I congratulate Dr Chaney and support his proposal made last week for a legal ban on smacking children.
My cause for concern, as a lawyer is that I am deeply troubled that we blindly follow an English nineteenth century common law case on corporal punishment of children.
In that case a schoolmaster was charged with the murder of his pupil, but the judge hearing the case (Chief Justice Sir Alexander Cockburn), found him guilty of manslaughter instead. He laid down rules for the corporal punishment of children by parents that we now follow in legislation or case law in Australia.
The law report of the day did not indicate that this judge provided any precedent or reference for his decision in the manner that judges are usually expected to provide, and generally did provide in other nineteenth century cases.
Given this omission, if we examine that case, we find that the decision accords with the views of a seventeenth century judge, Sir Matthew Hale, who was said to have had an admiration for ancient Romans. Hale also presided in a case where two elderly widows were hung after they were found to have practiced witchcraft.
Arguably the words used by Judge Cockburn (whom Queen Victoria refused to have as a peer of her realm), closely mirror the words used by Hale in his treatise The Pleas of the Crown written in the seventeenth century on crimes punishable by death. Hale had the view that the discipline of wives, children, servants and apprentices with moderate correction was permitted (as a defence) even if death resulted from it.
200 years later Cockburn stated that reasonable and moderate corporal punishment was allowed, and handed down a verdict of manslaughter in a charge of murder. Hale’s view was of course in keeping with pre Christian Roman law where a father had absolute power over his household.
It would be no surprise that this type of jurisprudence, led this same judge to the view that husbands had a legal immunity to any charge of rape of their wives. This immunity and the defences to the corporal punishment for all others except children, have been abolished. Yet the defence for hitting children based on Hale’s jurisprudence is as outdated as all the other laws promoted by Hale that have been abolished.
Both rape and assault have been crimes since time immemorial and by the nineteenth century Hale’s position on the defences and marital immunity were also not in keeping with the rule of law and the notion of equality before the law. The question for lawyers is why do we still permit use of the Hale defence restated by Cockburn?
The more questionable nineteenth century common law precedents on women and children have been rejected by the greatest judges of the past century in England and our most distinguished judges here.
However, law reform to provide children equal protection of the law is still wanting in both England and Australia. New Zealand is the only common law country that has had the courage to question this law that all former colonies inherited from England. In the absence of much support by parliamentarians, I suggest that the judiciary in Victoria confront and challenge this defence embedded in our common law.
A review of this defence by them is needed, as the reality is that there is no political leadership for children’s right to safety in their own homes, as they have no votes. Adults have votes, yet in the past there was political will and leadership to outlaw other populist issues like speeding, drink driving, the compulsory use of seat belts and a ban on smoking indoors. Yes there was overwhelming opposition from many distinguished people not simply followers of tabloid media. Many deplored such reform, but there was sufficient courage and political will for action to recalibrate adult behavior for the greater good.
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