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The Parental Use of Physical Discipline in New Zealand
(Part II)
by Robert van Wichen, LLB
(In Part I Mr van Wichen introduced this subject by examining Section 59 of the Crimes Act which states:
..Every parent of a child and ... every person in place of a 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.
He explained the legal interpretations of force being used “by way of correction” as opposed to vengeance, spite, ill-will, etc., taking the parent’s state of mind at the time into consideration. He then examined the phrase “reasonable in the circumstances”, mentioning that the courts have a wide discretion in determining what is reasonable, and will take into account such things as the relationship between the parent and the child, and the family’s culture and religious beliefs. In other words the context of the spanking is important.)
III. Illustrative cases
It may be helpful to consider two court cases to get a better understanding of the issues involved.
R v Peterson(15)
This Canadian case is not only useful as an illustration but also is relevant to the interpretation of section 59. The Canadian Criminal Code is virtually identical to the New Zealand Crimes Act on this subject.(16)
In September 1994, the Peterson family were celebrating Mrs Peterson’s birthday at a restaurant while holidaying in Niagara Falls, Canada. Mr Peterson and his two children, Rachel (aged 5) and William (aged 2) returned to their car to get a card and gift for Mrs Peterson. Rachel started to misbehave, and continued after Mr Peterson told her to stop. She pushed William out of the car on to the footpath as he tried to get into the car. Mr Peterson told Rachel not to close the car door, but she ignored him and deliberately slammed the door on her brother’s fingers.
Mr Peterson, angered by his daughter’s behaviour, decided that she deserved a spanking. He told her this and why. At first, he tried to smack her in the car, but she struggled so much that it was not possible due to the confined space. Initially he was going to spank Rachel over her clothes, but due to her resistance decided to adminster the spanking on her bare bottom. He carried her out of the car, placed her on the boot of the car and struck her a number of times with the flat or palm of his hand. Rachel started crying. The trial judge later found that she was uninjured and any emotional trauma was transitory.
This scene was witnessed by three people, one of whom was vehemently opposed to the physical punishment of children. The incident was reported to the Police, and Mr Peterson was charged with assault.
The judge formed the view, after hearing both Mr and Mrs Peterson give evidence, that they were reasonable, responsible, and caring parents. He described their discipline policy in the home as reasonable and designed to be in their children’s best interests.
The Crown raised several arguments. One was that the spanking was not for the purpose of correction, but was due to Mr Peterson being angry. The judge rejected that argument; what is relevant is not whether the parent is upset, distraught, frustrated, annoyed or angry, but whether the parent is in control of his or her anger or emotions. He went on to find that Mr Peterson’s conduct was measured and controlled. He accepted that Mr Peterson had an honest and reasonably held belief that a spanking was necessary to correct Rachel, and accordingly the spanking was given for a lawful purpose.
Another of the Crown’s arguments was that as the spanking was done in a public place it was not justifiable. The judge, in rejecting the Crown’s argument, decided that the place of the spanking was just one of the many factors to be considered in determining whether the punishment was reasonable. The charge of assault was dismissed.
The judge’s closing comments are of interest:
“It is readily apparent, however, that attitudes within the community towards the corporal punishment of children vary. It is one of those difficult and sensitive social issues where voices are at variance.
... [One of the witnesses] said, as a parent, she was not in favour of the physical discipline of her son, or indeed any child. She told David Peterson in no uncertain terms that what he was doing, in her judgment, was wrong; indeed, she told him that his conduct was unlawful. [That witness] was wrong as to the law of Canada. But her evidence brings into sharp focus the differing views that exist in contemporary society on the subject of child discipline. [Her] views may be shared by many; it is hard to know. But ... this is not a court of social justice, but a court of law. It is the law that a parent ... may physically discipline a child if such parent ... brings himself or herself within the framework of s43. A judge applies the law. Parliament makes the law.”(17)
R v Erick(18)
This New Zealand case involved an appeal to the High Court against a conviction for assault. Mr Erick severely disciplined his six year old son causing extensive, though not permanent, injuries. Using a belt, he had struck him on the face and back at least ten times with considerable force. Mr Erick, a Nuiean Islander, contended that what he had done was in accordance with his culture. Evidence was given by a number of witnesses that severe corporal punishment was a normal part of Nuiean family life. The High Court upheld the conviction entered in the District Court as Mr Erick had admitted to a constable who had interviewed him that the force was excessive even by his own standards.
Of significance was the High Court’s acceptance that a person’s culture was relevant in determining whether the force used was reasonable. At page 3 of the judgment, Justice Heron stated:
“The statutory defence gives the Court the widest discretion. It provides that the force used must be reasonable in all the circumstances. It is argued for [Mr Erick] that the Courts have recognised in the area of provocation persons of non-European cultures can have different cultural characteristics, and that by analogy different cultural characteristics will be relevant to the issue of reasonable force. ... I uphold that submission. I do not think that it is possible to look at this in a vacuum and simply look at the extent for example of the injuries to the child concerned. It seems to me that it is proper in all the circumstances to have regard [among other things] to the cultural characteristics of the parent and the family as a measure of what is reasonable in all the circumstances.”(19)
If that reasoning is applied consistently, a Court should also take into account other subjective(20) matters such as a family’s religious or ethical beliefs. In so doing, R v Erick rejected the narrower “objective” test, namely, “Would a reasonable person have done what the parent did in these circumstances?”, in favour of the wider “subjective” test, namely, “Would a reasonable person having that parent’s culture and beliefs have done what the parent did in these circumstances?”. The difference is highly significant.
This approach is consistent with the NZ Bill of Rights Act(21) which enshrines as a right, not only the right to hold religious and ethical beliefs, but also to manifest them in practice.
Once allowance is made for the subjective characteristics of the parent and his or her family, parents will be given significantly more latitude in determining when to correct a child and the degree of force that is reasonable.
IV. A Note of Caution
Due to widely diverging views on this issue within society, and even within the judiciary it is not possible to rule out the possibility of the Court interpreting section 59 narrowly. J L Caldwell has noted:
“… at least one New Zealand judge has admitted to a personal rejection of disciplinary methods involving ‘resort on occasion to the threat of the strap or slap.’ The modern, less enthusiastic approach may be best exemplified by the observation of Scholl, J. to the effect that there are now ‘exceedingly strict limits’ on the parental privilege of physical punishment.”(22)
However, contrast that with what Chief Justice Prendergast said in Hansen v Cole(23). This was a civil case late last century in which a pupil brought an action in the Supreme Court against his schoolmaster for caning him. What he had to say applies just as much to parents:
“... Among reasonable persons much difference prevails as to the circumstances which will justify the infliction of punishment, and the extent to which it may be properly administered. On account of this difference of opinion and the difficulty which exists in determining what is reasonable punishment, and the advantage which the master has by being on the spot, to know all the circumstances, the manner, look, tone, gestures and language of the offender (which are not always easily described), - and thus to form a correct opinion as to the necessity and extent of the punishment, considerable allowance should be made to the teacher by the way of protecting him in the exercise of this discretion. Especially should he have this indulgence when he appears to have acted from good motives, and not from anger or malice. Hence the teacher is not to be held liable on the ground of excess of punishment, unless the punishment is clearly excessive...but if there be any reasonable doubt whether the punishment was excessive, the master should have the benefit of the doubt”.(24) (Emphasis mine).
Further, as a matter of evidence, it is for the prosecution to prove beyond a reasonable doubt that the force used was unreasonable.(25) It is not for the parent to prove that the force used was reasonable, or for the purpose of correction. It will suffice if the parent’s version of what occurred is believable.
V. Summary
It will now be clear that a parent may use physical punishment to correct a child provided the force used is reasonable. However, it should be asked why so many parents have come to believe that it is wrong or illegal for them to smack their children, and fear the consequences of continuing to do so. It is important that the law on this issue is understood so that parents can discern truth from fiction, and fact from propaganda.
References
15. R v Peterson (1995) 98 CCC (3d) 253.
16. Section 43 of the Canadian Criminal Code reads, “Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.”
17. Supra, footnote 15 at page 262.
18. (Unreported, High Court, Auckland, 7 March 1985, M.1734/84)
19. Ibid, at page 3.
20. In this context, “subjective” means from the point of view of those directly involved, as opposed to “objective” which means from the point of view of artificial construct such as the reasonable man or detached and unbiased observer.
21. Section 13 of the Bill of Rights Act states, “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference”, and section 15 states, “Every person has the right to manifest that person's religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.”
22. Supra, footnote 2 at pages 376 to 377.
23. [1891] 9 NZLR 272. It is of some interest that even last century this issue was a contentious one; in this case reference was made to a view expressed elsewhere that physical punishment was a “relic of barbarism”. Perhaps things have changed less than some would have us believe.
24. Ibid, at pages 281 and 282.
25. Erick v Police (unreported, High Court, Auckland, 7 March 1985, M.1734/84) at page 2.
(Robert van Wichen graduated from Auckland University in 1990, and has worked as a lawyer in Palmerston North since graduating. He is now a sole practitioner. Over the years he has handled a wide variety of court cases (including criminal and family law cases). He now focuses on business and technology law and civil litigation. He can be contacted on (06) 355 1276 or v.wichen@xtra.co.nz.)
From:
Keystone Magazine
July 1999, Vol. V No. 4
PO Box 9064
Palmerston North
Phone: (06) 357-4399
Fax: (06) 357-4389
Email: hedf@xtra.co.nz
Webpage:
www.hef.org.nz
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