Nigel Latta on s59 review panel

Clinical psychologist Nigel Latta, Police Commissioner Howard Broad and Ministry of Social Development chief executive Peter Hughes are to undertake a review of policies and procedures used by police and CYFS when dealing with smacking.

Latta says:  

For the record, and this is something I have commented on publically in a number of  contexts, my personal view on S59 is that I did not agree with the original law change. I also voted no in the referendum. I do not believe that a parent smacking their child, in the ‘common sense’ understanding of what that means, should be subject to criminal prosecution or investigation.

It would be my view that the “anti-smacking debate” has become needlessly polarised from the very beginning into a position whereby you are either “for child abuse”, or you are “against child abuse”. This tendency of both sides of the debate to reduce a complex social/moral issue into rather simplistic extremes has resulted in our being plunged into an argument that has consumed a great deal of time, energy, and money, when ultimately everyone agrees with that we need to do more to protect children from abuse and neglect.

The terms of reference for this review are very clear. I see my role as first and foremost to look at the evidence and to ensure that the law does not result in good parents either being criminalised, or being needlessly subjected to investigations that are intrusive and/or traumatic. This is a responsibility I hold directly to the everyday mums and dads of New Zealand, and one that I take very seriously.

 Because this issue has been dealt with to date in largely emotive and ideological rhetoric, I am interested solely in looking at the data, and in forming an opinion on the actual impact of the law change on that basis. For that reason I will not be meeting with, corresponding with, or entering into discussions with, any lobby groups from either end of the debate.

 That is a sensible stance to take when dealing with an issue which has been debated with more emotion than facts.

Whether people want the law to stay as it is or to change the law or the way it is applied, their best ammunition is hard data not rhetoric.

The terms of reference for the review are here.

Editorials on referendum

The Southland Times says Let’s reassure parents:

It’s one thing to accept that police have been very careful about the way the law is being interpreted, right now. But there’s no getting around it that a great many parents remain worried about a wider anti-smacking agenda and that the sands may shift underneath parents in future, and a much harder line be taken by the law as it now stands.

Underscoring that view is the widespread public recognition of the distaste from many in the so-called PC corridors of power, notably the law’s original drafter Sue Bradford, for any sort of smacking. It’s a distaste this newspaper shares . . .

The explicit intention of the law’s final form was that nobody could commit the sort of assault against a child that would previously have landed them in court and rightly so in the eyes of mainstream New Zealanders but then raise the arcane previous defence that they were within the rights of parental correction. That defence was removed under the Bradford legislation, and so it should have been.

But, okay. Maybe the existing law does need to be refined to give greater assurance that normal parental guardianship and discipline will still be the preserve of the parents.

It’s got the bit about reasonable force wrong – that’s still allowed for prevention.

The Press says the vote was a fiasco:

The question posed was flawed, the participation of voters low, the campaign unengaging, the cost of the exercise prohibitive and the results inconsequential. In short, the referendum was a fiasco.

The question was flawed, though its intent was clear it has enabled the governmetn to address the result without changing the law. But the turnout wasn’t low and the cost was the fault of the previous Prime Minsiter who decreed the referendum couldn’t take place with last year’s election.

The Nelson Mail says politicians need to resist mob pressure:

Nelson MP Nick Smith was on the money in suggesting the anti-smacking referendum result reflected a strong reaction against the “nanny state”.

The overwhelming “no” vote nearly 90 per cent, with a turnout of more than half of this country’s registered voters is also a slap in the face for children’s rights and anti-violence advocates. It delivers an unfortunate message about New Zealand’s underlying conservatism and represents an important challenge to the country’s politicians as they consider how to respond to it.

The Dominon Post editorialises  In the Dominion Post Richard Long says: on making an ass of our laws:

Even a 100 per cent vote against the anti-smacking law would not have made it possible to revoke.

It  might be frightening the  daylights out of decent, law- abiding middle class parents, but  now it is on the statute books we  are stuck with it. To do otherwise  would be signalling open slather  on kids. It would be saying  whacking is fine.

David Cohen asks is an editorial smack part of good part of good media discipline?:

With the votes now counted and an emphatic result in, the biggest loser in the recently concluded child-discipline referendum appears to be the news media.

 

Almost 90 percent of people who participated in the citizens-initiated referendum asking New Zealanders whether smacking should be illegal voted No. An entirely unsurprising result, that. . .

 

 

A significant aspect in much of the media coverage in the lead-up to the referendum was the almost uniformly negative press accorded to potential No voters.

 

He says almsot everything in the NZ Herald was desisgned to put No voters in the worst possible light, but the Herald editorial is the only post-vote one which wants a change in the law.

 

It says parliament should act to define force:

 

The people have spoken and the Government is obliged to act. The vote against the criminalisation of parental “correction” is too decisive to be ignored. The referendum question may have been biased by its reference to “good” parental correction but it is doubtful that anyone who wanted to outlaw smacking was misled by it. . .

 

This whole debate has disguised a high level of consensus about the place of violence in child discipline. Before the referendum the Herald commissioned a DigiPoll survey of parents . . .  It found the number who smack their children at least once a week has dropped drastically in the past decade to just 8.5 per cent. The number who never smack – just 10 per cent in the previous decade – has risen to 36 per cent.

Yet 85.4 per cent of that same sample intended to vote against the criminalisation of smacking. Plainly today’s parents have found better ways to bring up children but overwhelmingly they do not want the law to forbid their resort to force if they need it.

The law does not forbid it, and never has.

 

It too is wrong on this last point. The ammendment to Section 59 permits reasonable force for prevention but makes it illegal to smack a child for the purposes of correction.

 

Another point several editorials made is that there are much more important things to worry about. They are right, but that won’t make this issue go away.

 

UPDATE:

The Marlborough Express says Costly referendum a waste of money:

 

The law was brought in as there was a clear problem defining what reasonable force was. In a climate of despair over repeated child abuse in this country the law made it clear that it was not okay to hit children.

 

But it didn’t. It still allows reasonable force for prevention.

 

The Dominion Post says Smacking vote carries clout:

 

The question is loaded and ambiguous. It presupposes that smacking is part of good parenting –  a debatable point – and ignores the fact that the existing law specifically permits the use of reasonable force, including smacking, in certain circumstances.

Those circumstances are fairly comprehensive. They include: to prevent harm to children or others, to stop offensive or disruptive behaviour and to stop criminal behaviour.

At least one paper understands the current law still allows the reasonable force which the Act’s proponents – and a lot of its opponents – wanted to get rid of.

 

 

 

Bad law wastes money

Carrying out surveys when the result is obvious might be said to waste money.

Certainly there was no surprise that most New Zealanders think the upcoming referendum on child discipline is a waste of money.

But let’s apportion blame where it belongs.

The referendum would have cost a lot less had it been held in conjunction with last year’s general election. The blame for delaying it and therefore increasing the costs of holding it belong to the last government.

But the blame goes further back than that to the people who designed the legislation.

Had they come up with good law and taken the majority of people with them there would have been no need for a referendum.

The people at either extremes of the argument are getting most of the headlines.

But between those who think any physical discipline is child abuse and those who think it’s possible to deliver a loving smack are a lot of reasonable people with moderate views. They don’t think smacking is a good way to discipline children but they don’t like the idea of parents being criminalised for delivering a light smack.

Had the proponents of the S59 amendment got off their high horses they could have worked with moderate people to get good legislation.  Had they done that we’d have got a law which protects children without the danger, real or perceived, of criminalising parents who love their children and do their best to bring them up safely and well,  and there would be no need for a referendum.

There might also have been the culture change that’s needed to address violence and abuse.

Instead there’s confusion, fear and resentment and no improvement at all where it’s really needed.

Money may be wasted on the referendum but that’s not the fault of the people who want good law.

It’s the fault of the people who made bad law, which for the record still allows smacking providing it’s not for the purpose of correction.

Against the Act but not for smacking

It’s a tried and true debating strategy to take your opponents’ arguments to ludicrous extremes which enables you to depict them as extremists.

That’s why people who don’t want any change in the law around child discipline label anyone who does as pro-smacking.

However, it is possible to be against the Act without being in favour of smacking.

I don’t think smacking is a good thing to do but nor do I think parents who administer a light smack should be criminalised for doing so.

And what’s a light smack?  Borrowing from Chester Borrows and the amendment he attempted to introduce to the Act,  it would be one from which any pain is transitory and trifling, which doesn’t use a weapon or tool and isn’t inflicted by any means that is cruel, degrading or terrifying.

That would be a lot better than the old Section 59 and its replacement which still allows smacking providing its for prevention rather than correction.

Gooner points out at No Minister confusingly this means:

At the end of the day a smack for correction is prohibited but a smack for prevention is permitted. If a child constantly plays up then that child can be smacked under subsection (c) as long as parents tell the child “that is to prevent you behaving like that again“, rather than “that is to correct you for behaving like that“.

How silly is that? The Act which aimed to outlaw smacking still permits it yet those who want to change it are criticised for being pro-smacking.

The proponents of the Act got it wrong.

It’s bad law which permits smacking, providing its for the approved reason.

It should be changed to protect children, to protect families and to stop wasting police time.

There are more than enough crimes of violence, the effects of which aren’t transitory or trifling, which need their attention.

The answer’s more important than the question

Kerre Woodham has got to grips with the referendum question:

. . . What he was saying was, should a bunch of poxy lefties, many of them childless, be telling me what to do in my own home? Although the question reads: “Should a smack as part of good parental correction be a criminal offence?”

For the terminally confused and bewildered, commas will help you out enormously. Using commas, the question basically reads as: “Should a smack be a criminal offence?” See? Easy.

The other side would have asked: “Should the striking of children as part of lazy parenting be allowed?” Put in the commas and it’s: “Should the striking of children be allowed?” You can see the loaded messages behind each brief question.

Kerre points out that most of the almost 92% who voted in favour of Norm Withers’ petition on violent crime, weren’t answering the convoluted question which included a prescription for hard labour. They were expressing their anger and concern about increasing violence and an apparent disconnect between the law and justice.

They answered another question and by doing so made the answer more important than the question.

I suspect there will be a similar result in the child discipline referendum. Partly because, as Kerre said, many people don’t like being told what to do. But even more so because they don’t believe parents should be criminalised, or even at risk of it, for administering a minor smack.

Some people aren’t going to vote because the question is loaded.

Loaded or not the intent is clear and I’m going to vote because I value the right to do so.

I’m not going to vote yes because I think the current law is a bad one. Stephen Franks explains why:

. . . everyone is criminalised for smacking.

That’s the way criminal law works in rule of law countries. It applies to everyone equally. Whether or not you are an offender does not depend on the mood or political inclinations of those armed with the state’s coercive authority. It depends on what the law says, and what you’ve done. The law is not the plaything or the tool of the ruler. All are subject to it, whether or not the ruler decides not to enforce it, or enforces it the way he’d prefer it was written.

The right of private prosecution is precious for that reason. Otherwise rulers can play favourites, and decide who benefits and who is damaged by the law. In other words the enforcer is given the power to effectively make up the law as they go along.

And that is exactly what the compromise in the current law does. It says everyone who smacks is criminal, but the the Police are to decide which ones pay the price. Not the Courts, not Parliament, but the Police.

 I could make an invalid vote by crossing out both yes and no and I haven’t yet discounted that option.

But nor have I discounted voting no.

Smacking is not a good way to discipline children and anyone who thinks they can smack a child “lovingly” has a corrupted view of love.

But should a parent who lightly smacks a child – in what is almost always a spur of the moment reaction to dangerous or disruptive behaviour be criminalised for doing so ?

Should police time be wasted on investigating a minor smack?

My answer to both those questions is no and because of that I am beginning to think that I will vote no .

In spite of a concerted effort from highly regarded organisations which advocate on behalf of children to get people to vote “yes”, I think the result of the child discipline referendum will be a resounding no.

National and Labour both know the damage this issue did to the previous government and both would like it to go away.

But I think they’re underestimating the strength of feeling about it. Not just from the extremists but from moderate people who don’t think smacking is good but don’t want parents criminalised for doing it.

Chester Burrows had a way round that problem with an amendment which meant no-one could get away with violence through a “reasonable force” defence in Section 59 of the Crimes Act. John Bowscawen offers a similar option in a private member’s bill.

The government doesn’t want to get sidetracked on relatively unimportant issues. But bad law makes little issues big issues and until this one is dealt with it will fester.