Don Brash wants to decriminalise smack

Act leader Don Brash is calling for the decriminalisation of smacking.

He says prohibition of smacking hasn't worked, and policing it costs tax payer dollars and clogs up the court system.

He told Big News there are other ways to restrict the use of smacking.

"It's estimated thousands of New Zealanders smack on a fairly regular basis, many are persecuted every year, and thousands of tax payer dollars is spent to police this law," says Mr Brash.

More here.Full speech here.

Preventing offensive or disruptive behaviour

updated
The Sunday Star Times reports that a jury has acquitted a couple of 15 charges alleging cruelty against children relating to the current “anti-smacking” legislation.

A jury has set a new benchmark under the so-called “anti-smacking” legislation by acquitting a father even though he admitted tying his son to his wrist, shaving his hair off, and washing his mouth out with soap.
The case tested the amendment and showed what a jury would allow in terms of “justified force” to prevent or minimise harm, or to stop the child engaging in “offensive or disruptive behaviour”.

So, what was the punishment for this disruptive behaviour – and under what circumstances?

I grabbed my tie that I wear for church and I tied his wrist to my wrist beside my bed so he couldn’t take off and go and kill himself. Then he did manage to loosen it, so I did tie it around his neck for only about 30 seconds. I admitted to those things in court, but given the circumstances and what I was trying to achieve – trying to stop him killing himself – I was found not guilty.

There are two issues here. One is the use of corrective discipline, the other is the use of non-corrective discipline for preventing disruptive behaviour. The current law allows administration of the latter, not the former. This is the express intent of Parliament, as this amendment from Chester Borrows failed to pass. It would have defined reasonable force equally for both corrective and non-corrective discipline. This definition precludes the use of any weapon, tool or implement - like a tie perhaps.

As this case was discipline, albeit not of a corrective nature, the jury still had to decide whether the force was reasonable in the circumstances (to legally justify it). Sue Bradford considers all physical discipline is unjustifiable, believing it to be unreasonable and unacceptable abuse.

I'm not familiar with the details of the case but the sort of things you are talking about – to me they are all assaults against children. And I think it's really sad that a jury would think that those kind of activities are acceptable.

Bradford doesn’t appear to want to consider whether “these kinds of activities” were to prevent offensive or disruptive behaviour. Bradford’s stated intention in the anti-smacking legislation was to remove force for the purposes of correction,whatever the circumstances, but what she also wanted was to remove any force administered to children.

She failed to achieve this. In this case, based on info from news reports, the decision would have been the same under the old law, but not under the Borrows amendment.Indeed, Bob McCoskrie reveals, among other things that some of the charges were laid under the old law, after a grumpy ex-partner initiated the involvement of CYFS.

Perhaps the intent of Parliament is that most who would have been acquitted under the old law should be acquitted under the current law.If so, police should use discretion a lot more wisely when deciding to prosecute.

The PM and GST

post has been updated

Radio NZ reports that Prime Min­is­ter John Key says he will can­cel plans to raise GST if evi­dence shows peo­ple will be worse off.He says that should reas­sure the Maori Party, who oppose an increase in GST.

Isn't that a bit like saying that he will overturn the smacking legislation if someone gets prosecuted, which will reassure parents that they will not be prosecuted for breaking the law?

Answer: a little bit, but its going to be very difficult to provide evidence that people will be worse off when GST is raised before GST is actually raised, isn't it?

This, particularly for those on low incomes families, as Key has not declared how much (or even if) Working for Families will rise to compensate for the rise in GST, or how he will compensate low income earners who are not eligible for WFF. [update: he has sort of]. For beneficiaries to be no worse off after a GST increase, benefits will have to go up at least 5 percent, with an increase in WFF on top of that.

Personally, I think some people will be worse off as a direct result of an increase in GST, but because they won't be able to directly attribute that to a GST increase, John Key will stick to his line.

Does CYFS think a smack is abuse?

CYFS working definition of abuse is:

an act or act that results in inflicted injury to a child or young person.

It may include, but is not restricted to bruises and welts, cuts and abrasions, fractures or sprains, head, abdominal or internal organ injuries, strangulation or suffocation, poisoning, burns or scalds.

The statutory definition of abuse is :

The harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person

This means that legislation considers abuse as harm, whereas CYFS working definition states " inflicted injury", and goes on to say in the latest smacking report that CYFS does not believe that smacking constitutes physical abuse, whereas the Office of the Children's Commissioner does.

But a light smack can cause harm, because it hurts. If it doesn't hurt, why smack? An inflicted injury is something more than just harm. No wonder social workers don't know whether a smack constitutes abuse. CYFS management are giving mixed messages, telling their staff that a smack is abusive, but telling the public that it is not.

Goff on smacking

Phil Goff said on Q&A yesterday that he did not think a smack as part of good parental correction should be allowed under law, despite voting for a law that allowed exactly that. So now that it is, he says that parents should not be prosecuted for it. In other words, if you break the law, you should not be prosecuted for it. Even if you smack your kids in the supermarket.

Yet if the law reflected the intention of parliament - or certainly, Goff's position on it, it would have to be amended to remove criminal sanctions. So if there should be no criminal sanctions for smacking, why would Goff not support the retention of the current law, but with the removal of these sanctions so that the law reflects his position? Goff's position is undefendable. If I was him I'd keep a little quiet about this law.

Even if he came out and said that if the smacking referendum result was to reflect current public opinion he would respect that, he'd be a hypocrite given that he would no doubt instruct Labour not to vote for ACT MP John Boscawen's bill that attempts to change the law, should it come out of the ballot and be passed before the referendum.

Family First wrong on smacking prosecutions

Bob McCoskrie from Family First has been issuing multiple media releases claiming - and hoping - that police have been prosecuting parents for light smacking. He claims there have been eight prosecutions in the past six months for smacking, with the implication that these eight were heading down the road to a conviction for smacking.

So why hasn't the MSM reported on it? McCoskrie's wrong and has misinterpreted the response to his own OIA, that's why. Shame, really as on the whole he does a pretty good job.

The OIA response is as follows: one, two, three, four, five, six.

Much of the relevant information has been publicly available for a month, and I blogged on it here. Police have divided corrective discipline into "smacking" and "minor forms of physical violence", the latter rate having gone up every quarter, but although cases have been investigated, the "eight prosecutions" were not smacking cases as they either had no inconsequential or corrective discipline component - they were upgraded to assault. The facts are as follows:

1. All 13 child smacking cases reported to police resulted in no further action because they are acceptable smacks and should never have been investigated to start with.So McCoskrie has a point here.
2. Of the "light acts of physical discipline" cases that were were followed up by the police, eight warranted further action and are the ones that McCoskrie is claiming are "smacking cases. All eight were upgraded to assault before they were prosecuted. None have yet been convicted, one got diversion and one got the charges withdrawn. The other six are awaiting their fate. None would have been prosecuted had the charge been upgraded to assault but McCoskrie didn't tell you that, and neither did Whale Oil who posted this from the OIA.


So, eight were charged with assault - assault of a kind that is not inconsequential and would no doubt have failed a Section 59 defence. Three were not convicted and five are awaiting the outcome of their cases. They were not smacking prosecutions because they were not assaults with a corrective action component and McCoskrie is creating a fallacy in repeatedly claiming that these are smacking cases that would have succeeded a defence of reasonable force - a defence of an action that must have a corrective component and be reasonable in the circumstances.

Smacking referendum likely

Just been advised that the collectors of signatures for the smacking referendum have now got 380,000 signatures. So it looks likely that there will be a referendum. Or will they go to Crown Law for advice - like everything else - once authorities realise that there is enough signatures to force a referendum.