I just had an interesting conversation with someone who is not remotely political, a sort of Joe Bloggs citizen. (Being somewhat outside normal, in that I like politics and analysing and debating issues and would find life boring without such things, I don't interact with many 'normal' people on a day to day basis so this was insightful).

My friend, like most 'normal' citizens, does not support the new s59 law and thinks it is ridiculous that a smack in now legally on par with child abuse. She would like to see the law restored or changed so that smacking is not a criminal offence. However, she will not be voting in the referendum because she is not happy with the cost of the referendum and because John Key says he will ignore the result regardless. Her view is that voting is a waste of time and by not voting at least that is one less vote to be counted which might help to reduce the cost of the exercise.

I explained to her that it is in the interests of those who support the new law to ensure the voter turnout is as low as possible. A low turnout is much easier to justify ignoring than a high one. If the turnout is high and the margin separating the yes votes from the no votes is wide then no matter what John Key says now, he will not be able to ignore the result.

The last referendum on tougher penalites for crimes (somewhat vague) was largely ignored and the government took a lot of stick for it. This one is being held in the age of the blogosphere and on an issue for which the precise action the electorate wants the government to take is much clearer. It will be very hard for National to ignore the result if the result is large and loud and ignoring a big turnout with a very clear margin could be politically very stupid. Key knows this, so he is trying to prevent this from happening.

In addition, the cost could have been kept down by tagging the referendum to the election but those who support the current law had strong reasons, turnout being one of them, for ensuring it was not tagged to the election. The cost of this referendum is pretty awful, however, this should not be a reason to not vote - why not ensure that if we have to pay this cost regardless that something positive comes from it?

While these things may seem obvious to we the bloggers who pay close attention to things political, we know that a politician's yes or no can be as changeable as the climate - look at the internet blackout campaign - so I do think it is worth pointing out to our readership that by not voting you are not remaining neutral and just protesting the cost; you are in fact ensuring that the status quo continues. We all know which way this vote is going to go but it is how many who vote that will be crucial. Do you want John Key to be able to say "well, so few New Zealanders voted that it wouldn't be fair to take any action from the result"?

Everyone who does not support the new s59, who wants a legal differentiation between smacking and child abuse, where one is legal and the other not, needs to get past their issues around the cost of the referendum, the not so optimally worded question, etc and vote.

In, The referendum campaign is underway, No Right Turn's Idiot/Savant gives an excellent example of an argument we see coming up a lot in the debate around the upcoming referendum on smacking. In addition to trotting out the standard ad hominem, that everyone who supports the reinstatement of the old section 59 of the Crimes Act is a "child-beater," I'd like to examine the emphasised part:

Essentially Idiot/Savant here claims the parent in his example are guilty, apriori, and as such, when they go to trial, they should not be able to attempt to raise a defence. The problem is that the whole point of having a trial is to determine guilt or innocence. Even when it seems pretty obvious, trials are still necessary and the right to due process still applies. This right to due process includes, alongside the presumption of innocence, a right to raise a defence, no matter how stupid or implausible, and have the court assess it. The importance of this concept can be summed up by Blackstone's Ratio, "Better that ten guilty persons escape than that one innocent suffer."[1]

Supporters of the anti-smacking law do not seem to get this. This 'claiming a defence' issue has been raised a lot ever since Sue Bradford first began promoting her bill to remove the old s59 defence, of reasonable force for the purposes of correction, from the Crimes Act. If you read the Vote Yes site, if you read the media releases and the articles and listen to the interviews you will hear it a lot.

Of course what Idiot/Savant, Bradford, the Vote Yes people, et al miss is that there is a world of difference between claiming a defence and succeeding in doing so. The court is not stupid and the people making the determinations of guilt or innocence in our courts are normal, everyday people. If it is so obvious to all of us that hitting a child across the face with a soup ladle is child abuse, and it is obvious to all of us, a court, made up of people like us, is not going to rule that such an action is an example of reasonable force.

The 34 reported cases on the old s59 are readily available in any law library and if you read them, instead of the media reports and politicians and websites and blogs, you will see time and time and time again child abusers failing in their attempts to raise the defence of reasonable force. The majority resulted in convictions and the few that did not were more often than not due to things like it not being proven who abused the child - which is terribly sad for the child, but you can't just convict anyone so that you can chalk up a conviction! Wrongly decided cases are a fact of life. Just like doctors making mistakes on the operating table, just like us making driving errors. We should try very hard to ensure that these do not happen but to remove a defence entirely and risk the prosecution of the innocent is not the answer. Besides, some of the cases cited in the media as being wrongly decided were not even cases where s59 was raised, other defences like self-defences were in play... shall we remove self-defence as defence?

The contempt for due process does not stop here; statements like Idiot/Savants that, "The only people who oppose that are people who wish to abuse children in that way," show that he is willing to accuse anyone of being a supporter of child abuse because they support the right of an accused to a fair trial.

Chilling. Basically once accused of something heinous, one should not be allowed to defend oneself and anyone who disagrees is morally on par with a child abuser.

There is another patently obvious flaw in Idiot/Savant's argument; removing the defence doesn't just prevent people who seriously abuse children from raising the defence it also prevents the wrongly accused from being able to raise it. However, without defences there is no way of separating the two. I am not speaking here of those who can stand up in court and honestly state 'I did not touch my child,' such accused could plead 'not guilty,' I am speaking of those who end up in court for smacking their children, not hitting them with soup ladles across the face; I am speaking of those who with an open hand, lightly, smack a child on the bottom once, not out of anger or in the midst of rage but in response to disobedience on the part of child. Such people cannot plead not guilty if accused of assault, they have no legal defence if they end up before a court. To remove legal defences from people innocent of child abuse to ensure that the net catches everyone is wrong.

Hat Tip: HalfDone

[1] William Blackstone Commentaries on the Laws of England (Clarendon Press: Oxford, 1760).

... we're confused that anyone could find it confusing. The referendum question is:

Should it or shouldn't it? It seems pretty simple to me.

According to TVNZ,

Labour leader Phil Goff says the question implies that if you vote 'yes' that you're in favour of criminal sanctions being taken against reasonable parents, when actually nobody believes that. [Emphasis added]

Section 59 of the Crimes Act 1961, the defence to the criminal charge of assault (“Every parent or person in place of a parent of a child is justified in using force by way of correction towards a child if that force is reasonable in the circumstances”) was part of our c r i m i n a l code. To reinstate s59 of the Crimes Act (or not) is the question.

If Mr Goff wants anyone to believe that removing a defence from the Crimes Act will not have any bearing on criminal sanctions against those charged with assault he needs to stop being a legislator.

Does making something a criminal offence mean that criminal sanctions should not be brought against those who commit the offence? If yes then it does not follow that giving a yes vote in the referendum means that you support criminal sanctions against those who smack their children. If the answer is no then it is already the case that criminal sanctions can be brought against offenders who smack their children because it is currently a criminal offence to do so - Goff's claim that nobody advocates this is false because the Crimes Act does.

The only people confused here are Goff, Key, Bradford who seem to not understand that if your action crosses the Crimes Act then your action is criminal. Twits.

The only ambiguous, confusing thing about the law is the convoluted crap they inserted in place of s59. It reads like the sort of thing those who think they know a few things about the law write to impress their friends; read subsection (4) and see if you can work out what it means, it's the bit that starts "to avoid doubt..." but then doesn't (one wonders if Bradford wrote it herself, if someone with a law degree wrote it they should be up before the Bar).

Crimes (Substituted Section 59) Amendment Act 2007 No 18, Public Act