The proposal to remove the legal defence to assault on children contained in Section 59 of the Crimes Act has resulted in a polarised debate in New Zealand society.
But Caritas Aotearoa New Zealand found there is more common ground on the issue than media headlines might suggest.
Caritas talked to a number of Catholic groups when considering our submission on the Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill.
In the public debate, many groups have labelled the proposed law change ‘a ban on smacking’ and rallied opposition in the name of protecting families. On the other hand, many groups have seen jury acquittals for unacceptable levels of violence used against children as a key reason for New Zealand’s high child abuse statistics.
But none of the groups we spoke to – including Catholic Social Services groups in each diocese, the Wellington Family Life Office, Archdiocesan Family Commission staff, religious orders and Catholic child advocates – supported the status quo.
All expressed concern about the acquittal by juries of parents who had used high levels of violence against their children in the name of physical discipline. These cases had included instances where hitting with implements, including whips, canes and garden hoses, was accepted as ‘reasonable force’.
At the same time there was a sense of unease about the possibility of setting standards too low, which could criminalise minor instances of physical discipline or control, including times when parents reasonably acted to restrain their children from harm.
In considering our submission on this contentious legislation, Caritas considered Catholic social teaching on the protection of children and on the subsidiarity of families.
Catholic social teaching has been clear that children, who are among society’s most vulnerable members, are deserving of special care and protection by adults. For example, Pope John Paul II spoke often of the need for families to recognise children’s innate human dignity and rights.
In the family, which is a community of persons, special attention must be devoted to the children by developing a profound esteem for their personal dignity, and a great respect and generous concern for their rights. This is true for every child, but it becomes all the more urgent the smaller the child is, and the more it is in need of everything, when it is sick, suffering or handicapped.
Pope John Paul II, Familiaris Consortio, 1981
There has been something of an assumption in Catholic social teaching that the protection that children require is from external sources of harm – such as war, poverty, prostitution, and from exploitation in child labour, and that families are always the best protectors of their children’s rights.
In fact, in the New Zealand situation, children are far more likely to be abused or harmed by family members than by strangers.
In recent years there has been a growing acknowledgement by the Church that children are at times most vulnerable to those intended to protect them.
Sadly, however, many children do not experience the security of a loving and protective family. What is even more distressing in our present day, is to learn of children who are exploited, neglected and abused – abuse which can be verbal, physical or sexual.
New Zealand Catholic Bishops Conference, The Protection of Children, 2002
On the other hand, Catholic social teaching also values the principle of subsidiarity, which recognises that decisions are best made by those closest to them. In the case of families, the Catholic Church has said clearly that the State should only interfere in family life when the safety of children is endangered.
In conformity with the principle of subsidiarity … the State can intervene in family life only when the dignity of the child and its fundamental rights are seriously endangered, taking solely into consideration ‘the child’s higher interest’ without any form of discrimination.
Pontifical Council for the Family, The Family and Human Rights, 1983
In considering this issue, Caritas has been concerned to know that any change to the law would be applied equally and without discrimination. We fear that a law that does not exclude minor instances of physical punishment leaves open the possibly of discriminatory or unfair outcomes.
In considering all these issues, Caritas Aotearoa New Zealand has adopted a position which recommends amending, rather than fully repealing, Section 59 of the Crimes Act. We favour an amendment which specifies the kinds of activities which do not come under the definition of reasonable force. We support an amendment which says:
That unreasonable force includes, but is not limited to, repeated and/or heavy blows, punching, striking with an object, whipping, kicking, shaking, hitting around the head, twisting of limbs, burning, biting and any other action which medical evidence or research findings confirm as having an injurious effect on the physical or mental health of the child.
In addition, we are asking that any amendment specifically excludes physical restraint of children, which we do not regard as punishment or discipline. For example, a parent acting to prevent a child from serious harm, may sometimes inflict minor injuries without intention.
While taking this position, Caritas is well aware that there are inherent dangers in attempting to define what is reasonable and unreasonable force. We understand that future generations may judge us as harshly as we now consider the Scottish ‘rule of thumb’ which allowed a man to beat his wife so long as the stick used was no thicker than his thumb. While this may once have been an attempt to reduce domestic violence by defining it, its impact was in fact to legalise it.
Within the Catholic community there are groups who favour full repeal based on research showing that physical punishment is never the best way to achieve lasting change in children’s behavour. There are also groups and individuals in the Church who fear that changing the law will widen too far the range of people who might be prosecuted.
In the midst of this polarised debate, Caritas hopes that many more Catholics will join us in considering whether there is more common ground than the debate so far has shown, which would take our society a step forward in the protection of children.
Michael Smith, Caritas Director:
‘Children need better protection. But we have to get the balance right so that the State doesn’t intervene in families unless children’s safety is at risk.’
The Sisters of Compassion support an amendment. Sr Catherine Hannan:
‘We can see that the law needs to change because so many people here [at the Soup Kitchen] have experienced abuse. But it is also our people who could be targeted if the way the law works is unfair.’
The Sisters of Mercy support full repeal, saying that physical punishment of children sends a message to children that this is an acceptable way to make decisions. Sr Marcellin Wilson: ‘New Zealand’s child poverty and abuse rates are a crime against humanity.’
Some Catholic Social Service groups favour full repeal. However, Auckland Catholic Family and Community Services were cautious, based on their experience of working with parents to change their behaviour. Eric Allan:
‘We always work with parents to stop physical punishment and the key to this is giving them alternatives. However, potentially criminalising absolutely all acts of physical punishment of children could widen too far the net such that many in the community would be drawn into the criminal justice system.’
Tara D’Sousa is a Caritas development worker, former CYFS social worker and mother of four children. She says that in her experience, parents are pleased to learn alternatives to hitting their children.
‘Parents learn to guide the development of internalised control and self-direction, rather than resorting to threats and physical hurt.’
Lisa Beech, Caritas worker and mother of three:
‘The jury decisions to acquit parents who used whips and canes against their children are unacceptable and the law needs to be changed. But I’m not happy to leave decisions about the threshold level entirely in the hands of police.
If the government does not intend parents to be prosecuted for minor acts of physical punishment, the law should say so.’