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.