from Craig Smith, Family Integrity
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Click here for a copy of the new Section 59
Click here for a a copy of the Police Guidelines for the new Section 59
Number One: What Is Meant by "Correction"?
A. Is it possible to make an arrest or prosecute or secure a guilty verdict against a parent for using force with his/her child for the purpose of correction even though the term "correction" is not defined?
B. Does Parliament need to define "correction" before Police will know how to recognize it or identify it? Apparently "correction" used to include all the purposes listed in the present Section 59(1)(a-d). If the meaning of "correction" no longer includes those things, then what does it mean? Could it mean the same as "discipline", "training", "punishment" or "guidance"?
C. Are the Police going to arrest parents for "correcting" their children using a Police working definition of "correction"? If so, what is that working definition? Will Police then modify their working definition of "correction" once a body of case law is built up and precedents established?
D. What if a parent is thoroughly, earnestly and honestly convinced that "correction" of a child is more than just "incidental to good care and parenting" (Section 59(1)(d)), but is an essential part of "good care and parenting"? Are the parent's beliefs and/or convictions about this protected in law?
E. Is "correction" now not to be considered part of "good care and parenting" (Section 59 (1)(d)), unless it can be accomplished without the use of any force at all?
F. On page 2 of the recently issued Police Guidelines to the interpretation and enforcement of the new Section 59 (Circular 2007/03), under the heading "Preventing" it says, "force cannot be used after the event to punish or discipline the child." Are parents now to understand that neither "discipline" nor "punishment" can be considered part of "good care and parenting" unless they can be accomplished without the use of any force?
Number Two: What Is Meant By Reasonable Force?
A. Does the term "Force" as it is used in Section 59 of the Crimes Act refer to only physical force or does it also refer to non-physical force such as gestures, intimidation, verbal warnings, threats, insinuations, emotional manipulation, appeals to religion or culture or tradition or concepts of right and wrong?
B. On page 2 of the recently issued Police Guidelines to the interpretation and enforcement of the new Section 59 (Circular 2007/03), under the heading "Preventing" it says, "force cannot be used after the event to punish or discipline the child." What if the parent uses force after the event for the purpose of "preventing the child from engaging or continuing to engage" at any time in the future "in conduct that amounts to a criminal offence" or "in offensive or disruptive behaviour" as per Section 59(1)(b) & (c)? Could force used for this purpose be legally justified under the new Section 59?
C. On page 3 of the Police Circular, under the heading "Inconsequential offences where there is not public interest in prosecuting", it says, "The use of objects/weapons to smack a child…would not be inconsequential". This is obviously in reference to Section 59(4). Do Section 59(4) and this comment from the Circular apply equally to Section 59(1)(a-d) as well as to Section 59(2), or do they apply only to Section 59(2)?
D. Does the "reasonable force in the circumstances" of Section 59(1)(a)-(d) mean parents can legally employ implements and/or smacking to accomplish the purposes listed, as long as the force used is reasonable in the circumstances?
Number Three: If There Is Reasonable Doubt, Are Parents Therefore Automatically Guilty?
A. Section 59(3) says Sub-Section 2 must prevail over Sub-Section 1. Does this mean that if it is unclear to a Police Officer contemplating making an arrest of a parent who has used force with a child or if it is unclear to a jury trying to decide if the force used by a parent with a child was legally justifiable, if there is a doubt as to whether the use of force was for the purpose of preventing (for example) offensive behaviour or for the purpose of correction, that the interpretation of correction must prevail?
B. Does this mean that, contrary to normal understandings of justice wherein one is only guilty when it is proven beyond reasonable doubt, juries and Police Officers in these cases will be required to return a guilty verdict when there is reasonable doubt about the purpose?