Feature Story 01-Jul-2010
“I am astonished that in this country in the 21st century it is still a defence to a charge of assaulting a child that you were engaged in reasonable chastisement…some parents take that much too far.”
Family Court Chief Justice, Alastair Nicholson, quoted in the Courier-Mail in 2002.
Have your say…
Should Section 280 be repealed? Or should it be amended?
Take our online survey at: http://www.surveymonkey.com/s/8QNGCHT
Whatever the outcome, your responses could help create a safer environment for kids. One of the advantages of law reform of any kind is that it can push child protection to the top of the political agenda, resulting in increased public education and, hopefully, funding and practical support for parents.
Ever watch those TV courtroom dramas, you know, the ones where the brilliant young attorney manages to get the murderer to break down in front of the jury and confess everything?
In real life, law courts aren’t always so exciting, at least on the surface. But at the crux of every case, especially in the criminal court, there are real people dealing with heartbreaking situations.
So the subject of possible changes to the law, especially where it involves child abuse, is not some dry, academic matter for only bewigged judges to consider. It’s something that every parent, and in fact every responsible Australian, needs to take seriously.
Every year in Queensland, hundreds of parents are charged with serious assaults on their children. We’re not talking about just a small smack. We’re talking about kids being belted, sometimes with implements like straps or sticks, causing injuries ranging from welts, cuts and bruises to fractures and concussion, not to mention severe psychological damage.
But under Section 280 of the Queensland Criminal Code (a section which dates back to the 1800s), these parents could say they were acting quite legally. Because Section 280 says a parent can use “reasonable force under the circumstances” in order to “correct, discipline or control” their child. What’s “reasonable” is open to interpretation by the judge and jury. And although most of the time they may be fairly well in line with the rest of us, there’s no guarantee.
The idea that parents who have injured their children might then try to use this legal loophole to defend themselves in court is bad enough. Even worse, this defence requires that they try to show their child somehow “deserved” it.
Former Queensland Attorney-General and current Queensland MP Dean Wells explains every case that involves a Section 280 defence ends up as a trial within a trial.
“The child gets traumatised twice: once by being [physically assaulted], and second by being `character assassinated’ by the defence counsel in the court,” he says.
Wells believes that in some cases police are reluctant to lay charges where they believe Section 280 would make the assault legally defensible. He says that although this is keeping the issue in check for now, it’s only a matter of time before Queensland ends up with a case where Section 280 is used to “legally pervert the course of justice”, leaving a child victim in its wake.
Dean Wells is very clear about how and why the law should be changed. Although he says he personally doesn’t believe in mild smacking, he is adamant that he is not trying to make smacking against the law. What he’s trying to do is make sure that Section 280 can’t be used by those who commit more serious assaults, because at the moment there’s nothing to say that it can’t. “We need to draw the line very clearly that injuring a child is not something which is capable of being justified or excused,” he says firmly.
Wells is recommending that Section 280 should be amended, so that the so-called `Domestic Discipline defence’ definitely cannot be used in any cases where the child is injured – that is, where the assault has caused bodily harm. This includes cuts, bruising, and emotional harm, grievous bodily harm or even death, whether or not it was intended. These levels of assault are clearly defined under the Criminal Code as being over and above common or technical assaults, which are trivial or mild.
Sounds pretty reasonable so far, right? The trouble is, Dean Wells didn’t propose his amendment just the other day. It was three years ago, in reaction to several high-profile and shocking child abuse cases in New Zealand and Tasmania where the “reasonable force” defence was used. (It led to that defence being removed from the New Zealand Criminal Code, in the face of some public controversy.)
But legal matters can often be complicated, and tabloid-style current affairs shows and newspapers don’t like to spend too long explaining things, in case our short attention spans lead us to flick the switch or turn the page. And with a topic like this, stirring up arguments for the purposes of `entertainment’ rather than journalism is too easy. Emotive, inaccurate headlines like “to smack or not to smack” just about write themselves – never mind that the main idea is being misrepresented. The holders of the most extreme viewpoints from each side can rip themselves to shreds in the `comments’ sections of various websites, and the issue can end up a political dead duck.
And that’s what did happen. Despite the fact that Wells made it abundantly clear that his proposed change to the law had nothing to do with `ordinary’ (light, non-injurious) smacking, it didn’t take long for that to be lost in the `smack banning’ panic.
Peter Beattie, who was Queensland Premier at the time, declined to support Wells’ proposed amendment, claiming in a Courier-Mail interview that to do so would make him “a hypocrite” because he had smacked his three children when they were young. (The opening paragraphs of the same article referred to Wells’ proposal as a “legislative ban on parents smacking their children”.)
Adding to the confusion was the fact that many people and organisations do support a complete ban on smacking. These include international organisations, several of whom say that Australia is not honouring its obligations to the United Nations Convention on the Rights of the Child. (Not everyone interprets the UN Convention that way, however.)
Groups such as Concerned Psychologists Queensland as well as international groups such as EPOCH (End Physical Punishment Of Children) and many others, say that all forms of corporal punishment and physical discipline, including any kind of smacking, should be against the law.
Which brings us back to 2010. These international groups are keeping up the pressure on all countries, including Australia. Since Sweden led the way in 1979, 26 nations have banned all forms of physical punishment for children, and more are getting ready to join them.
In some countries, such as New Zealand, this has been through the removal of the relevant section of the Criminal Code (the equivalent of our Section 280). So far, New Zealand is the only English-speaking country to have done this, although Scotland and Canada, for example, have legally limited the circumstances in which physical punishment can be used, and given clear descriptions of the type of punishments which may not be used (for example, using an implement like a cane or strap).
In Australia, despite calls for change, the only state to have taken action so far is New South Wales. In 2001, the “reasonable force” section of their criminal code was amended to make it clearer: children cannot be hit about the face, neck or head, and any hitting or force which could harm a child for more than a brief moment is not allowed.
But to international movements such as the Global Initiative to End All Corporal Punishment of Children, that’s not enough. They specifically recommend against modifying or limiting existing laws, saying anything short of a full ban sends the wrong message – a bit like allowing men to beat their wives “just a little bit”. (After all, at one time that was legal too.)
So, should minors be granted equal rights under the law? What about equal responsibilities? If the former but not the latter how can this be balanced with society’s and parents’ rights and responsibilities? It’s complex, but considered and informed public debate, rather than name-calling, is essential.
Unfortunately, with an issue as emotive and sensitive as this, rational public discussion is hard to come by. And as Dean Wells discovered, as soon as an idea gets twisted and turned into `the smacking debate’, political leaders who want to be involved can be a little thin on the ground.
So are we stuck with these laws forever? James McDougall, from the National Children’s and Youth Law Centre (NCYLC) is optimistic. Although he’d like to see Section 280 (and its equivalents in other Australian states) done away with altogether, he’s willing to concede that an amendment might not be a bad first step.
Ironically, considering he works for the NCYLC, he also says that law reform is really just a small part of the picture. He says that, thankfully Australia appears to be starting to move into the next phase of preventing child abuse – putting less emphasis on prosecution and more on prevention, by educating and supporting parents. “It does require a bit of bravery on behalf of politicians, but in the meantime it’s quite clear the leadership is coming from community organisations, and some academics,” McDougall says. “There are some good signs.”
Medical science to the rescue
Prior to 1962, the problem of child abuse (or as it was initially referred to, “Battered Child Syndrome”) simply did not exist as far as the medical profession, the government, or general public were concerned. It first emerged due to increasing use of x-rays, which enabled doctors in hospital emergency departments to see the number of previously undiscovered older fractures evident in abused children.
As awareness of the problem of child abuse increased, the social sciences began studying it in more detail, and it was discovered that around 65% of cases were linked to excessive punishment (whether or not the parent had meant to injure the child). This, along with new theories and discoveries about child development, resulted in a growing number of people and organisations calling for physical punishment for children to be outlawed.
The ‘S’ word
Those who want a full ban say:
“Smacking” is just a euphemism for hitting /it’s a form of violence
It compromises a child’s physical and mental integrity
It can lead to escalating physical punishment/abuse
Research has shown it has negative long-term outcomes
It’s less effective than other methods of discipline
The prosecution process would ensure that trivial or mild smacking would not be the subject of legal action (much as it does now).
Those who are against making smacking illegal say:
It’s insulting/ridiculous to put mild smacking in the same category as physical abuse
It’s not the government’s place to dictate parenting methods
There might be times when alternative discipline strategies may not be as effective with some children
Much of the research is flawed/inconclusive
Parents don’t trust assurances that they won’t be arrested for mild smacking.
The survey says…
45% of respondents believed that it was reasonable to leave a mark on a child as a result of physical punishment.
Only 41% believed that smacking a child was effective in shaping their behaviour.
10% believed that it was appropriate to use implements like canes, sticks, belts, or slippers to punish a naughty child.
14% supported using a wooden spoon.
75% agreed that it is sometimes necessary to smack a naughty child.
Source: Australian Childhood Foundation, 2002.
If you’re struggling with discipline issues, and/or are concerned that physical punishment of your child sometimes `goes further’ than intended, confidential support and help are available.
PARENTLINE (A service of BoysTown):
Support, counselling and parent education for the cost of a local call anywhere in Queensland (mobile phone charges apply). Phone:1300 30 1300, 8am-10pm, 7 days a week
Queensland Community Child Health Services
Phone the Health Contact Centre on 13HEALTH (13 43 25 84) and ask for contact details for your nearest Community Child Health Centre.
Triple P Parenting Program