Spare the rod and spare the child

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 Yet the defence for hitting children based on Hale’s jurisprudence is as outdated as all the other laws promoted by Hale that have been abolished.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. 

In Victoria, I believe it would take just one judge to state that the Hale defence to the corporal punishment of children will no longer be allowed and state the reasons for the decision. From time immemorial this is how the common law has been changed. Such change occurred when a husband’s immunity for the rape of his wife was rejected by the High Court. There is no merit in clinging to fictions and notions that belong to more violent times and societies.

The common law exemption in the Victorian Charter of Human Rights and Responsibilities makes the notional human rights of children expressed in it a mockery. If the defence is reviewed and rejected by judicial activism in Victoria, children would be better protected from violence in the law than they are now. The Courts have an ongoing tradition of examining the common law in the context of contemporary advances in society, knowledge, evidence and research, and in this debate, all the above factors point to a rejection of the defence to hitting children.

New Zealand amended their law on corporal punishment in 2007 despite the views of the majority and the vociferous views of a Christian minority. Although this issue is about children’s rights, it is also very much about their safety at home. A strong signal in the law that hitting a child is criminal and has always been so, will change behavior not beliefs. Received wisdom takes much longer as common law nations and societies have lived with violent parenting practices for hundreds of years. Parenting is an extremely difficult vocation and I found it far more challenging than the practice of law.

The significance of law over culture can be illustrated by my own experience. I was brought up by parents who did not believe in smacking and I continued this family tradition with my own children till I arrived in Australia. When I was isolated and without family, for a brief moment I accepted the belief that children could be smacked with wooden spoons here. I announced this to my children but they very quickly broke every wooden spoon in the house and hid them, so when I did reach out for them they were missing.

We are quick to object when a non family member hits a child (The Smack on ABC TV recently), yet the reality is that most people are petty smackers of their own children. There are very few prosecution of parents for such ‘minor’ hitting (smacking) as there is a long standing common law ‘de minimis’ rule that discourages trivial prosecutions.

Prosecutions against parents have not skyrocketed in New Zealand after the ban on smacking, despite the fear mongering of those opposed to reform.  Those who abuse children will always come to the attention of welfare authorities and those who overstep the mark will come to the attention of the police.

I am sure that we all believe that child abuse is unacceptable, but we have a blind spot to this law reform. We put ourselves first and feel personally vulnerable, because the law would apply to all of us. Lawyers are parents too, and more than others we know and regret the fact that flogging children as punishment was part of the legal system in the past here and continues in other legal systems and in our homes. We see this intergenerational transfer of the acceptance of violence in criminal law, family law, administrative law and the common law to name a few jurisdictions.

I urge lawyers to act on law reform just as paediatricians are being urged to by their president. The professions must lead on such humanitarian issues when there is no political will. It is our job and the job of other professionals to convince people of the greater good, with the ample evidenced based research and facts that we have in our respective occupations. Individual lawyers may well disagree that this law is manifestly unjust and damaging to us and our children, but they cannot disagree that an omission to act amounts to an acquiescence and an acceptance of the seventeenth century Hale defence for children.

This is a law I have challenged as a historical anomaly and details of this argument are on my website.