The anti-smacking lobby argues that abuse and violence hide behind the provisions of Section 59 of the Crimes Act 1961. The facts do not appear to support this contention.
John Hancock of Action for Children and Youth Aotearoa Inc., summarised such cases in a document titled Parental Corporal Punishment of Children in New Zealand for the UN Committee on the Rights of the Child and dated 28 August 2003. In this document he listed only 18 cases in which Section 59 featured spanning the 13 years from 1990 to 2002.
That is a mere 1.4 Section 59 cases a year.
I asked John at the anti-smacking conference in Wellington on 19 June 2004 with the title “Stop it, it hurts me”, if this was an exhaustive study of all S.59 cases. Even though he is apparently an anti-smacker with a motivation to show how much this provision is used to hide behind, he replied that he wasn’t sure.
Another lawyer present at the conference spoke up and said the S.59 defense was rarely used since abuse cases are almost always very obviously so.
In 10 of those 18 cases in John’s paper the parent was found guilty of abuse; one needed a re-trial; in one the child was removed; and the parent was justified in the remaining six cases, five of which were trials by jury. In other words, when Section 59 cases came up before the courts, the alleged abuser was found to be guilty 56% of the time, which amounted to less than one case per year. So it appears to be a defense rarely used, and abusers don’t appear to be hiding behind it very well.
Parental Corporal Punishment of Children in New Zealand
For: UN Committee on the Rights of the Child - Ref: CRC/C/93/Add.4
From: Action for Children and Youth Aotearoa (Inc.)
It is apparent from the attached Court and media reports that section 59 of the Crimes Act 1961 has resulted in concerning inconsistencies in its application to Court cases relating to parental violence against children.
Section 59 states:
59 Domestic discipline
1. Every parent [of a child and, subject to subsection (3) of this section, every person in the place of the parent of a child is justified in using force by way of correction towards the child], if the force used is reasonable in the circumstances.
2. The reasonableness of the force used is a question of fact.
The section 59 defence has been successfully raised in cases where parents has been prosecuted for hitting their child with a bamboo stick, hitting their child with a belt, hitting their child with a hosepipe, hitting their child with a piece of wood and chaining their child in metal chains to prevent them leaving the house (media reports of these cases are attached to this document). These successful acquittals have all occurred in jury trials, where the jury has found that such actions have been reasonable, and therefore lawful, means of domestic discipline towards children.
In contrast, similar instances of corporal punishment have been found unreasonable by Court of Appeal, High Court and Family Court judges. Conversely, a smack on the bottom was not seen sufficiently serious to warrant conviction in the Court of Appeal case of R v Hende. Similarly different judges in the Family Court have ruled that a slap in the face and legs as reasonable discipline in one case (S v B), so as to defeat an application for a protection order, and unreasonable in another (C v C). These differing interpretations of section 59 by judges and juries illustrates that whilst the test supposes to be an objective one, that of “reasonable” force, consideration of the defence is almost inexorably intertwined with the decision-maker's individual moral position on the issue of corporal punishment of children.
Inconsistencies are not just restricted to matters of interpretation, as the defence is at odds with the tenor of New Zealand's contemporary family law jurisdiction. The recent (February 2003) unreported High Court case of Sharma v Police also raised a glaring inconsistency between the provisions of the Domestic Violence Act 1995 and section 59. In this case the Court reluctantly found that the existence of a protection order protecting a child against an abusive parent does not preclude that parent from raising a section 59 defence to assaulting his or her child.
We are concerned that there is currently a movement to amend section 59, so as to legitimate certain acts of violence, such as a slap with an open hand to the body, whilst criminalizing other, more injurious acts of violence. We have attached a copy of Oral Questions, made in Parliament on 23 July 2003, put to the Minister of Justice, Hon Phil Goff, by Sue Bradford MP, which indicates the Minister's support for a qualified amendment. The Minister's comments could be interpreted as an indication that the Government is more concerned with the attitudes of its adult constituents (potential voters) than protecting children from violence.
We are strongly opposed to any qualified or partial repeal of section 59, and consider that any statutory prescription that authorises the use of certain types of violence against children is very dangerous indeed.
Such a move would also perpetuate what is an inherently discriminatory law, as assault against an adult is unlawful in all instances, bar statutory and common-law defences such as self-defence.
We have also included a media report of the death of Tangaroa Matiu. This tragic case is an extreme example of physical discipline administered by a parent or guardian towards a child. We accordingly submit that the full and unqualified repeal of section 59 of the Crimes Act, which legitimizes the use of violence against children, is urgently needed in order to reduce the possibility of similar tragedies occurring in the future.
POINTS OF LAW
Sharma v Police (A 168/02, 7/02/03, HC Fisher J) *1
In this case, heard in the High Court on appeal, the Court reluctantly found that the Domestic Violence Act 1995 does not preclude the s59 defence of reasonable justified force, even when there is a protection order in force protecting that young person from the parent disciplining the child.
Fisher J noted that “I would have expected the Domestic Violence Act to expressly exclude a s59 defence” but he found that “the statutory wording seems to require otherwise.”
Ausage v Ausage  NZFLR 72 *
In this matter the Family Court made a number of findings in relation to the section 59 defence. It held, inter alia, that section 59 of the Crimes Act applied to civil proceedings by reason of section 2 of the Crimes Act (see pages 76 and 77). In its headnote the Court stated:
“Having regard to the importance which society placed upon the upbringing of children it was clearly intended by Parliament that any parent able to claim the benefit of s 59 of the Crimes Act 1961 would be immune from suit, whether criminal or not.”
In addition, the Court found that it must have regard to the characteristics of the child, such as physique, sex and state of health, when determining whether the force used was reasonable. The Court also found that matters of ethnic or cultural background or religious belief do not apply to the determination of a section 59 defence, stating that there was to be “one universal standard” irrespective of individual family circumstances. On this issue, the Court differed from the obiter of Heron J in the High Court case of Erick v Police, which stated such matters were of relevance (see page 78 of the judgement).
The Family Court has subsequently held itself bound to recognise the right of parents to use reasonable force by way of correction in cases involving custody of children and protection orders.
R v McFarlane (CA 29/01, 17/5/01, CA Blanchard, Doogue & Randerson JJ) *
In this matter, the Court of Appeal considered an appeal to a conviction of cruelty to a child under section 195 of the Crimes Act 1961. The appellant had raised the section 59 defence in the District Court, but was nevertheless convicted by the jury.
In dismissing the appeal, the Court found that the trial judge had correctly directed the jury as to the respective sections 59 and 195 of the Crimes Act (see paragraphs 9-18 of the judgement).
Hibbs v Police (AP 205/95, 26/10/95, HC Barker J) *
This case concerned a High Court appeal from conviction and sentence for assault against a child. The child in question had suffered serious injury (a fractured skull, injuries to the testicles) from the appellant's de facto partner and had been beaten and verbally threatened and abused by the appellant himself. The District Court judge rejected the appellant's section 59 defence, finding that the force used was clearly not reasonable.
In the High Court, Barker J dismissed the appeal against conviction. However, the judge upheld the appellant's appeal against sentence reducing it from 14 months imprisonment to 6 months, suspended for two years (as was the case in the original verdict). In doing so, the judge found that the appellant's assault on the child was not as serious as his de facto partner (who was sentenced for 21 months imprisonment, suspended for two years) and reduced his sentence accordingly. However, it remained unclear as to the extent of the appellant's actions and, as a result of the suspended sentences, neither him nor his partner were imprisoned.
R v Johansen (CA 220-95, 25/9/95 CA, Richardson, Thorp & Williamson JJ) *
This matter, heard in the Court of Appeal, concerned an appeal from conviction subsequent to trial by jury. The appellant had been found guilty of caning two boys and was fined $1,000.00 on each charge.
The appellant appealed on the basis that he should have been discharged without conviction under s 19 of the Criminal Justice Act 1985 on the basis a conviction and sentence was out of proportion to the circumstances of the offence. However, the Court dismissed the appeal, as they were not persuaded that the trial judge erred in his discretion.
Sadie v Police (AP 50/95, 26/10/95, HC Williams J)
A parent who rough-handled and smacked a toddler in public without causing marks was found guilty of assault on a child at trial. On appeal, the High Court rejected the appellants' section 59 parental discipline defence.
R v Accused  DCR 883 (Judge Buckton) *
In this matter, an application for severance and discharge heard in the District Court, the accused made children in his charge undress and put on tight shorts. He then handcuffed and caned them.
The defendant was convicted of ill-treatment under section 195 of the Crimes Act. He sought discharge from the section 195 charge on the basis that one instance of assault does not constitute ill-treatment and, secondly, that section 59 provided a defence to force used in “correction”. The Court rejected both these arguments, finding that the circumstances of the assault indicated that jury may well find that the defendant had an additional motivation of self-gratification.
R v Hende  1 NZLR 153 (18/9/95, CA Eichelbaum CJ, Hardie Boys & Henry JJ) *
In this matter the Court of Appeal heard an appeal from conviction and sentence. The appellant had been convicted of assault, stupefying and ill-treatment of children following trial by jury in the District Court. Turning to each conviction, the Court found:
Ill-treatment of children charge
The Court held that the district court judge erred in describing the mens rea ingredient as comprising solely the deliberate exercise of an act of ill-treatment. What was required was “is that the ill-treatment must have been inflicted deliberately with a conscious appreciation that it was likely to cause unnecessary suffering.” The Court ordered a retrial in regards to this charge.
The Court held that there was an absence of evidence of intent to stupefy the child in question. Eichelbaum CJ stated that it was a “reasonable possibility that the appellant had administered phenegran to calm the child rather than with the intent to stupefy him.”
In relation to this charge the court held: “There was no justification for treating the incident as involving anything more than a pat on the bottom. Although technically an assault, it did not merit the stigma of a conviction and the fine imposed.”
CRIMINAL ACQUITTALS - Media Reports
“Man who chained stepdaughter goes free” *
Reported: New Zealand Herald 17/11/99
A jury in the High Court at Palmerston North acquitted a man accused of chaining his wayward 14-year-old stepdaughter to himself, from charges of kidnapping and cruelty to a child.
The report states that the defendant's counsel successfully utilized a defence of “tough love” without having to call evidence.
“Belting okay for wild boys says jury” *
Reported: New Zealand Herald 21/6/02
“Man acquitted of spanking” *
A jury in the North Shore District Court cleared an Auckland man of assault after he took a belt to his hyperactive stepchild as punishment for continually running on to the road in front of cars.
“Father acquitted in pipe beating” *
Reported: New Zealand Herald 3/11/01
“Jury acquits thrasher dad” *
A jury in the Hamilton District Court decided a father who struck his 12-year old daughter with a hosepipe was within his rights to do so and acquitted him from assault charges.
“Smacking father discharged” *
Reported: The Dominion 22/02/2001
A jury in Napier District Court acquitted a man who struck his son several times on the buttocks with a piece of wood. A pediatrician stated that the injuries the boy received must have been caused by “considerable force”.
“Smacking laws stay unchanged for now” *
Reported: The Dominion 21/12/2001
This article refers to the above cases in Hamilton and Napier and also refers to a case heard in the Christchurch District Court, where the judge, Judge Graeme Noble, acquitted a man for hitting his daughter with a doubled over belt, finding that the man used reasonable force.
FAMILY COURT CASES
Re MM & PM (FP 079-002-00, 8/3/02, FC Judge Inglis) *
This matter concerned a Family Court application to approve a revised care and protection plan, where the child concerned would remain in Child Youth and Family Services (CYFS) care for another 6 months).
Although the mother and stepfather applicants had been acquitted form a charge of assault in the District Court for caning the child with a bamboo stick, the Family Court Judge held that continued CYFS care was justified, as the mother and stepfather seemed to be under the impression the acquittal vindicated their behaviour. The Judge observed that it was necessary for the child to be protected from adult excesses.
Wilton v Hill (FP 069/11/92, 26/7/01, FC Judge Whitehead) *
In this matter, the Family Court had to consider whether it had jurisdiction to hear an application for discharge or suspension of access of a parent to child, in circumstances where the alleged abuse that occurred may be defendable in criminal law under section 59.
Judge Whitehead found that the Family Court clearly did have jurisdiction, referring to the Court's obligation under section 23 of the Guardianship Act 1968 to give paramount consideration to the best interests and welfare of the child in question.
M v M (FP 083-240-00, 27/11/00, FC Walsh J) *
This Family Court case concerned an application for a final protection order by a 17-year-old girl against her father. The applicant had a temporary protection order granted, following her father punching her in the face, head and arm causing injuries including a black eye. The issue before the Court was whether the force used by the father was reasonable in the circumstances.
The Judge held that a parent is entitled to use corporal punishment but the force used must be reasonable and a parent cannot resort to assaulting a child under the guise of discipline. The Judge considered that, on the evidence, the risk existed that the respondent would resort to hitting the applicant again if he felt justified, and accordingly granted the application.
T V T 9/7/90 Auckland Family Court FP 004/919/90
This Family Court case concerned an application for a Protection Order. The respondent Father hit his child 12-year-old son with a gun belt and kicked him on the bottom, causing bruising. The respondent claimed it was reasonable chastisement.
The Family Court accepted that section 59 permits a degree of violence but found kicking a child and causing bruising was unacceptable.
S v B (1996) 15 FRNZ 286 *
This Family Court Case also concerned an application for a protection order.
In this matter, the respondent father slapped the applicant, his 14-year-old daughter with his open hand on the girl's legs and face during an access visit. Prior to this the respondent had pushed her across the room and forced her into a squatting position, as a reaction to what he considered to be defiant behaviour.
The daughter was refused a protection order on the basis that, in the circumstances, this was reasonable force by way of correction under section 59. In justifying this finding, the Court found (at page 287):
“The criteria for making a protection order were not made out. In the circumstances B's actions, although inappropriate, could not be considered as “abuse” or “a pattern of behaviour” constituting domestic violence. R accepted that her own behaviour was unacceptable. She was acting irrationally and B's response was spontaneous. She did not require medical attention”.
F v T (2002) 27/03/02 Wanganui Family Court FP083/46/01
This Family Court case regarded an application for a Custody Order. The Court heard that the mother hit her children with a riding crop and wacky stick and slapped the older children, claiming it was reasonable discipline.
The Judge described the mother's parenting style as extreme and harsh and accordingly awarded custody to the father.
C v C 5/11/02 Porirua Family Court FP091/159/02
In this matter the mother smacked her 7-year-old child in the bath and slapped the child's face, claiming that she administered this in a calm controlled manner. The Judge observed that this was unreasonable discipline.
T v T 19/11/01 Wanganui Family Court FP 083/306/00
This case regarded an application for a Custody Order. The father made his two boys, aged 10 and 4, lie on their beds face down while he hit them on their buttocks or hands with a length of hose.
In addition, it was heard that he boasted about giving his children a beating and slapped his baby daughter in front of a teacher. It was also heard that the mother had hit the children on their hands with a hairbrush. The Court awarded custody to the mother.
For: Action for Children and Youth Aotearoa Incorporated (Inc.)
(Produced 28 August 2003.)