The Smacking Law that Was

“Reasonable force by way of correction”

In addressing this issue, I acknowledge freely that I have received great assistance from J L Caldwell’s article “Parental Physical Punishment and Law” (13) NZULR 370 published in December 1989.

Section 59 of the Crimes Act 1961 is but a codification of the Common Law which in turn had its origins in Roman Law, under which by the time of Justinian in the 6th century, the Patria Potestas amounted to a right of reasonable chastisement. In determining what is reasonable force, care should be exercised when considering older decisions of the Courts. Social conditions and child-rearing practises are not static, as is obvious from s 59 itself which, when originally enacted, included schoolmasters as having parental rights of correction. As Judge Inglis QC said in Kendall v Director General of Social Welfare (1986) 3 FRNZ 1; at 10:

What is “reasonable” must be a matter of degree and will depend in large measure on what can be perceived to be the current social view at any given time.

Although the Court has an unfettered discretion, it is reasonably plain that, in determining whether or not the degree of force used was reasonable, the Court should have regard to:

  • The age and maturity of the child
  • Other characteristics of the child, such as physique, sex and state of health
  • The type of offence
  • The type and circumstances of punishment.

Not only must the force used be reasonable but the purpose for which it is used is crucial. It is to be borne in mind that s 59 authorises the application of force which would otherwise be an assault and that it is the purpose for which it is used which is the principal ground of defence. As the New Zealand Court of Appeal said in R v Drake (1902) 22 NZLR 478, 487:

The self-same act may be either an obviously just act of parental correction or an act of revenge.

In his article “Parental Physical Punishment and the Law” Caldwell says at p 373 after quoting the above paragraph from R v Drake:

This means that even if the act of force should at first sight appear reasonable, it will be held unlawful if it has arisen out of “spite, rage, fury, anger or ill will”. Arbitrariness or caprice on the part of the parent could similarly remove the parent from the protection of s 59. In making an assessment of parental motive at the time of the infliction of force, the Courts will regard evidence of the relationship of the parent and child prior to the incident as admissible and relevant.

With respect, I adopt this passage as correctly setting out the current state of the law in New Zealand.

In inflicting punishment the parent must act in good faith, having a reasonable belief in a state of facts which would justify the application of force. In such a case the parent would be protected from liability even though the factual position as he reasonably believes it to be is not actually the case. The purpose of the punishment must therefore be both subjectively and objectively reasonable.

–  Via Somerville, J in Ausage v Ausage [1998] NZFLR 72

(no link, unless you’re willing to pay a thousand dollar subscription fee to a law database 🙂 )

Doesn’t sound like the blank cheque child abusing law many have been up in arms about. Via my trawling of the Internet I have found estimates of 34 recorded cases of people using this defence and 6 acquittals based on it. Whilst I do not know the validity of this count, I have not found a refutation of this figure anywhere either. It also sounds like a reasonable number given the legal interpretation above. As much as I have wanted to believe the ‘Yes’ camp (mainly because it isn’t filled with crazy christians) the reality is that the facts just do not seem to be on their side, they fail to realise that A) a defence is a defence is a defence(it is not a get out of jail free card), and B) a lot of these old cases are just that…old… a jury would never excuse the type of punishment allowed in years gone by (when corporal punishment in schools was also legal and accepted). Such a decision should have the input of the social values of a jury. A ‘No’ vote is the only vote that allows this.

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