April 20, 2007

criminalising good parents

Well, Sue Bradford has set off a lot of fluster by trying to ban smacking (or beating, or whipping, or grabbing) offspring. For the most part, I've been listening to the debate with a modicum of interest and no strong opinions. I have an abhorrence of inexact law, but the general law of assault is daft and no-one notices, so I doubt the actual implementation of this change will have any impact. After all, it is technically a breach of the law to grab your partner and pull them out of the way of an oncoming truck.

What I am curious about is the criminalising good parents line Key is taking at the moment. This suggests one of two things:

1) Key thinks smacking is a valid part of good parenting, or
2) Key thinks smacking is not a valid part of good parenting, but asserts that good parents will sometimes smack their children.

For a lot of people, smacking is justified as being legitimate only when it is used in cold blood. That is, when you are calm enough to figure out whether it will do any good, whether its application is consistent with other punishments, and when you can control how hard you hit.

For some smackers, I expect this is actually how it is used. Particularly when the punishment is delayed. However, my subjective and uninformed view is that smacking is only justified when applied very close in time to the offence (and pretty much only with children old enough to figure out the connection, and young enough that they won't learn the lesson through other means).

However, my impression is that the good parents Key is talking about are the parents who occasionally smack their child in hot blood. When their child has just done something breathtakingly dangerous, or has pushed them to the point of distraction through being an annoying little sod. For this they feel guilty, and this is why they don't like the idea of it being against the law. Not because they think it is good, but because they think it is a common, human experience in parenting.

Which is all very well and good, until you start looking around for analogous laws. Speeding is against the law because it is dangerous, but there are plently of good drivers who speed occasionally because they are late, they can see there are no other cars within 3 km of them, they weren't watching the speedometer closely and were caught up in a good song on the radio. But Key isn't suggesting that we shouldn't criminalise (well, fine) good drivers...

A more difficult analogy is the lack of a defense against a charge of murder on the grounds that it was euthanasia. There are certainly circumstances where I think the right thing to do is to provide someone with a quick and painless exit. However, Key doesn't appear to be concerned that the lack of a defense criminalises good doctors and nurses (and, even worse, good offspring).

The law of assault itself has very few defenses. It is technically *any* contact with another person, so long as you intend to touch them. This includes throwing things, or using bad breath as an offensive weapon. Curiously, you can't consent to assault for sexual pleasure, so we're criminalising all sex (unless I'm drawing the wrong conclusions from my second year criminal law paper). This would have the bizarre result that the act which created the kid would be illegal, but hitting the kid wouldn't be.

You *can* punch someone in the nose really hard and intentionally on an rugby field and get away with it. Happens every day.

I think my point is that the law of assault is daft, and is genuinely sorted out in its implementation (as Sue B has been trying to explain). I don't think feeling guilty about smacking kids in hot blood is a good enough reason to require an explicit exemption.

Posted by carla at April 20, 2007 12:31 PM
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