The smacking referendum – my summary

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As plenty of readers will already know, New Zealanders are currently taking part in a postal referendum on the issue of whether or not a parent smacking a child under any circumstances should be a crime. I have already voted no.

In 2007 Sue Bradford of the Green Party was successful in having section 59 of the crimes act repealed and replaced with a new version. The former version provided exceptions to the law concerning assault, providing a defence. It permitted parents to use “reasonable force” in the process of correcting their children. This would include, putting a child in her room against her will, administering a smack, placing a child on the “naughty stool” when he didn’t want to go, and so on. These are all uses of force, and are acceptable provided they are done within reason (e.g. hurling a child into her room would not be allowed, and nor would punching a child’s lights out or shoving him into the stool).

This defence was necessary because of the unique relationship that parents have with children. Obviously it would be illegal for me to select a random adult and force him into a bedroom and require him to stay there. That would be assault and unlawful detention, as would making him sit on a stool against his will, and smacking him would just be common assault. So there was a natural and obvious difference between the rights and protections given to another adult and those given to a child. This is reflected in other aspects of law too (e.g. children can’t buy alcohol, vote, consent to sex, get married, drive a car etc). Those who say, for example “if you can’t do it to an adult, why should you be allowed to do it to a child?” are just not thinking seriously about the issues at all.

The new section 59 erases this defence completely. In its place here’s what it now says, as law professor Jim Evans pointed out:

Subsection (1) of the new section 59 allows a parent (or person in the place of a parent) to use force that is reasonable in the circumstances for the purpose of (a) preventing or minimising harm to the child or another person, (b) preventing the child from engaging in a criminal offence, (c) preventing the child from engaging in offensive or disruptive behaviour, or (d) performing the normal daily tasks incidental to good care and parenting.

So far so good. “But wait a minute,” you might think. “part (d) would allow a smack, provided it was part of good parenting.” Up to this point, maybe, but then check subsection (2) of the new version. It reads: “Nothing in subsection (1) justifies the use of force for the purpose of correction.” Subsection (3) adds: “Subsection (2) prevails over subsection (1).”
Subsection (2) is where the problem arises, and it is this section that now prompts people to call for a law change. So here is the issue: Force is allowed as part of “good care and parenting,” provided it’s not corrective. Now wait a minute, isn’t correction part of good care and parenting? Confused yet?

In case it wasn’t unclear enough for parents already, subsection 4 makes it even worse, allowing police discretion when this crime of assault against children is committed, enabling them to decide for themselves which criminal acts to prosecute. So a law that is already now written in doublespeak then gives police sole discretion in deciding whether or not to prosecute, in a case where the defence of reasonable force in correcting a child is no longer available.

Because of the wording of subsection 1, which refers to “good care and parenting,” and because of the wording of subsection 2 (which for many, introduces confusion), referring to “correction” as though it was excluded from good care and parenting opponents of the law change had the referendum question worded as follows, following the lead of the legislation:

“Should a smack as part of good parental correction be a criminal offence in New Zealand?”

The question was written precisely because of the terms used in the new law, asking new Zealanders, in effect, whether they agreed with the divide that the law proposed between “good care and parenting” in which reasonable force was allowed, and “correction” in which no force at all was allowed.

I think that the facts as spelled out above are relatively simple and easy to ascertain. However, the supporters of Sue Bradford’s law change, as well as supporters of voting “Yes” in the referendum (the two groups partly overlap) have set out on a campaign of misinformation and deception, along with bungled and careless reading of the law.

John Roughan is among the worst offenders. In reply to the claim that the law is unclear or possibly inconsistent, he writes that subsection (1) clearly allows smacking, so there’s no ban on smacking here at all! He further implies that anyone who is worried about subsection (2) is supporting the right to inflict “a cold-blooded assault” intended to leave a defenceless child  “in pain and fear.” He claims that there’s absolutely no tension in the law because it’s obvious that “correction” in subsection 2 refers to this type of assault, or to things like “ritual thrashings.”

Fortunately, uncritical opponents of the referendum (like those who reproduced Roughan’s material online as gospel) weren’t the only ones reading. Roughan’s legally uninformed perspective was itself given a good thrashing in the same newspaper by Professor Emeritus of law at Auckland University, Dr Jim Evans (see here). He explains just how the new section 59 is in fact unclear and a poor piece of legislation.

Others (e.g. the propaganda site “yesvote”) have claimed that the wording of the referendum question is loaded because it uses the word “good” and repetitive because it uses the word “correction.” This just represents a failure to understand the specific legal reasons why those terms were chosen. They were chosen because subsection (1) allows force as part of good parenting, and yet subsection (2) forbids force in cases of correction. The referendum question then asks parents if correction using force can indeed be part of good parenting. The only ones claiming that the question is loaded or unclear are those who are motivated to do so, namely those who themselves fully understand the question but who want people to vote “Yes.”

There’s a good list of frequently asked questions over at http://voteno.org.nz/faq.htm

But isn’t “Vote no” a propaganda group too? Sure, in the sense that they are trying to influence opinion. They do, however, draw on the legal facts of the matter, along with evidence that the new law is not making any positive difference in the abuse rates of children, and they also illustrate the negative impact of the law on good parents in New Zealand. If the facts are in poor taste, then that website’s up to no good!

So for what it’s worth, if you haven’t voted yet, vote NO.

Glenn Peoples

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{ 13 comments… add one }
  • Jared August 14, 2009, 7:07 am

    Does this have anything to do with the UN Convention on the Rights of the Child? I\’m in the USA, and there is considerable anxiety among Evangelicals (of which I am one), Conservative Catholics and other socially conservative groups over what this treaty may require us to do if ratified. The Obama administration is pushing to ratify it.

  • bethyada August 14, 2009, 4:10 pm

    I think the most dangerous element is the implied guilt of all men with the police having discretion on who they prosecute.

    I saw the provision of force not to allow physical correction, rather things like pulling children off roads and out of pools and stopping fights. However one can probably do that to adults without it being considered assault, so section 1. is probably pointless

  • Ozy Mandias August 14, 2009, 10:58 pm

    Nice post. I have already voted No.

    One thing that really annoys me is how the ‘Yes’ vote people have basically tried to paint the ‘No’ Voters a Biblical bashers!!!

    This is despite the fact that polls show a huge majority of people dont like the bill they have continued down this line.

  • Deane Galbraith August 17, 2009, 11:35 pm

    Hi Glenn,

    I don’t think you’ve quite understood the logic for why the referendum question is loaded.

    As Jim Evans pointed out, the current Section 59 is a “fudge”, a badly drafted section that results from political pressure to soften the ban on smacking (or other forms of physical punishment) as a punishment administered ‘after the fact’. So, I agree that the wording is problematic, particularly due to the ambiguity of the logical interaction of subsections (1) and (2). It is quite unclear in what circumstances prevention is allowed or correction is disallowed.

    But despite this, the intent of Parliament to disallow smacking administered as an after-the-fact punishment is the much better interpretation of subsections (2) and (3). If such smacking were allowed, we would not expect subsections (2) or (3) to be there, and we would expect the defence to be explicitly included in subsection (1). What Jim Evans was protesting was that – in criminal legislation – this effect should have been crystal clear. For criminal legislation allows the State to convict people for breaking the rules, so the State should not be given ill-defined powers to criminally prosecute citizens. But it was not clear legislation.

    Given this legal situation (but even if it weren’t the legal situation), there is no doubt that the referendum question is ‘loaded’. At present, physical punishment after the fact is illegal, as is this is the most obvious reading of subsections (2) and (3), and most probably how it would be interpreted in Court. Due to the operation of these subsections, the obvious reading of Section 59(1)(d) is that a smack administered as punishment, after the fact, is excluded from “normal daily tasks incidental to good care and parenting”. So, any law change would involve including (probably less violent forms of) smacking after the fact, undertaken as punishment, as a defence under Section 59(1), together with the repeal of subsections (2) and (3). The question would be between allowing such smacking as a defence to assault, and not allowing such smacking as a defence to assault.

    Unfortunately, the framers of the referendum question have completely mucked it up. Some alternative questions would have properly addressed the desired repeal of subsections (2) and (3) and the inclusion of the further defence in subsection (1). For example, asking “Should a smack (adminstered after the fact as punishment) be illegal?” would have been in logical agreement with a legislative defence in subsection (1) an repeal of subsections (2) and (3). Or, “Should a smack (administered after the fact as punishment) be a part of “the normal daily tasks incidental to good care and parenting” would have been in logical agreement with the desired expansion of the defence in subsection (1)(d) and repeal of subsections (2) and (3).

    But to conflate the elements of both of these questions is, by definition, to load the question. The question “Should a smack as part of good parental correction be a criminal offence?” does not allow one to vote “yes” merely to the question of decriminalising such smacking. It loads the question with the separate issues of both “good parental corection” AND “criminal offence”. So, as a result of this loaded question, voting ‘yes’ to making such behaviour a criminal offence is ALSO, absurdly and inevitably, voting yes to making “good parental corection” a criminal offence! It was a deeply fallacious question, which should never have been allowed onto a democratic ballot paper.

    This was a loaded question, which has caused most people I know to simply throw away their ballot paper, and so to cause the results of the referendum to be meaningless.

    But do have a read of our latest post on the more substantive issue: Parents who smack children should take some time to read some developmental psychology

  • Glenn August 18, 2009, 12:22 am

    “But to conflate the elements of both of these questions is, by definition, to load the question.”

    I don’t know what you think a definition is, but this is just weird english. It cannot possibly be a loaded question “by definition.” It might be loaded in your view because it asks people to assume that physical correction can be good parenting, but that’s not a matter of things being what they are by definition.

    The wording of the question has an important legal rationale, and I really don’t see that you’ve managed to set this aside. Subsection 1 says that force can be used where it is incidental to good care and parenting, and subsection 2 says that force cannot be used for correction. Now, you’re free to tell us what you think correction is (after the fact punishment), but you can’t fairly just impose that understanding on lawmakers, and you certainly can’t require that the rest of us – as well as police and courts – see it that way. Correction is both backward looking (prompted by past action) and forward looking (correcting behaviour is after all aimed at future outcomes).

    The question is worded this way to reflect the terminology of both subsections so that the public can have their say on whether or not this divide should exist. We are being asked whether good care and parenting should be seen to include correction.

    I for one am absolutely convinced that it does include correction, so this law needs changing.

    On a separate note, I fully understand the tactical reasons for those who think all smackers of children should be deemed criminals to want very much to declare this referendum “meaningless,” given the fairly obvious direction of public opinion. The referendum is very likely to to favour that view, so by declaring it meaningless in advance, the result can simply be dismissed.

  • Deane Galbraith August 18, 2009, 8:34 am

    Deane before:
    “But to conflate the elements of both of these questions is, by definition, to load the question.”

    Glenn before:
    I don’t know what you think a definition is, but this is just weird english. It cannot possibly be a loaded question “by definition.”

    Incorrect.

    The fallacy employed by the framers of the referendum is that of the “complex question” or “loaded question”.

    As you seem unaware of the definition, here you go:

    “A complex question is not a straightforward one: it contains an assumption that is hidden but that must be implicitly acknowledged if the respondent is to answer the question. Invariably such an acknowledgment commits the respondent to a position or claim with which she is at least uncomfortable, and to which she may be adamantly opposed.”
    – Christopher W. Tindale

    So by the very definition of the “loaded question” fallacy, if a question asks a yes/no question about activity X (in this case smacking), but answering “yes” entails saying “yes” to the proposition that activity Y (in this case “good parenting” should be a criminal offence), then it is (by defintion) a loaded question.

    The referendum question is just about as blatant a fallacious “loaded question” as the famous example, “have you stopped beating your wife yet?”. It should never have been allowed on a democratic ballot paper.

  • Glenn August 18, 2009, 5:07 pm

    Deane, I know what a complex question is, no need for attempted condescension. Actually, such attempts tend to backfire when you are the one who has simply not understood what was said, which is the case here. I never even used that word, so now bringing that term up and quoting the definition is a little pointless. What I pointed out that it’s wrong to say that it’s a loaded question “by definition.” It may be a loaded question because of an incorrect use of “good” but that doesn’t make it so by definition. Moreover, I have argued that the use of “good” is legally appropriate.

    I won’t bother trying to get you to acknowledge why it’s wrong to say that something is a loaded question by definition on the grounds that it does happen to be a loaded question beyond just leaving you with another example that might help you: If I see a red car parked outside, it would be a wrong use of english to say: “By definition, that car is red car.” Wrong. The car could be any colour, it is just red incidentally.

    Perhaps the difference between incidental facts (things that just happen to be true) and analytical truths (things are true by definition) isn’t something you had in mind, and you were just throwing in “by definition” to give your comment a bit of rhetorical punch. That’s an urge you should resist.

    Beyond that incorrect attempt to correct my reference to the phrase “by definition” (not the phrase “loaded question”) you seem not to have any further comment on the legal issue I addressed (which is fine, not saying you need to comment on that of course), so there’s nothing more than this little misunderstanding to address, which I have now done.

    PS If you find this foolishly technical, that’s what happens when you make technical mistakes and then try to defend them. 😉

  • Deane Galbraith August 18, 2009, 6:15 pm

    I was referring to “to conflate the elements of both” as “by definition”, you were thinking I meant “these [particular] questions”. So, yes, you were unnecessarily technical.

    Best wishes,

  • Glenn August 18, 2009, 6:39 pm

    No, Deane, you are simply persisting in a simple terminological error. You might think that drawing on both subsections in fact presents a complex (loaded) question. That, however, is not at all the same as it being a complex question by definition. I have tried to explain this, but with all due respect, I think you are being much too partisan to actually listen, so there’s little point in trying further. It’s a shame, because I think you’re capable of getting it, but have chosen not to.

    EDIT: On the bright side, you’ve given me an idea for my next blog post int he “nuts and bolts” series where I spell out fundamental terminology in philosophy. The next episode will explain the concept of analytic truths (that is, things are true by definition, and not just because of matters of fact).

  • Deane Galbraith August 18, 2009, 7:59 pm

    You do tend to leap to funny conclusions, Glenn. Maybe we just need to have a nice chat sometime. But maybe you don\\\’t do that. I seem to remember that your first engagement with me to accuse me of smoking something funny, which struck me as not the most charitable or productive way to engage in conversation, if not a needlessly adversarial approach.

    In short, I don\\\’t think you\\\’ve properly distinguished my discussion of the legal facts (which was in response to your disussion) from my discussion of the working of the logical fallacy. The drawing on both subsections <em>is</em>, of course, a question of fact, I agree. But the loading of two separate questions into one question is an a priori matter, independent of any facts. To conflate two separate questions into two is, by definition, a loaded question. That this applies to the referendum question is a factual matter, which can be rather easily demonstrated in this case.

  • Glenn August 18, 2009, 8:46 pm

    Actually if I recall correctly, in my first encounter with you I thought your comments were so strange that I asked you what you had been smoking. It’s a way of pointing out that something seems (to me at least) to be not merely wrong but so wrong as to be just strange.

    I would proceed to explain why I don’t think “conflate” means what you think it does and why asking people to simply adopt the language of an existing (and deeply flawed) piece of law when answering a question is not the loaded question you think it is, but I think we’ve already seen a glimpse of where that leads. 🙂

  • Glenn August 18, 2009, 11:15 pm

    PS – Deane, I’m not stalking you (I swear), I’ve just been following your blog lately because you’re local.

    Either that or I’m stalking you, but I’m pretty sure it’s because you’re local.

  • Deane Galbraith August 19, 2009, 10:38 am

    I’ve always wanted a stalker, anyway.

    … hey, I tagged you in a meme.

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