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Have people read the text of S59?

24/08/2009

Below is the substantive text of the piece of law so many are so upset about:

Parental control
  • (1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of—

    • (a) preventing or minimising harm to the child or another person; or

    • (b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or

    • (c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or

    • (d) performing the normal daily tasks that are incidental to good care and parenting.

    (2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

    (3) Subsection (2) prevails over subsection (1).

    (4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.

Frankly Adam finds it hard to work out why anybody thinks they will be criminalised if they smack their child? In fact Adam has not been able to find out whether any parent has been branded a criminal through the use of the new S59.

The new clauses seems to allow for a wide range of defences against prosecution.

Again Adam has to think that many who voted NO had not actually read or understood the legislation. Further, Adam considers that some of those who campaigned for the NO vote were guilty of misinformation.

Espiner C blogs on this as well today and notes the impact of mis-information.


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19 Comments
  1. adamsmith1922 permalink*
    25/08/2009 20:18

    Andrew W

    Thanks for the link

    Like

  2. Andrew W permalink
    25/08/2009 19:48

    If a parent gives their child a light smack on the bum they are, in theory, a criminal.
    Cause Sue Bradford says so.
    http://bit.ly/D1gz0mp3

    **Adam inserted a short URL

    Like

  3. lucy permalink
    25/08/2009 11:16

    Yes we have read it Adam. And whats more we do understand what it means and what (we) the voters who voted no, actually voted for.

    Like

  4. 25/08/2009 10:21

    This makes me wonder if it’s about time we redrafted our laws in plain, unambiguous English.

    What’s there to not understand about “Thou shall not smack”?

    Like

  5. Paul Corrigan permalink
    25/08/2009 09:21

    Jim Evans, emeritus professor of Law, University of Auckland, had an opinion piece about this in The New Zealand Herald on August 6.

    He makes a very good point that parents should not have to mentally put themselves through the legal hoops (A-D) of sub-section 1.

    Sub-section 2 is clear: “(2) Nothing in subsection (1) or in any rule of common law justifies the use of force for the purpose of correction.

    “(3) Subsection (2) prevails over subsection (1).

    Then the politicians gave the police this hospital pass:

    “(4) To avoid doubt, it is affirmed that the Police have the discretion not to prosecute complaints against a parent of a child or person in the place of a parent of a child in relation to an offence involving the use of force against a child, where the offence is considered to be so inconsequential that there is no public interest in proceeding with a prosecution.”

    My contention is that no parent at the mall or wherever who smacks a disobedient child should then have to be looking over his or her shoulder in case the constabulary turn up, and then they have to explain themslves. I have been a witness, and not just once, where a parent has smacked, or threatened to smack, a child, and then looked around warily to see what other people were going to do.

    Like

  6. Andrew W permalink
    24/08/2009 21:20

    If I restrain a child to prevent him/her committing some destructive or disruptive act, I see that as being in the domain of subsection 1. If I then smack that child, I see that as corrective act and I believe subsection 2 would apply. So I believe smacking is illegal under this law, and being an honest fellow, if I ever found myself in court for smacking a child under such circumstances I’d feel compelled to plead guilty.
    In fact as it is, I do feel I am breaking the law on the rare occasions I smack one of the children, and I’m sure that for many parents there’s a palpable feeling of intimidation about this law, which is why so many voted as they did.

    Like

  7. 24/08/2009 18:21

    If Adam is going to accuse the No lobby of misinformation, will he be equally scathing towards the anti-smackers for the repetitive use of loaded terms such as “beat”, “assault” and “thrash”?

    Like

    • adamsmith1922 permalink*
      24/08/2009 19:35

      Absolutely, both sides have been guilty.

      Indeed, I have myself pointed out that an alternative word for smack is hit.

      In reality, rationality long ago departed from much of this debate, if indeed it was ever present.

      Like

  8. 24/08/2009 16:51

    Espiner C is wrong to say that nobody has been convicted for smacking. Adam needs to do some more research to find out how many people have been convicted for smacking. Adam may want to talk to the police who issued the figures. Adam needs to understand that some people dont want to be viewed as committing a criminal act in smacking their kids . Adam needs to do some research to get more information before accusing others of misinformation.

    Like

  9. dimmocrazy permalink
    24/08/2009 16:44

    Suggest, Adam reads again and contemplates the meaning of subsections 2-4.
    It says there in so many words that the use of force for the purpose of correction in not allowed in any circumstance. There is not even the ‘reasonable’ aspect from sub 1. Any force at all will do, even if it is utterly inconsequential.

    That latter point (inconsequential) is only brought in in sub 4 and made subject to the police’s discretion for the purpose of deciding whether to prosecute, not whether the activity is an offence or not.

    Result of this: ALL use of force for correction (even inconsequential) is a criminal offence (is ‘criminalized’).

    The discretion with the police only makes it worse , especially if that is going to be the way out for the government, as it means an official recognition that we are now living in a police state.

    90% of the population has drawn the line here, and for good reason. This is not about what parental behaviour is appropriate, this is about the state driving the thin end of the wedge further into the family and its inherent system of authority.

    Like

    • adamsmith1922 permalink*
      24/08/2009 17:18

      I can agree with your last point, but then that is what the referendum question should have addressed.

      In practical terms I fail to see how anyone is criminalised unless they are in fact prosecuted and convicted.

      I have seen elsewhere some who purport to be lawyers saying the impact of the revised S59 affords a broader range of defence in the great majority of instances.

      Espiner claims in his blog that no one has been convicted of assault under the new law.

      If you have a source for stats please let me know

      Like

      • dimmocrazy permalink
        24/08/2009 17:45

        I feel Adam is a bit disingenuous by saying that he cannot see how someone can be criminalized without being prosecuted and convicted. Perhaps Adam should contemplate the following question: If Adam was to kill someone, but nobody would ever miss the victim and the matter remained a secret, would Adam be a murderer or not?

        Like

  10. Paul permalink
    24/08/2009 16:39

    Subsection 2 explicitly forbids smacking for purpose of correction.

    This is why most parents smack – for correction; so our kids will learn to behave differently next time. Therefore we have no defence, and are already criminals under the law.

    You don’t have to look around to find a parent who has been branded criminal; there are tens of thousands of us.

    Like

    • adamsmith1922 permalink*
      24/08/2009 17:04

      But as I comment below if the smack is for prevention, then surely it is a corrective.

      Now I think you are being just as melodramatic in branding yourself a criminal as I am in my post.

      My aim was to be provocative, as I assume your are.

      Like

      • Paul permalink
        24/08/2009 17:22

        If the smack is both preventive and corrective, then it is illegal (subsection 3).

        Like

        • adamsmith1922 permalink*
          24/08/2009 17:44

          I suspect that proving intention in that regard would be too difficult.

          Like

          • Paul permalink
            24/08/2009 18:16

            Well I guess it’s some comfort that if I obfuscate and lie about my motives I might be able to avoid prosecution; but I think you can understand my discontent.

            Like

  11. 24/08/2009 16:02

    Yes I read it and am confused and concerned that it is legal to use reasonable force for prevention but not correction.

    That satisfies neither the people who think all smacking is wrong nor those who think that a light smack, while not the optimal way to discipline children, should not be illegal.

    Like

    • adamsmith1922 permalink*
      24/08/2009 17:02

      I noted the point re prevention, but given the broad defintions, it seemed to me that chastisement for prevention would in many cases cover the ground, as surely chastisement for prevention ‘corrects’ the behaviour.

      Like

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