S 59 Debate: The No New Criminality Response

Most NZ-ers think that Sue Bradford's original proposal to repeal S 59 of NZ's Crimes Act outright made every parent who ever smacks his or her child a criminal. Most NZ-ers also think that Bradford's current amendment to S 59 (modulo worries about its somewhat messy and inconclusive details) criminalizes the central case in which a parent smacks his or her child to correct/discipline them.
One possible response to this sort of solid majority opposition if you are a supporter of Bradford's initiatives is what I'll call the Brave response:

• Yes, the majority have understood our proposals correctly, but the majority isn't always right, and in this case they aren't. Often Parliament just has to be brave and take a stand and pass a law that the people don't want, but that is the right thing to do. We do believe that just as we don't have laws that allow guys to push around their wives, so we shouldn't have such laws in the case of their kids. People currently risk imprisonment if they lay a finger on their wives, and that's exactly the jeopardy we want people who whack their kids to be under. Don't want to be a criminal? Then don't smack your kid! If the people disagree passionately with us about that then, at the next election, opposition parties can make reversing our changes part of their platform and the people can then toss us out. C'est la vie in a democracy.

Another possible response that tempts some supporters of Bradford's initiatives is what I'll call the Underenforcement response:

• Yes, the majority has the basic picture right, but insofar as any normal parent is fearful of our changes, he or she is forgetting that the relevant bit of new criminality won't be enforced. Yes, more people are technically criminals post-Bradford's Bill, but most of the newly criminalized have nothing to fear. Trivial violators will never be charged. The law on assault will be discreetly rather than strictly enforced here just as it is elsewhere, and just as most laws are. (De minimis and all that. Don't ya trust the police?) What drawing the bright line at official zero-tolerance of physical force does, however, is smooth the charging and prosecuting of serious assaults of parents against their children.

A third possible response is what I'll call the No New Criminality response:

• No, the majority hasn't understood what Bradford's various initiatives involve. The initiatives don't criminalize anything – smacking your child for any reason is and always has been a crime. Removing or altering S 59 doesn't turn any non-crimes into crimes, all it does is remove (completely in the case of repeal, partially in the case of amendment) a defense that's available now that mainly helps serious abusers to get off or elude detection in the first place. Bradford's bill allows for stricter though still discreet enforcement of laws against assault on children. It is outrageous to suggest that Bradford's bills criminalize or ban anything. That the NZ public thinks they do is both an indictment of the main-stream media and also further reason to be Brave. The public literally doesn't know what it's talking about and may be ignored on the issue.

In my view, the Brave response is legitimate, the Underenforcement response is evasive and unconvincing, and the No New Criminality response is outright deceitful. The No New Criminality (NNC) response is very widespread within a kind of closed loop of Labourite self-regard. See, for example, here, here, here and here. And, of course, Sue Bradford herself is an NNC person on occasion. Here she is on Agenda:

"Can I just make a point on that, but it's actually illegal now to smack your child. This point seems to have been missed throughout the debate that under Section 194 of the Crimes Act an assault on a child under 14 is actually a crime and what my bill is attempting to do is to get rid of the defence of reasonable force for the purposes of correction which provides a defence under law for people who assault children under 14. I'm not creating some new offence of smacking which seems to be the implication of some of my opponents."

[We set aside Bradford's filthy lie that S 59 is a general provision covering "people who assault children under 14" rather than being parent-child specific as simply beneath contempt.] To Bradford's credit she did retract a few days later when pressed, and to the extent that her instincts are basically Brave, she deserves respect. Here's the retraction:

Assault on a child is a criminal offence under section 194 of the Crimes Act. Section 59 of the Crimes Act provides a justification defence to a charge brought under section 194. That justification is that "Every parent of a child ... and every person in the place of the 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". The reasonableness of the force used is a question of fact. Whether smacking for the purpose of domestic discipline in any particular situation is lawful or unlawful is therefore determined by the particular circumstances. Some smacking is therefore illegal under the current law. (my bolding)

That is, even though she does her absolute best to avoid actually saying it, Bradford agrees that smacking that involves reasonable force is justified hence isn't criminal (is lawful), and that only the smacking that doesn't involve reasonable use of force hence that lacks a justification is criminal. Her proposal, seen arights is exactly the Brave one that thinks that the current situation doesn't criminalize enough. Her initiatives extend what's currently only true of "some smacking" (i.e., of the smacking a.k.a. "beating" that's smacking the way Everest is a bit of a hill!) either to all smacking (if S 59 is repealed) or to all corrective smacking (if S 59 is amended as currently proposed). Thanks for clarifying post-Agenda Sue! [Or maybe not! 4 days later, Agenda-Sue returned here. Respect... fading....can't...]

In the rest of this post I mount a basic, frontal attack on the NNC response.
The kernel of truth in the NNC response is that, along with a lot of other stuff that's very important to all of us – from being able to defend oneself and others against assaults, to being able to arrest people, to stopping people from committing suicide – S 59's acknowledgment of parental disciplinary authority is a defense, so removing it either completely or partially is in the first instance just taking away some or all of a defense.
But, and it's a big "but", like all of the important stuff we just mentioned, S 59 is a justification defense. A justification defense is not a defense against any particular sort of possible charge, rather it is usually a quite general pre-announcement of some purpose or context or goal or interest or sphere of activity that society approves of. In principle any number of different criminal offenses could collide with it... and be turned back. Excuse defences such as insanity, duress etc. pre-announce conditions under which society won't hold someone responsible for some action that's criminal. Justification defenses, however, pre-announce conditions under which society is prepared to say that some actions (and indeed whole spheres of activity) that would otherwise be prohibited aren't. Rather, if any collisions with the criminal law arise in these sorts of cases, the actions in question are pre-approved to get right-o'-way. (Arguably justifications should also ensure right-o'-way against any subsequent civil proceedings. That's the case in NZ and in most other English Law-derived jurisdictions, but not in all. I set civil liability questions aside here.)
So while it's true that S 59 is "just a defense" (or "simply provides a defense"), it is (or provides) the sort of defense that de-criminalizes an action or whole sphere of action, not the sort of defense that focuses on the agent and finds her not responsible/culpable. Since if you remove or shrink a justification defence, you remove or shrink some space of decriminalization, thereby creating new criminality overall, that's what's in the cards with S 59's repeal or amendment, contrary to the NNC response.
Let's go back briefly to Agenda-Sue's remarkable claim:

"Can I just make a point on that, but it's actually illegal now to smack your child. This point seems to have been missed throughout the debate that under Section 194 of the Crimes Act an assault on a child under 14 is actually a crime"

According to S 59:

• 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.

and S 2 tells us that "Justified, in relation to any person, means not guilty of an offence" (my bolding). In particular, then, to correctively smack your child in some trifling way is not any sort of offence. It's not illegal and its no crime. In particular it's not an assault, which S 2 tells us is "the act of intentionally applying or attempting to apply force to the person of another" and which has the following sorts of liabilities:

• S 196 Common assault: Every one is liable to imprisonment for a term not exceeding one year who assaults any other person.
• S 194 Assault on a child: Every one is liable to imprisonment for a term not exceeding 2 years who—(a)Assaults any child under the age of 14 years;

S 59 therefore creates a bulge of exceptionality that has to come up somewhere. One approach thinks of the exception as being carved out of assault's liabilities clauses (i.e., into S 194, 196, e.g, "...not exceeding one year who assaults without justification any other person"). On that view, a justification creates a kind of assault - justified assault - that lacks the usual liabilities. The obvious alternative – and one that fits better with the "no offense" account of justification – is to think of the exception as carving a proceduralized "unless" clause into what counts as an assault in the first place (i.e., into S 2). On this view, assault may initially be "the act of intentionally applying or attempting to apply force to the person of another" but, in the light of S 59, to be strictly correct we'd have to add "unless it's done by a parent in correction of her child and using only a degree of force that's reasonable in the circumstances." That obvious way of handling things is in fact just the way things are traditionally done and summarized in English-derived law. The classic statement about parental correction of children in Halsbury’s Laws of England is:

“An act is not an assault if it is done in the course of the lawful correction of a child by its parent" (Fourth Edition, Vol 11(1) p 374, para 497)

All of this repudiates Agenda-Sue's remarks root-and-branch.

Now, clearly some people don't like thinking about things the way that we've just seen is very natural. One wants to ask such people:

• What is a justification if it doesn't defeat criminality?
• If the justification doesn't make the relevant action non-criminal why is anyone getting off or not being prosecuted?
• Dear God, you aren't just eliding a justification into an excuse, are you?

Since there's been an incredible amount written on the subject of excuse vs. justification defenses over the last 50 years, if you disagree with the basic analysis and angle of attack here, you probably can find someone clever who agrees with you! (But will that clever person make any sense? Can she answer our questions?) Still, the obvious idea that justification defences are a proceduralized way of writing exceptive clauses is pretty mainstream. Here are some standard references and quotes:

• H.L.A. Hart 1968, Punishment and Responsibility : "[i]n the case of 'justification' what is done is regarded as something which the law does not condemn, or even welcomes" (13-14)
• Paul H. Robinson 1975, A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability, 23 UCLA L. REV. 266: "[t]hough justification is often considered a 'defense', it is more properly viewed as an 'element' of an offense in the sense that no crime can be said to have occurred if the act is justified or, in other words, unless the act was non-justified." (272)
• Mitchell Berman 2003, Justification and Excuse, Law and Morality, 53 Duke L. J. 1: "the distinction between justification and excuse for purposes of taxonomizing criminal law defenses is only this: A justified action is not criminal, whereas an excused defendant has committed a crime but is not punishable" (4); "a justification defense within the criminal law has no necessary connection to the substantive claims of morality but, instead, constitutes an exception to the criminal law offenses in the sense of permitting conduct that an offense by its terms prohibits." (29)

All of these describe the obvious way to read S 59 in the light of S2 to a T. Some jurisdictions are even more explicit that justification defenses normally decriminalize actions (or whole spheres of action). Here's how New York State writes its defense clause for parental authority:

• S 35.10 Justification; use of physical force generally.
  The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
  1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person. (my bolding)

Go here to read NY's full provision. According to me, NY merely makes explicit what is implicit in every other common-law based legal system that uses justification defences. If you're an NNC person then you seem to have to believe that NY state's legal system is fundamentally conceptually confused and that, in any case, in this respect it's completely different from, and not, as I believe, simply a slightly more explicit variant of what NZ has. So much the worse for NNC theorists that they have to resort to such desperate measures of course. Click on the image below to get a useful table paralleling three of NY and NZ's justification defences. There are lots of important differences, but how the justifications defences are working in the two criminal codes isn't among them.