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Smacking And The Law

By Mark Stephenson

OK, you are fixing the kids’ tea, the older ones are fighting over Playstation, the meatballs are turning to carbon, the baby is yelling for her delayed bottle, and your toddler chooses that moment to investigate the power system with a fork.

So you leap over there, pull the kid away and smack his hand because, well, because you are frightened, and immediate action is required. And yes, there are better ways of dealing with all the above events, but we are not perfect.

There will always be such moments when parenting alone. Well, you dealt with it, no harm was done, nobody died, and they all got something to eat. You did well. Award yourself a beer. You did all the work and took all the responsibility. Your motivation was love, your sole intention to care for your children. The law has no business here.

However, the debate rages on. To smack or not to smack; that is the question, right? Listening to the slanging match between the ‘no nonsense discipline’ brigade and the PC ‘holier than thou’ jihad against all physical punishment, you might be forgiven for thinking so. You would be wrong.

I intend to debunk the hype and translate the journo-speak.

The proposed law change is about assault. It is not about smacking. The legal terms are somewhat more sinister than ‘a smack’ – Actual Bodily Harm, Grievous Bodily Harm. That is, the damage incurred when someone attacks you with a four-by-two.

As the law stands, you may not hit me with a heavy object and injure me, regardless of whether I am your partner, an inmate in your prison, or just standing beside you in the pub (except in self-defence). If I am a child, however, and you are parenting me, you may.

Section 59 of the Crimes Act allows a defence against charges relating to assault where the assailant is disciplining a minor. You may use ‘reasonable’ force. The four-by-two, along with No 8 wire, it is part of our Kiwi ‘do-it-yourself’ heritage; but for disciplining children? Reasonable? No, it goes against the grain.

OK, thanks for the lecture, you say; what has all this to do with smacking? You may well ask. The idea behind changing the law is to give children the same protection as adults, in cases of assault. It is not about telling you and I, as parents, how to manage the day to day discipline of our children.

Nor should it be. The law is there to provide a legal limit to acceptable behaviour to protect people, including children, from harm.

It is not appropriate for it to provide a counsel of perfection, which everybody has to live up to. That would be crazy, because: (a), we are not perfect, and (b), who is to say what is the perfect way of behaving, anyway. If I see someone injure a smaller person with a weapon, I can clearly say that is wrong.

If I see a parent smack a child who is a danger to itself, I may have an opinion, but it is just that: an opinion. It has nothing to do with the law.

When I spoke to the people at the Ministry of Youth Affairs, they were cagey about disclosing the likely format of the new law, as apparently the ministers have not yet discussed it. Off the cuff, though, banning smacking is not on the menu.

The comments of John Tamihere made the headlines, naturally. According to the Dominion Post (Oct. 26th), he believes in the right to smack and keeping Section 59 of the Crimes Act, as it is. I think his comments were unhelpful and unwise. A boo-boo of major proportions, politically and philosophically.

The Commissioner for Children, Roger McClay, in the same article, is quoted giving a veiled admission about smacking his own children. When we talked on the ‘phone, he reminded me that it should be the rights of children that is uppermost in our minds, and that New Zealand needs to work towards satisfying Article 19 of the Convention of the Rights of the Child by removing ‘all forms of physical and mental violence’.

We agreed, however, that parenting little children was the hardest of jobs; none of us is faultless but the law needs to protect children from assault and injury at the very least.

Roger McClay is pragmatic, not simply a PC ‘do-gooder’, as suggested by John Tamihere. Naturally, the Office of the Commissioner for Children makes children’s rights a priority.

The media, seeking the sensational, have tended to highlight the more extreme views on physical punishment. In the press, we hear from the righteous devotees of discipline who appeal to experience (‘it was better in my day’), or to God, (‘don’t spare the rod’).

On the other side, they give voice to the squeaky clean, never-touch-the-children element, who don’t admit to any negative impulse. Both groups may have good intentions, but the stand off in the press leaves little room for the real issues to shine through the clouds of emotional argy-bargy.

The anti-smacking group argue that, through physical punishment, the child learns that violence is an acceptable way for the powerful to control the weak; and that this has affects on society as a whole. The pro-smacking group emphasises the value of self-discipline, and that this arises from firm discipline learnt in a loving home as we grow up.

Previous generations had much firmer discipline in the home and a great deal less violent crime in society. These facts cannot be simply related as cause and effect, but they suggest that there are many other factors involved.

Me, I have seven-year-old daughter, and yes, I have smacked her occasionally when she was younger. Not because I think it the best type of discipline but because either it was quick and effective, or simply because I ran out of energy and had nothing left to offer at that moment.

When I talk to other parents, the vast majority tells a similar story. When I ask:

‘Do you believe in smacking?’

‘Oh no.’

‘Do you smack your own children?’


‘Have you ever smacked them?’

‘Oh well, there have been times when…’

Yeah, I know. There are moments, and we all have them.

Well, it seems that most New Zealanders think along broadly similar lines. A recent study by the Justice Department showed that 80% of people thought it acceptable to smack a child, with an open hand, when they were naughty. Using an object to discipline was less popular.

Only 15% thought parents should be allowed to use a wooden spoon or a belt. 0.4% thought a piece of wood or plug flex allowable. The age of a child made a big difference. Only 23% were in favour of smacking children under two.

Some other interesting facts arose from the survey. Younger people, whether parents or not, were less likely to find smacking allowable than the older generation. Men and women were about equal in accepting smacking, though women slightly more for younger children, men slightly more for teenagers.

Significantly fewer Maori and Pacific Island people found smacking acceptable than pakeha New Zealanders, particularly of children under two.

There seems to be a generational move away from physical punishments. Cultures vary in degree of acceptance of smacking.

The survey did not ask what was felt to be the best way to discipline children. They did not survey acceptance of methods such as distraction, explanation, time out or other consequences. The statement given was, “A person parenting a child should be allowed, by law, to smack the child with an open hand if the child is naughty”.

So, the survey does not show that 80% of New Zealanders think that smacking is the only, or the best, method of disciplining children; only that it should not be illegal.

It seems that attitudes to physical punishment are slowly softening. Law changes, and government funding, always tends to lag behind social changes.

There is little or no money available from the state for parenting programmes. Society needs to protect children and support parents. The law should reflect this.

Government should prioritise both these fundamental groups.

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