat their kids’ but because they are offended by the ‘child beater’ label.

There has been positive parenting education in place for decades, and behaviour has been changing. The two questions I think this raises are:

1) If some people don’t want to change, what should we do? While many people’s parenting practices have changed as a result of the education and wider societal change toward a stronger emphasis on individual rights, some people’s hasn’t – if education and broad societal pressure hasn’t worked, then what?

2) When is it right to change the legislation? There has been significant social change and many would argue that the legislation was lagging behind.

Finally, I totally agree the “child beaters” rhetoric is spectacularly counterproductive; it has helped dig a deeper divide and entrenched the attitudes of many parents who do smack.

No.

” If witnesses saw you smack your child and the Police decide to prosecute, you’re going to plead guilty”

Well leave the child’s arse alone then. What’s so hard about that? Think before you lash out – normal adults have to do that every day.

“draft laws that don’t leave everything up to the cops”

People who don’t hit their kids will have nothing to worry about – why are you worried?

What? You support subjecting children to kidnapping and unlawful detention? Would you be allowed to do that to an adult? What’s wrong with you?

No – you’re confused, the legal instituions still decide, but the police decide whether it’s in the interest of “the community” to prosecute.

Confused, my arse. If witnesses saw you smack your child and the Police decide to prosecute, you’re going to plead guilty or else; if witnesses saw you smack your child and the cops decide not to bother with it, you’re in the clear. The legal institutions are just expensive extraneous paperwork in that process.

Yes, but if you’re picking the child up to remove them to their “time-out” space – do you really think the child abuse detetcive is going to think it in the interest of the community to prosectue you? Really – i think you’re making a mountain out of a mole-hill.

Those who’ve done nothing wrong simply won’t draw the attention of the state’s enforcers, huh? Fuck that – draft laws that don’t leave everything up to the cops, or don’t draft laws. We have a right to expect some level of competence from the nation’s legislators, given the advice available to them.

The point has been made a thousand times, yes – by people who seem to be under the impression that the parents who’ve smacked their children at some point (ie, the great majority) are simply “lacking imagination.” This is one reason I can’t take anti-smackers very seriously – they often seem to have no concept of parenting except as an abstract, theoretical concept (eg, Millsy, Michael and Roger Nome).

Everything that I’ve seen from Bradford and a lot of other anti-smackers suggests that children must be protected, that actions that would be illegal when carried out against other adults must not be carried out against children and so on. The rhetoric from govt agencies and NGOs has been along the same lines – children must be protected from their parents. I’ve seen jack shit from any of these people that implies even a modicum of respect for the concept that parents are obligated to turn their children into citizens, actively against their children’s natural inclinations, and that this is inevitably going to involve unpleasantness for the children. That propaganda must inevitably have an effect, before we even start to consider the parents who genuinely do lack the imagination to use forms of discipline other than smacking.

Yes, but if you’re picking the child up to remove them to their “time-out” space – do you really think the child abuse detetcive is going to think it in the interest of the community to prosectue you? Really – i think you’re making a mountain out of a mole-hill.

In that case she would have gotten off anyhow with self-defence etc no?

“However, Bradford’s one”

But that’s not the law we have. You know police discretion

” and leaves the Police, rather than the courts, to decide who will be convicted.”

No – you’re confused, the legal instituions still decide, but the police decide whether it’s in the interest of “the community” to prosecute. Did you know that there are specialist child abuse detectives that deal with these things – people with specialist experience in the field? Makes sense to me to let the people with the knowledge decide where interventions are appropriate.

we’re all free to speculate over possible outcomes of this law change. My own view tends towards the effect being that many parents will hesitate to impose any discipline whatsoever on their children.

Yes we are free to speculate. I’m just not sure why you assume that parents will let their children get away with things they don’t want them to, without any sanction at all. That few simply lacks credibility. What’s more likely is that parents will look to non-violent ways of discipling children, such as time out, or the removal of privelages – you know, giving children choices and teaching them to be responsible adults – as opposed to thugs. A good idea no?

Not at all, All I need to able to argue is that there may be circumstances in which hitting someone with a riding crop is an understandable response and shouldn’t result in a serious criminal conviction. Personally, I’m not sure there are but it looks like the 12 people who sat through this case thought so.

The difference here is that you judge the outcome of the case against the law on the presumption that the law and its interpretation by a jury is necessarily just – if she was acquitted, the obviously the force was reasonable. Well, yes, employing a strict legal definition of legal, it’s true. Upon the presumption that the jury is legally right and therefore just, you criticise me for objecting to an outcome I “don’t like” as if there are no grounds for not liking it. I judge the case against what I believe ought to be, and this doesn’t measure up. Determining what is “reasonable” is not the sole domain of juries; politicians make law, and where they see a jury interpreting law in unjust ways, they are entitled to change it.

I don’t believe my argument is legalistic. The law did nothing more than leave it up to a jury to decide whether the force used was reasonable under the circumstances. If we’re disputing the jury’s decision, it’s a matter of us not accepting the jurors’ opinions of what’s reasonable, nothing to do with whether strict legal criteria have been met or not.

I agree, jurors are not the sole arbitors of what’s reasonable, and politicians are free to change the law if they brelieve juries are defining “reasonable” in an unjust way. The Borrows amendment was of this type and wouldn’t have met any disagreement with me. However, Bradford’s one simply proposed making the use of force unreasonable by definition, and the butchered version eventually passed makes force for the use of correction by definition unreasonable and leaves the Police, rather than the courts, to decide who will be convicted.

I know you dispute that last bit, so I’ll elaborate. The Police always have discretion on whether to prosecute, yes. But this law essentially gives them discretion on who will be convicted. It’s fairly straightforward: the majority of parents always have used force on their children for the purposes of correction and continue to do so. As before, the Police will occasionally charge someone for using too much force. That person, if the fact that they used some level of force for correction is not in dispute, has no option but to plead guilty. Effectively, the decision on who will be punished for their use of force now rests with the Police.

So now it’s my turn to point to legalistic arguments being used. If the person pleads guilty, by definition they commited the crime. Yes, but only if the law is defining crime in a satisfactory way – under Bradford’s law, it isn’t.

Sorry, out of time – will address your other points later.

Thanks for a thorough and considered response.

The thing is, your question is predicated on us agreeing that the jury’s verdict in that case was wrong and an injustice created. That may be the case, but I don’t know it for a fact. We all have a gut reaction that a situation in which a kid was beaten with a riding crop can’t be one in which no crime was committed, but a jury considered the evidence and found otherwise.

That would be the case if I were making the judgement on a legal basis and not on a normative basis. To the extent which it is possible for juries of reasonable people, acting reasonably, to acquit a mother of assault when she horsewhips her kid, it’s the law which is broken, not the jury. Since the facts of the case (that the mother did indeed use a riding crop on her child), any law which acquitted her of assault (absent a conventional defence such as self-defence) ought to be amended to make it not so. To not believe this, I think you need to be able to argue a case in favour of horsewhipping (more on which later).

The difference here is that you judge the outcome of the case against the law on the presumption that the law and its interpretation by a jury is necessarily just – if she was acquitted, the obviously the force was reasonable. Well, yes, employing a strict legal definition of legal, it’s true. Upon the presumption that the jury is legally right and therefore just, you criticise me for objecting to an outcome I “don’t like” as if there are no grounds for not liking it. I judge the case against what I believe ought to be, and this doesn’t measure up. Determining what is “reasonable” is not the sole domain of juries; politicians make law, and where they see a jury interpreting law in unjust ways, they are entitled to change it.

I argue this distinction a great deal in defence (!) of George W. Bush, when people complain he wasn’t legitimately elected in 2000. He was, I say, legitimately elected because although the Governor was biased, and the Supreme Court was stacked, they were nevertheless the properly constituted authorities to make the decisions and judgements they made. However, and this is critical, while the outcome was legitimate, it forms an excellent set of arguments for reform of the relevant set of laws.

1. It’s better for a guilty person to go free than for an innocent person to be convicted – the justice system should and does err on the side of caution in this respect.

I agree. But the issues of “guilt” and “innocence” here are strictly legal issues, whereas issues of justice are a bit more complex – they have included parents being charged with assault, admitting the charge and being discharged without conviction. To me, this is a good outcome – it demonstrates that it’s not ok to punch your kid in the face, or push him repeatedly to the ground and sends a clear signal to the effect that such behaviour will not be tolerated, but recognises that people oughtn’t be convicted or imprisoned lightly and should be given chances to sort their act out.

a particular case was clearly not an innocent being convicted because the accused pleaded guilty, and therefore obviously accepted a crime had been committed. Ain’t necessarily so.

In strict legal terms, that’s exactly what a guilty plea means. When you say it ain’t necessarily so, you’re employing ideas of justice. Mixing strice legal ideas (as you did in the first section) and fuzzier issues of justice (as you did here) is inconsistent.

Beyond that, the suppressing effect on parents willingness to impose discipline on their children is unknown but can be expected to be significant.

This is only true if by “impose discipline” you mean “employ corporal punishment”. The point has bee made a thousand times that there are other forms of discipline. I don’t thin parents are simply going to adopt a laissez-faire approach to childrearing; they’ll adapt. To paraphrase the NRA, your lack of imagination shouldn’t circumscribe others’ options.

Basically, the benefits are known and apply to a small number, but the costs aren’t known and potentially apply to a very large number.

I don’t accept your logic, but I understand it. Thanks.

2. As a point of principle, juries should be making decisions on people’s guilt or innocence when it comes to serious crimes.

I agree. But …

Bradford has effectively ended juries deciding guilt or innocence for these offences and put the decision in the hands of the Police.

No, the repeal changed the definition of what is an offence and what isn’t, and granted additional authority to the police in how to deal with an offence where one has been committed. Police don’t decide guilt or innocence; they decide whether to prosecute, just as in any other situation. Guilt or innocence is still decided by a judge or jury.

L

I think it’s a good thing that parents will hesitate before commiting violence against their children now. They’re more likely to think for a few minutes about how to discipline their children without violence, rather than lash out with their reptilian brain instincts.

Well, we’re all free to speculate over possible outcomes of this law change. My own view tends towards the effect being that many parents will hesitate to impose any discipline whatsoever on their children.

I think it’s a good thing that parents will hesitate before commiting violence against their children now. They’re more likely to think for a few minutes about how to discipline their children without violence, rather than lash out with their reptilian brain instincts. Or do you think the reptilian brain has it over the higher brain? It doesn’t any any other case of violence i can think of (possibly self-defence), and that’s why the law punishes violence, because the reptilian brain doesn’t have the faculties for considering long term consequences – that’s where values, ethics and laws come in – some people need to have their primitive instincs curbed by an innate emotional response, which result from the internalisation of ethical standards.

http://www.benbest.com/science/anatmind/anatmd9.html

Cletus needs to know, somehow, that it’s better to talk and negotiate with his wife than to bash her, and the law changes in the 1960s enabled Cletus-like people to internalise this (although the reptilian brain still wins out in some cases).

This is how social change can happen for the best some times, from the top down. The “community” isn’t always right.

Go to see you have an astute sense of humour though.

The thing is, your question is predicated on us agreeing that the jury’s verdict in that case was wrong and an injustice created. That may be the case, but I don’t know it for a fact. We all have a gut reaction that a situation in which a kid was beaten with a riding crop can’t be one in which no crime was committed, but a jury considered the evidence and found otherwise. So, if we’re considering the issue on rational rather than emotive grounds, I see obvious problems in basing that consideration on second-guessing jury decisions based on our own emotional reaction to those decisions.

However, for the sake of argument I’ll leave the issue of second-guessing jury decisions aside. Re the cost/benefit ratio, as you say it’s a trade-off. We want to punish the guilty without punishing the innocent, and the chances of doing that cleanly and successfully in every instance are non-existent.

I base my view of the cost/benefit of this issue on two things:

1. It’s better for a guilty person to go free than for an innocent person to be convicted – the justice system should and does err on the side of caution in this respect. So, we have to look at how many instances of supposed guilty people going free have occurred due to S59. Even with agreement that we know better than the juries involved, it’s a very small number – ie, the benefit is going to be very significant for the individuals concerned, but not a large number in total. We then have to look at how many innocent people stand to face difficulty because of the new law: that’s trickier. It will be hard to gauge that number because under Bradford’s law, people accused by the Police of assault on a child basically have no option but to plead guilty if the facts of the matter are, for instance, that they did indeed smack the kid. Twice now I’ve seen over at the Hand Mirror the view expressed that a particular case was clearly not an innocent being convicted because the accused pleaded guilty, and therefore obviously accepted a crime had been committed. Ain’t necessarily so.

It’s also difficult to assess the number of families who’ve suffered unnecessary aggro from CYF thanks to Bradford’s law.

Beyond that, the suppressing effect on parents willingness to impose discipline on their children is unknown but can be expected to be significant.

Basically, the benefits are known and apply to a small number, but the costs aren’t known and potentially apply to a very large number.

2. As a point of principle, juries should be making decisions on people’s guilt or innocence when it comes to serious crimes. Bradford has effectively ended juries deciding guilt or innocence for these offences and put the decision in the hands of the Police. That was bad law-making generated by emotive reactions to individual trial results and should therefore be opposed on that basis alone, regardless of benefit.

Do you think it’s ok to name you kids the following?

“Crystal Meth, Dubya, Incest, International Harvester, Stabbed in Jail”

http://en.wikipedia.org/wiki/Cletus_Spuckler

Yes, I know Millsy’s question is designed to provoke rather than illuminate, but I think there is a point in there: are you prepared to see the occasional parent acquitted of beating their kid in order to safeguard the rights of the ‘good’ smacking parents? Any sort of policy like this is a tradeoff – we accept that a certain number of murderers and rapists will walk free so as to ensure that it is very unlikely for someone to be wrongly convicted.

You seem to accept that the benefits to parents outweigh the costs to children.I don’t see it as a worthwhile tradeoff, and I’m interested in the positive side of the argument (ie, what is gained to offset the Timaru riding crop and other such cases?)

there’s an alternative conclusion: that they were ordinary people who weighed up the crime against the provocation the parent was subjected to, the effect a criminal conviction would have on the parent and the effect being removed from their family would have on the child, and in all conscience couldn’t bring themselves to convict.

This is the tacit argument that the occasional kid getting beaten with a riding crop is a fair price to pay for the rights of “good” parents to discipline their kids with force, but it’s only the tacit argument. I want to see it demonstrated explicitly. Then, even though I’ll likely still disagree, I’ll at least know that people care about this issue on a rational basis, rather than solely on emotive, traditional or symbolic grounds. It seems to me like this requires arguing that physical force can be a good corrective measure, an assertion which I suspect will be bloody hard to justify, which is why few people are trying to do so.

L

He does not. He is arguing that as an adult breaks the law if they assualt an adult, they should also be breaking the law if they assault a child.

Adults are not protected in law from assaults by children (i.e. the age of partial criminal responsiblity is 14), and children won’t be either.

… that’s the sort of thing – the Timaru riding crop case and similar – this law was intended to prevent;

I believe that that’s what Chester Borrows’ proposed amendment was intended to prevent. The more strident change actually proposed and adopted here was intended to do this but in addition to also precluding parents who smack from pleading the defence of reasonable force.

well there are differences in law between common assault, aggravated assault, grievous bodily harm, etc etc etc. presumably if one slapped a child on the wrist and were charged for it the charge would be ‘common assault’ rather than, say, ‘grievous bodily harm’ or ‘assault with intent to injure.’

I suspect it would be assault on a child, but this misses my point. Of course there are differences between the different classes of assault, the problem was that Sue Bradford and others didn’t seem to recognise that a light smack on the hand was in any way different from a beating with a riding crop. People heard the rhetoric – the need to protect kids from parents who beat, hit or smack their kids – and they were immediately turned off what could have been an empowering message.