S 59 Debate: The Principled Argument

One of the most common arguments against S 59 is the argument that somehow it's illegitimate to allow parents to use force with respect to their children that one doesn't allow them to use against adults. Here's Deborah Coddington's version of the point:

My argument is simply this: when cases of assault come before a judge, children should be entitled to the same protection as adults. If an adult hits another adult, he/she can't use "reasonable force" to justify the action. Allowing adults to use this defence when they hit children reduces the status of children - they're lesser beings.

Here's Russell Brown's version put as a question:

Is there in fact a good justification that we should sanction - in whatever detail - an act against a child that we would not sanction against an adult?

And here's one of No Right Turn's many, completely feral versions:

We should not be enshrining violence against children in law, any more than we should be allowing husbands to use "minor and inconsequential" violence against their wives, or Pakeha to use "minor and inconsequential" violence against Maori.

This is an important, but, we'll show, utterly mistaken argument.

We begin, however, by noting that this argument is a point of alleged principle and is completely different from any arguments about the balance of social costs and benefits, or about, say, weighing possible additional security from and discouragement of crazy parents against the certain invasiveness inflicted on and insults delivered to normal parents. If this argument works then it does so regardless of whether any child is ever injured or suffers under the current regime. And if strong empirical evidence were developed tomorrow that smacking had substantial benefits for kids then the principled argument would be there to tell us that that would just be their and our tough luck. We would no more be permitted to benefit our children by smacking them in that case than we are currently allowed to benefit arbitrary adults by slapping them (i.e., assuming that that would in fact benefit them, e.g., perhaps generally by waking them up or getting them to appreciate their lives, etc.. Or perhaps more specifically, e.g., someone walks down the street picking their nose. The underlying slovenliness this behavior betrays threatens to hurt the person in all manner of social and career ways, possibly even ruining his life. It might be true that a slap would be a uniquely vigorous and effective, behavior-changing expression of the social stigma and disapproval that will otherwise operate very diffusely and damagingly.)

Now let's start discussing the argument itself. We initially follow Coddington's formulation: If an adult hits another adult, he/she can't use "reasonable force" to justify the action? Why? Well, contra Coddington, in the parent-child case it wasn't the "reasonableness" of the force itself that constituted the justification, it was that the force was used by a parent, and by the fact that parenting is a very specific role that includes responsibility for the child's welfare and also the power to correct/discipline the child.
The parent-child relation is a very special relation of authority, one that has no serious counterpart in the adult-adult world. Indeed the core of Enlightment politics holds that it's constitutive of adulthood that only the law – to which each adult both gives consent and of which she is a co-author through her (in principle) political participation – has authority over you, not any individual. There's no comparable "reasonable force" clause with respect to other adults because adults aren't (and can't be) authorities over other adults. You aren't responsible for other adults, and it's not your place/role to correct/discipline them.... If, per impossibile, it were your place, then they'd be like children compared to you, a point that a modern liberal democracy can never accept. In particular, husbands aren't authorities over their wives – women aren't child-like either in general or in comparison to any married partner they may have in particular. This latter point took a while to get through the law's and society's thick head. And traces of the discredited "women are just rather-large-children" view still linger on in the law albeit probably harmlessly. So in the Crimes Act 1961 there's:

• 196 Common assault. Every one is liable to imprisonment for a term not exceeding one year who assaults any other person.

but there's also, what we might call a "women and other children" (!) clause:

• 194 Assault on a child, or by a male on a female. Every one is liable to imprisonment for a term not exceeding 2 years who— (a)Assaults any child under the age of 14 years; or (b)Being a male, assaults any female.

Consider again Russell Brown's version of the point:

• Is there in fact a good justification that we should sanction - in whatever detail - an act against a child that we would not sanction against an adult?

[Note that Brown distorts matters by focusing on "an act" in abstraction from the act's specific type of author just as Coddington distorts matters by focusing on "reasonable force" in abstraction from the role of the person who employs the force. Both are versions of one of Sue Bradford's filthier lies.]
The correct reply is two-fold. First, there'd better a good justification since evidently parents do get to get to decide what their children eat, what they wear, what they read or watch, with whom they associate, where they are physically located on a more or less minute-to-minute basis, and so on. A concrete example: parents get to carry their children screaming out of restaurants against their will. No counterparts of these actions are permitted against other adults: all would constitute assault, kidnapping, stalking, and so on.
Second, we know what the form of that justification is: it's the specific authority of the parent over the child that is the transforming feature across all these cases. No offences are occurring, it's just parenting: nothing to see here, move along.

It's useful to compare S 59 with the justification defence with which it is grouped in the Crimes Act 1961 under the heading "Powers of Discipline":

• 60 Discipline on ship or aircraft. The master or officer in command of a ship on a voyage or the pilot in command of an aircraft on a flight is justified in using and ordering the use of force for the purpose of maintaining good order and discipline on board his ship or aircraft if he believes on reasonable grounds that the use of force is necessary, and if the force used is reasonable in the circumstances.

Why isn't Russell Brown inclined to ask:

• Is there in fact a good justification that we should sanction - in whatever detail - an act against a passenger that we would not sanction against a non-passenger?

Why isn't Coddington inclined to say:

My argument is simply this: when cases of assault come before a judge, passengers should be entitled to the same protection as non-passengers. If a Captain hits a non-passenger, he/she can't use "reasonable force" to justify the action. Allowing Captains to use this defence when they hit passengers reduces the status of passengers - they're lesser beings.

Brown and Coddington don't say such things because in the passenger case the structure of (implicitly consented to) authority is clear, and it's obvious

• why such authority is important
• how it's grounded in a specific role
• why any "rights-being-infringed" outrage let alone "lesser being" outrage is simply obtuse.

No offences are occurring when the Captain of a ship (say) exercises her authority, it's just being a Captain (being the law in a micro-environment where normal legitimate authority can't reach): nothing to see here, move along. Abuse can happen or be suspected of course, which police could decide to investigate, and an impartial body such as a jury might then be called upon to adjudicate. But that's not the normal case.

So far we've just argued in very general terms that the structure of authority that permeates parent-child relationships changes everything and that it makes most actions of parents vis-a-vis their children strictly incomparable to any normal adult-adult actions or indeed to actions of adults with respect to other people's children. Children of course currently have either the same or greater legal protections against the actions of arbitrary adults that adults do. Only the children's parents as the authorities over them are a special case where something very different is going on: special responsibilities are undertaken in that case, and corresponding special powers acknowledged.
My own view is that that's enough – that we've met the challenge of a completely abstract (disconnected-from-social-costs etc.) point of alleged principle that would require us to think about parent-child relations in exactly the same terms as adult-adult relations and accuse us of treating children as "second-class citizens" to the extent that we don't. That line of thought has simply nothing to recommend it.
Having established that there's no possibility of thinking through a parent-child relationship in terms drawn from the adult-adult world where notions of:

• autonomy
• absolute individual sovereignty
• rights = a structure of minimum standards of treatment

are paramount, the most natural thing to do is characterize the basic social desire/value as the holistic one: "We want parents to be good parents to their kids" and, perhaps, "Children deserve to be well-raised" and to reserve serious condemnation and certainly criminality only for fairly catastrophic overall failures.
Note that we could, if we wanted to, announce that children have

• a right to be raised by both a mum and a dad

or perhaps it should be

• a right to be raised by their actual biological mother and father
  

And any such announcement could be buttressed with a wealth of data contrasting the fortunes of children in sole-parent vs. children in two-parent situations. Let's then explore various forms of zero-tolerance policies against sole-parents: enough of treating children of sole-parents as second-class children.....
Well, let's not! Similarly then

• a right not to be smacked (even if it would be good for them to be smacked - "You aren't allowed to smack adults or your wife just because it would in fact do them some good....")
  

or perhaps it should be

• a right not to be corrected period (i.e., even non-physically)

looks like it clutters up the landscape of parenting to no obviously good end. Even granted (as we shouldn't grant - see here and here) the availability of appropriately negative data, nobody believes that either single-parenting or smacking portends anything like catastrophic parenting failure. Rather at worst there's evidence of a kind of run-of-the-mill, local sub-optimality. The significance of that is indeterminate without knowing much more about how the overall project of being good parents and of raising their children well, is going for the parents in question. The piecemeal alleged "rights" adduced here are spurious markers of local, non-negotiable interest that make no sense independently of wider interests. It's hard to avoid the conclusion that "rights"-discourse is inherently the wrong moral key in which to give voice to parent-child norms and goals.

In our view what remains are questions about what it is to be a good parent and what responsible exercise of one's parental authority consists in. In our view too, there's every reason to believe that parenting involves ineliminable tradeoffs and hence that a wide range of answers to these questions are possible. (See here for further useful discussion of this point.)

But not everyone is going to agree with our assessments either of the fate of the principled argument or of answers to "what is good parenting?"-type questions. Rather, at least some people will continue to pursue a mixed strategy of (i) trying to reformulate the principled objection more tightly and (ii) also insisting that there are highly determinate answers to parenting matters that it makes sense to code into the criminal law.

For this reason, even though in our view it's not required, it does make sense to continue the dialectic a few steps further, hence to try to defend in some more specific terms why parental authority over a child allows for smacking, the use of force to correct/discipline etc.. Here goes.

Our basic answer to the question of the grounds for parents being allowed to act against their children in ways they can't against adults (or other people's children) is that parents are authorities over their children and not over anyone else. One way to try to resist this as a complete solution to the problem that smacking poses is to raise cases in which adults are under the authority of other adults but in which we don't permit corporal punishment. Pressing in this direction leads to the following reformulation:

• Is there a good reason to allow an act against a child (over whom one has authority), that we would not allow against an adult (over whom one has authority)?

Or, even more simply:

• We smack kids but we don't smack, say, prisoners. Why?

There are at least three, closely connected reasons.

• Necessary vs. Contingent Authority. Children aren't autonomous individuals. Someone else necessarily has responsibility for and power over them. Prisoners, however, remain adults and authorities in their own right (hence they can be and have been held fully responsible for their actions, etc.). They're still autonomous, they've just forfeited the benefits of that autonomy. They're only contingently someone else's responsibility or in anyone else's power. We can put the point by saying that parents are necessary authorities over their children whereas prison guards are only contingently authorities over prisoners, where, of course, the contingency in question is the prisoner's own actions, i.e., exercises of their autonomy. For reasons that remain a little obscure, western countries have decided that terms of incarceration should not violate the prisoners autonomy (bodily or otherwise) beyond what's required to enforce the basic forfeit/exclusion from free society. How far this is a principled decision as opposed to a broadly technological achievement is unclear. It seems likely, for example, that if fifty people crash land on a desert island that fining and imprisoning people might be impossible, but that correction and discipline would still have to occur. Flogging people might then make a comeback. For another example, fairly traditional isolated human communities are about 150 people (the community size for which the human neo-cortex appears to be scaled/optimized), do not have the resources to imprison, etc.. Persistent trouble-makers are punished with exile or worse, e.g., the traditional Eskimo solution: miscreants are pushed off the ice. (Compare: most of us think that it's important, as a matter of principle, to always treat people as individuals etc.. Hence anti-discrimination provisions of various sorts. But that alleged principle, and especially its legal expressions only make sense because we live in a world where other people can in fact reliably draw conclusions about ones individual ability/character. Your CV is as good as the next person's, your money or credit is as good as the next person's, and so on. If none of the broadly technological infrastructure of credentialing authorities, easily checkable references, a common currency, credit reports, etc. existed, then that wouldn't be so. If most of the ways we have to establish individual ability and merit were gone, then all of the statistical information about various groups in society together with facts about your membership in those groups would become very relevant to someone's decision to hire you, offer you a place in a course, sell you something, etc.. In such a situation current prohibitions on public reasoning about people stereotypically, on the basis of their membership in various groups, would not and probably should not long survive.)
  The point that the contingency of the authority over prisoners is an expression of the prisoners' own autonomy – hence completely different from the child case – runs deep. Consider that there are distinct ways in which it makes perfectly good sense to think of the prisoners as the authors of their own fates. First, by their own actions the prisoners have excluded themselves from the benefits of a liberal democracy – a political system which is dedicated to the proposition that human beings get to be the authors of their own lives. The prisoners fate conforms to that: the prisoners are themselves the authors of their own exclusion. Second, the very possibility of a liberal democracy and all its benefits depends upon enforcing the exclusion of those people who by their actions exclude themselves. Every second of every day as a free person depends upon those who violate that freedom being locked away. Before the incarcerated were prisoners, they were free and they implicitly or explicitly endorsed all the necessary conditions of that freedom including the locking up of people who are as they themselves have turned out to be. There's a sense, then, in which prisons themselves are one of the great benefits and enabling features of liberal democracy, and we honor the prisoners' autonomy by restricting their freedoms now in the name of principles they themselves endorsed.

• Personal vs. Impersonal Authority. Parents love their children (that's the default assumption that guides letting people raise their own children rather than, say, requiring everybody to re-apply for the job of raising their child shortly after birth). It's therefore a personal authority not an impersonal one. Parents are in it for the long haul. They in fact have every incentive not to brutalize their children. They want their children to love them back, eventually look after them as they age etc.. In the impersonal case there's none of that structure and constraint and scale, hence in principle one might want to regulate much more closely what impersonal authorities may do, etc.. Moreover, the core of Enlightenment politics holds that it's constitutive of adulthood that only the law – to which each adult both gives consent and which each adult through her in principle political participation co-writes/-makes/-authors – has authority over you, not any individual. (Note too that the personal-ness which gives us confidence that there's a kind of natural scale and sensitivity to the physical discipline that's administered by parents doesn't obviously transfer to teachers, babysitters, etc.. They can never know as much as the parents about what's going on with the child, nor are they themselves disciplined by the continuity of interest projecting out over the next 20-30 years. Historically the in loco parentis = "in the place of the parents" concept has been fairly loosely applied to cover these cases and many others. That's risky and, depending upon a society's attitude towards risk, possibly a mistake. Note too that proliferation of various sorts of blended families, step-families, and de facto situations of various sorts have argubly blurred what counts as a "parent" and, even more so, who can be or is at any given moment in loco parentis. One nightmare possibility is that breakdown of de jure family structure makes perfectly well-defined legal ideas such as S 59 unworkable in the world that's been fairly recently created. I'll post on this point on another occasion.)

• Training/installing/growing autonomy. Children aren't yet the acculturated and rational agents they'll become. Hence parents are constantly manipulating their children, rather than addressing their reason or proto-reason. They do some of the latter too, of course, and increasingly so as the children grow, but it's never the whole story and possibly not even the majority of the story. A parent is not endeavoring to respect her child's autonomy (it doesn't exist yet), she's trying to raise it to be autonomous: installing autonomy, growing it. In principle, a range of different tools might be needed within that training and installation period that might have no counterparts later on, and in fact that does seem to be the case. Note that there at least two separate, important aspects to the training/installation period idea. First, there's the idea of children as being emotionally and rationally embryonic, hence as being less amenable to rational instruction and more manipulatable by both minor pleasure and pain. Second there's the idea that this is a transitional period, one whose end any manipulative techniques including any physical punishment actually hasten. If you knew that your child was never going to grow up and become autonomous then much of the impetus for manipulative techniques of any sort, especially corrective techniques that involve inflicting physical or psychological pain (e.g., they don't get the ice cream everyone else gets), seems to dissolve. What's the point in that case (which is similar to the case of elderly relatives who may have regressed back into a child-like state)?
  

What's left for our opponent? Final move: she can perhaps try to insist that although we've undoubtedly developed a number of differences between guards and prisoners on the one hand and parents and children on the other hand, we've still left something unexplained. Why do any of these differences make a difference? Why some smacking rather than no smacking? (cf. Why something rather than nothing?) Why is it OK to smack a creature that you're very personally training up? Why should even authority that's both necessary and personal have any special latitude with respect to physical force?

At this point I say that all pretense of there being an actual principled argument that anyone should feel compelled to answer has broken down. We were supposed to be confronting an argument built around a substantive comparison of some sort, one that would convince us independently of all matters of social cost and benefits that the status quo had some problem of broadly moral consistency. That argument was supposed to be of the sort that, in principle, could govern us against children's interests ("Yes recent research suggests smacking would strongly benefit children, too bad that we aren't allowed to be inhumane to and degrade people for their benefit. Our hands are tied!"). That has now reduced to asking the status quo to justify itself in some more intrinsic, noncomparative way (and beyond just citing the basic sense that having special responsibilities and special powers go together makes). The status quo is under no obligation to answer that sort of bare challenging question. If the status quo does answer, however, it may point to benefits and tradeoffs of various sorts, but the status quo doesn't have to imagine that everyone will agree that those are significant benefits or that everyone will find those particular tradeoffs are best ("Vive la difference. Maybe neither smacking nor correction more generally is for you"). You can never convince some people that being a single parent or ending a marriage might make sense either. "I'd never raise a kid by myself, kids have a right to both a mum and a dad", "I'd never....", "I'd always find some way to..." Perhaps that's right. Maybe you wouldn't, wouldn't, and would respectively. Good for you.

Many people find some value in having smacking in their parental tool-kit. And a few parents are true disciplinarians and run their families like boot-camp (You suggest to your kids that they might want to think about picking up after themselves a bit more, they tell their kids to "drop and give me 20".). In broadest terms, all of those people are and should be open to new ideas. If smacking kids can be shown to be like not rotating your crops, they'd like to be told. But they know shabby research when they see it, and they insist on waiting for social scientists to get their house in order before drawing any conclusions. And they can spot flat illiberal assertion and intolerance of diversity dressed up as principled argument a mile off.

S 59 Debate: Coddington Codswallap about Smacking

Deborah Coddington often makes little sense, but her senselessness about smacking so perfectly expresses the congealed mass of chattering class platitudes and general idiocy on the issue (and the clot hasn't moved much in the month or so since Coddington's piece appeared) that it's worth reviewing in detail.
While it's slightly boring to do so, I'll commentate more or less line-by-line/sentence-by-sentence on her NZ Herald article.

I'll use green type for Coddington's text, which I include in full and in order. I'll refer to Coddington as "Codd" throughout. Warning: my commentary is at least 6 times as long as Codd's original article. It's much easier to make a huge mess than it is to clean one up!

The Smacking Debate Story: Bradford's law will save our children
By Deborah Coddington, The New Zealand Herald, March 18, 2007
Despite the vitriolic opposition from those claiming the "right" to discipline their children with violence, Sue Bradford's amendment to Section 59 of the Crimes Act looks set to pass. (my bolding)

Two remarks. First, and most obviously: it's deceptive and question-begging for Codd to use the term "violence" in place of S 59's "force that's reasonable in the circumstances". Consider another justification defence:

• 41 Prevention of suicide or certain offences. Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide...

Here force that's both reasonable and necessary in the circumstances is licensed. Does one really want to claim S 41 allows violence to be used against those threatening suicide? One can if one wants maintain that all force is violence but normally "violence" implies unreasonableness, malevolence, lack-of-control, self-servingness, and so on, none of which apply to the actions anticipated in S 41. Or in S59. So using "violence" is deceptive and conclusory. Just as actions in accord with S41 or S 59 aren't assaults (for full discussion see here) it would be natural to say that they aren't episodes of violence either. I assume that Codd realizes her description is unfair in this way, and that she uses it anyway.
Second, while some people are inclined to frame smacking issues in terms of parents' rights (and also as a kind of contest between parents' rights and children's rights) and say that parents have a right to smack their children, it's not essential to talk that way. I don't. And there are good reasons not to.
All that's legally required is that parents are permitted to smack (that's all a justification defence itself buys you, hence all that supporting the availability of such a defence requires). Whether parents are permitted to do so as a matter of right is a separate, very ticklish question. As we've emphasized in previous posts, especially here, S 59 is a justification defence. Consider some other justification defences:

• 41 Prevention of suicide or certain offences. Every one is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence.
• 48 Self-defence and defence of another. Every one is justified in using, in the defence of himself or another, such force as, in the circumstances as he believes them to be, it is reasonable to use.
• 55 Defence of dwellinghouse. Every one in peaceable possession of a dwellinghouse, and every one lawfully assisting him or acting by his authority, is justified in using such force as is necessary to prevent the forcible breaking and entering of the dwellinghouse by any person if he believes, on reasonable and probable grounds, that there is no lawful justification for the breaking and entering.
• 60 Discipline on ship or aircraft. The master or officer in command of a ship on a voyage or the pilot in command of an aircraft on a flight is justified in using and ordering the use of force for the purpose of maintaining good order and discipline on board his ship or aircraft if he believes on reasonable grounds that the use of force is necessary, and if the force used is reasonable in the circumstances.

It's relatively plausible that one is permitted to defend oneself and ones home as a matter of right (whatever exactly rights are supposed to be). But it's not especially plausible that one has a right to try to prevent others from committing suicide, or that a Captain has a right to use force to control passengers, or even that one has a right to defend others. In these three cases it's clear that there's something that we want to permit or even encourage people to do. There's a purpose or context or goal or interest or activity that society approves of and wants to facilitate. But "right" doesn't obviously enter into it.
Now consider S 59. On the one hand "rights"-talk has more of a grip in the parental case than it does in these other cases both because (as in the defence of self and home cases) parent-child relations have an identity that's independent of any state, and because there are straightforward senses (starting but not ending with the biological, inclusive fitness sense) in which ones children are extensions of oneself. On the other hand there's a clear sense in which parenthood does feel like an optional job/role hence that, like the Captaincy case, there's a kind of conditionality build into it that ill-suits the absolute/unconditional character that we ordinarily think of rights as having (again, whatever rights are).
For these sorts of reasons as well as because (i) I generally find "rights"-talk a little mysterious, and (ii) I generally prefer not to take on any excess ideological baggage, I prefer to largely eschew talk of parental rights in the smacking debate. To be in favor of some version of S 59 is to be in favor of a permission but not necessarily to think that any question of rights is activated. By focusing on people who incautiously put matters in "rights" terms, Codd focuses on people who engage in slight overkill thereby giving her a bigger target. And this is to say that she already illicitly makes things easier on herself.

Future New Zealand will thank Bradford, along with the Maori Party, whose MPs had the sense to realise the negative message their not supporting the bill would deliver to constituents - Maori are over-represented in domestic violence statistics.
Since 1999, when I wrote a feature on the death of 4-year-old James Whakaruru, I have advocated repealing Section 59. Research involved interviewing James' whanau, where smacks were every-day - nay, every-hour - "discipline" for their kids. Mum's busy; smack over the head. Dad's hungover; smack around the ear. Stop grizzling; smack around the bum. Smack, smack, smack. That's often the only touching many New Zealand children receive from those they look to for love and affection.

Go here for the NZ Children's Commission summary of the Whakaruru case. Here is the NZ Herald's summary:

"All sides of James' family were well-known to social workers. The Whakaruru family had had six interactions on care and protection and youth justice issues since 1965. The [father and killer's] Haerewa family had had eight such notifications, and James' natural father's family had had 13. Young James was on a road to hell on Earth before he was even born. Just days before his birth, [his mother] Te Rangi slit her wrists. She was just 15 and she survived, but over the next five years her small and lovely son with the warm brown eyes was beaten, stomped, hit and bludgeoned by her boyfriend until he finally died, a miserable, lonely and agonisingly painful death."

S 59 played no legal role in that case for the obvious reason that it couldn't: "reasonable force" was never at issue, and, as Codd notate with her quotation-marks, nothing resembling "discipline" or even "parenting" went on in that child's dreadful family. As we discussed here, crazy, renegade cases aren't normally probative with respect to the vast middle of society. One person's well-within-limits beer-after-work and drive home is another person's licence to drink wildly, drive off completely plastered and kill lots of people. A casino is a fun night out for you and for most people like you, but it's a few people's ruin. You and your relatively well-adjusted friends can watch sadistic horror films without appreciable ill-effect, whereas a very small number of people will be led to inflict copycat sadistic violence on others. And so on. But we don't have alcohol prohibition, we don't ban gambling, and we don't have have massive amounts of censorship.

The only way to change these people's attitudes is to change the law (my bolding)

It's not clear who "these people" refers to. The Whakaruru family? Those who don't seriously abuse but who smack indiscriminately and who otherwise never touch their kids? Anybody who smacks? Let's suppose the middle option. Then Codd claims that (a) parents who smack a lot and are otherwise unloving can't be turned into better parents in any other way than by changing the law, and (largely implicitly but see her piece's title) that (b) changing the law will change them into better parents (or else why bother?).
But now we have three points of attack. First, it's odd and extremist to tailor a whole society's legal regime to try to improve the behavior of relatively small numbers of degenerate parents. The class of parents we're talking about here, after all, while surely larger than the very small class of horrifically abusive (and surely beyond any straightforward legal solution) parents such as those in the Whakaruru case, can't itself be more than a few percent of families.
Second, the "only" or "no other way" (a)-point is unconvincing. Why aren't broader education efforts about good parenting, more involved social services, and so on exactly the right thing to work on? Third, the (b)-point that a law change will itself create good parents who would otherwise be bad is dubious. Why won't the degenerate (unaffectionate, resentful etc.) parents just become degenerates who don't smack and are simply uninvolved? And, of course, Codd just assumes, without any argument at all, that there's no downside to eliminating smacking parenting-wise.

and anyone who doesn't agree should be consistent and oppose laws against speeding, seatbelt wearing, smoking.

This is pathetic. If someone doesn't accept both the very specific (a) and (b)-points about a smacking prohibition and also the general principle that it's OK to trade away the interests and wishes of the capable majority to benefit or improve a small minority of screwups then that person should be opposed to every other piece of complex, interest-balancing, at least vaguely paternalistic legislation? Right..... And presumably if you are in favor of laws mandating wearing seatbelts then you must also be for every conceivable piece of invasive paternalistic legislation that any political hack might dream up, from alcohol prohibition, to allowing the Government to choose your child's name, to prohibiting single-parent families, to re-introducing anti-fornication and anti-cohabitation laws, to fining people who don't go to church. Once you've tasted sin with those seat-belts....
We're more used to hearing this sort of ridiculous pseudo-argument– "Here's my proposal. Anyone who's against it must logically be advocating anarchy" from what we might call reactionary creeps. Here's center-right-ish Andrew Sullivan resisting reactionary creepiness from hard-core right-winger David Frum:

'Your argument now is that there is no discernible difference between advocating for a same-sex relationship and advocating for incest as legally married states. Or--perhaps because you understandably fear this may come across as a little harsh--you argue that the distinctions between same-sex marriage and incest are so inherently difficult to draw and open to further question.... that the only real choice is between the current definition of marriage and complete moral and social anarchy. Charles Krauthammer has also made this argument. So has William Bennett, who called any defense of same-sex marriage inherently "morally relativist," because once one has conceded ground on homosexuality, there is no possible rational defense against polygamy, bestiality, incest, and heaven knows what else. This, as a type of argument, is not so much the analogy of the slippery slope as the slippery cliff. It is to say that either one accepts the current state of affairs as a whole or one is a social anarchist, who believes in no limits whatsoever to human behavior. I suppose I should be grateful that the analogy you bring up is incest; and that Krauthammer's and Bennett's is polygamy. Why not say that advocating for same-sex marriage is indistinguishable from arguing for child abuse, murder, or slavery as legitimate forms of marriage? Well, you are civilized men and this is a civilized debate.
But, David, as you well know, this line of debate is not an argument; and it has nothing to do with conservatism. It is pure reactionaryism. The precise challenge for morally serious people is to make rational distinctions between what is arbitrary and what is essential in important social institutions. The difference between cranks and conservatives is that the latter can actually use their reason to divine when change is therefore warranted and when it is not. If you want to argue that a lifetime of loving, faithful commitment between two women is equivalent to incest or child abuse, then please argue it. It would make for fascinating reading. But spare us this bizarre point that no new line can be drawn in access to marriage--or else everything is up for grabs and, before we know where we are, men will be marrying their dogs. It is intellectually laughable.

And it's just as laughable when it comes from left-wing and stridently anti-reactionary forces of the sort that tend to have the upper hand in New Zealand. Complete bullshit (convenient) absolutism and extremism knows no political orientation. Creeps are everywhere.

Beatings, such as the one which killed James, started with smacks.

And every alcoholic started with just a single glass of beer. And every person who ever drove 80 mph over the speed limit started off by just going a few mph over the limit. And every serial killer's first book is the Bible. What's your point Codd? 100% pure slippery slope madness? Apparently.

But when I went to Parliament I didn't have the guts to defy my political party. To my shame, I shut up and toed the party line.

Well, if you had had any good arguments then maybe you would have been able to win your party over. But, yes Codd, you have much to be ashamed of. You were a terrible Parliamentarian.

My argument is simply this: when cases of assault come before a judge, children should be entitled to the same protection as adults. If an adult hits another adult, he/she can't use "reasonable force" to justify the action. Allowing adults to use this defence when they hit children reduces the status of children - they're lesser beings.

This is an important – and, we'll argue, importantly mistaken – argument (which we discuss at greater length here). Begin, however, by noting that it's completely independent of everything Codd has mentioned so far.
If this argument works then it does so regardless of whether any child is ever injured or suffers under the current regime. And if strong empirical evidence were developed tomorrow that smacking had strong benefits for kids then that would just be their and our tough luck. We wouldn't in that case be permitted to benefit them any more than we'd be currently allowed to benefit arbitrary other adults by slapping them if evidence turned up that this would be beneficial for them. To repeat: this new argument is a point of alleged principle and is completely different from arguments about the balance of social costs and benefits, or about weighing possible additional security from and discouragement of crazy parents against the certain invasiveness inflicted on and the insult delivered to normal parents.

Now let's start discussing the argument itself. We initially follow Codd's formulation: If an adult hits another adult, he/she can't use "reasonable force" to justify the action? Why? Well, contra Codd, in the parent-child case it wasn't the "reasonableness" of the force itself that constituted the justification, it was that the force was used by a parent, and by the fact that parenting is a very specific role that includes responsibility for the child's welfare and also the power to correct/discipline the child.
The parent-child relation is a very special relation of authority, one that has no serious counterpart in the adult-adult world. There's no comparable "reasonable force" clause with respect to other adults because adults aren't (and can't be) authorities over other adults: you aren't responsible for other adults, and it's not your place/role to correct/discipline them.... if it were, then they'd be like children compared to you, which a modern liberal democracy can never accept. In particular, husbands aren't authorities over their wives – women aren't at all child-like in general, and not with respect to any married partner they may have in particular. Sometimes the point Codd is trying to make is put as the following question:

• Is there in fact a good justification that we should sanction - in whatever detail - an act against a child that we would not sanction against an adult?

The correct reply is two-fold. First, there'd better a justification since evidently parents do get to get to decide what their children eat, what they wear, what they read or watch, with whom they associate, where they are physically located on a more or less minute-to-minute basis, and so on. A concrete example: parents get to carry their children screaming out of restaurants against their will. No counterparts of these actions are permitted against adults (all would constitute assault, kidnapping, stalking, and so on).
Second, we know what the form of that justification is: it's the specific authority of the parent over the child that is the transforming feature across all these cases. No offences are occurring, it's just parenting: nothing to see here, move along.
It's useful to compare S 59 with the justification defence with which it is grouped under the heading "Powers of Discipline" in the Crimes Act 1961:

• 60 Discipline on ship or aircraft. The master or officer in command of a ship on a voyage or the pilot in command of an aircraft on a flight is justified in using and ordering the use of force for the purpose of maintaining good order and discipline on board his ship or aircraft if he believes on reasonable grounds that the use of force is necessary, and if the force used is reasonable in the circumstances.

Why not ask:

• Is there in fact a good justification that we should sanction - in whatever detail - an act against a passenger that we would not sanction against a non-passenger?

Why isn't Codd inclined to say:

My argument is simply this: when cases of assault come before a judge, passengers should be entitled to the same protection as non-passengers. If a Captain hits a non-passenger, he/she can't use "reasonable force" to justify the action. Allowing Captains to use this defence when they hit passengers reduces the status of passengers - they're lesser beings.

These things aren't asked or said because in the passenger case the structure of (implicitly consented to) authority is clear. And it's obvious

• why such authority is important
• how it's grounded in a specific role
• why any "rights-being-infringed" outrage let alone "lesser being" outrage is simply obtuse.

No offences are occurring when the Captain of a ship (say) exercises her authority, it's just being a Captain (being the law in a micro-environment where normal legitimate authority can't reach): nothing to see here, move along. Abuse can happen or be suspected of course, which police could decide to investigate, and an impartial body such as a jury might then be called upon to adjudicate. But that's not the normal case.
So far we've just argued in very general terms that the structure of authority that permeates parent-child relationships changes everything and that it makes most actions of parents vis-a-vis their children strictly incomparable to any normal adult-adult actions or indeed to actions of adults with respect to other people's children. Children of course currently have the same or greater legal protections against the actions of arbitrary adults that adults do. Only their parents as the authorities over them are a special case where something very different is going on: special responsibilities are undertaken, and special powers acknowledged. My own view is that that's enough – that we've met the challenge of a completely abstract (disconnected-from-social-costs etc.) point of alleged principle that would require us to think about parent-child relations in exactly the same terms as adult-adult relations and accuse us of treating children as "second-class citizens" to the extent that we don't. That line of thought has simply nothing to recommend it. For deeper discussion of the issues raised by the principled argument, see here.

Now the Act party argues that good caring parents will be criminals for administering a loving smack.

The "argues" here is irritating: corrective smacking is criminalized – put in the same indictable offense category as punching your wife currently is. That's the point if you're Codd or Sue Bradford. Whether anyone's actually prosecuted/indicted let alone convicted is of course another matter entirely....
Now Codd proceeds in two directions... first she argues/insinuates that "good caring parents" who smack their kids aren't possible, i.e., that anyone who smacks their child is ipso facto a bad parent.

In what way is a smack loving? Isn't that what abusive husbands tell their wives, and why abused wives stay? He did it because he loves me?

Codd, repeat after me: "Adults aren't (and can't be) authorities over other adults: you aren't responsible for other adults, and it's not your place/role to correct/discipline them....."
Second she focuses on the prosecution angle.

And why doesn't Act advocate the abolition of speed limits because good drivers are turned into criminals every time they do 53 or 105km/h? It's poppycock to say police will be forced to prosecute every parent who lightly smacks a child. Why wasn't Tana Umaga charged for whacking Chris Masoe with a handbag? Because our police force have got more sense than our politicians have.

I agree that some opponents of Bradford's initiatives have tended to overstate their practical problems. Sweden may not be uniquely desirable, or make as much sense as it could, but it's certainly not any sort of hell-hole! What seems to be going on is tit-for-tat for Bradford et al.'s exaggeration of the practical problems posed by relatively small numbers of arguable "false positives" under S 59 (i.e., of juries and judges apparently being able to be convinced occasionally that fairly extreme levels of physical force are reasonable in specific contexts of parental correction of their children). The problems with Bradford's Bill are problems of principle. It asserts comparability between incomparables, and illiberally uses the full force of the criminal law to impose a very disputable, not uniquely reasonable view on everyone else.

Bradford's bill won't stop child abuse, say some detractors. That's a feeble line mouthed by critics scared of being labelled PC, and refusing to acknowledge how anti-smoking legislation has reduced, not eliminated, smoking. I disagreed with anti-smoking laws but far fewer people now smoke and that's a good thing.

It does seem clear that there are distinguishable phenomena of abuse and of people with disastrously chaotic lives having kids that aren't addressed by Bradford's initiatives. The Whakaruru case Codd mentioned is a classic of this sort. Beyond that, sure, each amount of freedom in society (to drive, to drink, to gamble, to read what you want, to associate with whom you want, etc.) carries with it costs from crazies who'll exploit that freedom. Restricting or eliminating that freedom normally does buy some additional security from the crazies. But normally in a liberal democracy one thinks long and hard before trading away a central freedom that lots of people think is important just to help damp down the outliers, and one should in any case explore all sorts of less invasive solutions, e.g., public educational possibilities etc. before you settle on criminalization/prohibition as the lesser of the available evils. Previously Codd told us that as a Parliamentarian she didn't have the guts or nous to stand up to or break from her party's views about anti-smacking legislation. Now she tells us that her enthusiastic opposition to heavy-handed anti-smoking legislation was wrong? Does she believe in anything? Which other basic freedoms would she now be prepared to sacrifice? How much paternalism from the government is enough now for born-again Codd? And will it be enough for her tomorrow once the current round of paternalism has "succeeded" in the sense that it causes some easily quantifiable reduction in craziness while extirpating a broad range of harder to measure freedoms from the world and counting that loss as nothing?

Sadly, it will take many years before attitudes towards violence are changed. That was driven home to me when I saw what National MP Chester Borrows' amendment would allow: smacking kids for wetting the bed, hitting a sibling, breaking an ornament, running on to the road. I can't believe adults would smack children for this. My God, if parents still believe they can cure bedwetting with smacks, we have a problem.

Just as abuse etc. is distinguishable from legitimate correction of ones child, so policies about smacking are distinguishable from good-parenting itself. Roughly, whatever tools you give to parents those tools are only as good as the parents who get to use those tools. I don't know anything about bed-wetting myself, but if the point is that it's not properly something that is culpable/punishable any more than dyslexia is, and every parent is supposed to know that, then there's a parental mistake being made alright. Punishing the bed-wetter by denying the bed-wetter the ice cream everyone else gets would similarly then be ill-judged and possibly cruel. There's no problem for smacking as such here. [Note added April 30, 2007: Consider also this testimony from Watermelon. The author sees her experience through an anti-smacking lens and I don't think that we can conclusively say that she's wrong to do so, but the obvious interpretation is that there was generally rotten parenting going on. Watermelon describes for example, "walking on egg-shells", and receiving insistent, anger-laden, arbitrary/inconsistent, non-proportional punishment. It's plausible that things would have been about as disturbing and confusing and counter-productive as the author rightly laments even if all of the punishment had been non-physical.]

And when are we going to stop confusing education with discipline? If a child runs on to the road, it's because of ignorance - he or she hasn't grasped the concept that cars can kill. Aren't parents responsible for keeping a firm hold on little hands, or gates shut, so littlies are guarded from danger? And if we fail to do that, should we take it out on the children with a smack?

The details of the case matter (that's one reason why the criminal law shouldn't be wading in here)... but surely in general a lot of parenting mixes education and discipline. Here's activist Simon Barnett talking about about a version of exactly Codd's situation. His daughter Sophie had let go of his hand, and run across a busy road.

"I knelt down beside her and said, `I told you not to let go of daddy's hand.' A car had just missed her. My heart was racing. I wasn't angry at her; I really wasn't. I was like, `I can't believe you so disobeyed me.' So I smacked her hand. And it was hard. She cried for about 15 seconds. I said, `I'm sorry I had to do that, but you must never ever do that again.' And to this day she hasn't."

I'm thrilled for Codd that she's so sure she knows better than Barnett how to parent his child. I am struck dumb by the fact that she's so sure he's a terrible parent that she's prepared to make his parenting style make him at least an unindicted criminal. How marvellous that she's prepared to make him risk 2 years in prison for doing what most NZ-ers regard as an excellent job.
Barnett's example is lovely because he provides enough details to make Codd's remarks seem ridiculous, but also not too many so that the example breathes, and one is left thinking through the complexities to which a parent might in principle be sensitive. Perhaps Barnett 'errs on the side of caution' with his little girl. Maybe Barnett wouldn't have smacking his other daughters in that situation, but he knows Sophie rather well and had perhaps noted an additional streak of flightiness and recklessness in her that her sisters don't have. Perhaps that what was what led Barnett to see his decisive, slightly shocking action as required and as the right thing to do..... Who knows? At any rate, these are the sorts of calculations that many caring parents recognize.

[Note added April 30, 2007: Barnett appears to be the sort of case where there's good to ideal parenting going on. So if you are an anti-smacker of the highly personalized sort we referred to a few paragraphs back, it's probably tempting to roll your eyes and say,

"Well he'd be a good parent no matter what tools you gave him. In particular he's a good parent to Sophie, if he is, despite the occasional smack delivered not because of it."

It can start to seem, in this way, that those who are pro-choice about smacking focus mainly on good parents who'd be good even without being able to smack whereas the anti-smackers focus on bad parents who'd be bad even without being able to smack. Are, as it were, both "sides" equally guilty of distortion? To some extent yes. But anti-smackers are trying to ban something and to do that (without it turning into an arbitrary exercise of political power), they have to show, very roughly, that smacking's always bad. The pro-choice about smacking aren't under any similar obligation to show that all smacking's good. Imagine if the shoe were on the other foot and the pro-choicers about smacking were actual pro-smackers setting out to ban non-smackers, to cause them to lose custody of their children etc. ("those who would spoil the future by sparing the rod", etc.). In that case, again very roughly, the pro-smackers would have to show that non-smacking never works, not just that some non-smackers have kids who run wild (or whatever it might be).
Speaking more precisely, anti-smackers/banners have to show (at least!) that the very thing they want to ban - smacking itself, and not some of its common causes or some combinations of other factors causes grave harm etc.. That's hard to do. It's hard to rule out plausible alternative causal hypotheses (notably those that are suggested directly by one's own examples!). Perhaps, for example, even though smacking itself is fine, it's the sort of technique that attracts parents with, as we might say, "anger-management issues", and, over time, perhaps as an aspect of signaling, parents without any such issues largely shun the technique even though they could use it with profit. All manner of spuriously negative statistics about smacking can be generated under such conditions if one's model doesn't keep track of who's doing the smacking (let alone if one doesn't know how to describe all of the important dimensions along which parents differ). Those who are pro-choice about smacking are happy to see anti-smackers try to disavow Barnett's case as insignificant because he's a good parent (or whatever it is) because at least then the anti-smackers are thinking about alternative causal structures rather than tracing simple-minded correlations between smacking and bad outcomes of various sorts. The pro-choice are happy to see anti-smackers accept the obligation to develop more nuanced models and conduct more comprehensive studies before drawing any conclusions. Additional complexity and uncertainty work in favor of the status quo. That's appropriate. Established freedoms should get the benefit of the doubt. It shouldn't be easy to ban things. Sadly, of course, many anti-smackers don't accept their obligations, and prefer to stay on the surface of things, and to just deny or mock the whole idea of a good parent who smacks as a substitute for dealing with inconvenient complexity. That's Codd's line and it's also Watermelon's here.]

How fantastic that Codd thinks that it's just obvious that trains of thought about children such as Barnett's make no sense at all and that they must all be at bottom ghastly rationalizations like.....

Some years ago, marriage used to be a defence against rape. I wonder what today's politicians would say if we were changing that law today? Amendments defining the type of force husbands could use? Maybe when the wife deliberately refused him his conjugal rights? If she hit him? If she dented his car?

Codd, repeat after me: "Adults aren't (and can't be) authorities over other adults....." And a bit of basic humility about the limits of your own understanding and imagination wouldn't go astray either.

A stupid comparison you say?

We do.

Tell that to those who argue the Government shouldn't regulate what happens in the home. If persons in the home are being hurt then the state must step in to protect them.(my bolding)

This equivocates over "being hurt". If "being hurt" means "injure" etc. then current "unreasonable force" standards (let alone the sort of sharpening up of unreasonable force that, say, Borrows's amendment describes) cover it. If it's defined to include all the way down to a smack as in the Barnett case then, no, nobody's being hurt in any way that should prompt state intervention. I agree with Codd that (in any reasonably developed society) domestic matters including child-rearing can't ever be a purely private matter, or be beyond the reach of the law. Abusive and injuring parents are currently criminals and they should be prosecuted to the fullest extent of that law. There's no disagreement about that as far as I'm aware.

Yes, parenting is hard, but don't have kids if you don't view them as future adults entrusted to your care for a wee short time.

More question-begging obtuseness! Incorporating some amount of correction and physical discipline into ones parenting style appears to be a perfectly acceptable way of raising and taking care of future adults. It merely requires one to believe that their adulthood is still in the future.

Sharples is right - a hit is a hit. Smacks are wrong.

Recall our very first point: parents get to decide what their children eat, what they wear, what they read or watch, with whom they associate, where they are physically located on a more or less minute-to-minute basis, and so on. They get to carry their children screaming out of restaurants against their will. Now run the parallel cases:

• Kidnapping is kidnapping. Transporting an individual against her will is wrong.
  
• Controlling the minutiae of someone's diet is controlling the minutiae of someone's diet. And it's wrong.
• Controlling with whom one associates is......

Helen Clark and Peter Dunne are incredibly fortunate they can't remember being smacked. Like Pita Sharples, I remember being bashed. Unlike Sharples, I smacked my kids - not hard - but I shouldn't have. I don't feel guilty but it didn't work and I should have been stopped. (my bolding)

For you Codd, I think we could arrange a special retroactive couple of years in the Big House....

I wish we'd changed the law, and thus our attitude to domestic violence, decades ago. Hopefully in May when MPs finally vote, we'll make a start.(my bolding)

And so Codd brings us full circle, back to the deceptive, conclusory use of the term "violence" with which she began her article (plus the additional fillip of "domestic" to illicitly fuse adult-adult cases to parent-child cases).

S 59 Debate: The Horror that is Sue Bradford

This note follows up a post from last week in which I argued in detail that smacking (or smacking for correction) is currently legal (and not assault), and that that's what repealing or amending S 59 changes, criminalizing smacking or smacking for correction (turning it into assault). In this post I draw out some of the consequences of that earlier result for Sue Bradford in particular.

1. Sue Bradford owes an apology to every parent in the country for her oft repeated, legally incorrect, and deeply offensive claim that every parent who's ever correctively smacked his or her child has assaulted them or committed any sort of offence. If Bradford gets her way then that will be legally correct going forward. But her claims have been about the present and past, and for that she deserves endless rebuke. People who would otherwise consider voting Green should let that party know that they will not consider voting for them again until Bradford retracts and apologizes for her disgusting, self-serving, simple-minded, rhetorical overkill.

2. Bradford has not had a kind word to say about attempts to amend S 59 to sharpen up what "reasonable force" allows and disallows in the case of parental discipline of a child: the tack taken by Canada's Supreme Court, by NSW's legislature, and by Chester Borrows's Amendment [pdf]. Here's Bradford chatting on Agenda about that possibility:

"To accept Chester Burrows amendment would be the worst possible thing we could do for the kids of this country it would make the situation worse than the status quo we have now because what it would mean would be parliament and the state legitimising the level and degree of violence that it's okay to use against children." (my italics)

As many commentators, including Richard Long immediately on Agenda noted, this is a truly extraordinary position for Bradford to try to hold. Tightening up/refining/restricting/bounding S 59 logically has to improve on the status quo if removal of S 59 is your goal. If 0 is your goal and you're starting at 10 then any (positive) x less than 10 is an improvement. Or if ending abortion is your goal then restricting it just to the first trimester say, or ruling out some of the more gruesome techniques, or placing a bunch of other conditions on availability of abortion services simply has to constitute progress by your lights.
Consider that S 59 says

• Every parent of a child is justified in using force by way of correction towards the child, if the force used is reasonable in the circumstances

Borrows then "shades out", adding that force is unreasonable if it

1. Causes or materially contributes to more than transitory and trifling harms, or
   
2. Involves using a weapon, tool, or other implement, or
   
3. Is inflicted by any means that is cruel, degrading or terrifying

(Borrows's amendment also narrows the decriminalizing effect of S 59's justification just to assault charges, which is very anomalous in my view, and would alone be reason to prefer NSW's Crimes Act 1900 S 61AA over Borrows' Amendment. But set that aside here.)
Let's have some more of Bradford on Agenda:

"[W]hat Chester's saying is that if his amendment went through it would be okay to beat our kids in this manner. So if you put a child's hand on an electric fence for a moment that’s okay, that’s transitory, so it's actually – it's the State legitimising the use of violence against kids and that’s even worse than what we've got now." (my italics)

Note that Bradford can't resist being truly contemptible with her "electric fence" example. That's clearly ruled out by Borrows's clause 2. Bradford knows that, but says it anyway. How vile. But let's set that aside as we must.
What is going on with Bradford? Is she denying what has to be an improvement by her lights just as part of her larger ("all-or-nothing") bargaining strategy? Or is she just nuts? While both of those explanations seem to me to tell part of the story, I also think it's clear that Bradford's engaging in a specific sort of opportunistic incoherence. Let me explain.

Recall from our earlier post that much of the time Bradford holds the completely implausible view that S 59 doesn't legalize anything, that smacking is always an assault, that S 59 is "just a defence", and so on. If Bradford actually believed that then whatever adding a little more detail to S 59 a la Borrows's Amendment would achieve, it wouldn't legalize anything, it would just be a tweaking of the details of how a defence might be used. Opportunistically, however, Bradford uses the advent of the new conversational context a tightening up/refining/restricting/bounding of S59 provides to jump ship (change horses?) to the more plausible, and legally well-founded view that justifications create proceduralized exceptive clauses.
It serves Bradford's purposes to pretend that the status quo doesn't work that way because she wants to maintain that her proposed changes to that status quo don't introduce any new criminality into that system. That's deeply deceitful as we've seen, but to the extent that Bradford can get people who are currently invested in the status quo to believe that lie, it helps make her own proposals seem less threatening and relatively minimal and technical.
Borrows's Amendment and related proposals aren't the status quo, hence there's no standing majority to be bothered trying to seduce with lies and general deception. Bradford's strongest move against an alternative novel proposal without a constituency is (general coherence be damned!) to just to beat it back on its (de)merits. And that means painting it up in strongly legalizing/permission-giving terms. It's intellectually disgraceful to pivot like that depending on very narrow, audience-specific, contextual features, but such switches are Bradford's incredibly irritating bread and butter.

3. What would be a better argument for Bradford to make? Well, a relatively sane alternative would be for her to agree that Borrows's Amendment-style proposals improve on the status quo, but argue that they don't go far enough (and also to try to explain why people who do think they go far enough are mistaken). Sometimes Bradford sounds like she's doing exactly that and that she's abandoned her spurious comparative point. Thus, in a broadly charitable spirit, let's suppose that her "Borrows would be even worse" idea is just a sideshow for rubes, and that Bradford's real point is of this other, more intelligible sort.

Here's Bradford questioned by a very sympathetic Paul Holmes:

'Yeah, but what's the big deal about a smack every so often? ...."Because one person's smack is another person's violent assault."'

And here she is again:

"It is impossible to create a [Borrows-like] definition that would protect children, given that gross harm, and even death, can be caused without leaving a mark on the human body. Health professionals, including paediatricians working with abused and beaten children every day, say there is no safe level of violence."

It's not clear at all what the problem here is supposed to be, so let's distinguish three quite different cases that are at least in the vicinity of what Bradford seems to be talking about.

• Crazy parent. You smack your child to correct them, crazy parent with exactly the same ostensible motivations as you breaks out the tire iron and baseball bat.
• Ninja parent. No matter how low you set threshholds (or how much force you rule out as unreasonable), Ninja parent can use her ninja powers to kill her child within those parameters, e.g., with the lightest touch and without leaving a trace.
• Unlucky parent. No matter how low you set threshholds 1-per-million smacks (say) will have some godawful unexpected consequence involving unintended serious injury etc. to the child. Some parent – and her child – is going to be unlucky.
  

Should crazy parent worry us? Sure, but only in the way that other crazy figures such as crazy drink-driver do. One persons's well-within-limits beer-after-work and drive home is another person's licence to drink wildly and drive off completely plastered (perhaps because they think they can "handle their liquor" in a way most other people can't). Is crazy drink-driver an argument for alcohol prohibition or for "zero-tolerance" of alcohol in drivers bloodstreams? Perhaps, but it's not an argument we actually accept, both because:

1. Zero-tolerance (let alone prohibition) is too high a price to pay to defend against crazies, and
2. We have relatively little confidence that a renegade figure such as crazy-drink-driver will be differentially impacted by whatever laws we make anyway. They've shown that they're willing to break our current law wielding whatever budget of self-serving rationalizations you care to mention. Why wouldn't they be just as renegade under whatever other scheme we institute? They're a menace, no two ways about it. But they're also substantially independent of everyone else, and an enforcement challenge within any conceivable regime. Hence they don't get to dictate a hyper-defensive and obtrusive policy for the law-abiding.

The only way that I can see for Bradford to possibly block this line of reply is to try to deny that the smacking and drink-driving cases are parallel. Roughly, her reply might go as follows:

In the alcohol case there is an upside associated with, as it were, good people being able to drink, or with their being able to consume a modest amount of alcohol and still drive home. That then has to be weighed against the costs of, say, a few more crazies than there might otherwise be (say). In the smacking case, however, there is no upside from good people smacking, or, more modestly, there's a much much smaller upside. And because the crazy smacking case essentially involves children, the down-side is much greater so that the same calculation in this case goes in favor of prohibition or zero-tolerance.

The problem with this reply is that it's just sheer assertion on Bradford's part. If parents think there's an upside to smacking (and they're right - see our posts here and here – to be skeptical about the current, empirical anti-smacking literature) then that's what goes into the calculation. Bradford isn't entitled to assume that they're wrong about that. And if people aren't convinced that crazy parent/smackers are seriously mitigatable by any anticipated law change (rather they calculate that the down-side that the crazies represent is relatively independent of the legal niceties that would impact the non-crazy substantially), then again Bradford isn't entitled to substitute her judgment for everyone else's.

Should Unlucky parent worry us? Sure, life's not risk-free. Every time you put your kid in the car with you, something could happen. Every time you let them walk to school rather than drive them, something could happen. Every million meals parents cook, some kid chokes or has have a devastating reaction, or.... Every million times a kid steps on to a football field someone gets seriously hurt. And so on. We accept the risks, and we manage them. The unlucky parent is hideously unlucky: if they hadn't let their kid play rugby, if they hadn't let them walk to school by themselves, if they hadn't smacked them, then this almost incredible, long-shot possibility wouldn't have happened. That's brutal. And that's life. Of course, if you're Bradford then there's no need to live with any long-shot (borderline science-fictional really) downsides from smacking because, again, according to her there's no upside or only a vanishingly small upside from smacking (unlike with going to the mall, being able to walk to school, playing rugby, and so on). But again that's not Bradford's call to make except for her own family. There's no reason to expect every family to make exactly the same tradeoffs between child safety and the richness of their children's lives. Decisions about the costs and benefits of within-threshhold physical discipline seem likely to work the same way. So long as seat-belts are used, helmets are worn, normal food precautions taken, within-threshhold force used.... that's all she wrote.

Should Ninja parent worry us? The silly name, of course, gives away my answer: No. Recall Bradford's remark:

"It is impossible to create a [Borrows-like] definition that would protect children, given that gross harm, and even death, can be caused without leaving a mark on the human body."

What's the problem supposed to be here? Borrows forbids force that

1. Causes or materially contributes to more than transitory and trifling harms
   

where explanatory notes say that "transitory and trifling" refers, following Common Law precedent, to a sting or redness from a smack which disappears after a few minutes. Similarly NSW Crimes Act 61AA says that force used by a parent in correcting/punishing her child must

• Reasonably be considered trivial or negligible in all the circumstances, and is not reasonable if the force is applied:(a) to any part of the head or neck of the child, or (b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period. (my italics)
  

But then Bradford's somewhat spooky cases in which, by ninja powers or otherwise, the parent causes "gross harm, and even death... without leaving a mark on the human body" are exactly cases in which the force is unreasonable because some non-transitory/lasting, non-trifling/non-trivial damage has been inflicted.
While both Borrows and 61AA are undoubtedly guided by the idea that visible lasting physical harms such as bruises, welts, cuts are realistic paradigms of what will now be forbidden, it's the broader category of lasting and non-trivial harms they forbid. Sue Bradford makes it seem as though under proposals such as Borrows and 61AA, any force that doesn't cause visible bruising etc. is OK. But that's just malevolent misreading on Bradford's part: the rough rule is any force that only causes transitory and trifling stinging/harm is OK. If the force causes bruises it fails, if it causes internal organ rupture but no surface bruising it fails, and so on. Ninja parents and any others who cause massive damage without bruising etc. have used force unreasonably. The "impossibility" that Bradford alleges does not exist.