End legal assault against children

IT ALMOST went under the media radar. It was an objection to the last legal permission for one human being to inflict physical violence against another, aside from self-defence. We have made rape in marriage illegal. We have abolished hanging and whipping in the criminal justice system. We have abolished corporal punishment in schools.
Yet today in Australia it is still legal for parents to physically assault their children – provided it fits the woolly criteria of being “reasonable chastisement” or “reasonable correction”.

Earlier this month, Dr Gervase Chaney, the head of The Royal Australasian College of Physicians’ Pediatric and Child Health Division, wrote a letter to the Journal of Pediatric and Child Health calling for the outlawing of smacking children.

He said that it was no longer acceptable for parents to argue “that it never did us any harm” (because it did) and called on colleagues to stand up for children’s rights.

“We cannot keep going on with the argument that it was OK for our generation as children (or that of our parents) and ‘it never did us any harm’,” he wrote. “It is up to us as pediatricians to make the issue about children and their rights and advocate for them now and their future. . . .

“There has been good evidence that in countries where it has been banned there is a reduction in child abuse.”

He is right. The Swedish experience tells the story. In 1979, Sweden was the first country to ban physical punishment of children. No punishment accompanied the ban. It was there to educate. A 1965 poll in Sweden found more than half of people agreed with corporal punishment. That was down to 11 per cent by 1996.

Some polling suggests that Australia is where Sweden was in 1965.

Dr Chaney said, “Many people have used physical discipline and it is still regarded in most of our society as an acceptable form of parenting.”

Nine other countries have followed Sweden with legislative bans. And in 1996 Italy’s Supreme Court declared it illegal, though there is no legislation.

In all Australian states and territories smacking – assaults on children by parents — is still presumed to be legal, though that might no longer be the case in the ACT and Victoria which now have Human Rights Acts.

Unfortunately, Chaney’s call has not had much coverage and no doubt most politicians would like to run a great distance from such a great moral issue. There’s nothing in it for them. Children do not vote and parental smackers would see it as an assault on their rights to bring up their children as they see fit. And the issue is too small to be a vote-catcher among non-violent parents.

So the chances of Chaney’s morally courageous call is unlikely to come to much on the legislative front, even if his medical college adopts the policy.

But the law can change without legislation. Judges apply the common law where there are no legislative provisions. Judges can also interpret existing statutes in an evolving way.

This makes the position in the ACT salient. In the ACT there are no legislative provisions either allowing or prohibiting smacking by parents. It was the first to prohibit corporal punishment in all schools, causing outrage by fundamentalist Christian private schools who thought it was a necessary part of education.

NSW expressly allows parental smacking, but prohibits contact with the head or use of implements. Tasmania, too specifically allows “reasonable correction”.

So the ACT relies on a common-law defence to a charge of assault for “reasonable chastisement”. What that means precisely, though, is open to conjecture. There are not many prosecutions of borderline cases and even fewer appeals.

Bad bashings which are obviously not reasonable chastisement are prosecuted. Nasty smackings go unnoticed.

But you could argue that all physical violence to children by parents (or others caring for them) is now a criminal assault.

The argument runs like this. The Crimes Act makes assault a crime and the common law provides a defence of “reasonable chastisement”. Some of the common-law definitions of that belong to another era. What might have been “reasonable” in the 1950s – hitting children with straps, canes, wooden spoons and electrical cord by now is not “reasonable”. So is it “reasonable” any more to hit a child in any way at all?

In the ACT you might well argue: No. We have a Human Rights Act.

It provides that “every child has the right to the protection needed by the child because of being a child” and that no-one may be “ treated or punished in a cruel, inhuman or degrading way”.

When interpreting the laws of the ACT, ACT judges must where possible interpret them in a way consistent with the Human Rights Act. That would go for any interpretation of “assault” and defences to it.

The more pediatricians like Chaney, and maybe his college, come out against all parental smacking, the more likely that courts will interpret smacking as not being reasonable. After if society bans it in schools, why not in homes as well.

It seems odd that everyone else in society gets protection by the criminal law except society’s most vulnerable – children.

In the light of Dr Chaney’s comments, the Victorian Government has ruled out legislative change. But Victoria has a Human Rights Act like the ACT, so, legislation aside, the law which protects everyone else against assaults might these days protect children against parental assault.

The ACT is often braver in the area of social legislation. If Chaney’s call is heard by the Royal Australasian College of Physicians, it may be more difficult for courts and legislators to accept this harm.

Chaney points out there is good evidence from the countries that have banned smacking that there is an overall reduction in child abuse. There are also decreases or at least no increase in convictions of parents for assault. The legal ban acts as an educator, more than as an enforcer.

Arguments that smacking was OK the last generation so is OK now, do not hold in light of modern evidence.

To those who say, it never did any harm, I say, my parents never inflicted violence on me and I never inflicted violence on my daughter and it never did us any harm. And my guess is that it never did any harm to any child not to have physical violence inflicted.
CRISPIN HULL
This article first appeared in The Canberra Times on 18 February 2011.