November 2005

Public Issues Paper

In October 2005 the Public Issues Committee of the Auckland District Law Society released a paper suggesting a new section 59 for the Crimes Act 1961.

The suggested new section says that every parent and person standing in the place of a parent "is protected from criminal responsibility when using force for the sole purpose of correction towards that child, if the force used is no more than is reasonably justified in the circumstances".

Conduct that cannot be reasonably justified is identified as:

  • force that contributes to actual bodily harm, whether the result was intended or not
  • any striking above the shoulder
  • any conduct that but for this section would be an offence more serious than assault.

It also defines a child a person between the age of 2 and 13 years.

The Committee says:
"proponents of the repeal of section 59 perceive some acquittals of parents for assaulting their child to be so inappropriate that the only answer is to repeal the section, apparently on the basis that the mere idea of legal recognition of a parental right to touch a child for corrective purposes produces the unintended impression that very aggressive correction is permitted by the law.  The Committee accepts that there must be limits to the justification for the forceful correction of a child."

EPOCH regards the approach taken in this suggested amendment unacceptable despite the improved protection it might provide.  It is a largely "adult centred" approach, designed to reassure and protect adults from prosecution without full recognition of the best interests of the child.  By implication it supports the use of physical discipline and sends a public message that one type of person (a child between 2 and 13) may be assaulted and that physical force is a valid and useful method of correction.  There is nothing in this suggestion that discourages physical discipline despite the vast body of literature that associates physical discipline with poor outcomes for children.