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Friday, July 17, 2009

Police admit they may prosecute for smacking cases initially considered "reasonable force in the circumstances"


Police have not ruled out prosecuting a parent who lightly - and with reasonable force - smacks their child, despite proponents of a law change on smacking saying it will never happen.

Prior to 2007, if a parent was taken to court because they smacked their child, they were able to use a defence of reasonable force - and if that corrective action was minor, they would be acquitted. Currently,should that same parent be taken to court for the same action, that parent could have a criminal conviction as there is currently no defence in law for actions undertaken for the purpose of correction.

Proponents of the law change say Police will not prosecute light smackers. Police, on the other hand, say it may well happen, adding the younger the child is, the more likely it is to happen. Police cannot say if a smacking prosecution - and there have been a few lately - would be of a kind that could have been successfully defended under the old law. As it happens one case in the last quarter was discharged without conviction, meaning Police thought it in the best interest to prosecute, but the court did not. One parent was prosecuted in July 2008 and subsequently convicted for smacking. That parent may well not have a criminal record had she been charged just over two years ago.

This means that a smacker has been convicted under the new legislation. Yet the legislation has not prevented one child from being abused.

However some events that are prosecuted as "minor acts of physical discipline" would generally be seen as outside what is considered reasonable in the circumstances. It is now the job of the police to determine this. However, police do not preclude reasonable smackers being charged for assault under a minor act of physical discipline either; all such prosecutions have progressed through the court system or the offenders are on bail.

The way that Police are applying discretion is confirmation that Parliament has abdicated its responsibility in lawmaking. We do not elect a parliament to pass policy via an Act of parliament. Not only does parliament want police to do its job - make law - in deciding to use factors outside legislation in decisions to prosecute, parliament wants Police to do the courts job,in deciding what is reasonable in the circumstances under the guise of "no public interest to prosecute". However, only for correction. In case of smacking for other purposes a reasonable force defence can be raised.

If police get it wrong on correction, there is nothing the accused can do about it other than appeal.

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2 Comments:

Blogger Matt's Movie said...

"some events that are prosecuted as "minor acts of physical discipline" would generally be seen as outside what is considered reasonable in the circumstances. It is now the job of the police to determine this". This is an excellent summary of the situation with S.59 post amendment: the police (an arm of the Executive power of government) is now determining what is reasonable, instead of what used to be the courts (Judiciary) role. This is a major reason that the current law is untenable: it destroys the rights of people to be tried in court, and establishes "trial by the police".

July 17, 2009 at 8:42 PM  
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May 17, 2010 at 3:58 AM  

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