A how to guide for supporting the repeal of Section 59
Unlike the flying kiddies debate I blogged on earlier, one thing Children’s Commissioner Cindy Kiro does agree with the relevant Green MP on is the repeal of Section 59 of the Crimes Act.
Sue B’s Crimes Amendment (Abolition of Force as a Justification for Child Discipline) Bill is due before the Justice and Electoral Select Committee soon.
If you feel like making a submission supporting Sue’s bill, there’s now a ‘how to’ guide online. It includes a comprehensive overview of the arguments in favour of full repeal and counters the arguments against.
The deadline for submissions is 28 February 2006.
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November 29th, 2005 at 10:46 pm
I would like to see someone address the arguments I make here. The concerns I outline are not even recognized in your so-called “comprehensive overview”. If my arguments can be countered, then I’d happily support the Bill’s repeal. But I haven’t seen them countered yet.
November 30th, 2005 at 6:27 pm
um..richard..i sped -read…..i guess my initial response would be that the law in its’ current form is an enabler….
removing that endorsment for physical punishment stops that enabling and is more a reflection of changing attitudes and priorities than a desire to bang down peoples doors…
as you study philosophy..perhaps i could draw your attention to the ‘how many angels can dance on the head of a pin..?”…question…
the point i guess that this is quite simple really….why complicate it..?..and given that those door smashing down scenarios won’t happen….what’s your worry..?
phil(whoar.co.nz)
December 1st, 2005 at 7:09 am
I think the reason the Green Party supports repealing the reasonable force stipulation in Section 59 is because it is inconsistant with our current laws in that for NO other group in our society is it stipulated that violence with “reasonable force” is okay. Due to this inconsistancy it seems like the law is endorcing a higher level of violence against children, and I think EVERYONE could agree that that sort of thing is not okay.
Your arguements, Richard, can rather easily be countered: It is not an efficient use of Parliament’s time to overhaul every law where something is criminal but understood not to be worthy of prosecution. In recognising that existing laws already follow this pattern, we should either reform the pattern SEPERATELY for ALL LAWS, or leave things as they are.
And I repeat: The issue of criminalised actions that are insufficient for enforcement is a seperate issue- you don’t motion to reform every law *but* the one you want to make a change in just to fix an inconsistancy
You fix the inconsistancy itself.. Thus, if we are assured that things such as smacking due to parental frustration is covered under this category, it ought to be sufficient for everyone, rather than caught up in the seperate debate of our laws not clearly saying what they mean 
December 1st, 2005 at 7:32 pm
Ari, your counter makes no logical sense. It is the Greens who are proposing to “overhaul” the present law, effectively in order to introduce unenforced laws. I’m not proposing we change anything, so I’m certainly not the one wasting Parliament’s time. (Well, actually, I wouldn’t mind overhauling some of our other stupid unenforced laws, but that’s a separate issue.)
Can you rewrite your final paragraph, in English this time? I literally cannot make sense of that one. (Nor the final sentence of your second paragraph.)
Finally, children are not like other groups because they require parental guidence and discipline. (”NO other group in our society” is allowed to be locked in their rooms against their will either, or forced to eat their vegetables.) The law allows parents to use reasonable force to discipline their children (and not other groups), which is perfectly appropriate. If that’s all you mean by “a higher level of violence”, then lots of people will disagree with your silly claim that it’s “not okay”. After all, it certainly doesn’t allow - let alone endorse - the “unreasonable force” of violent abuse. (Certainly, everyone agrees that the latter is not okay. So that’s irrelevant to this Bill.)
Phil U. - You’re right, it is simple. Though not in the way you seem to think. All that Sue’s Bill does is shift discretionary powers from jurors to the police. That’s just an obviously bad idea. It’s a complete violation of liberal principles. We have juries for a reason. They’re not perfect, and occasionally make bad decisions. But granting the police arbitrary power is never the answer. (Someone is sure to abuse it eventually.)
It comes down to one simple question: Who do you trust more to deliver the verdicts required by justice: jurors, or the police?
You can only (rationally) support this bill if you answer “the police”. But why stop there? Why let jurors decide anything? Let’s just have a police state.
Nothing good will come of this. But if we’re lucky, and the other parties aren’t so stupid as the Greens on this issue, then nothing will come of it at all.
December 2nd, 2005 at 7:05 pm
Richard: “…children are not like other groups because they require parental guidence (sic) and discipline�
greenfrogred replies: OK – agreed, but does that mean we have to beat the evil out of them, as some fundamentalist religious groups have advocated. Surely, we can implement loving and caring ways of disciplining children that do not involve physical violence.
Richard: “NO other group in our society� is allowed to be locked in their rooms against their will either, or forced to eat their vegetables.�
greenfrogred replies: Neither arbitrary imprisonment nor force-feeding of children would be supported by the Greens either. It’s okay to send the child to his or her room or to a “naughty space� as a disciplinary measure, and to use reasonable force necessary to take him or her there. What is not reasonable, and evidence would indicate is counterproductive to learning non-violent behaviour and to learning generally, is administering ‘the bash’ to a child who refuses to comply. There are other ways of dealing with this – e.g. loss of privileges.
Richard: “The law allows parents to use reasonable force to discipline their children (and not other groups), which is perfectly appropriate.�
greenfrogred replies: So why are children second class citizens. Do we also need “reasonable force� to discipline mental health patients, or Jews, or elderly people suffering form dementia, or stroppy women – the list goes on. And section 59 defences do not apply just to parents – they apply to “every person in the place of the parent of a child�, so Uncle Ernie, as well as a parent, can raise the defence.
Richard: “All that Sue’s Bill does is shift discretionary powers from jurors to the police.�
greenfrogred replies: Not correct. The Bill removes the defence of “reasonable force for the purpose of correction�. The Police will have the same discretion to initiate prosecution as they already have, and exercise, under the current law.
Richard: “Who do you trust more to deliver the verdicts required by justice: jurors, or the police?�
greenfrogred replies: This is not about which institutions to trust, as per my comment immediately above. Both Police and juries sometimes get it wrong. What Sue B’s Bill is about is sending a message that violence against children is unacceptable, and removing from New Zealand’s legislation a defence that has allowed a number of parents who have violently assaulted their children to be unaccountable to the judicial system.
December 2nd, 2005 at 10:21 pm
The mere fact that parents have a special rights & responsibilities over their children, to treat them differently from others, doesn’t make children “second class citizens”. It makes them children. It’s a unique category. To cry “discrimination” here is to neglect the unique aspects of the parent-child relationship that makes it different from other relationships, i.e. differences which justify differential treatment on the part of the parent. To even compare children to Jews, etc., in this context, is simply insane.
(For the record, I personally disapprove of physical punishment. Light smacking is tolerably bad parenting in the same way that adultery, smoking, or swearing in front of your kids is. It should be discouraged, but only the most totalitarian state could actually go so far as to *outlaw* it!)
“The Police will have the same discretion to initiate prosecution as they already have, and exercise, under the current law.”
You’re ignoring the fact that presently police power is balanced by the legal power of juries to acquit defendants whom they judge to have used reasonable force. My understanding is that under Sue’s Bill, were the police to charge someone for smacking, the jury would be legally required to find them guilty (if satisfied that the defendent did, in fact, smack the child).
I wonder if you even read my linked post. It’s all explained quite clearly there. The fact is that judgments must be made about which cases of physical punishment are reasonable, and which are abusive. So *somebody* needs to make this judgment. At present, it’s juries that have this discretion. The effect (not the wording) of the Bill is to shift this discretionary power to the police. And that’s a bloody stupid idea.
If you want to “send a message” that smacking is bad, then paint a banner or write a letter to the editor. Don’t make stupid laws that grant arbitrary powers to the police. I’d like to send a message that rank stupidity ought not to be tolerated in our political discourse. But I don’t propose laws that would empower police to lock up the irrational supporters of this bill (and then brush off your objections by saying, “oh, the police have better things to do than arrest you). Instead I argue and criticise and try to draw others’ attention to what I see to be the problem.
Alternatively, if you want to remove the “reasonable force” defence as a means to stopping genuine child abusers from being acquitted, then consider this: I imagine some murderers get off by falsely citing exceptions for “self-defence” or “reduced capacity”. We all agree that murder is intolerable, and perhaps you’d like to send a clear message that murder is not okay. So should we also get rid of the “self-defence” and “reduced capacity” defences for murder? (After all, we would merely be “removing from New Zealand’s legislation a defence that has allowed a number of [murderers] to be unaccountable to the judicial system.”)
This is obviously stupid. But how is it any different in form from your argument? (Quick answer: it isn’t. Conclusion: your argument is stupid too.)
The fact is that these are legitimate defences. If someone really did kill in self-defence, then they’re truly innocent of murder. And if a parent really was using reasonable force in disciplining their child, then they’re truly innocent of abuse and assault. To remove a legitimate legal defence is patently unjust. This is not altered by the mere fact that once in a blue moon a jury makes a mistake in granting the defence. Such mistakes are certainly unfortunate, but that’s life, and it’s how our legal system works, and - as I’ve pointed out - the alternative is a whole lot worse.
December 3rd, 2005 at 6:01 pm
richard..(sigh)..i repeat….police will not be bashing down doors to haul people off who have lightly disciplined their children…
so what you are raising is a total straw-man argument/stance….eh..?
and your comparison to the self-defence defence for murder is just silly…eh..?
and let us repeat once more….repealing section 59 removes an anomaly in our laws that exempts parents/care-givers from the prohibitions under the common assault laws…..it’s as simple as that ..really…
phil(whoar.co.nz)
December 4th, 2005 at 11:54 am
oh..wow..!…my friday nite comment finally got through….frog…could you please clarify why that comment would have been flicked to the moderation queue…?
just as a guidline for the rest of us…?……..ta…
phil(whoar.co.nz)
December 5th, 2005 at 2:31 am
phil u:
“….repealing section 59 removes an anomaly in our laws that exempts parents/care-givers from the prohibitions under the common assault laws…..it’s as simple as that ..really…”
Well said !
December 5th, 2005 at 7:44 am
cheers…..
phil(whoar.co.nz)