No more smacking in New Zealand

Ken writes:

This news has just come down the wire. The New Zealand parliament has overwhelming amended the legislation on assaulting a child to remove the defence of reasonable force used for the purposes of correction.

Now, on the face of it removing a defence of reasonable use of force is puzzling. The margin was overwhelming, 113-8, so you’ve got to ask, What were they thinking?

Maori Party co-leader Tariana Turia told Parliament that defence needed to be struck from the law books because of cases like Ngatikaura Ngati. The child’s mother and her partner are awaiting sentence after being found guilty of manslaughter.

“The High Court in Auckland heard how a boy of 3 years old was subjected to regular beatings using a baseball bat, a vacuum cleaner pipe, rods and a wooden spoon, and punched repeatedly in the face,” Mrs Turia said.

“The couple convicted of manslaughter used section 59 of the Crimes Act as their defence, claiming that they only ever used reasonable force. As long as we have people who are prepared to administer beatings so savage that a child’s blood splatters on to the ceiling and who are then able to defend that callous brutality as a reasonable punishment, then this nation is in deep trouble.”

source

But this doesn’t make any sense, surely. For one thing, they were convicted under the old laws, which suggests that they were adequate, and surely, the example she offers is not reasonable use of force.

If this is what passes for thinking in New Zealand, then the nation is in deep trouble.

update 22.11.2007:
The NZ Herald reports that a man has been convicted under the new law for smacking his son. The man apparantly grabbed his eight year old son by the shoulder hard enough to bruise him, and put him over his knee and smacked him on the buttocks with an open hand. A criminal conviction for such low level violence seems a bit harsh, but the sentence the court handed out was quite lenient (nine months supervision and anger management), so I don’t think it’s a very grave miscarriage of justice.

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41 thoughts on “No more smacking in New Zealand

  1. kenanddot

    Ken writes:

    It never did me any harm.

    Obviously, one should not seriously harm one’s children, but there’s surely a level of reasonable force which is effective for the purpose of chastisement and completely harmless. It seems misguided to outlaw smacking completely because a few idiots cross the line.

  2. Geoff

    Yeah, bloody Nanny State telling me I can’t hit my children with a piece of plastic piping until they’re concussed enough to shut up and let me watch the rugby in peace. It never did me any harm.

    The notion that it is permissible to assault a child while it is not permissible to the exact same thing to an adult is simply incoherent. If it’s acceptable to give your son a clip round the ear for being disobedient, then it must be acceptable to do the same to the idiot driver who reverses into your car.

  3. ken

    Incoherent? I think you’ve got a defective coherence detecter Geoff. There are plenty of relevant differences to point to to justify the different treatment. You are responsible for your children. They are not responsible for themselves. You must feed them, clothe them, educate them,… in short you are their parent. None of that applies in the case of other adults.

    In any case, I don’t think beating children with plastic piping until they’re concussed constitutes reasonable chastisement. You’re attacking a straw man, not a position I would be willing to defend. The case in the article was successfully prosecuted under the previous legislation.

  4. Geoff

    I’m glad you think that using plastic piping is not a reasonable chastisement. Too many parents round here don’t share your view.

    There are a lot of situations where your relationship to another adult is quite similar to your relationship with your kids; looking after an infirm elderly relative might be one example. But even if you grant that your relationship with your child is unique amongst all your other relationships because there is a special sense in which you are responsible for them, I don’t see anything in this ‘unique responsibility’ which allows you to hit them. It sort of suggests the opposite to me.

  5. ken

    ‘too many’ parents could be quite few. If one parent thought that, it would be too many. Any such person would clearly be unreasonable. They would be guilty of assault under the old legislation. This sort of example doesn’t support your case. Don’t you see that? To support a blanket ban, you need to give reasons why it should be illegal in the mildest sort of case of reasonable chastisement -to give a child a smack on a bottom, say, that doesn’t cause any kind of bruise, whose redness fades quickly, and that the child themself has forgotten about in twenty minutes.

    Your conditional was: if we can hit our children, we should be permitted to hit other adults. I disagree. Assume the antecedent of the conditional is true, why might the consequent be false? Hitting other adults could constitute ‘taking the law into one’s own hands’. This could lead to escalating levels of violence. Lone individuals perhaps would take less time to establish the facts than the state, increasing the chance that the wrong person would be attacked. Different individuals may retaliate with different levels of severity meaning there would be a lack of consistency in punishment for wrong doings, and so on. All these are reasons not to permit individual adults to hit other adults. So the consequent is false. So the conditional is false.

    Maybe you think that people just shouldn’t hit their kids. Agreed, and kids shouldn’t be naughty, but when they are naughty, they need to be punished. It is important for their social and moral training. And a smacked bottom is a historically effective punishment for a range of misdemeanors. It’s as simple as that (and that is my argument for the antecedent of the previous conditional).

  6. Geoff

    “‘too many’ parents could be quite few. If one parent thought that, it would be too many. Any such person would clearly be unreasonable.”

    Absolutely. The problem is not (only) that these sorts of people are parents, but that these sorts of people turn up on juries in child abuse cases.

    “This sort of example doesn’t support your case. Don’t you see that? To support a blanket ban, you need to give reasons why it should be illegal in the mildest sort of case of reasonable chastisement -to give a child a smack on a bottom, say, that doesn’t cause any kind of bruise, whose redness fades quickly, and that the child themself has forgotten about in twenty minutes.”

    If the child forgets it, how is it a behavioural modifier? In any case, you are begging the question by assuming that it is ‘reasonable”.

    1. “Hitting other adults could constitute ‘taking the law into one’s own hands’. This could lead to escalating levels of violence.”

    2. “Lone individuals perhaps would take less time to establish the facts than the state, increasing the chance that the wrong person would be attacked.”

    3. “Different individuals may retaliate with different levels of severity meaning there would be a lack of consistency in punishment for wrong doings, and so on. All these are reasons not to permit individual adults to hit other adults. So the consequent is false. So the conditional is false.”

    All these are also (very good) reasons for adults not to hit children. So the antecedent is false. So the conditional is true.

    “Maybe you think that people just shouldn’t hit their kids. Agreed, and kids shouldn’t be naughty, but when they are naughty, they need to be punished. It is important for their social and moral training. And a smacked bottom is a historically effective punishment for a range of misdemeanors. It’s as simple as that (and that is my argument for the antecedent of the previous conditional).”

    Sure it might be an effective punishment, if by ‘punishment’ you mean an infliction of pain which is perceived to be equal to the misdemeanor committed.

    Do you really believe that children should be punished if they are naughty, bearing in mind that you’ve argued that “they are not responsible for themselves”? Surely you should punish the people who are responsible for the misdemeanor – the parents?

  7. kenanddot

    Yes, I really believe that children should be punished if they are naughty. I think it’s an important part of socialisation and learning right from wrong. The idea that no form of punishment should feature in a child’s upbringing seems scandalously utopian, to me, if not positively irresponsible.

    You could put this as a pedagogical point. Socialising training, in essentially Skinnerian fashion (although that’s just giving a flashy label to what has been going on for aeons), of rewarding and praising good behaviour and punishing and discouraging bad behaviour, needs to begin before children have the conceptual resources to cope with rational arguments for or against things. I think a child’s upbringing is built on a non-rational foundation, and has to be because rational explanation already has preconditions. Consider the fact that mathematics education begins with rote chanting of times tables, which is entirely irrational. It’s just brute laying down of patterns. It is only against that background that you can learn to do sums. A child’s moral education, in the broad sense, needs to begin early before it has the intellectual resources to understand a rational explanation (I say ‘in a broad sense’, because obviously I don’t think you can explain utilitarianism to a child without conceptual resources, but you can lay down attitudes, specifically bad things are ‘bad’ (because they hurt), good things are ‘good’ (because they bring praise and cuddles)).

    I’m afraid our senses of what’s reasonable when it comes to smacking simply differ. I see nothing to recommend your absolute negative position other than a slippery slope sort of argument (which is applicable to non-physical forms of punishment too).

  8. Pingback: Smacking debate « Ken and Dot’s Allsorts

  9. Geoff

    Yes, we’ll have to agree to differ on whether physical punishment of children is right.

    Section 59 was problematic because it asked juries whether there was any reasonable doubt that the actions taken weren’t reasonable in the circumstances. If you were a defense lawyer you would present the child’s behaviour as badly as you could; then you would ask the jury, not whether they would have ‘lost it’ and done the same thingas the accused in the same circumstances, but whether they knew beyond a reasonable doubt that they would not have.

    Just to reply to one of your points above: “I think a child’s upbringing is built on a non-rational foundation, and has to be because rational explanation already has preconditions”. I agree; however it just doesn’t follow that hitting is the best non-rational foundation. The primary ‘non-rational’ motivation, for even very young kids, is attention from those around them. If you watch parents who smack, you’ll often see that they’ll start off yelling at the kid “Timmy! Don’t do that!”. The kid keeps doing it, because he wants Mum to pay him some attention – and being yelled at is attention after all. Mum eventually tires of yelling and give Timmy a clip round the ear. Timmy now has a very surprised look on his face because how was he to know that all that lovely attention from Mum would culminate in a whack?
    Humans have an innate need for face to face contact – even in newborns you can see how much of their focus is on faces. And as Dot say, we’ve become very ‘pain-shy’ – but it doesn’t take much to get used to a level of physical pain. We’re designed for it but we’re not designed to go without attention. We can’t stand it. And if Mum isn’t responding to one behaviour with her attention we’ve got to try something else. And if Mum gives us lots of attention when we do try something socially appropriate, then the link is very easily made.

  10. ken

    “it just doesn’t follow that hitting is the best non-rational foundation. ” (emphasis added)
    – for my argument it doesn’t have to be the best. I think it should be one of the tools in the toolbox. I completely agree with you that humans need intimate face to face contact, so there’s a lot of scope for training based on that need, but I think the ‘discourage-certain-behaviour-by-ignoring-it’ method (to give it a simplifying label) faces its own difficulties. For instance, if Timmy was playing with wall sockets, or pill bottles, or engaging in some activity that is likely to cause him harm, and it was not the sort of thing where you can simply remove him from temptation, then a quickly administered, quickly forgotten ‘aversive stimulus’ connecting the dangerous behaviour to negative consequences, seems to me preferable to a non-negligible chance of life-threatening injury, particularly if being ignored causes Timmy to intensify his dangerous behaviour.

  11. This issue troubles me a lot. I have standardly been on Ken’s side. I myself was smacked as a kid, and I too seem to have turned out OK. The law change seemed ludicrous to me.

    But then I thought of a comparison case: the treatment of animals. Suppose you see a person who is smacking his dog on the nose (I think this is about the closest comparison to smacking a child’s bottom, for a dog — their fur provides too much padding elsewhere on their body) whenever the dog does something the owner doesn’t like — trying to jump up on passersby, eat random stuff on the street, whatever. Would you think this is acceptable behavior? My intuition is that it isn’t. It’s certainly the kind of thing that a dog trainer would frown upon — it would show that the owner has not shaped the dog’s behavior appropriately. In general, hitting animals is frowned upon. And this is not because the animal is not sufficiently intelligent to make the link between its behavior and the aversive stimulus: dogs, for instance, are definitely intelligent enough for that sort of thing to take effect. The reason it’s wrong is because, even if in the immediate case the smack is important to stop the animal from doing something inappropriate or dangerous, the fact that it _is_ necessary evidences an inappropriate (and, on the whole, counter-productive and inefficient) pattern of behavior on the part of the owner.

    So does the same point apply to the smacking of a child? Maybe it does.

    I should say I’m not fully convinced by my own argument here. There may be salient differences between the animal and child cases here. For one thing, dog psychology (since I’ve been focusing on dogs here) is very different from child psychology, and one might argue that where it really is true that you shouldn’t _ever_ need to hit your dog if you’ve trained it right, there may still be some times when you’ll need to administer a quick slap to your child, simply because children don’t have the ‘follow the pack leader’ mentality that dominates dogs’ behavior. But still, the argument seems to me to have some force. If we think it’s always wrong to hit animals (and we do — don’t we?), why don’t we think it’s always wrong to hit children?

  12. Geoff

    “…a quickly administered, quickly forgotten ‘aversive stimulus’ connecting the dangerous behaviour to negative consequences, seems to me preferable to a non-negligible chance of life-threatening injury, particularly if being ignored causes Timmy to intensify his dangerous behaviour.”

    Yes, and if you’re close enough to strike Timmy you’re close enough to grab his hand and utter a loud verbal rebuke.

    I think any argument that runs from the premise that ‘sometimes a smack is the only available course of action’ to the conclusion that ‘smacking is acceptable’ is unsuccessful – because I don’t think that the premise is ever true. A lot of the debate in NZ was directed this way; eg “sometimes parents just have to smack, and repealing S59 will make them into criminals”. It’s true that parents often feel like they have no option but to smack their kids, but it doesn’t follow that they in fact do not.

    “If we think it’s always wrong to hit animals (and we do — don’t we?), why don’t we think it’s always wrong to hit children?”

    The animal analogy was/is also a common refrain in NZ, as in, “there’s no Section 59 for animal abusers, so there shouldn’t be one for child abusers.”

    The reason why we think it’s acceptable to hit children while thinking that it’s not acceptable to hit x (where x variously equals adults, animals, the intellectually challenged etc) is that we think our relationship with children is of a special and unique kind. But when we try to actually figure out what it is about this relationship that justifies smacking we find it hard. My suspicion is that the strongest candidate for a feature of this relationship which would justify smacking is ‘ownership’. When I own something it implies that I can damage it as I see fit; whereas if I do not own that thing then I will be in trouble if I damage it. We don’t own other adults so we’re not allowed to hit them; we don’t own other peoples’ children so we’re not allowed to hit them; but we do ‘own’ our own children.

  13. Geoff, you did see that I was venturing an argument in favor of your position, right? (Your use of the phrase “common refrain” to describe the animal analogy makes it seem like you find it unconvincing.)

    If there’s something to my argument, though, then your diagnosis about ownership can’t be correct. We own animals, but (if I’m right) we don’t think it’s OK to hit them. So that can’t be why we (well, some of us) think it’s OK to hit our children.

  14. ken

    Gazza, great to get your input. The argument that you shouldn’t need to hit if you were doing other things right is obviously right to some extent (meaning that there are cases of unnecessary smacking and there is some positive moral grounds for minimizing these, even if smacking is OK per se), but I’m not sure I buy it as a general principle. Isn’t it a sort of ‘inheritance of wrongness’ principle? -smacking inherits the wrongness of its ultimate causes – I’m not sure I’d go along with that. Consider the epistemic case. It’s an epistemic failing to be lost, but it’s not wrong to use a map once you’re lost, even though you shouldn’t have been lost in the first place. If the moral case is similar to the epistemic one, even if having to smack were wrong, smacking wouldn’t for that reason be wrong. But I don’t think we can in general say that it is wrong to have to smack. That’s because there’s a lot of luck involved in getting to the point where you have to smack. Suppose you let a kid have some sugary drink and then some friends from out of town who you weren’t expecting pop round, and the kid gets really excited and starts showing off and does something for which a smack would be appropriate. They wouldn’t have been over-wrought and over-excited without the sugary drink, but even though letting them have the contributed to your having to smack them, I don’t think it’s right to find something to blame here.

    I do agree with Geoff that you always can do something else besides smacking, but I don’t think it follows from this that you have to, because in some cases these alternatives aren’t any more effective (of course, it doesn’t follow that you have to smack when it is the most effective, you may do one of the alternatives). But since the appropriate sort of smacking we’re defending doesn’t do any harm, and does work, it’s not clear why these non-physical alternatives are preferable. Where’s the argument that the physical punishment per se is wrong? I think Alice put her finger on something here. In any case, Geoff, have you considered the possibility that grabbing a child and giving them a loud verbal rebuke is effective because of it carries an implied threat of physical violence that a child understands (like a dog’s snarl)? If that’s right, your own hands would be just as dirty.

    I think the ownership thing has absolutely nothing to do with it. As Gary said, people are happy to put restrictions on what people can do with their own property, e.g. if your home is a listed building in the UK, you cannot modify it as you see fit (and the UK is pretty illustrative of a capitalist country). But also I think most people who defend smacking would be completely appalled at the suggestion that their children are their chattels or that they treat their children like chattels. It is counter-productive to give oneself nightmares contemplating the motivations for defending smacking and perhaps easiest just to stick to the arguments.

  15. I do agree with Geoff that you always can do something else besides smacking, but I don’t think it follows from this that you have to, because in some cases these alternatives aren’t any more effective (of course, it doesn’t follow that you have to smack when it is the most effective, you may do one of the alternatives). But since the appropriate sort of smacking we’re defending doesn’t do any harm, and does work, it’s not clear why these non-physical alternatives are preferable.

    I think the question of whether the smacking harms the child at the time is only a very small part of the issue. It’s pretty clear that a quick smack isn’t going to harm the child beyond hurting for 10 seconds or so. (The people who claim smacking leads to mental trauma or whatever are being disingenuous, or are confusing a smack with a beating.)

    The real issue is whether a smack is ever justified, given that it is, after all, a violent act — albeit of a very minor grade.

    I’m not going all Kantian here. My intuitions are much more consequentialist. My concern is that smacking a child sends a message to anyone who witnesses it — not least to yourself and to the child — that violence against your child is OK. (As I type this I’m reminded of an argument by Rae Langton about the badness of pornography — that it has ‘illocutionary’ force. I think my point is similar.) Now of course, many parents are totally capable of keeping the smacking to a low and very infrequent level. My parents certainly were. But there are plenty of parents who aren’t, and my thought is that for those parents it would just be better if they held to the rule that they should never physically hit their child at all. And which parents are those? Ah, well, there’s the problem: you can’t reliably tell ahead of time who will be able to ‘draw the line’ and who won’t. So, all up, it’s best that no one at all should start smacking in the first place.

    Now all this might be over-ruled if there were cases where smacking was genuinely the only alternative. But you have just said, Ken, that there are no such cases. I rather think I agree. You can always do something other than smacking. So, given the dangers associated with smacking, why do it at all? Why take that risk?

    (In your first paragraph you say you doubt it’s wrong to smack a child if you’re in a situation where you have to smack. Maybe so, but as you say later, and as I agree, no such situation ever exists.)

  16. Dot

    In my post relating to this debate (Smacking Debate) I asked why smacking seemed like a special case. I’m interested by your use of the term ‘violence’, Gazza: by calling something violence we usually mean not just that it involves physical force but that it is wrong. However, violence is not a clear-cut natural category but a fuzzy and culturally determined category, and the fact that the term is morally loaded affects how it used. For example, someone who wanted to express outrage against police brutality might label police pushing suspects over a car bonnet and handcuffing them as an example of violence, but the police probably wouldn’t. My point here with regard to smacking is that we don’t inevitably have to see it as on a continuum with serious assault.

    I suspect that when it comes to discipline of children in practice you have to do what works with the particular child. I would prefer to use other forms of discipline and not smack, and I’d prefer to use positive reinforcement rather than punishment (as Geoff advocates), but I know we will have to adapt. The bottom line is that discipline should be about teaching behavioural lessons and not about anger or revenge (though I know human parents can’t help getting angry). It’s uncontrolled anger that really would place punishment of children on a continuum with anti-social violence.

  17. I see what you’re getting at, Dot, but I’m not fully convinced. Smacking does belong on the tail end of a continuum that has serious assault at the other end. This is not to claim that they are fundamentally the same kind of action — whatever such a claim would mean. Only that they both involve physically striking another person. The fact that we regard physically striking another person as a ‘last resort’, to be undertaken only when all other methods fail, is (I think) important. I applies as much to the case of parent and child as in the case of policeman and criminal. In the latter case, though, it’s plausible that physical striking may in some cases be genuinely necessary — e.g., in cases where it’s the only way to stop the criminal hurting someone else. But it’s much harder to imagine situations in which there was no other option than physical striking in dealing with a child’s behavior.

  18. Geoff

    It does interest me to see my stepdaughter’s 6 year old schoolmates playing – it’s often clear which ones are smacked (and worse) and which ones aren’t, because the two different groups seem to bring quite different expectations and responses to a situation. It makes me think that violence (in the broad sense) becomes a sort of language, and that some of the kids speak this language while others don’t. And it seems to me that speaking a language entails being able to make lots of subtle distinctions between items in the language which non-speakers aren’t able to make. But these distinctions aren’t the sorts of things which you can ‘justify’; they just are a part of the language. eg why _this_ cricket stroke is a ‘drive’ but _that_ stroke is a ‘slog’ is lost on non-cricket speakers – and when called on to justify the ‘moral’ distinction between a drive and a slog to a non-speaker, the cricket speaker will inevitably fail to show why the one is a good shot and the other is not. In the same way, I feel that I lack the language to understand why this smack should be morally acceptable while that one isn’t.

    Asking a person like me whether there’s a reasonable doubt whether a case of adult-on-child violence was or wasn’t reasonable is kind of strange; the whole concept of ‘reasonable physical violence’ seems odd. I can intellectualise it in the case of self-defense but that case of violence, while justified, still doesn’t seem reasonable. Self-defense seems like a case where the defender is forced into an unreasonable action by the ‘defendee’, not where violence suddenly becomes reasonable.

    There are people all around me who do find particular cases of violence to be reasonable but they seem incapable of articulating the distinctions that they are making to non-speakers like me. The most I can gather is that they feel that their kids are _their_ kids and they resent the State for telling them what they can and can’t do with them.

    I am still at a loss to understand why I should be allowed to hit my stepdaughter for scratching the car’s paintwork but I shouldn’t be allowed to hit my (adult) brother for the same deed. It seems to me that my brother has rights which my stepdaughter doesn’t have – and this is a familiar concept to me, after all, he can vote and she can’t. But that’s a familiar difference with a familiar justification: he’s supposedly more rational that she by virtue of his age. However, I just can’t see a difference between them that would mean that I can hit her but not him.

  19. ken

    Geoff, considering violence more broadly, surely you can see that some responses are proportionate and some aren’t? For example, people say violence in self-defence is acceptable, but if you manage to subdue and fend off your attacker you are not permitted to go further and kill them. In theorising about the wrongs of violence one must, I think, sully one’s hands and be prepared to say some violence is worse than others (and some violence is correspondingly better). Violence cannot just be conceived to be monotonously and undifferentiatedly wrong, or else you cannot discriminate in your moral evaluation of murderers, brawlers, and child smackers. I think to the extent that you are prepared to discriminate between acts of violence, you implicitly deploy a host of concepts like proportionality, and extent of the harm, and a sensitivity to the context of the violent act and so on (- OK, this isn’t a concept), that supply the materials from which our judgement of reasonableness is formed. A reasonable smack is one that is harmless and timely and given in response to dangerous or anti-social behaviour.

    Gazza, I don’t think it should bother us that the other end of the continuum of physical violence is virtually exclusively made up of acts that are very clearly wrong (any more than a bald man should worry about combing his hair).

  20. We might have hit an impasse. Ken, if I’m reading you right, you see no reason to regard smacking a child as relevantly similar to hitting an adult, so that the prohibition against the latter doesn’t do anything to show that we shouldn’t do the former. Whereas I think (and maybe so does Geoff) the two acts share a basic similarity, and that that fact gives us at least a prima facie reason not to smack a child. (Geoff thinks the similarity is enough to simply transfer the prohibition directly. I don’t agree with that, but I tend to think the prohibition transfers with the addition of some further argumentation.)

  21. Geoff

    So what’s the difference – the difference that doesn’t allow us to ‘transfer the prohibition directly’?

  22. Geoff

    Ken writes, “Violence cannot just be conceived to be monotonously and undifferentiatedly wrong, or else you cannot discriminate in your moral evaluation of murderers, brawlers, and child smackers.”

    And this, I think, is my problem. My evaluations are very much out of step with the mainstream of feeling out there. For example, when two drunk and aggressive young men have a consensual fist fight outside a pub, then that’s illegal. But when an adult hits a child repeatedly with a garden cane, then that was legal under section 59 (and still would be legal if many of my fellow NZers had their way). My intuitions, however, go the other way. I feel that if any violence should be exempted from the crimes act then it should be the violence that occurs between equals who have consented rather than between people of unequal strength where the weaker party has not consented.

    An interesting parallel might be spousal rape: it used to be illegal for a man to rape a woman unless they were married, in which case her consent to a particular act was not required. Something in the notion of ‘marriage’ made people feel that an act which they would roundly condemn in a different context became reasonable in the married context. But there’s nothing in ‘marriage’ itself that justifies rape – in some places and times we have simply defined ‘marriage’ as in part that which gives a man the right to sex without his partner’s consent. Similarly there’s nothing in the concept of ‘parenthood’ that justifies smacking – there’s simply the way that we, here and now, define parenthood. And I’d rather live in a country in which the notion of ‘parenthood’ implies that the parent has special responsibility to prevent violence against the child instead of implying that the parent has special rights to commit violence against the child.

  23. Dot

    Geoff, we’ve approached the issue of how smacking a child relates to violence against an adult from various angles. I have suggested that smacking might not be the same kind of action as assault and I take Gazza’s point that there is a fundamental similarity in the act of hitting. But I do think there are also important differences including, crucially, in degree, and there’s a problem with the extreme examples you keep using. Very few people would advocate beating a child repeatedly with a garden cane. The kind of action we are talking about should not leave any physical injury or hurt for more than a moment. The same kind of action between adults might be prosecutable as a assault but if it did it would strike many people as a case of the law being hyperactive when no harm was done. If a man makes a cheeky remark to a woman in a bar and she slaps him, is that assault? That might be a more realistic parallel than a fist fight, though the relationship between the participants is different in all three cases (fist-fight, bar-slap and smack).

    The starting point for all this wasn’t that Ken advocated the right to damage one’s children with impunity but that the law lumps together incredibly marginal cases of violence with much more serious ones in a way that threatens to criminalize kind and responsible parents along with genuinely abusive ones. And even if you see any kind of smacking as abuse you must admit there is huge difference between e.g. my parents and Ken’s and people who beat their children senseless.

  24. ken

    To return to a different tack on this problem that Geoff was taking earlier, he seemed to say that part of the problem with the old section 59 cases was that juries found it convict when that sort of defence was available because, in effect, it involved them in too much higher-order second-guessing of defendants because, qua jurors in criminal cases, they always had to give the defendants the benefit of the doubt. This led in practice to too many instances of brutality going unpunished. (Is that right?). One alternative to abolishing the section 59 defence might have been to give explicit instruction to judges and juries about what counts as a safe smack and what doesn’t (such as ‘up to as many as ten open palmed slaps to the bare or covered buttocks, thighs or hands’ is OK, but beating with clenched fists, kicks, use of clubs or force-magnifying devices is prohibited). Do you know if this sort of instruction was available, Geoff?

  25. Geoff

    I think what was happening was that the fact that there was a section 59 defence led to fewer cases being brought to trial by those responsible for prosecuting them. Police and healthcare workers etc who were interviewed on the radio and so on often said that they had not pushed cases which should have gone to trial because they were aware that the chances of a conviction were slim, given section 59, and that they had limited resources which were better spent elsewhere.

    Dot wrote, “If a man makes a cheeky remark to a woman in a bar and she slaps him, is that assault? That might be a more realistic parallel than a fist fight, though the relationship between the participants is different in all three cases (fist-fight, bar-slap and smack).”

    The law classes the woman’s action as assault and as such it is illegal. But according to section 59, if the person she slapped was her child, then it would be legal. My point is, if there has to be a difference in law, then I’d rather make it illegal for you to hit your child and legal for you to slap a fully grown man.

    Regarding the notion that there’s no difference in kind between a punch and a smack, only a difference in degree, I would argue that this is reflected in sentencing rather than in the determination of the legality of the act. The jury’s job is to determine whether a person is guilty of a crime or not; it is the judges’ job to determine the severity of the crime and hand down a sentence accordingly. Even if the police had the resources to prosecute every single parent who lightly smacked their child with an open hand, as well as those who regularly took to their child with a jug cord or a fist, the vast majority of the former would be given diversion, a warning and so on.

    As a parent, I’m not worried about being ‘criminalised’ if it means that more children who are at risk can be protected. (although as I write this it does strike me – no pun intended – that it would be me criminalising myself rather than me being criminalised.)

  26. Geoff

    Sorry Ken – to address your question directly: an explicit instruction as to the definition of a ‘safe smack’ was not part of the legislation and therefore was ‘up for grabs’, and ultimately left to the particular jury to determine.

    I think that the National Party (the opposition) were suggesting amending section 59 to include such an explicit instruction, but that was abandoned when the Bill’s authors wrote in a different amendment – although my memory is a bit hazy on that.

    Of course my feeling is that if you’re going to have a definition of a ‘safe smack’ for a child then you should have a definition of a ‘safe smack’ for your spouse as well – and, for that matter, any other adult.

  27. Hello everyone, have read this debate with a lot of interest and whilst it goes a little deep at times for me – after all, there are only 7 days left to Christmas, so what else do you expect!- my personal experience as a mother of two teenagers has led me to conclude that I agree with the no-smacking ban – I never found smacking to be an effective means of discipline but rather it helped to escalate problems. I think that the ‘it did me no harm’ argument is a cop out and whilst it may not have done ‘you’ any harm, that may not be the case for other people. In New Zealand the family violence stats are horrendous, and whatever you may think about this law, at least it is beginning to send a message that violence toward children is not acceptable. I cannot see how you can grade the degree of a smack – a smack is a smack and is sending a message about violence to the child. I firmly believe that there are alternative means of discipling children with using smacking.

    Anyway, thats enough of my spouting – back to the Christmas shopping!!

  28. Shaun and Molly

    I agree 100 % with you sarah – smacking is violent, it is abusive and it is usually done when the parent has lost control of themselves – what exactly is that teaching a child? Ken and Dot I think the point is you should not smack a child because you are responsible for them and whatever way you dress it up or excuse it – hitting another is not responsible behaviour – as parents we have to be bigger than that. it is not just about individual domestic rights – it is about social wellbeing and standards. I believe we have to accept as parents that once we have the responsibility for a child – what happens in our private homes is a public concern.
    I’m an experienced parent – i have never hit my kids – they are well behaved, have been kept safe from harm and are responsible caring people. One of the biggest pains for us was dealing with kids in preschools and at school – who used their hands to communicate or force their way cos this is what mum and dad had taught them. Do us all a favour.

  29. Shaun and Molly

    on the issue/myth of the “safe smack” – how does the victim of the safe smack know they are safe? How do they know where it ends? Who is defining their feeling of safety here? Oh the person safely smacking them?
    To smack someone to get them to do what you want is just a bad precedent.

  30. Dot

    I think we should probably clarify here that we don’t intend to smack Hugh! But I don’t agree that this is an issue with absolutes; it is a complex issue with many fine shades of grey. It is also one that leads people to judge each other very harshly.

    As to kids beating each other up, I agree we shouldn’t set an example of that, but I fear that kids discover violence in any case. It’s one of my big worries as a parent that our son (who looks set to be very big among his peer group) might turn out a bully. I fear that if he does hit other children other parents will start by judging us rather than helping us, whether we smack or not.

  31. ken

    Ken responds:
    Shaun and Molly, I think you make some good points about smacking in practice often being the result of the parent losing control, and their having special responsibilities toward their children. I think that’s a separate issue from whether smacking should be illegal or not. If we granted for the sake of argument that most smacking is sub-standard parenting, it still wouldn’t follow that it should be banned.

    We definitely don’t want to smack Hugh. And we think that children have traditionally been smacked for things, like pushing boundaries as a way of seeking attention, that don’t merit punishment, so a forterori don’t merit physical punishment, and we won’t smack Hugh for things like this, but some things do merit punishment, and as punishments go, a smack is a reasonable kind of punishment for some things.

    You seem to presuppose a scenario where no child deserves to be punished, but what advice to you have for when they do? I think there’s a period when sophisticated punishments like removing a toy aren’t as effective as a short sharp shock.

    As to whether the child can tell whether the smack is safe, I don’t think it’s relevant. All that matters is that the smack IS safe. It is supposed to hurt the child or else it wouldn’t be a punishment.

    I do agree that it would be wrong to bully a child and use smacking purely to get them to do what you want, but that’s not the issue. The issue is whether it is permissible to smack as a form of punishment for something that deserves to be punished.

  32. Shaun and Molly

    hmm Ken at the risk of sounding disrespectful – you contradict yourself here in my view. But anyway….

    on the issue of the “safe” smack – I firmly believe – all children have the right to feel safe – and this behaviour imposes needlessly on that human right. So I can’t agree that the safety aspect of it is irrelevant.

    You oversimplify what a smack is or can be when you say it just hurts physically. There is a broader view. That there are children who never feel safe or in fact ever feel unsafe – as a consequence of this adult behaviour (or lack of behaviour in my perspective) – literally breaks my heart (yes it is emotional – I care and I think it is important not to disengage from a humane perspective on this issue). I really think the short term physical risk (while quite significant in some cases) is the least of our worries. A smack is much more than a physical injury – it is a threat of further harm – bullying – a message of “don’t push me I can’t control myself ” – or “I’m mad and I may choose to not control this – so watch out”. It is destructive and diminishing – it will be many things actually. It is domestic violence and it potentially has the same consequences on the victim in my view. Who is to judge how it will affect each individual and to what extent? At what point is the line crossed? Is it the same for everyone? It is enough to say – it is risky behaviour.

    It is not the role of the parent to break a childs spirit.
    Children who do not feel safe – are not safe and there are consequences of that. Child safety can never be irrelevant.

    I think you are overly focussed on the rights and feelings of the parent – to the exclusion of being able to appreciate this from the position of the child. Thats one of the reasons we have legislation – children need a voice and representation. Without a boundary they have nothing and are at the mercy of individual adult choices. Not all adults are equipped to manage that. Those with the voice (the adults) would exclusively have the power and will go unchecked. In NZ we have seen the consequences of that – but there are many more consequences – that we don’t see. I see it (the legislation) as a safety net – for children, their parents, families and greater society. There is a clear boundary – we can live safely within that. I am pleased for this legislation which supports and nurtures my parenting. I have a clear boundary to maintain. As a parent I don’t need a situation where I am not accountable. I am. The legislation only reflects that reality.

    I also think it is totally irrelevant that the smacker feels safe or “knows” they are safe and I also would question this assumption. I just don’t believe smackers are in a safe space when they do this – I think they are on a path that they have no control over. What do they do when the smack (inevitabley) doesn’t work? Up the ante ? prove it harder? This practice and social acceptance of it – just sets parents up really badly – to fail. It is just a dead end (literally for some….emotional I know – but it is relevant that we do not lose sight of that reality).
    I would argue that smacking parents do not necessarily feel safe – I think thats an assumption – many of them feel out of control, unable to cope, unskilled and very unsafe when they resort to this – thats what I’ve witnessed anyway. The only times I have ever seen a kid get hit – is when the adult has clearly lost their rag (often due to pressures not even related to the immediate incident) and is nutting off, venting. Not as some imply as a consequence of a cleverly considered parental manouevres. Funny that?

    I am yet to see the under control, disciplined, well developed, responsible, calm parent – intelligently smacking their kid – that we have heard about in this debate. I think it is a fairy tale.
    What a challenge for adults – who maybe see themselves in a particular way to learn that the law does not share their view. It is not so simple to dismiss – and i don’t think it should be. Accepting this legislation is challenging for many reasons – perhaps it forces us to acknowledge that our own parents were at times less than perfect – or that we don’t always manage to parent well.
    When it comes to discipline, isn’t the action “supposedly” about the child? I believe discipline should be child centred -to meet the need being expressed by the child. I believe smacking is adult centred. So I don’t buy the “smackers are capable people in control” rhetoric.
    I also don’t think having the right to smack a kid supports families in the way they deserve to be supported.

    Those who are vulnerable to just hitting out instead of engaging actively in parenting and developing skills (yes takes work, energy, personal development – what a pain eh) – need the support of this legislation to really send the message that whatever excuses they may offer to pardon and defend themselves will not be tolerated.
    Now parents have to step up – develop the skills needed to be a parent. If we are serious about improving parental standards we have to acknowledge that parenting isn’t always done well – however distasteful folk may find that. We can create a better world and experience of life for future generations – we need to set a firm standard – and put in place all the other social structures that will support happy parenting and positive families.
    I believe much of the debate around smacking emerges from defensiveness – it is so easy to blame social problems on the poor, disenchanted, indigenous people, less privileged, criminals, drug abusers etc etc – but this legislation hits across the board – and challenges a behaviour used across society – so ouch!

    So Ken I can only respond to your question of whether it is permissible to smack to punish – by saying no I don’t think it is. Can you think of anywhere else in society that it would be permissable? Why is that?

    First and foremost it is an issue of human rights.
    Secondary to that smacking is also ineffective.

    The proof is in the pudding at my house – good kids – never been smacked. We have put in the hard work and we have been rewarded. We set about actively not hitting in the first instance – even tho it was not what either of us had modeled in our own child hoods – but we just knew that for us hitting made no sense intellectually and was at odds with how we live our lives.
    I think you first of all teach them love, respect, generosity – to consider and feel for others. We did it through modeling. Probably the fact that we never modeled hitting – taught them heaps!. but its not an exact science.
    Parents need to be reflective. Think about what you are doing. If a situation feels heated – move along. Next time the same behaviour occurs – you have thought about it, discussed it with others and can hopefully put something controlled and calm in place to teach whatever it is you are trying to teach.
    Reward or notice good behaviour and skills as your child displays them.
    Keep yourself and your kids comfortable physically. Fed, warm, well rested etc.
    Have time away. have time for nurturing yourself – the day as a parent is endless – this is the reality.
    we made a decision never to be parenting if we were sick (coping mechanism is too short when feeling below par) so the other one or someone has to take the day off to parent. Its a ground rule.
    Time out works. (parents who want hitting to be ok always seem to assume it won’t – well we have found that it does – but maybe it depends what other structures you have in place?)
    Natural consequences are good teachers – you have to judge the degree of risk they will be exposed to tho and be sensible about it. Helps kids learn to take responsibility for themselves.
    Impose unnatural consequences when you consider it necessary – for those things that are really not tolerable or priorities – ie take something away , miss a treat, send the friend away…. there are hundreds and it seems to work when they are directly related to the offence.

    There are so many things to use – why do people hit?

  33. ken

    Here is where I think we differ. You approach this very much from the perspective of an ideal of good parenting, and claim that smacking is a tool that an ideal parent doesn’t need to use, and that it is morally reprehensible tool. And so you support the removal of the defence for that reason. But you seem to me to have a conception of smacking that is unrealistic. Instead of the modest harmless smacks given to us by our parents, you think of clenched fists and jug cords and the like. That is, you think of the sort of thing that was illegal under the old legislation and let your attitudes to that colour your views about the new legislation.

    I think the issue of parenting is important, but I am primarily concerned with the legal issue. How far does the state have a right to intrude into the lives of its citizens? Is it wise to in practice criminalise something which is harmless? It seems very unwise. It will have citizens accummulate a charge sheet at their local police station which can at any time be called in to see them prosecuted (for ‘crimes’ that aren’t proper crimes). It means the law of the land will be applied differently in different parts of the country depending on the fiat of the policeman in charge (a post-code lottery for injustice). I think the appropriate thing to have done would be to have given explicit instruction to judges (and juries) as to what constitutes reasonable use of force, which would eliminate the use of the defence by people who were more properly charged with assault.

  34. Dot

    As to the legal issue, I do think that this legislation could be another stick with which to beat poor and minority communities: the opposition to smacking has tended to be a middle class white attitude. (This is certainly the case in England and Ireland; I have much less knowledge of conditions in NZ.)

    This is a many-sided question and the long series of comments has flipped between different aspects of it: is smacking inherently wrong (and is it ‘violence’)? Does it in practice work? Is it possible to smack in a controlled way that neither child nor parent experience as the first step towards an uncontrolled beating? Is the new legislation in NZ fair, proportionate and necessary?

    My instinct as a medievalist is to stand outside the issue and see it as a historical phenomenon: even a generation ago smacking was the norm, and now increasingly it’s not. Five hundred years ago quite severe beating was normal, and yes, society as a whole was more violent. I don’t think the violence was down to the smacking but rather in those days various forms of violence were acceptable strategies for dealing with all kinds of things, such as crime, affronts to honour etc etc. Violence was not yet the prerogative of the state and free men bore arms. From this perspective, there is an argument against smacking not because violence is inherently and always wrong but because we have to bring up our children for a society in which even very minor violence is abnormal and carries extraordinary significance. The degree of significance varies from place to place. In an earlier comment I used the example of a woman slapping a cheeky man in the face. I got the impression this was straightforwardly seen as assault by the New Zealanders in this discussion, whereas I think an English or Irish person would see it as pretty harmless.

    However, my role as parent is obviously much more important and morally demanding than my role as medievalist, and this entails thinking hard about how to parent effectively (I completely agree with Shaun and Molly about the responsibility to work at parenting). I’m willing to take advice that smacking doesn’t work, though I continue to suspect this depends on the temperament of the child, modified by social context. I would like to parent in the way Shaun and Molly describe. I also know that it’s impossible to be perfect.

  35. Shaun and Molly

    we do differ ken – it is not that I am fixated on “bad” smacking “only” it is that I view it all as bad and think it is truely non sensical for people to fool themselves that there is such a thing as a good smack. I just don’t buy it – but have heard the rhetoric many times. As I say the physical side of it (that you see) is really the least of our worries. it is not that I am uninformed I just think you are Naive – kidding yourself – or unable to accept that there are many people who see what you claim as good – as offensive and barbaric – and at the risk of causing offence – also a little bit dumb (sorry just seems it to me).
    Children have rights – thank goodness! I know women once had to defend their right not to be hit too – we now would find that as silly as I find this. You have done nothing to convince me.
    Like the majority of people my age I grew up in a smack em culture – no not jug cords and the other stuff you talk of – the usual “norms” – I just don’t agree it was ok – then or now.

  36. Shaun and Molly

    Yes, I too don’t think it is possible to be perfect – and wasn’t suggesting that – I am just confident that I do it well enough and have learned strategies for positively enhancing my family life.
    In my work, I have worked with families across the spectrum and have to say I haven’t found that smacking is the domain of the poor or underprivileged.
    I believe parenting well enough is all that is necessary – I just think that smacking as a form of control is good enough.

  37. Shaun and Molly

    also ken – from a legal perspective – it really makes no sense for assault to be illegal for one group and legal for another. It is important that the law is consistent. If someone (my boss for eg – who is in a position of authority over me) – chooses to hit me to get their point across – it is assault – no different for a child.

  38. kenanddot

    Thankyou everybody for your comments on this post. We’ve found the discussion stimulating and informative. Comments are now closed.

Comments are closed.