In impeccable timing, this afternoon I heard the announcement that ACT MP John Boscawen’s Bill to amend Section 59 of the Crimes Act, in line with the Borrows amendment that defined reasonable force, had been drawn from the ballot.

However, John Key swiftly announced that National would not back it to Select Committee trotting out the flawed "the law is working" argument; basically, smacking is illegal but we promise to not enforce it as long as we are in government, which is somehow supposed to reassure parents. NOT. So the bill appears dead in the water.

Hopefully Boscawen will elect to delay its first reading until just before the next election.

The law criminalises smacking, the best and most faithful reading of the law deems any use of force for the purposes of parental correction criminal; experts in legal interpretation agree on this. The people have objected loudly and all you have done is issue a promise to not enforce the law; a promise that can only be kept for as long as you govern, a promise that offends the duty of a government to ensure that the law is enforced.

Your so called “safeguards” offer no long term protection. What happens to those safeguards in the future if the Greens hold the balance of power? Or is that what is really going on - you won’t change the law because you want it to be easy to eradicate smacking long term in New Zealand?

I am not fooled. Courts are primarily directed by the black letter of the law not promises to not enforce it made by past governments. This government has a chance to offer parents protection that a future government will find harder to undo and it will fail if these “safeguards” are all it does.

Promises to not enforce a law that criminalises smacking are not good enough. If the government does not wish for parents who lightly smack their children for the purposes of correction to be prosecuted then it must change the law now, before the possibility of a new government arises.

Regards,

Madeleine Flannagan

The Hon Murray McCully emailed me (I suspect generically) this morning in response to my first email, Dear Cabinet,. The above is a response, sent to all members of Cabinet, to Mr McCully's email to me which is pasted below,

The Prime Minister has announced that the Government is introducing safeguards to give parents comfort they will not be criminalised for lightly smacking their children.

The safeguards follow the Citizens Initiated Referendum on smacking. The referendum result reinforces the message that New Zealanders do not want to see good parents criminalised for a light smack.

To give parents comfort that this will not happen, Cabinet has agreed on a number of measures. These are:

The Police and Ministry of Social Development chief executive will lead a review of Police and Child, Youth & Family policies and procedures, including the referral process between the two agencies, to identify any changes that are necessary or desirable to ensure good parents are treated as Parliament intended. The Commissioner of Police and Ministry of Social Development chief executive will seek an independent person to assist in the conduct of the review and will report back by 1 December 2009.

We will be bringing forward the delivery of the report from the Ministry of Social Development chief executive on data and trends and the effect of the law change from the end of the year to late September/early October. The Minister of Social Development will table the report in Parliament.

The Government will invite Police to continue to report on a six-monthly or annual basis for the next three years on the operation of the law, and invite Police to include data on cases where parents or caregivers say the force used on the child was reasonable in the circumstances.

If future Police data indicates a worrying trend, the law will be changed to ensure that good New Zealand parents are not criminalised for lightly smacking.

The Government believes the law is working as intended, but we want to give parents an assurance that a National-led Government will continue to monitor the way the law is being implemented.

RELATED POSTS:

I am a mother of 4; I am currently doing the last few papers of my law degree at Auckland Uni, I voted “no” in the referendum, I voted for you to govern at the last election. I am sure you are getting a lot of emails, however, as you deliberate as to how to respond to the results of the recent referendum, please take a moment to consider my thoughts.

It used to be clear in New Zealand that a light smack for the purposes of parental correction was lawful. Then s59 of the Crimes Act was amended.

Whether a light smack was lawful or not became confusing. Experts in legal interpretation agree that, as worded, the new s59 could be read either way. I have been in the same room as John Key and I have heard him concede that the new s59 was poorly worded. I have sat in the same room with Sue Bradford and heard her give contradictory answers, as to whether she intended to make smacking illegal or not and whether it is or not. When I read the law, even with my legal training, I cannot decipher it clearly – I can run conflicting arguments as to what it means. Small wonder the populace was confused.

The government would not listen. A referendum was successfully called and the result is in, 88% of those who voted want it made clear that a light smack is not illegal; had the entire voting population voted I doubt there would have been a significant variation in that majority and I doubt that you doubt the truth of this. The majority of voting adults in this country feel very strongly about this issue and they have sent you a message.

Now not for a moment do I expect you to simply follow the whim of the majority; as MPs I helped to elect you to parliament because I expected you to do what you, hand on your heart, truly believe is right and I recognise that sometimes that might mean standing against the majority. That said, in considering what is right, I would hope you would rely on solid research, well reasoned arguments and consider the concerns of the people you represent. If you ignore the referendum message or pretend you do not understand it, you will not only become the epitome of what was despised about the government before you but more importantly you will leave us confused as to what the law is.

The state has a duty to ensure that the law is clear enough for the citizens to be able to understand it; if it is not then it is not just to demand their obedience to it. It is not enough to issue a clarificatory statement or guidelines to the public, police and relevant state agencies as to what the law really means as that affords us, the citizens, no certainty as to what it might mean in the future when you may no longer be governing us. If I find myself before a court or investigated by the police or a state agency it is the black letter of the law I should be able to reach for to know whether I stand on the side of guilt or innocence not some pamphlet or tv campaign or media release.

You didn’t write this law, you tried to save it, yet it still came out poorly drafted; now you have the power to make the law clear. In doing so I would hope you would consider the peer reviewed studies that differentiate between a light smack and abuse which show the former is not child abuse as this would enable you to listen to the referendum result and act on it.

With great respect for the very tough job you do and many kind regards,


Madeleine Flannagan

RELATED POSTS:
Fisking Margaret Mayman: The Flawed Moral Theology on the Smacking Referendum
Fisking Ian Hassall: The Arbitrary Ethical Reasoning on the Smacking Referendum
No Defences Permitted for the Accused
MandM Smacking Label

On Saturday the NZ Herald's John Roughan demonstrated why journalists should not engage in legal interpretation in his widely criticised piece on the smacking referendum, "Sinister undertones to referendum instigator."

At the time I struggled to ascertain whether Roughan was being deliberately deceptive or he just didn't get it. He essentially quoted the non-controversial, much more straight-forward, parts of the anti-smacking law, the new s59 (1),(2) and (3) of the Crimes Act, to attempt to prove that the law was not confusing and claims to the contrary were a smoke screen put up by those who desire "the right to flog children." Aside from his slander, his article was widely criticised because he omitted to mention the most controversial and confusing clause in the new section: s59 (4).

More than one person asked me to write a critique of this piece but was unable to due to my injuries flaring up badly this week and massive transport headaches. I also worried that my status as a law student meant anything I wrote would not carry the necessary weight (funny how that does not apply to journalists with significantly less law papers to their name than I). Not to worry, because today the Herald features a most excellent response by Jim Evans, Emeritus Professor of Law at the University of Auckland no less; see "Jim Evans: New section 59 is clearly a mess."

Professor Evans clearly and simply explains not only the confusion caused by the controversial sub-section (4) but also the less widely noted but equally concerning problems that sub-section (2) creates. He concludes with what we have consistently maintained,

"This is not clear legislation. In creating this law, Parliament abandoned its constitutional responsibility to say with clarity just which conduct is criminal.

The section results from a political fudge. Whatever other views one takes about the topic of smacking, that much at least ought to be kept clear."

I encourage you to read both articles, especially if you have not voted yet and you are confused by all the contradictory claims being made by both sides. I have included the piece of legislation under scrutiny as a term of reference below.

Don't forget to vote in the smacking referendum - mail your papers back by August 20.

RELATED POSTS:
Fisking Margaret Mayman: The Flawed Moral Theology on the Smacking Referendum
Fisking Ian Hassall: The Arbitrary Ethical Reasoning on the Smacking Referendum
No Defences Permitted for the Accused

Our voting papers for the smacking referendum arrived in this afternoon's post. Matt managed to make it home just before the post shop closed so our completed ballots are already in the mail on their way back to the Returning Officer.

It was easy; no driving, no parking, no queuing, no mucking around with ID.

RELATED POSTS:

(dis)Honest to God: How Not to Argue about the Smacking Referendum

Ian Harris tells us (“Honest to God,” Dominion Post, [Dominion Post. Saturday July 11, 2009. Page B5], reproduced at the YesVote website) that we should reject the “harsh views” on child rearing found in the Bible.

Mr Harris, unfortunately, joins many of those who promote the criminalisation of good parents by muddying the waters. He notes, for example, that someone who defends the right to use physical discipline also believes that children (like adults) are sinners. He then announces that since “progressive” Christians (by which he seems to mean those who no longer accept Christian theology) realise that this is based on an antiquated view, we should likewise reject the right to use physical discipline and we should criminalise those who do.

It is difficult to interact charitably with those who support the ban on smacking if this is the contorted way they are going to reason about the subject. Whether or not one thinks the theology held by some supporters of the right to use physical discipline is correct is quite a different matter from whether or not one thinks they ought to be made into criminals, surely!

Unfortunately again, Mr Harris attempts to use his platform as a mouthpiece of liberal (what he calls “progressive) Christianity to give credence to scientific claims that are obviously subject to great dispute. He makes the sweeping claim that this nebulous thing called “modern research” (while he cites no actual studies) shows that although corporal punishment does help bring about short-term compliance, it does not help a child to “internalise positive values for the longer term.”

I am constantly bemused by the way in which conservative religious spokespeople are ridiculed even when they do cite research, but obvious nonsense like this can be peddled by the liberal voices without so much as a single scholarly citation, and nobody is expected to bat an eyelid.

But even if what Mr Harris says is correct, the implication is that corporal punishment in and of itself has short term benefits and no long term ill effects. Hardly something to be prosecuting people for! The reality is that the effects he cites are perfectly compatible with the good of corporal punishment. Such punishment usually is administered to children when they are not willing to reason or reflect on the long term consequences of their actions. It is for when children are being unruly and unwilling to listen. Circumstances in which they are willing to do so are the circumstances under which corporal punishment is less necessary (meaning that the older a child becomes, the less frequent a smack will become). None of this gives the careful reader any reason to think that the occasional smack is immoral, much less worthy of criminal prosecution.

Bereft of compelling moral or scientifically grounded arguments, Mr Harris turns instead to arousing prejudice against the religious convictions of those who disagree with him about child discipline. Unable to find anything strong enough in what all Christians consider their holy book, he reaches into the book of Ecclesiasticus (part of the so-called “apocryphal” writings that did not make up part of the Hebrew canon) to find the claim that “he who loves his son will whip him often.”

But not only has Mr Harris strayed into literature that the so-called “fundamentalists” (most of whom would identify as conservative Protestants) that he attacks do not even regard to be part of the Bible at all, he has clearly sought out the most extreme translation of the verse that he can find. He conjures up grizzly pictures of leering parents towering, horsewhip in hand, over the broken and bleeding bodies of little children with misleading language like this.

But just a few minutes research would dispel this attempt. The New American translation reads, “He who loves his son chastises him often.” The Douay Rheims translation (the Catholic Bible, which does include this book as part of the canon) reads “He that loveth his son, frequently chastiseth him.” The old King James version, the one that “fundamentalists” are most likely to read if the read this book at all, reads “He that loveth his son causeth him oft to feel the rod.” Of course, because it’s a metaphor for physical discipline that’s probably still too much for Mr Harris, but needless to say, it robs him of his “whipping” bogeyman.

After the rhetorical debris is stripped away, all that’s really left is a string of namecalling and fearful language. He calls the views of his opponents “repugnant.” He calls them “fundamentalists” with “antiquated” views that are opposed to “progressive” thought. But where’s the actual substance? Like much of the rhetorical fireworks that is being leveled at those who want the law changed to a common sense view that refuses to place thousands of good parents in the criminal category, Ian Harris offers more heat than light, and manifests just the sort of shallowness and bias that this debate could do without.

RELATED POSTS:

The Vote No blog will be linking to some of our posts as the referendum on the illegality of smacking draws nearer.

The first one, published today, was my piece attacking the argument that those accused of child abuse should not be permitted to attempt raising a defence. It is already drawing comments - feel free to jump in - it is published on Vote No as, "Classic Anti-Smacking Argument Exposed."

Others slated for publication on Vote No are Matt's fisks of the Rev Dr Margaret Mayman's flawed moral theology around the smacking debate (published on Vote No as, Rev. Mayman’s “Anti-Smacking” Argument Flawed); and former Children's Commissioner Dr Ian Hassall's arbitrary ethical reasoning on common anti-smacking arguments published on Vote No as, "Anti-Smacking Arguments Shown to be Flawed."

(I'll update this post with direct links to Vote No as each article goes live.)

Recently Dr Ian Hassall gave a presentation, on the upcoming referendum on section 59 of the Crimes Act 1961, entitled: How did we come to have a law that supported hitting children? This presentation defends the thesis that mild physical punishment (smacking) is wrong and should remain illegal in New Zealand. In this post I will critically evaluate Hassall's arguments and demonstrate why they fail.

Much of Hassall's article discusses the evolutionary, legal and religious origins of corporal punishment and while I disagree with much of his analysis, and I am sure Paul Moon would have a few things to say about his historical claims regarding early Maori not engaging in violence against children, for the sake of space, I will forgo addressing this. I will also put to one side Hassall's caricatured picture of 'evangelical views' on the doctrine of original sin which does not include a teaching on the necessity of inflicting pain repeatedly on children (I intend to do a Sunday Study on the biblical teachings surrounding this issue in the near future). Strictly speaking, the origins of the practice is irrelevant; the real issue is: now that it is here, is it wrong, is corporal punishment morally permissible and should it be illegal? These are questions of morality and ethics. My critique will focus on these aspects.

Evidence Shows Smacking Does Not Harm
Hassall begins his discussion of the ethical questions by conceding, contrary to the standard assertions from opponents of corporal punishment, that “a considerable body of research” shows “no detectable harm to children who have been mildly physically punished when compared with children who have had no such punishment.” This concession raises an immediate question; if mild corporal punishment is no more harmful than other forms of discipline, which are legal and considered morally unproblematic, why then is corporal punishment singled out for censure and prohibition? Hassall puts up several arguments, I will address the most significant ones.

Equality before the Law
Hassall argues against mild forms of corporal punishment by noting that the same acts would undoubtedly constitute a crime if done to an adult;

The implicit assumption behind these appeals is that, if it is a crime to do something to an adult then it must also be a crime to do the same thing to a child. This kind of reasoning seems pervasive in the arguments of those who criticise corporal punishment. The problem is that the assumption is false.

It is a criminal offence (theft) for a man to confiscate his wife’s property without her consent; similarly, it would be a criminal offence (false imprisonment) for a man to prevent his wife from leaving her room or her house. Yet no sensible person thinks that it ought to be a crime for parents to ground their child or confiscate property when their child is acting out.

Corporal punishment does not seem different from other forms of parental discipline in this respect. Both corporal punishment, like smacking and non-corporal punishments, like groundings and confiscations, are such that if one adult did them to another they would be illegal.

The Right to Physical Integrity
A second argument Hassall raises is that children have a right to physical integrity, "the right of children to physical integrity is recognised by the UN Convention on the Rights of the Child. Twenty-three countries have recognised this right in their law." Now the argument that we should adopt a policy on something just because twenty-three other countries have done so is not compelling in and of itself.

Now, I accept that children have a right to physical integrity. The obvious problem, however, is that not all forms of corporal punishment damage a person's physical integrity. Some forms, like those that inflict injuries upon their victims, clearly do but the fact that some forms of corporal punishment violate a right does not entail that all do - anymore so than the fact that some forms of non-corporal punishment, such as locking a child up in a cage without food or water, mean that all forms of non-corporal punishment are unjust. Again there appears no reason for concluding that corporal punishment is wrong or unjust by this argument.

Feeling Guilty
Hassall notes that parents sometimes feel guilty when they engage in corporal punishment. "It feels wrong and when we reflect, we know in our hearts it is wrong. What ordinary parent can recall without remorse the look of fear on the child’s face when they raised their arm to strike?" The problem again is that this is not unique to corporal punishment. What parent does not feel upset, for example, when they see their child crying hysterically as a result of being sent to their room or not being allowed to watch a TV show or missing out on an event they were looking forward to due to their misbehaviour? Once again this argument gives us no reason for singling out mild corporal punishment as wrong but not other forms of non-corporal punishment. The argument applies equally to all forms of punishment that make parents feel bad when administering them.

Normalisation of Hitting
Hassall pulls out another common argument against corporal punishment, that it sends the message that “hitting people is normal.” He notes, “if as parents we have become inured to the fear and pain we cause by hitting our children, what have we become? And if our children over the years become used to us hitting them and regard it as normal, what have they become?”

It is evident from this comment that Hassall's conclusion is decided aprori and read into the evidence instead of being inferred from it. In the previous paragraph I noted his claim that if parents feel bad about corporal punishment then this shows it is bad, here he suggests if they do not feel this way then this also shows it is bad. In other words, no matter what the facts are, he draws the same conclusion. But more importantly, if Hassall's argument is sound then an analogous argument shows that non-corporal punishments are unjustifiable.

If smacking children teaches them that hitting others is normal then wouldn’t grounding them teach that restricting others liberty is normal? Wouldn’t confiscating their property teach that taking others property without their consent is normal? All punishment by its nature involves subjecting someone to something unpleasant, usually without their consent, which in normal circumstances it would be wrong to do; consider incarceration or periodic detention. Given that one of the functions of punishment is deterrence, all forms of punishment involves some degree of threatening others and scaring them away from wrongdoing. Not only is this an argument against smacking, it is also an argument against our justice system.

Degradation and Indirect Harm
Hassall offers two final arguments against the legality of mild corporal punishment. The first is that mild corporal punishment causes indirect harm to children and the second is that it is degrading.

Turning to first of these arguments, Hassall notes,

This is a very bad argument. Essentially Hassall is arguing that mild corporal punishment is wrong because if people with limited self-control engage in it then it will escalate into a beating. He also notes that often beatings come about as a result of such escalation. The problem here is that these facts are true of many legal and perfectly permissible activities. Spousal abuse often results following escalation of a marital argument. If a person with limited self-control argues with his or her spouse he or she may lose control and commit assault. However, it does not follow that it is wrong to argue with one's spouse nor does it follow that such arguments should be illegal. Likewise, if people with limited self-control drink alcohol they may drink excessively, get in a car and kill someone. Many criminal offences result from an escalation of drinking; does it follow that any consumption of alcohol should be illegal?

Hassall's main and most important argument, however, is the claim that mild corporal punishment is “dehumanising” he notes that,

Here Hassall singles out a feature that he contends mild corporal punishment possesses that other punishments do not. In modern times, adults can be subject to legally sanctioned punishments, like fines and incarceration but they cannot be subject to corporal punishment and this is because the latter (not the former) is “dehumanising” in a way that the others are not. This, he thinks, is the reason smacking should remain illegal.

The problem with this argument is the central claim behind it, that mild corporal punishment is demeaning in a way that other forms are not. David Benatar makes the point well;

Benatar’s point is that one cannot claim that corporal punishment is less dehumanising than current legal punishments which “in modern times” are legally sanctioned against adults. Once this is realised, the central premise behind Hassall's objection collapses; he has not singled out a property that is unique to corporal punishment that does not equally apply to any other form of punishment.

I began this post noting that Hassall concedes that mild corporal punishment causes no more harm than many punishments which are both permissible and legal. I conclude, by noting that mild corporal punishment does not differ in any of the other features Hassall mentions either. All punishments done to children would be crimes if done by one private adult to another. If any punishment sends the message that one can mistreat another then all do. There are numerous perfectly acceptable practices which, when engaged in by people who lack self control, escalate into crime. Having to inflict any punishment is something loving parents find unpleasant and corporal punishment is no more dehumanising than many other punishments.

Far, from showing that mild corporal punishment, such as smacking, should be singled out for prohibition, Hassall's argument suggests that it is no more problematic than many other forms of discipline, which good parents can and do permissibly utilise. Hassall's moral case against mild corporal punishment then is arbitrary and appears to have little rational basis.

[1] David Benatar “Corporal Punishment” Social Theory & Practice, Summer 1998, Vol 24, Issue 2, accessed July 3 2009.

RELATED POSTS:
Fisking Margaret Mayman: The Flawed Moral Theology on the Smacking Referendum
We're Confused about the Anti-Smacking Referendum Question
No Defences Permitted for the Accused

(This post was authored by Matt and was accidentally posted under Madeleine's account.)

In “A Christian Perspective on the Child Discipline Referendum,” Rev Dr Margaret Mayman presents a theological justification for retaining the amended section 59 of the Crimes Act 1961, which has criminalised force used against a child for the purposes of parental correction.

Mayman began by offering three standard arguments for repealing the old section 59, the defence of reasonable force for the purposes of parental correction. The first is that, “Prior to the law change, there had been terrible cases of child abuse that had not resulted in an assault conviction because of the use of this defence.” The second is that, “New Zealand has appalling rates of lethal and non-lethal child abuse and there is strong evidence that abuse often occurs as an escalation of physical punishment.” The third is that, “The law needed to be changed to ensure that the children received equal protection.” Despite their popularity and repetition in the media, these arguments are seriously flawed.

Some Accuseds Get Off
Turning to the first, it may be true that the existence of the defence of reasonable force meant that some child abusers escaped conviction. What Mayman fails to note is that this is true of any defence in Criminal Law. Section 48 of the Crimes Act allows a person to use reasonable force in defence of oneself or another from assault. Undoubtedly some serious assaults have not resulted in criminal prosecution as a result of the existence of this defence. Similarly, the law allows those accused of rape to mount a defence that the victim consented; this defence undoubtedly has lead to serious rapes not resulting in conviction. In fact, the very existence of a requirement for the prosecution to prove an assault has occurred, beyond reasonable doubt, has resulted in untold number of serious criminal actions not resulting in criminal convictions. Hence, if the mere fact that the former s59 occasionally resulted in criminals not being convicted entails that it should remain abolished then all defences should be abolished; clearly this is an absurd conclusion.

Criminalisation Because of Escalation
The second argument fares no better. Mayman asserts that, “abuse often occurs as an escalation of physical punishment.” This may be true. It is also true that spousal abuse often occurs as an escalation from a verbal argument between spouses. Does it follow that we should criminalise verbal arguments with one’s spouse.

Equal Protection
Mayman’s third argument, that children must receive “equal protection” under the law, is also problematic. It is true that the law does not allow a parent to smack an adult. However, it is also true that the law does not allow an adult to prevent another adult from leaving the house; to do this would be to commit false imprisonment. The law also does not allow an adult to confiscate the property of another adult; this is the crime commonly known as theft. Nor does the law allow an adult to subject another adult to medical treatment without their consent; this would be both a form of assault and a violation of the Bill of Rights’ protection of life and security of the person.

If we were to truly give children equal protection under the law then it should be illegal for parents to send their children to their room, to ground them, to confiscate their property or keep their immunisations up to date. Clearly no sensible person advocates this because no sensible person really believes that children should receive equal protection under the law.

After presenting these ill-thought out arguments, Mayman offers a theological case for her position. Mayman cited Jesus, “Let the little children come to me, and do not stop them; for it is to such as these that the kingdom of heaven belongs. And he laid his hands upon them and went on his way” (Matthew 19: 13-15). She also cited, “Take care that you do not despise one of these little ones; for, I tell you, in heaven their angels continually see the face of my Father in heaven. … So it is not the will of your Father in heaven that one of these little ones should be lost.” (Matthew 18:10, 14). Mayman then drew two conclusions from these passages. First, these passages call us to a “radical respect for the personhood, and therefore the bodily integrity of children.” Second, that Mayman finds, “no justification for physical punishment, let alone any directive for it.”

Personhood and Bodily Integrity
Turning to the first, I agree that we should respect the personhood and bodily integrity of children. I also think (as I am sure Mayman does) that we should also respect the personhood of adults. Mayman assumes, without argument, that the use of force for correction is always incompatible with respecting someone’s personhood or their bodily integrity. This claim is clearly false. Certain forms of physical punishment that cause injury or harm can damage a person’s personhood or bodily integrity but not all forms do. Moreover, if correction by force always contradicts our duty to respect personhood or bodily integrity then Mayman would have to conclude that criminal punishment of child abusers themselves is unjustified. Such criminals often do not voluntarily go to jail; they have to be forced to. The fact that Mayman supports laws against child abuse shows that she does not believe her own argument; she accepts that sometimes physical force for correction is justified (for adults anyway).

No Directive for Physical Punishment
Her second argument is equally problematic. Mayman states she finds, “no justification for physical punishment, let alone any directive for it.” Here she is correct; nothing in the passages she cited provides any justification for physical punishment or any directive for it. Nor, for that matter, do these particular passages provide any justification for refraining from rape, kidnapping, adultery or theft. That is because these particular passages do not address these issues; they have nothing to say about them at all. Whether such things are justified or not depends on other passages or arguments that are actually about those things. Hence, appealing to them in this context is irrelevant.

Interestingly, immediately after citing these passages, Mayman notes that another passage in scripture does seem to imply the permissibility of corporal punishment. She provides four responses to this, none of which hold any weight.

First she notes that people have historically appealed to the book of Proverbs, “Those who spare the rod hate their children, but those who love them are diligent to discipline them”, to justify “physical violence and assaults.” This may be true but only in the same way that historically people have appealed to notions of equality to murder millions of people in Gulags. Does it follow that all appeals to equality are wrong (and should be criminalised)? Incorrect use or application of an idea tells us nothing about whether the idea itself is true.

Second Mayman states this passage needs to interpreted in light of the “knowledge about child development and of the damage caused by physical punishment” that we have acquired since “the scriptures were written.” I agree that one should take into account relevant empirical facts when interpreting scripture. The problem is that Mayman simply assumes that it is an empirical fact that “physical punishment” causes damage; the problem is that this is far from obvious. In “Corporal Punishment,” Professor David Benatar surveys several studies and notes,

Although there is evidence that excessive corporal punishment can significantly increase the chances of such psychological harm, most of the psychological data are woefully inadequate to the task of demonstrating that mild and infrequent corporal punishment has such consequences.[1]

Moreover, he goes on to note that, “even the data suggesting that very rare instances of mild corporal punishment do have some negative effects also suggest that the effects are not substantial.” In fact, the empirical data is nowhere near as conclusive as Mayman suggests; several studies found little or no adverse effects of physical correction once the difference between severe and abusive types of physical punishment was distinguished from other, milder forms. Theologians should take into account empirical data; they should not, however, uncritically accept unsubstantiated empirical claims about what science allegedly shows.

Literal Interpretation
Mayman also attacks the idea that one should take the Bible literally. She backs this up by citing Deuteronomy 21: 18-21. Mayman claims that this verse teaches that parents are required, “to put to death the persistently disobedient youth.” In fact, Mayman’s interpretation of this verse is flawed. As Christopher Wright notes, in the Ancient Near East it was common for fathers to have rights of life and death over their adult children. Deuteronomy 21, in this context, actually subverts this by taking these decisions out of the hands of fathers. The passage probably refers to adult sons, not children as it describes the sons and gluttonous drunks. Moreover, many scholars have provided evidence that penal sanctions, like those recorded in this passage, serve a rhetorical function of denouncing the action and are not intended to be taken literally.

Even if one ignores these problems, Mayman’s position remains erroneous. Mayman assumes that if one should not take Deuteronomy 21 literally it follows that one should not take any other part of Scripture literally. This is mistaken. Such a conclusion would follow, only if, one assumed that either every statement in Scripture is to be taken literally or none is. Almost any piece of writing will contain a mixture of metaphor, figures of speech, hyperbole and so on, alongside literal comments. In any event, Mayman seems to want it both ways, in several places in her article she takes the teachings of Jesus literally in an attempt to substantiate her view on corporal punishment!

Similar contradictions inflict the rest of Mayman’s exegesis. She dismisses the Epistle to the Hebrews on the grounds that “Nowhere does the author invoke the teaching of Jesus to confirm his beliefs.” She then immediately cites Paul’s commands to “provoke your children, or they may lose heart,” despite the fact that Paul does not, in this verse, “invoke the teaching of Jesus” to confirm this instruction. Even if Mayman’s exegesis were coherent (which it is not) the claim to not provoke one’s children is not the same as the claim to never physically correct them.

Slavery
Mayman finally asserts “that Paul accepted the institution of slavery” but that “Nineteenth century Christians realised that to take seriously the teaching of Jesus about the dignity of all people, required that slavery be ended.” Even if Mayman’s exegesis of Paul and her historical claims about abolitionists were correct (which scholar’s dispute) it again proves nothing at all. Even if Paul was mistaken on one issue, it does not mean he was mistaken on all issues nor does it mean he is mistaken on this issue (Mayman authoritatively quotes Paul elsewhere herself). To show Paul is mistaken on this matter requires an actual argument.

Slogans About Violence
After the above dubious moral theology Mayman turns to a series of slogans. She suggests that physical punishment constitutes violence, she insinuates that violence is always wrong and that violence begets violence. In fact, none of these claims are true.

The Oxford Shorter Dictionary defines violence as “the use of physical force so as to inflict injury on others or cause damage to property.” However, not all force inflicts injury or damages property. Further, violence does not always beget violence; sometimes violence stops violence. The existence of the police force, army, armed offenders squad, courts and prisons show that even civilised societies recognise that violence and force can be justly used against others and are necessary to stop and deter further violence. Therefore, while it is correct to suggest that force and violence are often unjustified, sometimes they are not, and a sensible and just social policy will recognise the difference.

[1] David Benatar “Corporal Punishment” in Social Theory & Practice (Summer 1998) Vol 24, Issue 2, 237.

RELATED POSTS:
Fisking Ian Hassall: The Arbitrary Ethical Reasoning on the Smacking Referendum
We're Confused about the Anti-Smacking Referendum Question
No Defences Permitted for the Accused

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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