THE INVESTIGATE INTERVIEW
RIGHTS TO SUE
The Green MP behind the smacking law change
INTRO: Sue Bradford is a driven woman. Quite happy to give the police a bit of biffo in days of yore, the activist-turned-MP wants a law change removing parental rights to smack. But in an interview with IAN WISHART, Bradford appears to approve of using reasonable force in some situations, and is now willing to look at a compromise position:
INVESTIGATE: When are you expecting the next round in the smacking debate?
A: The report back date to Parliament is at this stage August, but I suspect it might be put back a bit later because we’ve had over 1,700 submissions.
I haven’t done an analysis, but I do know there are a lot of substantive submissions from major organizations that are in favour of my bill. In terms of organizational submissions it’s looking very good for my side of the debate, in favour of repeal of s59, but of course there are hundreds of submissions from both sides of the debate.
Q: What led you to this, when did you first think, ‘I’ve got to do something about this’?
A: Soon after I came to Parliament. I hold the health, social services and children’s portfolios for the Green Party, and I was just getting a really strong message from groups that work with families and children and domestic violence as well, about the problem of violence against children in this country. It became very clear to me that repealing s59 was something that I might be able to do as an MP that might change things for the better for the children of this country.
So from very early on I wanted to do a private members bill, but in the first couple of years I didn’t because Brian Donnelly from NZ First had his bill in and you can’t have more than one bill on the same subject, so I figured that if Brian wanted to do it I’d just support him. But then he withdrew his bill, because he decided he wanted to go down the route of defining what constitutes ‘reasonable force’ against children, and I thought that was really shocking because I just don’t agree with those arguments at all – the more you define what reasonable force is, the more you’re actually legitimizing various forms of assault against children. And at that point once Brian did that, we wrote our own Green Party bill and put it in the ballot.
Q: In terms of background, you’ve got kids, right?
A: Yeah, I’ve had five children.
Q: Presumably along the way you’ve smacked them from time to time?
A: No, I’ve never hit them or smacked them. Not that I can recall, and I’m sure they’d tell me by now if they thought I was telling lies. I’ve asked them, but honestly I can’t remember ever doing it. It was never in my mind.
I didn’t know the psychology of child-rearing, but I just never wanted to because my children were just so precious to me. I just could not conceive of doing that, that there would be any useful point or that I wanted to.
Really to me, from the time you conceive your baby, and from the time it’s born, it’s out and as an adult my role is to nurture that child and look after it and love it. Hitting it? I just don’t get it. But that’s my personal view, I didn’t learn about the theory of it until later.
I had twins when I was 24, and then I had three more children later on. Of the second three, there’s two years between the first two and then five years between the second and the last one. But I was on the DPB with twins for the first three and a half years of their lives, and that’s not the easiest situation to be in. I was very depressed through some of that time and I know how hard it can be to have kids and to be trying to do your best, sometimes without a lot of money. And how you can get frustrated and angry about some of the things they do, from personal experience! But it’s just that there’s other ways of dealing with it than hitting them.
Q: What did you do?
A: There’s lots of different things that you do as a parent. Part of it for me is that if you think of them as your equal, and I still do, if it’s appropriate – and it depends on their age – you try and explain why you’re angry or why they shouldn’t do something. If you’re going into danger, like running into traffic, pull them away from danger.
Some people have made the argument that my bill, if passed, would mean that if someone pulls their kid away from danger that they would be arrested for assault. It’s a really nonsense argument, because no police or court would ever arrest or convict anyone if they were trying to save someone from danger.
Q: Yeah, you’re absolutely right, there’s a section of the Crimes Act that authorizes force in the defence of another or to rescue them, so that’s not an issue, but I do want to get back to your own kids –
A: I can remember putting them in their room, I can remember getting them to help clean stuff up when they’d made a mess. You can get them to do other things. Say they’re causing a scene somewhere in public, you try and get them away from the scene of the disaster so to speak, you’d try to remove them from where the trouble is rather than attacking them.
Q: How did you do it?
A: Well you’d take them physically away from where the problem is.
Q: Did they ever resist you, screech and complain?
A: There’s certainly been times, the one people talk about is the screaming in the supermarket. I’ve certainly had the screaming in the supermarket and the yelling for treats and all the rest of it. I think that must happen to all parents, but it’s how you deal with it, whether you hit them or swear at them cause they’re doing something. I think the best thing is to get them out of there as fast as possible.
Q: I think most mothers would be saying, ‘Yes, exactly,’, but I’m just trying to nut out in terms of your own kids that they were no better nor worse than anyone else’s.
A: No, I’m not saying they were angels at all, and I wasn’t some sort of trained childcare professional or anything like that, I was just trying to bring them up as best I could. The fundamental attitude I had was that from the minute I first knew I was having twins, and later had them, I just loved them so much I felt it was my job to look after and nurture them to the best of my abilities and to protect them from danger and bring them up as well as I could in doing that. The thought of being physically violent towards them in any way at all never crossed my mind.
Q: What about when the twins were scrapping amongst themselves –
A: Which they did a lot of!
Q: What did you do?
A: Well, you ask them to stop or, in a loud voice, tell them to stop, or you can separate them and put them in their room, although often that wouldn’t be a good thing. But mainly I remember trying to tell them ‘this is not a good idea because…’
Once they reach the age when they can have any reason at all – of course when they’re tiny they don’t have that – but kids gradually reach the age of reason and the sooner you start explaining things to them, the better.
To me, you don’t need to hit them or smack them to make the explanation.
Q: But what I’m trying to drill down to here is, when your children hit the terrible twos, and they can’t be reasoned with, they just ‘want, want, want’ now, ‘get out my way’, whatever, what did you do, how did you enforce the point.
A: Well it depends on the situation, you just deal with it at the time. As a parent you’re much physically bigger than they are, so for example if they won’t put their sweater on and you want them to put their sweater on, well you can physically put it on them. And if they won’t go into their bedrooms you can physically put them into their bedrooms. Yeah, when they’re that age you can physically manage them better than when they’re 14, but stages of child-rearing and what you can do are so different depending on age.
You can tell them not to do it. I certainly would have yelled quite often! You can put them in their room or take them away from situations. You can try and distract them.
Q: Let’s say you’re taking little ones into their room, and they’re kicking and screaming while you’re dragging them in, were you comfortable with that?
A: Yes, but, yes, but I mean, but when kids are little you do physically have to look after them and make sure they’re safe, and that’s part of a parent’s job. If safe means putting them in a cot or safe means putting them in their room, but that’s not hitting children, that’s just looking after them.
Q: I’ll come back to it, but I think most parents, like you, have yelped at their kids, but aren’t you worried that if a simple smack disappears as a form of discipline and parents feel they can’t do that, then they will simply take out their frustrations with much more verbal abuse of children in many ways?
A: Well that would be awful, and I think that verbal abuse, psychological abuse, is just as bad in many ways as physical abuse, and it can actually be worse sometimes – the psychological impacts of how parents can freeze out their children, or abuse their children or call them names, or be really denigrating and humiliating to their children verbally – that can actually have a worse effect in some cases than physical violence.
Repeal of s59 is only one small strand of what we need to do. A big part of this is actually putting sufficient resource into support for all the community and church groups and other organizations that help to train parents on different techniques of child-rearing that don’t involve either physical or psychological violence. And also into the organizations that provide support to families in trouble where the parent or parents are really desperate: ‘How can I bring up this kid, what can I do about this kid that’s causing me all these problems?’
At the same time as repealing s59 we have to give a lot more support to parents and families. It’s not something that stands alone.
But why s59 is the key is because it is saying is the State legitimizes a degree of violence unspecified against our children.
Q: Yeah, I understand the legal perspective you have of it. In terms of verbal abuse, I’ve seen kids who are browbeaten without a finger ever having been laid on them –
A: Reduced to a sense of nothingness –
Q: And their spirits are broken. Why can’t the law tackle that then?
A: I don’t know what the law can do about that particularly. It’s certainly something that should be tackled with education and training and support from parents, and I suppose broader public education campaigns as well.
Q: I’m going to play Devil’s advocate with you on the point: if, as I suspect, there are more cases of children being verbally abused and broken-hearted by that sort of thing than probably there are kids where smacking has turned into physical abuse –
A: I don’t know if you can say, I mean the statistics on abuse and neglect of our children are –
Q: Yeah, but I think the difference is, they’re not abused per se because there’s a decent pair of parents who smacked them. They’re abused because there are parents, or a parent, who just doesn’t care. And the parenting skills are just so poor, and the parent probably doesn’t know what the law is nor care.
A: That’s right, but the fact that we have a defence on our books of reasonable force, it adds to that culture that accepts violence, or that hitting children or smacking children is OK. For some parents, and you’re right – the less equipped a parent is to cope the more likely they are to do it – but for example the fathers or mothers who shake their babies to discipline them because they pissed on the floor, and then the baby is badly injured or died – even though there’s nothing about the law in that parent’s head, it’s an extension of our culture which we’ve had since settlement that says it’s actually a parent’s right to physically hit or beat or smack their child to try and get them to do what you as an adult want them to do.
It’s that thinking – so many kids are brought up in a family that believes that they should be smacked, beaten or hit when they are kids, they grow up with the idea of a parent’s right to beat, and when they have their babies it’s transmitted from generation to generation, and that cycle is what we’ve got to break.
Q: Were you ever smacked as a child?
A: Yeah, but not much.
Q: So it didn’t screw you up?
A: (Bursts out laughing) I have no idea! You’re the first one to ever ask me that question, and I really don’t know the answer!
Q: What I am going to ask you is the one you’ve probably been asked a million times, but it is a fair question and it is this: If we got down to the core of it you’d acknowledge that the real problem is not with the traditional two parent family who take a keen interest in the welfare of their kids, supporting them, loving them. It’s the sort of family you’d see in Once Were Warriors where some of the really nasty abuse is happening. Do you recognize that there is a fundamental difference between a smack on the backside or the hand that doesn’t extend into a full-on beating – and parents who are just criminals and beat the proverbial out of their children? You must, you would acknowledge there is a difference?
A: Of course. I mean there’s a whole spectrum of assault and violence, with murder at one end and a light smack at the other end. That spectrum is there all the time. Trying to repeal reasonable force is driven by the fact that in a number of court cases as you know people have gotten away with actually severely beating their children in my point of view.
Like the case in Timaru last year, and a number of other cases.
Q: Just querying that, did they actually use the s59 defence in that one?
A: Yes, yes, they did. I wasn’t actually in court but that’s my understanding. The woman who used a horse crop and a cane on a number of occasions on a 12 year old boy. That was the Timaru court case last year and it’s my understanding that s59 was used as a defence.
Q: Some of the blog sites have pointed out that it might more have centred on self-defence, that the kid was quite large and quite aggressive.
A: That may, I mean, I wasn’t in the court so I really don’t feel able to speak with authority on it. I know that was an element of the case, that that was part of the mother’s defence, but I’m pretty damn sure s59 was part of her defence as well.
Q: Obviously you are not looking to intentionally outlaw time out, or a parent who has to physically manhandle a child into a room, are you?
A: No, or who physically removes or saves a child from some danger. And just on that, I’m not seeking to outlaw smacking either, which is a myth that’s being driven up by my opponents. All I’m doing with my bill is seeking to repeal one clause of an Act.
If s59 was repealed, and say some mean person dobbed in a mother for lightly smacking her child – say that happened, which is the fear that’s being driven up –
Q: It’s happened overseas, yeah-
A: Yeah, and so the police come and investigate the mother who smacked her five year old child (if they come at all, because we know they’re already overworked) but they’re going to look and say well, how severe was that? What damage was done? What’s happened here? Which is what they’re supposed to do in everything they investigate.
I think, during the process of select committee hearings which we’re about to go into on this Bill, the one thing I really hope that as a select committee, if we want to get this Bill through, is that we can make very clear that it is not the intention of me or Parliament to suddenly have all the parents who lightly smack their children subject to arrest or imprisonment or anything like that. It’s not my intention, it’s not the intention of anyone I know, it’s not the intention of any other MP. It’s a myth.
Q: Did the Greens get any independent legal analysis on what the repeal of s59 would mean?
A: I’ve certainly talked with a number of lawyers over the past year and there will be a number of submissions dealing with this.
Q: Family lawyers, criminal lawyers? Which?
A: Both. I’ve talked to both.
Q: The reason I ask is because we’ve done a survey of top QCs on this point: because s59 is a repeal of a defence, then technically if there’s unwanted touching or a smack, it is technically an assault, just like two people on the street.
A: That’s a very good analogy, because in fact I’m asking for equity for children like what happens to adults now. If an adult is assaulted to the point that it’s a problem, the police always have to make that judgement about how severe that assault was. At the moment if the husband assaults his wife, he has no defence unless it is self-defence, whereas if he assaults his child he has a defence. And that’s inequity.
Q: But surely no normal jury would see the Delcelia Whittaker case as an ordinary smack.
A: No, not at all. It is a spectrum. But it does happen in all parts of society.
Q: Getting back to my question, the general consensus of the QCs is that physically putting a child in time out, or physically grabbing your child, is an assault in the same way as if you grab somebody on the street.
A: Which is a technical assault. That’s true, that’s absolutely true. But all that case law that currently exists would be applied, as it is now.
Q: In court, and I think the Louise Nicholas case proves the point, judges tell juries to consider the letter of the law. And if the letter is simply that it is an assault, the jury may have no option but to convict.
A: Yeah, but juries also make decisions on the facts of the case. To think that police would arrest and prosecute someone for lightly smacking their kid or putting them into a room for timeout, I think that would be ridiculous. But on the other hand if a 14 year old girl went to the police and said ‘Look, my father smacked me and I felt this was inappropriate and was really hurt and offended physically, sexually etc’, I think that would be a case to investigate.
But that’s why I find it so hard. This is the job of the police and the courts every day, to make those kinds of judgements: is this a mother, lightly smacking her child when they screamed in a supermarket, or is it something else going on here that’s worthy of the police attention and often other agencies as well.
Those judgements are what the poor bastards that work on the front lines of police, CYFS and the health services have to face constantly. That’s not going to change.
Q: Whilst one can see the heart behind it, is a simple repeal of s59 too blunt an instrument? Does there need to be some modification about appropriate force?
A: Some members of parliament are very keen to amend my Bill so that reasonable force is defined, and I’m sure there’ll be lots of submissions saying that. But once you start looking at that, what it’s saying is that you can hit a kid between this age and this age, you can beat them about the body, but not about the head, you can beat them with an open hand on the buttocks but not with an implement – to me, it gets really gruesome and it’s like defining methods of torture. If I did anything to a policeman I’d be arrested tomorrow – and that’s happened to me on more than one occasion. I could lightly assault a big beefy cop and go to jail, but if I do it to a child I’ve got every defence in the world.
Q: I’m flying a kite here, but don’t you really need to say somewhere in the Act itself, ‘No force is to be used on a child, except that this is not intended to suggest that a smack, or a session of time out is an offence’?
A: What you’re saying there Ian is where I think we need to go. How we do it…it’s going to be up to 121 MPs. I think it’s very likely going to be necessary to make it clear that that’s not the intention of the Bill.
Q: Perhaps in the introduction to the Act, or the definition of assault?
A: Well in some place. I have talked to lawyers about it, and I’m very supportive of doing it if it means the Bill can go through.