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Thursday, 19 March 2009

A Bill to Amend the Anti-Smacking Law

Family First have just released that a private members bill is set to go into the ballot to amend the anti-smacking law. Assuming it is well drafted, ACT's John Boscawen is the MP parents across the country can thank.

While we do not buy into the notion that this law should be changed because the majority want it to be (the majority agreeing with or wanting something is not, in and of itself, a good enough reason to change the law as the fact a majority support a policy does not entail that the policy is just or right; the majority can and often are mistaken) nevertheless, we do share Family First's concerns "that parents are hugely confused over the legal effect of the law." We also agree that "parents have a right to know whether they are parenting within the law or not."

The law has been made confusing by virtue of the political football this issue has become; so much disagreement as to how it applies makes relying on any one opinion risky, it doesn't help that the law is drafted like a dogs breakfast either. These factors mean that people are unable to find out what the law actually means; hence, it becomes impossible for them to alter their behaviour to comply with the law.

This is an unjust situation that needs rectification. Criminal laws threaten people with loss of property, liberty and parental rights if they are not complied with further they set public expectations of behaviour. To be told you must conduct yourself in terms of X or else and then not be told clearly and unequivocally what X is is unjust.

But there is another issue which struck me yesterday; the law actually effects third parties.

Earlier this week I was at a supermarket and I observed a woman shopping with two children. One of whom, a pre-schooler, was going out of his way to play up. I heard them coming around the aisle before I saw them as he was being loud and argumentative demanding to go home immediately and was repeatedly trying to run off. He had a big grin on his face as he loudly taunted his mum and sibling and kept wriggling to get away from his mother who was holding his hand and pushing the grocery laden trolley, with a baby in the front, with the other hand (and struggling with both tasks).

The little boy twisted his hand out of his mother's grasp and ran away from her laughing. She called him to come back, he yelled no, then grinned and laughed, clearly taking delight in her frustration as she said it again and he kept running.

She had to give chase with the laden trolley and baby as he ran between two big freestanding displays. I ducked around one end in an attempt to head him off, as I knew only too well the place she was in having parented a supermarket runner of my own, but he was too quick for me.

In the end she ran after him and I watched her baby and trolley. The whole time he was defying her requests to stop and come back and gleefully enjoying misbehaving. When she caught him she said "I told you to not run off, I asked you to come back, we have talked about this before, your behaviour is not ok" and she gave him an open handed smack right in front of me. She then finished her groceries in peace.

The point of this story is not to make some claim that smacking is ok because it worked in this instance; such an argument is flawed for at least two reasons, first it suggests that the only relevant issue in assessing the morality of a punishment is its effectiveness, and secondly it makes a claim about a class of actions on the basis of one observed instance. I shared this story as I want to share my reaction to seeing her smack her child.

The minute I saw her do it I knew she was breaking the law. According to the law she was engaging in assault against her child and in the absence of a defence she was legally a child abuser. Normally, when I witness someone breaking the law I feel duty bound to inform the appropriate authority; particularly if I witness assault or child abuse. However, I felt conflicted.

I knew I was not witnessing child abuse, yet (assuming the claims about the law are correct which is a big assumption) I was not the police so it was not my place to use discretion. Further, I have strong, reasonably held objections to the law. So I chose to not report her, instead I chose to put myself in the position of failing in my civic duty to report a violation of the law.

My point is that the law not only made the mother in this situation a child abuser but that all of us who fail to report it are like those people who know of and witness domestic violence and refuse to report it. The principles that I hold regarding my duty to report law breaking that I witness have been violated and are no longer clear despite my being certain I did the right thing.
I look forward to reading the Bill and I congratulate Family First for keeping this issue current and John Boscawen for doing what National has not.


  1. Well presented.

    The old fallback of "the law of common sense" can not really apply, because the law is framed to make this arguable.

    Consider this scenario:

    Some-one else who was bashed as a child is also a witness.

    They decide what they saw was the "public" version of proof of worse "abuse" behind doors, and make a strong complaint, which the police are bound to follow up.

    The police show up for a friendly interview with CYFS staff.

    The parents react with outrage at the line of questioning (are you a violent abuser?), instead of some form of grovelley (if that's a word) acquiescence.

    This creates a negative impression with the social worker who is under pressure to not be at a meeting with parents and two months later it hits the paper that one of them hurt the child - it would reflect badly on CYFS.

    So to be safe, they remove the child from custody, and investigate things more thoroughly. The emotional damage to an innocent family is enormous, and yet they will always look to be acting "in the best interests" and "playing safe".

    So we get back to the basic discussion. Is a smack, as part of corrective discipline, acceptable enough so that people that do not believe in any form pf physical punishment are prepared to live with the disproportionate amount of damage enforcing their beliefs on the rest of the population because CYFS want to "play safe".

    I'd suggest the real child abuse stories are in the main, not these ones, but whilst the law is unclear, and whilst society edges towards a mantra of "a smack is the same as abuse" we are going to see an unfortunate number of good parents excessively punished.

  2. I do not consider myself to be breaking the law every time I do not report an infraction I am aware of.

  3. I can't say it would bother me.

    After all, SB herself has stated quite openly that smacking is not illegal under the new law.

    Of course, she's also said the opposite.

  4. "the law actually effects third parties."

    When I read that, I honestly thought "well duh".

    Plenty of people who understand all too well the consequences to society of failing to discipline children. You don't have to be a parent to worry about children running wild.

  5. Some lawbreaking in New Zealand requires witnesses to report, it is statute defined on a case by case basis and sometimes it relates to everyone and sometimes just to those in a position of relevant authority.

    For laws that do not have mandatory reporting there is a civic duty to report, it is not quite a common law requirement, but certainly if you witness something and something dreadful turned out to be happening yet you did not report it, in some instances you might be able to construct an argument for obstruction.

    Regardless, right thinking, moral citizens should report breaches of the law. It is an ethical, moral thing.

    SB, despite claiming contradictory things was clear that it was the police who should have discretion as to pursue charges; I am not the police so it is not my place to exercise discretion.

    It just really annoyed me that I had to go against that instinct, the law should not put me in that position.


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