Anti-Smacking Arguments Unfounded

In Dr Matthew Flannagan's recent article exposing The Flawed Moral Theology on the Smacking Referendum, he makes the following excellent observations on the three most commonly touted reasons for criminalising smacking.

Mayman began by offering three standard arguments for repealing the old section 59, the defence of reasonable force for the purposes of parental correction. The first is that, “Prior to the law change, there had been terrible cases of child abuse that had not resulted in an assault conviction because of the use of this defence.” The second is that, “New Zealand has appalling rates of lethal and non-lethal child abuse and there is strong evidence that abuse often occurs as an escalation of physical punishment.” The third is that, “The law needed to be changed to ensure that the children received equal protection.” Despite their popularity and repetition in the media, these arguments are seriously flawed.

1. Some Accuseds Get Off
Turning to the first, it may be true that the existence of the defence of reasonable force meant that some child abusers escaped conviction. What Mayman fails to note is that this is true of any defence in Criminal Law. Section 48 of the Crimes Act allows a person to use reasonable force in defence of oneself or another from assault. Undoubtedly some serious assaults have not resulted in criminal prosecution as a result of the existence of this defence. Similarly, the law allows those accused of rape to mount a defence that the victim consented; this defence undoubtedly has lead to serious rapes not resulting in conviction. In fact, the very existence of a requirement for the prosecution to prove an assault has occurred, beyond reasonable doubt, has resulted in untold number of serious criminal actions not resulting in criminal convictions. Hence, if the mere fact that the former s59 occasionally resulted in criminals not being convicted entails that it should remain abolished then all defences should be abolished; clearly this is an absurd conclusion.

2. Criminalisation Because of Escalation
The second argument fares no better. Mayman asserts that, “abuse often occurs as an escalation of physical punishment.” This may be true. It is also true that spousal abuse often occurs as an escalation from a verbal argument between spouses. Does it follow that we should criminalise verbal arguments with one’s spouse.

3. Equal Protection
Mayman’s third argument, that children must receive “equal protection” under the law, is also problematic. It is true that the law does not allow a parent to smack an adult. However, it is also true that the law does not allow an adult to prevent another adult from leaving the house; to do this would be to commit false imprisonment. The law also does not allow an adult to confiscate the property of another adult; this is the crime commonly known as theft. Nor does the law allow an adult to subject another adult to medical treatment without their consent; this would be both a form of assault and a violation of the Bill of Rights’ protection of life and security of the person.

If we were to truly give children equal protection under the law then it should be illegal for parents to send their children to their room, to ground them, to confiscate their property or keep their immunisations up to date. Clearly no sensible person advocates this because no sensible person really believes that children should receive equal protection under the law.

Further on in the article Matt explains how Margaret Mayman (and others) have twisted Jesus' words "let the little children come to me" in order to back up their flawed position that smacking is child-abuse. Very well argued.