As plenty of readers will already know, New Zealanders are currently taking part in a postal referendum on the issue of whether or not a parent smacking a child under any circumstances should be a crime. I have already voted no.

In 2007 Sue Bradford of the Green Party was successful in having section 59 of the crimes act repealed and replaced with a new version. The former version provided exceptions to the law concerning assault, providing a defence. It permitted parents to use “reasonable force” in the process of correcting their children. This would include, putting a child in her room against her will, administering a smack, placing a child on the “naughty stool” when he didn’t want to go, and so on. These are all uses of force, and are acceptable provided they are done within reason (e.g. hurling a child into her room would not be allowed, and nor would punching a child’s lights out or shoving him into the stool).

This defence was necessary because of the unique relationship that parents have with children. Obviously it would be illegal for me to select a random adult and force him into a bedroom and require him to stay there. That would be assault and unlawful detention, as would making him sit on a stool against his will, and smacking him would just be common assault. So there was a natural and obvious difference between the rights and protections given to another adult and those given to a child. This is reflected in other aspects of law too (e.g. children can’t buy alcohol, vote, consent to sex, get married, drive a car etc). Those who say, for example “if you can’t do it to an adult, why should you be allowed to do it to a child?” are just not thinking seriously about the issues at all.

The new section 59 erases this defence completely. In its place here’s what it now says, as law professor Jim Evans pointed out:

Subsection (1) of the new section 59 allows a parent (or person in the place of a parent) to use force that is reasonable in the circumstances for the purpose of (a) preventing or minimising harm to the child or another person, (b) preventing the child from engaging in a criminal offence, (c) preventing the child from engaging in offensive or disruptive behaviour, or (d) performing the normal daily tasks incidental to good care and parenting.

So far so good. “But wait a minute,” you might think. “part (d) would allow a smack, provided it was part of good parenting.” Up to this point, maybe, but then check subsection (2) of the new version. It reads: “Nothing in subsection (1) justifies the use of force for the purpose of correction.” Subsection (3) adds: “Subsection (2) prevails over subsection (1).”
Subsection (2) is where the problem arises, and it is this section that now prompts people to call for a law change. So here is the issue: Force is allowed as part of “good care and parenting,” provided it’s not corrective. Now wait a minute, isn’t correction part of good care and parenting? Confused yet?

In case it wasn’t unclear enough for parents already, subsection 4 makes it even worse, allowing police discretion when this crime of assault against children is committed, enabling them to decide for themselves which criminal acts to prosecute. So a law that is already now written in doublespeak then gives police sole discretion in deciding whether or not to prosecute, in a case where the defence of reasonable force in correcting a child is no longer available.

Because of the wording of subsection 1, which refers to “good care and parenting,” and because of the wording of subsection 2 (which for many, introduces confusion), referring to “correction” as though it was excluded from good care and parenting opponents of the law change had the referendum question worded as follows, following the lead of the legislation:

“Should a smack as part of good parental correction be a criminal offence in New Zealand?”

The question was written precisely because of the terms used in the new law, asking new Zealanders, in effect, whether they agreed with the divide that the law proposed between “good care and parenting” in which reasonable force was allowed, and “correction” in which no force at all was allowed.

I think that the facts as spelled out above are relatively simple and easy to ascertain. However, the supporters of Sue Bradford’s law change, as well as supporters of voting “Yes” in the referendum (the two groups partly overlap) have set out on a campaign of misinformation and deception, along with bungled and careless reading of the law.

John Roughan is among the worst offenders. In reply to the claim that the law is unclear or possibly inconsistent, he writes that subsection (1) clearly allows smacking, so there’s no ban on smacking here at all! He further implies that anyone who is worried about subsection (2) is supporting the right to inflict “a cold-blooded assault” intended to leave a defenceless child  “in pain and fear.” He claims that there’s absolutely no tension in the law because it’s obvious that “correction” in subsection 2 refers to this type of assault, or to things like “ritual thrashings.”

Fortunately, uncritical opponents of the referendum (like those who reproduced Roughan’s material online as gospel) weren’t the only ones reading. Roughan’s legally uninformed perspective was itself given a good thrashing in the same newspaper by Professor Emeritus of law at Auckland University, Dr Jim Evans (see here). He explains just how the new section 59 is in fact unclear and a poor piece of legislation.

Others (e.g. the propaganda site “yesvote”) have claimed that the wording of the referendum question is loaded because it uses the word “good” and repetitive because it uses the word “correction.” This just represents a failure to understand the specific legal reasons why those terms were chosen. They were chosen because subsection (1) allows force as part of good parenting, and yet subsection (2) forbids force in cases of correction. The referendum question then asks parents if correction using force can indeed be part of good parenting. The only ones claiming that the question is loaded or unclear are those who are motivated to do so, namely those who themselves fully understand the question but who want people to vote “Yes.”

There’s a good list of frequently asked questions over at http://voteno.org.nz/faq.htm

But isn’t “Vote no” a propaganda group too? Sure, in the sense that they are trying to influence opinion. They do, however, draw on the legal facts of the matter, along with evidence that the new law is not making any positive difference in the abuse rates of children, and they also illustrate the negative impact of the law on good parents in New Zealand. If the facts are in poor taste, then that website’s up to no good!

So for what it’s worth, if you haven’t voted yet, vote NO.

Glenn Peoples

David Bain was found not guilty of murder, but given the rather divisive nature of the high profile case, there are still people who believe that he committed the murders of his family in 1994. This raises in my mind an interesting question about what people are allowed to say about their beliefs in public. In particular, it raises the question of what does and does not count as defamation or libel.

If a person were to accuse me of being a murderer and as a result I suffered some sort of loss, I could sue that person or those persons for defamation (or libel if it was published). But what do we say in the aftermath of a somewhat controversial court case when someone says “I still think he did it.” It’s obvious that what this amounts to is the claim that “David Bain is a murderer.” Could this be defamation?

One completely adequate defence to the charge of defamation is the defence of truth. If what you’re saying is true, then it’s just too bad for the person who suffers loss. The facts are what they are. But the court has determined in the case of David Bain that the truth of the murder charge cannot be upheld. So that defence wouldn’t work if you were sued for defamation. [EDIT: See the comments. This is not quite true in a civil case like defamation, as the standard of proof is different from a criminal trial.] However a second and much more widely used defence against a claim of defamation is the defence of a reasonably held belief. Even if you might be quite mistaken, you are permitted to express an opinion even if it does cause loss to another person provided the opinion is a reasonably held opinion. That is, as long as you have genuine reasons for holding it (“genuine” here is meant to rule out silly things like racial bigotry, foolishly believing gossip, drug induced mental states and so forth),  you have a defence and you haven’t defamed anyone.

Here’s where things get interesting. Given the court’s not guilty verdict, could you reasonably hold the opinion that David Bain committed the crime of murder (or even a lesser crime like manslaughter)? As always let me be clear – I do not hold that opinion. The question is clearly not unique to the David Bain trial. The question applies equally to any person found not guilty of murder (e.g. O J Simpson). I don’t know if you can in fact reasonably hold that belief, but I am absolutely certain of this: The fact that a jury found him not guilty does not mean that you can’t reasonably believe that he is guilty. Remember that a “not guilty” verdict means that the prosecution has failed to show beyond reasonable doubt that the person committed the act. In other words, the verdict means that a person who doubts that David Bain committed these murders is not being unreasonable. But this clearly does not mean that a person who believes that he did commit the murders is being unreasonable.

Let’s call the claim that the accused committed the crime “C.” There is nothing at all strange about the observation that it might be reasonable for someone to believe C and also reasonable for a person to believe ~C (the denial of C). Obviously C and ~C cannot both be true, but I’m not talking about which claim is factually correct.

In fact, to say that it would count as defamation to say that David Bain committed the crime has some scary consequences. It would mean, for example, that if you’re being interviewed in the media and someone says to you “so, do you think the jury got it right?” you are legally obligated not to say no, or you have committed an offence. It literally closes to door to even debating the reliability of juries.

This is not to say, of course, that you’re free to call David Bain a murderer. Not at all! Just as the jury’s verdict does not make it unreasonable to hold the belief that he committed the crime, the fact that the verdict only indicates the presence of reasonable doubt does not mean that your belief in Bain’s guilt is a reasonably held belief. If you’re caught accusing him, be prepared to show that your belief is in fact reasonable.

Glenn Peoples

Today, at the conclusion of what was probably New Zealand’s most closely followed murder (re)trial ever, David Bain was found not guilty of killing his parents and three siblings in Dunedin in 1994.

I don’t quite know what I think about whether or not David did it. “What?” you might say. “But the court found that he didn’t do it!” No, actually it did not. I want to stress before writing this that I’m not saying he did it. Maybe – and hopefully – he didn’t. But this high profile case does present the opportunity to correct a mistaken, although widely held, view of exactly what a “not guilty” verdict really is. There’s a common belief afoot that when a court declares a person “not guilty,” they are making the claim about history like this:  “It’s a fact that this person did not do what he is accused of.” Some media outlets perpetuate this belief. For example in the news article linked above, we read, “Bain spent 13 years in jail for a crime the jury took five hours and 50 minutes to decide he didn’t do.”

Although common, this view of a not guilty verdict is mistaken. Yes, a person is regarded (presumed) by law as innocent until proven guilty, so the law will treat people who are found not guilty as innocent people – as it certainly should. They will still be presumed innocent by the law. But there is a difference between legally declaring a person not guilty and stating that it has been proven that they did not do what they are accused of.

In the Scottish court, a third verdict is available – “not proven.” In our court, only two are available: Guilty or not guilty. Guilty means that the evidence establishes that the person has committed the offence in question. Our broader “not guilty” verdict actually encompasses both the Scottish “not guilty” as well as the Scottish “not proven.” “Not proven” itself also encompasses both of these, since when a person is deemed “not guilty” the case against them is deemed “not proven.” The upshot of all this is that when our courts find a person “not guilty,” they are actually commenting on the case for their guilt, not on the facts of history.

If this seems a little odd to you, think of it in logical notation. In such notation the symbol ~ means “not” or “it’s not the case that.” Let G = Guilty, which means “the prosecution has established that this person committed the crime.” “Not guilty” is ~G, which means “it’s not the case that the prosecution has established that this person committed the crime.” Many members of the public aren’t aware of this, and they wrongly assume that ~G means “it is the case that the defense has established that this person did not commit the crime.” But this is not contained in either ~ or G.

Legal experts concerned about the public perception of high profile cases have been expressing this concern for some time. In 1994 Lord Donaldson advocated that Britain adopt the “not proven” verdict instead of “not guilty,” precisely because “not guilty” gives the misleading impression that the court has found a person to be innocent. “[t]he verdict of ‘not guilty’,” said Donaldson, “says nothing about innocence. It simply says that the jury was not wholly sure that the accused committed the crime.” Bear in mind after all, in order to find a person not guilty, all the defense has to do is introduce reasonable doubt. In case there was any room for doubt as to his meaning, Donaldson says again: “The only real issue for the jury is whether they are sure the accused is guilty. Whether he is innocent or not is irrelevant for their purpose, and it is a pity that this is generally not understood.” [The Mail on Sunday, 4th Sept 1994, my birthday, incidentally]

It has been established that it has not been established that David Bain committed these murders. Is he innocent? I hope so, and I certainly have no basis for treating him as guilty.

Glenn Peoples