The law protecting parental corporal punishment of children : New Zealand's legal reform options

Abstract

In New Zealand, parents who use physical force to discipline their children may be protected from civil liability and criminal charges by the parental discipline defence of section 59 of the Crimes Act 1961. This defence justifies parental corporal punishment when reasonable force is used for the purpose of correction. Most cases of physical abuse substantiated by the Department of Child, Youth and Family involve injuries such as bruising and welts. That the parental discipline defence permits parents to escape criminal conviction and civil liability when parental corporal punishment has caused such injuries raises the concern that the defence inadequately protects children from physical abuse. The ambiguity in the language of the defence creates inconsistent and unjust results due to a significant lack of public consensus regarding what constitutes reasonable parental physical discipline. Due to this ambiguity, the parental discipline defence does not adequately protect children from physical abuse, nor does it adequately protect parents from over-zealous prosecution. To allow better implementation of both criminal and civil legal systems on behalf of children injured by parental corporal punishment, the parental discipline defence should be repealed. Upon repeal, a formal police charging policy could limit charges of assault to cases of injury or a substantial risk of injury, and prevent State intrusion into non-violent parental disciplinary practices. With this legal reform approach. New Zealand law would no longer tolerate, promote or protect the injury of children; family violence policies would become more consistent; and compliance with the obligations of the United Nations Convention on the Rights of the Child would be achieved.