Anti-abuse law in action

Written By: - Date published: 12:07 pm, July 16th, 2008 - 40 comments
Categories: crime - Tags:

A front page story on Stuff at the moment is about a woman who systematically beat her child and has been successfully prosecuted and placed on home detention.

According to the story the Tauranga mother’s initial excuse was that she was disciplining her child:

When spoken to by police in February, Nelson admitted she sometimes hit her daughter with a fist or open hand with such force that it hurt her hand but said she did so because the girl back-chatted her and had behavioural problems.

Apparently the abuse escalated to holding a knife to the girl’s throat.

If section 59 of the crimes act had not been repealed there’s a good chance this prosecution would have failed. Given it has allowed for home detention, compulsory rehabilitation and the recognition of a drug and alcohol problem this successful prosecution is likely to be in the best long-term interests of the perpetrator as well as her victim.

A loving smack indeed.

40 comments on “Anti-abuse law in action ”

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  1. vto 1
    16 July 2008 at 12:18 pm

    This whole entire debate has been rendered a waste of time by the constant line of calling “a loving smack” a “violent beating”. (also seems like a crosby textor tactic – you know, keep repeating the same message whether its right or not).

    It is impossible to debate it until there is a clear distinction made between the two.

  2. Steve Pierson 2
    16 July 2008 at 12:22 pm

    vto. you’re joking right? a clear line between two pieces of spin?

    The law as it stands says all assaults are illegal (including, now, all assaults on children which previously were legal) but the law also codifies the Police practice that offenders are not prosecuted if the offence is inconsequential.

  3. Matthew Pilott 3
    16 July 2008 at 12:22 pm

    vto – tell that to team Family First – apparently giving a loving smack has been made criminal by the act. Until the fundies can be rational, it’s hard to frame a rational debate with them.

    It’s easier for the rest of us: fact is, the police have said they were hesitant to prosecute in such cases due to S59. This is no longer a concern for them, if they think it warrants a charge then they can bring a prosecution. This case may not have made court in days gone by – lets just be thankful those days are over.

  4. vto 4
    16 July 2008 at 12:32 pm

    1. it is good that people like this get caught.
    2. there is a difference between a loving smack and a violent beating.
    3. it was always wrong that it was against the law to touch another adult or even an animal, but not a child.
    4. the law change will do virtually nil to stop the deadly assaults.
    5. it is an example of nanny state intrusion.
    6. the old law was pretty useless and needed amending.
    7. etc.

    There are so many conflicting aspects to this debate. Personally, I have difficulty slotting them all together to come up with my own final opinion.

  5. higherstandard 5
    16 July 2008 at 12:35 pm

    I think that the vast majority of people on both sides of the debate would agree wholeheartedly that this mother was abusing her daughter.

    For myself I disagree with your assumptions that

    1. This case would not have been prosecuted without the repeal of Section 59.
    2. The suggestion that this case would have failed previously had Section 59 not been repealed, if the court was presented with the history of appalling violence as per the stuff article I would find it hard to fathom how any judge (or jury) would not have convicted the perpetrator.

    What I find encouraging in the story is that as soon as the girl notified her teacher CYFS was called acted quickly and the girl and her siblings are now hopefully in a safer and monitored environment.

  6. Felix 6
    16 July 2008 at 12:42 pm

    Also encouraging that the girl decided it was worth notifying her teacher.

  7. rave 7
    16 July 2008 at 12:48 pm

    HS you miss the point. Legislated change results in changing social attitudes to no longer tolerate family violence as one of our traditional ‘family values’. You know, the right of the patriarch to beat up on anyone who doesnt play by the rules. Violate their daughters, banish their gay sons, bash their spouses. Why? so the genetically superior alpha male can rule society reproduce himself and pass on his misbegotten wealth.
    The pathetic moaning about ‘political correctness’ doesnt just come from the macho boys but from all those authoritarian submissive ‘little men’ (and women} that Willem Reich accused of welcoming Hitler. [Which reminds me that Crosby/Textor did not invent Goebbel’s lie,lie, lie]
    The problem is that our society reproduces these little Hitlerites with their religious, patriarchal and petty bourgeois prejudices and legislation only does part of the job. But thats another story.

  8. vto 8
    16 July 2008 at 12:52 pm

    rave you are appropriately named

  9. Scribe 9
    16 July 2008 at 12:53 pm

    higherstandard,

    Thank you for your sensible contribution. I have nothing to add.

  10. higherstandard 10
    16 July 2008 at 12:53 pm

    Felix

    I agree wholeheartedly.

  11. killinginthenameof 11
    16 July 2008 at 12:56 pm

    “4. the law change will do virtually nil to stop the deadly assaults.”

    Lets get rid of the law against murder then too huh?

    “The problem is that our society reproduces these little Hitlerites with their religious, patriarchal and petty bourgeois prejudices and legislation only does part of the job.”

    Kinda sounds like that guy who regularly rings up talk back, sounds like an older guy, possibly canadian, I think his name might be chuck or something.

  12. Matthew Pilott 12
    16 July 2008 at 1:08 pm

    higherstandard – as I mentioned above, the police said that in some cases, they would not bother to prosecute due to S59. Of course we cannot be certain this would be such a case; in relation to your second point, there were cases where people were acquitted due to S59 for something many could not fathom to be reasonable. Once again – we can’t be certain this could have been another one of those cases.

    You may dispute whetether it would have been, I’m simply happy it can’t happen again!

    vto – I guess you need to decide whether the positives outweigh the negatives. The crimes act makes illegal to play rugby, as it’s basically 80 minutes of sustained assaults. Do you think that’s a nanny-state intrusion? Same goes for this one. Dare I say it, but each and every law requires common sense and sensible interpretation.

    If nothing else, it’s certainly put the issue on the radar which can’t be a bad thing. Expecting a law to prevent the more abhorrent instances of child abuse is naive or ingenuous, a lot more needs to be done, but let’s not criticise a step in the right direction.

  13. vto 13
    16 July 2008 at 1:15 pm

    Mr Pilott, at the end of the day I agree its a step in the right direction. Those areas where this law change has let itself down are perhaps more secondary, and hence of less importance, than the primary issue that the law change concerned. Clearly.

  14. MacDoctor 14
    16 July 2008 at 1:24 pm

    S59 was a protection for normal parenting. At no time would this person not have been prosecuted, nor would she have successfully defended herself with S59. Can you really imagine that you could find twelve people dumb enough to believe that holding a knife to a child’s throat is an acceptable form of discipline?

  15. higherstandard 15
    16 July 2008 at 1:24 pm

    MP

    I agree what riles me is the post suggests that ….

    “If section 59 of the crimes act had not been repealed there’s a good chance this prosecution would have failed.”

    I have more respect for the judiciary, police and a jury than to accept that supposition.

    And that every time it comes up anyone who raises issue with the repeal of Sect 59 is branded as condoning child abuse, it’s as patently absurd as saying that anyone for the repeal of Section 59 wants to take the responsibility for parenting away from parents, when really both sides find child abuse abhorrent.

    I usually like IBs posts, but I find his comparison with the abuse perpetrated on this child and the comment about a loving smack offensive.

  16. Matthew Pilott 16
    16 July 2008 at 1:26 pm

    I believe you’ve seen the forest and the trees, vto! Among all the heated debate, too many have lost sight of it.

  17. illuminatedtiger 17
    16 July 2008 at 1:31 pm

    Assault is assault whatever you want to call it.

  18. higherstandard 18
    16 July 2008 at 1:37 pm

    MP

    Agreed

  19. Pascal's bookie 19
    16 July 2008 at 1:50 pm

    HS fair enough, but remember that some find the notion of “loving smack” itself to be piece of empty rhetoric.

    I know what is meant by how you use the phrase (really, I do) but there are, for example, fundies that think the term encompasses the use of paddles to beat the satan out of defiant toddlers. So ‘loving smack’ can mean many things, it is a subjective term that can mean, “as long as it’s loving it’s ok”.

    A jury of 12 decided that it was ok to use a riding crop. I know you disagree with them, but there you go. Juries do get it wrong. And it doesn’t take 12. 1 is enough for a mistrial, and the crown may decide not to try again.

    If we leave aside the knife business, who thinks this case would have got a conviction under the old law?

    Even with the knife stuff I don’t think it would be an open and shut case given what the defence would be saying about stressed but loving parent at their wits end about the terrible child, using threats they had no intention of carrying out. It was a last resort, a desperate attempt to gain authority and teach respect. 1 Juror might not want to convict.

  20. vto 20
    16 July 2008 at 1:51 pm

    ha ha I always did Mr Pilott. I guess those secondary issues tend to loom large at times. It needs to be borne in mind though that trampling the trees in order to preserve the forest has some flaws as an approach.

    A little less haste and a little more thought at times methinks would achieve a better result. imo the EFA and the looming ETS are two similar examples.

    But anyway, again, good that this abuser is being taken to task. It makes me sick to think of what these kids must go through at times.

  21. the bean 21
    16 July 2008 at 2:16 pm

    But also, further to pascal’s comment, the term loving smack is a joke because parents rarely use a smack because of love. Now I know we all had this debate already and it probably shouldn’t go round and round again like it did during section 59 BUT…
    Parents smack because they are frustrated and often because they are angry. Often it is a reaction to a high stress situation (kid with hand in socket, tantrum etc)that is not based on a loving parenting strategy. It is more about lashing out in frustration and anger than anything else.

  22. Rex Widerstrom 22
    16 July 2008 at 4:07 pm

    What concerns me most about the whole section 59 issue is that it effectively gave a far greater weight than before to Police “discretion”.

    Agreed, prior to the repeal juries got it wrong (the riding crop case and others). But Police officers get it wrong too… and they’re far more likely than a jury to act in a malicious fashion.

    e.g. Person 1 smacks their child in a supermarket, an officer shows up, and Person 1 says “I’m terribly sorry, I lost my temper, I’ll never do it again, so sorry to have wasted your time…” (i.e. adopts a submissive approach). Person 2 smacks their child with the same degree of force but when Plod shows up turns round and says, for instance, “Kindly get your nose out of my business. I don’t appreciate being told how to deal with a crotchety misbehaving child by someone fresh out of Police College who’s little more than a kid themselves”. A situation not impossible to imagine, given that a stressed parent has frayed nerves.

    The likelihood of Person 2 being prosecuted for assault would, I submit, be far greater. But what they’d effectively be arrested for at the time would be “getting lippy”.

    I’ve seen exactly that happen in other situations of Police “discretion” from speeding tickets to disorderly behaviour – anyone not adopting a submissive approach (and I don’t mean someone who gets aggressive, just someone who’s assertive) is far more likely to be pinged.

    It’s another small step toward a police state – a trend that worries me greatly.

    At least with section 59, the officer had to pause and consider whether the parent perhaps had a plausible defence. Now they don’t.

    Sadly, the downside was that when someone appeared before a jury having overstepped the bounds, some juries got it horribly wrong.

    So, like vto and others, I’m still not sure where the greater good (and the greater evil) lies but I would have liked to have seen a rational debate on the alternatives (trial before a judge alone for all cases relying on a s59 defence maybe?) rather than yet another piece of legislation railroaded.

  23. Darren Rickard 23
    16 July 2008 at 4:17 pm

    Nonsense Steve, the removal of section 59 was instituted by Hefer Bradford and her mate Helen to stop parents from disciplining their children with a smack and to allow more State control.

    Your example is not comparable. That person beat someone and deserved its punishment. Section 59 wouldnt have come into this case.

    It is typical of your lot, who love to justify state control over parenting, to align beating a child with a light smack.

    With the same argument as yours, you would have to admit that the anti smacking law has failed miserably those 7 children http://darrenrickard.blogspot.com/2008/07/anti-smacking-law-resounding-success.html who have died at the hands of their parents since this idiotic law was passed.

    Shame on you and shame on the minority of kiwis who supported the bill and the MP’s who voted it in, including John Key.

  24. Lew 24
    16 July 2008 at 4:20 pm

    Darren: If you’re going to make idiotic bovine comparisons of politicians, at least learn to spell `heifer’. That way it’s easier for Lynn to filter your posts out as spam.

    L

  25. Darren Rickard 25
    16 July 2008 at 4:29 pm

    Jeez, are you the spelling police? I missed the I. Big deal.

    Good god the left of politics is filled with failed teachers and finger pointers!!

    Excretions deleted.

    [lprent: Good to see someone cleaning up after themselves]

  26. RedLogix 26
    16 July 2008 at 4:36 pm

    Jeez, are you the spelling police? I missed the I. Big deal.

    If you are going to go for the personal insult, expect to be put under scrutiny yourself.

    If you can’t take it, don’t dish it out.

  27. Robinsod 27
    16 July 2008 at 4:38 pm

    Red – don’t bother with dazza – his mum beat him around the head when he was a kid. Didn’t do him any harm though, did it Dazza?

  28. Matthew Pilott 28
    16 July 2008 at 4:46 pm

    Good god the left of politics is filled with failed teachers and finger pointers!!

    So is the right filled with tools who think calling a politician a cow is good value and healthy criticism? Or is it just you?

    By the way, you might want to read the comments above, and notice that between left and right, most seem to agree that the law was a good idea, with sub-par implementation and an incendiary debate that didn’t help discussion of the matter.

    Thanks for being the idiot required to illustrate that, especially the last. Perfect, you couldn’t have done better.

    A law is implemented to give children basic human rights; rational people can agree but there’s always some obnoxious wee fella who thinks it’s purely about state control or to exclusively stop smacking.

    By the way, what the f*^& has your blog done for those seven dead kids you’re trying to point-score off?

    Maybe you should get rid of that while you’re at it and do us all a favour, at least don’t link-whore to such scummy low-life filth. Are you going to call for the abolition of laws relating to murder because people are still murdered, or do you realise how stupid that sounds? Take a moment to think about it eh.

  29. RedLogix 29
    16 July 2008 at 4:51 pm

    Rex,

    I’ve seen exactly that happen in other situations of Police “discretion’ from speeding tickets to disorderly behaviour – anyone not adopting a submissive approach (and I don’t mean someone who gets aggressive, just someone who’s assertive) is far more likely to be pinged.

    All you have stated is an obvious truth that applies everywhere in the world. Getting lippy or ‘assertive’ with cops is a sure recipe for inviting trouble no matter what kind of state you live in.

    At least with section 59, the officer had to pause and consider whether the parent perhaps had a plausible defence. Now they don’t.

    The law now applies exactly the same for children as it has pertained to assualt on adults for many decades. If you can explain why the law on adult assault has created an oppressive police state, I might be prepared to listen to why the removal of the S59 defense has made any difference whatsoever.

    Speculation about whether the Tauranga parent would have been charged, or would have been able to successfully use an S59 defense is pointless second guessing.

  30. Oliver 30
    16 July 2008 at 5:09 pm

    This was a pretty nonsense post really as not even the most braindead judge would have allowed a defence under S59 in this instance.

  31. RedLogix 31
    16 July 2008 at 5:17 pm

    Read the Stuff article again.

    Your argument is self-serving. We actually do not know what would have happened if S59 had been available in this instance; but what we DO know is that over the years some pretty marginal behaviour that would not be acceptable in the current climate, has indeed been successfully justified with an S59 defense.

    I could claim that only a pretty braindead defense lawyer would have not tried S59 as a defense in this case; but without more evidence neither you nor I can plausibly state whether S59 would have been applicable or not.

  32. Lew 32
    16 July 2008 at 5:17 pm

    Oliver: That’s a pretty braindead comment, since anyone who knows a damned thing about the jury system realises that a judge doesn’t allow or disallow any kind of defence based on a determination of fact. Judges are arbiters of law; juries are arbiters of fact. As long as the law provides a defence for `reasonable force’ a judge must allow someone to get up on their hind legs in court and plead it, and allow the jury to determine whether it was in fact a legitimate defence.

    Edit: Snap, RL.

    L

  33. Oliver 33
    16 July 2008 at 5:25 pm

    Redlogix and Lew,

    In some of the original controverisal cases surrounding S59 were tried by judge alone, hence the comment.

    So to make it clearer, no reasonable jury could consider a knife part of reasonable force for child discipline.

  34. Rex Widerstrom 34
    16 July 2008 at 5:47 pm

    RedLogix

    All you have stated is an obvious truth that applies everywhere in the world. Getting lippy or ‘assertive’ with cops is a sure recipe for inviting trouble no matter what kind of state you live in.

    Agreed. And its utterly unconscionable and shouldn’t be allowed to happen in a democracy. To say “it happens in a lot of places” is not to justify it – or we could justify child abuse the same way.

    I happen to think kids should compulsorily be taught civics and educated as to their rights (and their obligations lest anyone think I’m getting soft) in society.

    And then if, as adults, they want to assert those rights in the face of what might be Police bullying, I’m right there beside them.

    If you can explain why the law on adult assault has created an oppressive police state, I might be prepared to listen…

    Not created, worsened ever so slightly. I’d wholeheartedly support the repeal of s59 or any other law making (or in this case, technically, removing) which had an obviously good intention on one proviso. And that proviso ought to be introduced anyway.

    And that is that the law makes Police, as individuals, responsible and accountable for their actions and decisions. Just like the rest of us, and in the same way as the rest of us. For instance (and this is just thinking aloud from this point), arrest someone primarily because they simply asserted their rights, you get a few months doing crime prevention talks to bored schoolchildren. Arrest someone for a significant crime and the whole thing turns out to have been built on little more than a tissue of lies and a dislike of the accused, then it’s time to find another job. And say bye bye to to Police pension on the way out. Some sort of accountability, anyway. At present they’re a law unto themselves, and that’s a dangerous situation.

  35. RedLogix 35
    16 July 2008 at 6:11 pm

    Rex,

    You make a perfectly good argument around the old connundrum of “who watches the watchmen”, and it is a theme one that I can empathise with. At the same time when faced with any real-life ‘stress of the moment’ confrontation with a Police officer, the fact is that she/he has the upper hand by dint of both training and statute. Being ‘assertive’ at that moment, no matter how right you are technically, is not going to get you anywhere useful.

    In practise this is what lawyers are for; they have the training and statutory capacity to challenge a rogue Police officer in Court or the PCA. If you are going to win a fight against the Police, you have to do it own your own terms, in your own time.

    If you truly believe NZ is at dire rsik of slipping into a ‘police state’ mode, then address that issue. But I fail to see how it relates to giving children the same legal protection against assault as adults.

  36. Rex Widerstrom 36
    16 July 2008 at 9:17 pm

    RedLogix: It relates only insofar as it lowered the bar for a Police officer who decides – for whatever reason – to arrest someone. Which is not to say it ought not to have been done, just perhaps it may have been better done differently. A tenuous connection the main debate, I admit… perhaps I shouldn’t have raised it on this particular post.

    I agree too about the role of lawyers. However they are becoming the privilege of either the very rich or the utterly destitute (via Legal Aid) – and the latter are generally getting no defence at all since the rates paid by the Legal Aid Authority are so paltry that the only lawyers willing to accept are the handful of the high-minded and a bulk of the barely of competent.

    “FE Smith” and I have had some very good discussions round this over on Kiwiblog – he’s a practising brief so his comments are well worth looking up.

    Thus if I believe Mr Plod is overstepping his authority or otherwise needs reminding of his role as a public servant, I tend to do it myself (and yes, suffer the consequences. But submission isn’t in my nature I’m afraid).

  37. dad4justice 37
    16 July 2008 at 10:06 pm

    Rex, only a hand full of sympathetic legal aid lawyers will help the oppressed at the peanut pay rates offered by a sinister judiciary.

    If a man did what this women did, then he would face certain incarceration on protection. Go girls go.

  38. dave 38
    16 July 2008 at 10:49 pm

    Lets see, was it reasonable force?
    was that force reasonable in the circumstances?
    was it for correction?

    If the answer is no for any one of these questions, section 59 of the Crimes Act is irrelevant
    Nelson admitted she sometimes hit her daughter with a fist or open hand with such force that it hurt her hand
    Irish Bill calls this discipline. He says that if section 59 had been in the Crimes Act there is a good chance the prosecution would have failed. Just as well Irish Bill is not a lawyer – there is no chance that s59 would have been raised as a defence.

  39. Ari 39
    17 July 2008 at 1:50 pm

    S59 was a protection for normal parenting. At no time would this person not have been prosecuted, nor would she have successfully defended herself with S59. Can you really imagine that you could find twelve people dumb enough to believe that holding a knife to a child’s throat is an acceptable form of discipline?

    §59 was certainly intended to protect normal parenting, but in practice it was acquitting people who were quite obviously abusing their kids with improvised weapons. And no, I’m not making this shit up.

    And that is that the law makes Police, as individuals, responsible and accountable for their actions and decisions. Just like the rest of us, and in the same way as the rest of us. For instance (and this is just thinking aloud from this point), arrest someone primarily because they simply asserted their rights, you get a few months doing crime prevention talks to bored schoolchildren. Arrest someone for a significant crime and the whole thing turns out to have been built on little more than a tissue of lies and a dislike of the accused, then it’s time to find another job. And say bye bye to to Police pension on the way out. Some sort of accountability, anyway. At present they’re a law unto themselves, and that’s a dangerous situation.

    Sounds like something that would make a good member’s bill. 🙂 There seems to be a lack of good evidence that such abuses of justice are happening in the case of child assault, but it could not hurt to have accountability anyway.

  40. Rex Widerstrom 40
    17 July 2008 at 3:28 pm

    Ari:

    Sounds like something that would make a good member’s bill.

    Oh believe me Ari, if I ever decide to get back into politics my friend Mr Plod will be firmly in my sights. They certainly were when I was involved last time… which just might be why they’re so desperately keen to make sure I don’t get a second chance :-/

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