Bradford's own people will lose

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					Bradford's own people will lose most in smacking law

Changing the law on smacking will have disastrous consequences for some
vulnerable people, says Michele Wilkinson-Smith

One of the great ironies of the anti smacking debate is Sue Bradford's touching faith in the police and the justice
system – and even more ironic given her former life as a protester and champion of the powerless, during which she
certainly clashed with police on occasions. I have two perspectives on the debate. As a mother of preschoolers I have
my personal views, which have changed since I had children. But whether I choose to smack or not to smack – or
whether anyone does – isn't the issue. I know that as a middle – class woman in a happy marriage my chances of
being prosecuted are practically nil. I have another perspective,As a criminal lawyer who has both prosecuted and
defended people charged with assaulting a child I think the repeal of section 59 of the Crime Act will have disastrous
and unnecessary consequences for a small group of people. The people who will eventually suffer from the repeal of
section 59 are the most vulnerable and powerless members of our community – and their children. I say the repeal of
section 59 is unnecessary because in my experience it is just that – unnecessary. I never lost a case which I
prosecuted on the basis of section 59. I drafted an indictment against a man who was convicted of smacking his 4-year
old son about 5 times on the backside with and open hand, leaving marks. I think the jury convicted because the man
smacked his boy too hard and because the boy was smacked not for a deliberate misdemeanor but because he soiled
himself. I prosecuted a man, a loving father, for using a belt on his mildly intellectually handicapped and very
challenging daughter after she damaged her bedroom. The jury were hugely sympathetic to the father but when I
asked them in closing if they would not have intervened to stop the man had they been in the room at the time I knew
they would find him guilty. I saw the realization dawn in their eyes. Not one of them would have stood by and let that
happen “as a father's right” so they could not say it was reasonable discipline. I've had fewer cases as a defense
lawyer, but I've never fancied my chances of going to a jury and saying: “Look, bashing that child with that jug cord
was perfectly reasonable.” Of course there will be the occasional case where section 59 has excused parents who have
overstepped the mark, but these are not cases where a child has been thrashed or beaten or injured. In my experience
of those sorts of cases, the section 59 defense simply isn't used. The accused denies the assault. New Zealand juries
are not stupid. Sue Bradford doesn't trust the New Zealand public so I find it amazing that she has so much faith in
the police and the justice system. She is proposing to give a huge amount of discretion to individual police officers.
She expects them to wisely ignore the letter of the law. They won't. I know this and so does National MP Chester
Borrows, with whom I worked and who was a superb, wise and compassionate detective sergeant. The police may
not, and I'm sure they will not, prosecute every case of smacking, but they will be obliged to at least investigate – and
therein is the harm. Picture this: a child at the center of a custody battle comes back from an access visit. Mum
questions the child: Did Daddy smack you? Has Daddy ever smacked you? The child says yes. Mum takes the child to
the police station. She is vocal and upset. “Investigate” sounds benign. It is not. That child will be put through the
evidence interview process. It's not a process you want your child involved in. Dad will be asked to go to the police
station to make a statement. All this will probably be good for lawyers. Probably no charges will be laid, but the child
and the family will have been through a traumatic and damaging experience. This scenario will happen without a
doubt. It will happen over and over again and the children at the center of Sue Bradford's concern will suffer it. The
poor and powerless will be far more vulnerable. Most police are honest and upstanding and we are lucky to have
them. Some are not. Some get caught up in a “means to an end” approach to criminal law. Some will use this
legislation – and the discretion it gives them – for the wrong purpose. It won't be me or people like me who suffer this.
It will be the very people Sue Bradford has fought for in so many other ways. The Government should forget party
politics on this one. We are lucky to have an experienced former police officer, who also has a law degree, sitting in
the House. He is saying, for many different reasons, don't give the police this much discretion. He's right, and we
should listen to him.

Michele Wilkinson-Smith is a lawyer

				
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