Spare the rod and spare the child

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.