Wednesday, April 25, 2007

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.

11 comments:

Matt B said...

I enjoyed reading this thoughtful post. It is well reasoned and well structured, which nicely contrasts with Bradford's thinking.

The model of Bradford I have is that she simply doesn't think to these kinds of levels. She uses hyperbole to convince and is essentially incapable of anything more than repeating a few one liners. She really doesn't answer the questions put to her - at best she adjusts her key messages to sound like a response to the question.

Which is not, on its own, to say she is wrong, but I think her reasoning on the matter is limited to: "I see a problem, and I will use government's unique ability to coerce to fix it," and that is insufficient for good governance. You want to incorporate into your analysis government's limitations on detection and enforcement, an assessment of the costs and benefits of smacking, and think about the costs of false positives when kids and angry neighbours game the system.

ScrubOne said...

I agree - top notch stuff.

Zippy Gonzales said...

After Section 59's alteration, will it still be legal for parents to get a child's siblings to smack them when they're naughty? It's OK if they're under 14, right?

plague said...

Thanks for the feedback. I think Matt B. has Bradford basically right... she actually reminds me a bit of Dick Cheney in her ability to think and speak always in the most loaded and ideological terms, the whole point of which is to make any straightforward rational adjudication of any issue simply impossible.

Anonymous said...

Why would someone choose to correct their children or to punish their children by smacking them? It just doesn't make sense to me. Harming someone physically is violence, regardless of the fact that you may be harming them in order to get them to behave. There is not, nor will there ever be, in my opinion, a good enough reason to physically harm someone. For those out there keen on smacking your children: if it's okay to use physical harm as a disciplinary action to your children, is it also okay, then, to emotionally harm them, for example, in order to try and get them to behave? Mind games to make them behave, then? Is that sort of thing okay as well?

You see? That's my whole point. It's silly to hurt someone in any way to try to improve their behaviour.

If your child hits another child, for example, do you then seriously think that smacking your child is an appropriate way to teach your child that physically harming someone is wrong?

plague said...

Anon, thanks for your comments/queries.

In general, I think that (a) there's more than one way to satisfactorily parent (b) some parents will want to run a much tighter ship than others (c) a lot of parenting involves, in addition to reasoning or proto-reasoning, full on (often very kid-specific) manipulation (bribing kids, at least vaguely threatening them, e.g., no ice cream, no movie, etc.) so (d) people just are going to disagree about exactly the right mixture of carrots and sticks (and a fortiori whether the sticks ever include any smacking). And every kid's different.

Why would someone choose to correct their children or to punish their children by smacking them?
Isn't at least possible that it could serve as a vital line-drawing exercise after other options have been exhausted/ignored? Interestingly even the mere possibility that it could be so causes trouble for anti-smackers The most remarkable thing about the smacking debate generally has been all of the assertion of child's rights not to be smacked etc.. If that made sense then *even if we had absolutely perfect evidence that the child would be greatly benefitted by being smacked* we couldn't do it (rights tie our hands). That's weird in my view, and indicates that talk about "rights" is a misstep. (I think it's wrong on the parents side too.)

It just doesn't make sense to me. Harming someone physically is violence, regardless of the fact that you may be harming them in order to get them to behave.
Well, it's not for everyone (or for every kid). But I think it's a trivial harm in exactly the same way that sweets are a kind of trivial pleasure.

if it's okay to use physical harm as a disciplinary action to your children, is it also okay, then, to emotionally harm them
Punishing a kid by, say, making them miss out on going to the beach or to see a movie that everyone else sees, inflicts psychological pain I guess. Surely a lot of parents find that sort of exacting-of-a-price, creation-of-consequences step very useful, and I'd expect more of it if smacking is completely off the table. (Banning napalm produced cluster bombs!)

You see? That's my whole point. It's silly to hurt someone in any way to try to improve their behaviour.
You don't see even a slight inconsistency between your saying this and also supporting crimimalizing parents who smack as a way to get them to change their behavior? Shouldn't you, to be consistent, have stuck strictly to developing a mechanism with which to reward their good parenting behavior as you see it?

If your child hits another child, for example, do you then seriously think that smacking your child is an appropriate way to teach your child that physically harming someone is wrong?
It's a little odd, I guess, but tit-for-tat or tit-for-n-tats is normally/provably an excellent strategy in life (turning the other cheek is for the birds!). And changing models: you are the (we hope) benign dictator/leviathan looming over your child's life. You have a monopoly of legitimate, controlled etc force. Their play-ground gangsterism is quite different from you (much as ordinary gangsters are with respect to the state). So I don't find your picture of a symmetry (beyond superficialities) between the two "sides" convincing. I don't expect to agree - but that itself is part of my point. These are the sorts of matters on which reasonable people can disagree.

Anonymous said...

Yes, this is the type of matter on which reasonable people can disagree. Obviously people draw the line at different points. You know, it really is refreshing to read a comment from someone on the other side of this debate, that is so clear, with excellent points.

I would like to know your views on what instances are appropriate for smacking and what situations aren't appropriate for smacking. Do you think a parent can just choose times to smack their child, like whenever they get frustrated with their children, or do you think that there are actually behaviours that warrant smacking more than milder misbehaviours?

Since I would find it near impossible to come up with a list that states what behaviours warrant smacking, I have decided to refrain from smacking altogether. It's just too confusing and inconsistent for me to smack my child.

I believe that the punishment should fit the crime, but mainly because of the reason above, I will not ever include smacking as punsihment even if it seems to fit the misbehaviour of my child.

So what if my child hit another child? Would I smack my child for that? No. I would take my child to his room and tie his hands up for a while. I would tie them up loosely enough so his hands wouldn't get marks on them but tightly enough so he couldn't escape for a while.

I believe that this sort of assertive punishment is more appropriate than more aggressive forms of punishment (or correction, call it what you will)such as smacking.

plague said...

Anon, thank you again for your feedback - you are a refreshing voice too! En route to answering your main query let me just mention the sort of question I'm currently struggling with on the empirical side.

On the one hand, there's relatively little evidence that smacking is associated with (let alone that it
causes) positive outcomes for the child, whereas there is some evidence of association with negative outcomes, and some small fraction of that may be able to sustain a causal interpretation, e.g., Grogan-Kaylor's work. (I'm currently trying to understand better both his data sets and the statistical techniques he uses a little better, and also how significant the result is. If, for example, the negative impact on kids anti-social behavior scores from occasional smacking is real but no worse than than that caused by, for example, moving a couple of times during childhood -which is what the negative effect of a divorce on kids seems to amount to- then I'm not going to be too bugged by it.)

On the other hand there's a *ton* of evidence that suggests that children are largely impervious to parental behavioral influences (Judith Rich Harris summarizes lots of that work in her books). And with smacking in particular, setting aside what the law says, many parents feel exactly as you do, and have increasingly done so for quite a while. Smacking is thus *much* less common (and probably much less ferocious when it happens)now than it was only a generation or so ago. In fact most kids today are showered with attention and praise that kids *never* used to get. Children today should, it seems, be less aggressive, nicer, happier, less depressed, less suicidal, etc. than they were in the past.

But they're *not*. Rates of violence, of depression, and of suicide have *all* gone up. Kids have turned out to be almost impervious to the allegedly better treatment they're getting!

I actually don't know how to make sense of these two different sorts of research! It's a *very* confusing empirical picture in my view, one that needs lots more study before we can even be sure we know (at least roughly) what we don't know.

In general, then, I see the empirical anti-smacking case as not nearly strong enough to justify a ban. Rather it recommending just that people/authorities such as (Childrens Commisioner) Cindy Kiro issue regular (say yearly) updates to parents about how research in the area is developing.

Anyhow, on to your interesting remarks/queries!

I would like to know your views on what instances are appropriate for smacking and what situations aren't appropriate for smacking. Do you think a parent can just choose times to smack their child, like whenever they get frustrated with their children, or do you think that there are actually behaviours that warrant smacking more than milder misbehaviours?
Since I would find it near impossible to come up with a list that states what behaviours warrant smacking, I have decided to refrain from smacking altogether. It's just too confusing and inconsistent for me to smack my child.


Beautifully put! I think the questions you're agonizing over here are exactly the sorts of things that would drive me mad too. Perhaps we're both too self-conscious and reflective to be completely successful/convincing smackers!

At any rate, I don't have anything like a list of canonical situations where smacking is always a good move,... But a recent example: My niece was visiting last week, and she's going through a very selfish, alternately clingy and manipulative stage (she's almost 3). She's being relentlessly positive parented by parents who adore her. She's not my child, but it definitely *feels* like she needs the flat out, slightly shocking error-signal of a smacked hand to back up a firm "No" at some point.

So what if my child hit another child? Would I smack my child for that? No. I would take my child to his room and tie his hands up for a while. I would tie them up loosely enough so his hands wouldn't get marks on them but tightly enough so he couldn't escape for a while. I believe that this sort of assertive punishment is more appropriate than more aggressive forms of punishment (or correction, call it what you will)such as smacking.

That might work fine, but it also sounds a little elaborate... Let's say you purchase some handcuffs for the purpose you mention, won't the Sue Bradfords of the world give you grief? It's all so very personal, and hard to write general rules for...I seem to remember that one of the more infamous Section 59 defense cases involved a parent who chained themselves to his or her early teen,i.e. to stop them running off with some ne'er-do-well. I never closely studied the case but in outline it sounded like, yes, *maybe* the parent went too far (and in general I think of smacking and physical force being mostly appropriate only for much younger children). Still I have to admit I thought about that sort of case a bit over the weekend in the light of the Christchurch-car-ploughs-into-crowd incident. There must be cases where parents absolutely think it's life-and-death whether their kid leaves the house or not. And they could be right about that. At any rate if I was a jury-member in such a case I'd want to take a good long look at the evidence. For Sue Bradford anything like this would be a no-brainer case of unreasonable force etc., but it doesn't seem quite that way to me. I hope saying this doesn't put me completely beyond the pale!

I'm not sure I've been able to answer your excellent questions as fully as they deserve. Thanks for the challenge of trying to respond to them. Cheers.

Anonymous said...

You state that, basically, there is no evidence that you know of that smacking causes positive outcomes for children but there is a bit of evidence that there is a correlation between smacking and negative things.

Therefore, wouldn't the most appropriate thing to have happen be to ban smacking?

You also state something along the lines of, 'perhaps we're both too self-conscious and reflective to ever be fully successful-convincing smackers'. This implies that there are parents out there that are less self-conscious and reflective than us, which there is. I am not of the opinion that I am excessively self-conscious or refelctive but am just trying to do the best by my child. Therefore, do you not think that there should be a ban on smacking until the vast majority of parents here in New Zealand are more self-conscious and reflective?

A lot of people are of the opinion that the Bill is like the Government trying to tell parents how to raise their children. It's not really like that when it comes down to it, but it is just placing a limit on what parents can do to control their children, which is obviously completely understandable.

Let me explain things from my side a bit more: without a ban on smacking, children are subjected to smacking at times when it is inappropriate, being smacked too much, being smacked for accidents like spilling milk, being smacked because the parent is angry or frustrated with other aspects of their life such as their work, those kinds of things.

Until there is an appropriate checks-and-balances system put in place, not even light smacking should occur legally.

plague said...

Anon, thanks again for your comments. I've ended up replying to your latest at length in a post here.

Anonymous said...

Really.