Monday, April 02, 2007
Tony Milne and others on the left are saying that removal of the s59 defence does not criminalize smacking because smacking has always been a crime, e.g.:
Smacking has been illegal for 100 years but there has been a defence in law.The argument is that defences are something you use in court to avoid conviction, they do not affect whether the act was or was not a crime.
Leaving aside the fact that the real issue is whether parents who smack with reasonable force are liable to be prosecuted and convicted and/or have CYFS take away their kids, my view is that a crime requires three things:
1. A prohibited act or omission.Clearly this is correct where the defence or excuse is in the same section of the Act as the prohibited conduct. Otherwise all sexual intercourse would be a illegal and consent would just be a defence you could use in court. Likewise carrying a knife in public would always be a crime even if you just bought the knife and were transporting it home.
2. The required mental state (intention, negligence or others depending on how the offence is defined).
3. Absence of any defence or excuse.
So the theory must be that the location of the defence or excuse in a statute determines whether it is an element of the crime. If it's in the same section as the prohibited conduct it prevents that conduct being a crime but if it's in a separate section it doesn't.
The problem here is that general defences apply to a number of crimes. Section 59, for instance, applies to kidnapping and other crimes as well as assault. Self-defence can apply to a very wide range of conduct. General defence provisions, separate from the conduct they apply to, are not created out of a desire by Parliament to treat the conduct as criminal but with a way of avoiding conviction. They are created simply to avoid all those defences and excuses needing to be attached to each and every provision to which they might apply. It's just sensible drafting to do that.
A further point is that existence of a defence may alter the crime the defendant committed. Provocation can be used to reduce murder to manslaughter. How could this be if the definitions of murder and manslaughter exist entirely independently of the defence provisions?
So the claim that defences don't make any difference as to whether conduct is illegal or criminal leads to various absurdities, no matter how you analayse it.
The final point is that the only reason bill opponents are saying the bill makes smacking illegal, is to explain the conclusion that decent parents who currently use light smacking as a form of disciple will be liable for prosecution and conviction if the bill passes. Even if you accept the Labour and Green claims that smacking is currently illegal, the conclusion still holds. The argument simply becomes that removal of the defence will leave decent parents liable to prosecution and conviction.