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Riding Crop Case analysis and commentary at www.kiwiblog.co.nz

Posted by watchingcyfswatchnewzealand on April 16, 2007

As posted on CYFSWATCH NZ

Riding Crop Case analysis and commentary at www.kiwiblog.co.nz
Sunday, 15.04.2007, 09:29pm (GMT12)

The riding crop case – David Farrar

One of the cases which has sparked calls for changes to Section 59 was the Timaru mother who was acquitted of assaulting her son with a riding crop, after a jury trial. She has put out a You Tube video defending her actions, despite appearing in court a second time for a new charge of alleged assault.

Now some people think those of us who advocate for the Borrows amendment would find the above troubling to our cause. Not at all. The Borrows amendment would categorically have stopped there being an acquittal in the first case. To quote from it:

59(2) The use of force for a purpose specified in any of paragraphs (a) to (e) of subsection (1) is unreasonable if- (b) it causes or contributes materially to harm that is more than transitory and trifling; or (c) any weapon, tool, or other implement is used; or (d) it is inflicted by any means that is cruel, degrading or terrifying

Now this mother asserts her right to use a riding crop and a cane to discipline her son. Regardless of whether or not you agree with her, it is crystal clear that under the Borrows amendment such behaviour would be illegal. There would be no possible defence in court.

Now here is the irony. Under the current Bradford/Clark bill, the mother might still get found not guilty. Because the current bill does not define reasonable force or rule out specifics such as using a weapon, tool or implement. It does ban the use of force for the purpose of correction, but the force used against her son was after he allegedly assaulted or threatened her husband.

Now if we go to the Bradford/Clark bill, they allow defences of:

59(1) Every parent of a child and every person in the place of a parent of the child is justified in using force if the force used is reasonable in the circumstances and is for the purpose of— ‘‘(a) preventing or minimising harm to the child or another person; or ‘‘(b) preventing the child from engaging or continuing to engage in conduct that amounts to a criminal offence; or ‘‘(c) preventing the child from engaging or continuing to engage in offensive or disruptive behaviour; or ‘‘(d) performing the normal daily tasks that are incidental to good care and parenting.

Now the mother would have a arguable defence under paragraphs (a), (b) and (c). She can argue her action was necessary to prevent harm to another person, to stop the son from engaging in criminal assault and to prevent the son from being offensive and disruptive.

Now who knows how a jury would rule, but the case is certainly arguable.

So let us be clear about this. Under the Borrows amendment, the actions in the Timaru case would absolutely be forbidden. Without the Borrows amendment, they might still be found to be legal under the Bradford/Clark bill.

Comments (42)

dave:

I think you will find that the force used in the riding crop case was reasonable force for the purposes of correction – allowed under current legislation but not the Borrows amendment. It is also my understanding that correction is not allowed under the Bradford/Clark bill either so, she would have no defence under the Bradford bill or the Borrows amendment

The difference between the two is that the Borrows amendment allows some form of correction – the Bradford bill doesn’t. So I don’t see how you can say the riding crop lady would have got off under the Bradford bill unless a jury determines that the discipline was not corrective discipline.

David Farrar:

And Dave that is exactly what I said – she could argue it was not for purposes of correction but to prevent offensive or disruptive behaviour.

Borrows amendment lowers the bar for reasonable force in all circumstances. The Bradford bill bans it for correction but doesn’t lower it at all for the four justifications listed.

james cairney:

David, it is highly unlikely a Judge would put the defence (under the Bradford amendment) to a jury in this instance.

There is also no way she could argue the strike(s) were not for correction. Yet, even if she could (assert they were non-corrective) AND justify them as the ‘minimum necessary’ (generally implied in force provisions) for preventing harm to a -person- then she would be able to raise self defence, which will remain unchanged anyway. There in simply no credible or plausable narrative on the facts for her actions to be deemed the minimum necessary for -stopping disruption-, so a jury wouldn’t get the chance, plain and simple.

Now take the same example but make the hitting hard and to the face with a closed fist rather than an riding crop, and you have got a narrative that would likely be left to a jury under Burrows’ 59 but not Bradford’s 59 (this is not to say a jury would accept it).

Furthermore, what would be the case if a violent attack on a child did not cause any harm? Or, a violent attempt to cause serious harm only resulted in ‘trifling and temporary harm’? There is a real chance the Burrow’s amendment misses these. Which is the problem with requiring a cause or result for culpability of an action. It is the action that should form the basis of the ‘wrong’, and an action from which culpability should arise, the result of course aggravates that action.

In my opinion, the Burrows amendment was well intended, but failed in terms of drafting, in particular:
1. defining ‘trifling’ is problematic
2. The options for juries are problematic
3. Requiring a cause rather than an action is problematic (i.e ‘attempts’ to cause greater than trifling)

Burrow’s amendment should have simply taken the existing s59 ‘justified using force by way of correction if the force used is reasonable in the circumstances’ and add to it that force is -only- reasonable if it is: 1. with an open hand, 2. not to the head, 3. not intended to cause the child pain that is (whatever), and 4. that the child must be able to be corrected (eliminating infants etc).

Now, I prefer Bradford’s (to my Borrows change) because it can be argued (convincingly in my opinion) to be a near total smacking ban. However, given the confusion caused by less than total political honesty by those marketing it, there was an opportunity to draft a bill that would have been near impossible to defeat in the current climate (given an express desire by Clark etc to not have parents punished for ‘smacking’), and I think Burrows dropped the ball.

I’m for a smacking ban as I believe it is a good measure, and unlike certain others I’m not politically motivated so as to pretend it is not what is in order to see it pass. I’m pissed off at the amount of dishonesty and hysterical outrageous claims from both camps which in my opinion have ruined any chance for real debate and ultimately a law that could be accepted and understood (if not liked) by the majority of kiwis,

cheers, and sorry for the length

David Farrar:

James I am not sure how many years you have been practising law, but I am not going to say how persuaded a judge and jury would be with such an argument. The fact is it can be argued as it is subjective, while Borrows has ab objective test when it comes to using implements.

You invent a hypothethical case where something maybe legal under Borrows, but not Bradford. That is so. But people are not holding up hypothetical cases as justification for the Bradford bill. They are holding up this case. And as I have said, it does not 100% rule out the mother escaping conviction again, while the Borrows amendment does.

Chester is I am suer to refinign his amendment if constructive changes are proposed.

As you admit (and good on you) that will not lead to a smacking ban, which you support. It will achieve what most NZers want though which is for smacking not to be banned, but those currentl marginal cases to lose a defence.

phil u:

in a sense i agree with dpf..

but coming from the opposite direction..

in that i have been puzzled as to why there has still been continued opposition to bradfords’ bill..?

since when she ‘choked’…

and allowed those exemptions detailed by dpf..(and pushed for by labour/’moderates’..bah..!..)

each of them big enough to drive a bus through..

she turned her legislation into a toothless tiger…

and hardly worth the paper etc etc..

back then/at the time of bradfords’ choking..i threw my arms up in disgust/despair..

and as i say..since then i have been puzzled over just what it is everyone is arguing about..?

save the most subtle of differences in timbre/tone..?

eh..?

phil(whoar.co.nz)

Matty:

Well, I’m swayed. I’ve been wavering towards supporting the Borrows amendment. I’m 100% opposed to smacking, to be honest, because I never met a single responsible ‘smacking’ father (not to mention some mothers) in the small, rural village that I lived in until the age of 18, (and I am only 22).

I’d much rather smacking was banned outright, but the fact of the matter is that there are hundreds of thousands of parent who do smack and won’t stop no matter what the law says. That simply has to be taken into account, as dangerous to a child’s worldview and as embarrassing for our nation as it is.

james cairney:

Fair enough, I still I believe Bradford’s Bill to be a near complete smacking ban, despite the protestations (I’m strangely alinged with the Christian right here). Hence I strongly support the Bill.

phil, total repeal of s 59 (which I am assuming you and I would both have supported), could lead (in theory not practice) to a parent being liable for assault for forcibly removing a tantrum throwing child from a supermarket. Hence the (not unjustifiable) fear from the ‘moderates’. Bradford’s altered provision seeks to allay this fear without losing its teeth in regards to holding violent parents responsible, I truly believe it does this.

I find it very hard to imagine a situation where smacking a child would be the minimum force necessary to either stop them doing X or to remove them from a situation, and at the same time not contain an element of correction.

The debate as it is, however, should not be being had. We SHOULD have two Bills on display, one clearly worded that specifically allows light open hand smacking to the body (not head) and nothing else, and one that clearly does not -and- is sold as not allowing such (which I believe Bradford’s does do but is being sold as not doing). Then, we could argue over whether ‘smacking’ kids is a good way to bring them up, and whether the rights of a child to be free from forceful physical contact outweigh the rights of a parent to choose how the raise their child, and argue about the states right to govern domestic matters etc etc…. and about all the things that go to the heart of whether this conduct should be bloody illegal.

dave:

David, yove done some good posts recently on the smacking/correction issue, but I find it hard for a jury to believe that in the riding crop case that a jury would not believe that the discipline is correction, and it would be silly to argue such.
So lets look at it:

She will be able to argue (a) only if it is to stop harm. She disciplined the child well after the harm minimisation thresshould had occurred so the summary of facts should rule that out.
She can argue ( b ) or (c) only if he was going to continue criminal or offensive behaviour, but the discipline was done well after any behaviour had stopped.
She can argue (d) only if the jury thinks that hitting someone with a riding crop is normal daily behaviour its not, and you agree.)

So, under the Bradford bill she has no S59 defence unless she can sway the jury by concocting a story based on lies ie: it was something other than corrective discipline.

dave:

David, yove done some good posts recently on the smacking/correction issue, but I find it hard for a jury to believe that in the riding crop case that a jury would not believe that the discipline is correction, and it would be silly to argue such.
So lets look at it:

She will be able to argue (a) only if it is to stop harm. She disciplined the child well after the harm minimisation thresshould had occurred so the summary of facts should rule that out.
She can argue ( b ) or (c) only if he was going to continue criminal or offensive behaviour, but the discipline was done well after any behaviour had stopped.
She can argue (d) only if the jury thinks that hitting someone with a riding crop is normal daily behaviour its not, and you agree.)

So, under the Bradford bill she has no S59 defence unless she can sway the jury by concocting a story based on lies ie: it was something other than corrective discipline.

Paul Marsden:

It will be interesting to see how jurers will be selected to hear any cases that might be brought to court under the proposed changes. With something like the majority of NZ’rs against the govt trying to dictate how to bring up their children, impartiality could be a big problem.

Ian McGovern:

Let’s get real(which is difficult in the type of country we live in). Forget the hysteria. Just delete s 59. Then an assault is an assault under the Crimes Act. Pure and simple. Forget the ‘trifling or transitory’ and the ‘removing to prevent harm’. With the Bradford Bill and the Borrows amendments, lawyers will have a field day building arguments in defence and a child will be no better off than they are today under s 59. Why can’t everyone in the Parliament see that and put in place something that will protect children and not argue about making good parents ‘criminals’ etc.

Ian McGovern:

Let’s get real(which is difficult in the type of country we live in). Forget the hysteria. Just delete s 59. Then an assault is an assault under the Crimes Act. Pure and simple. Forget the ‘trifling or transitory’ and the ‘removing to prevent harm’. With the Bradford Bill and the Borrows amendments, lawyers will have a field day building arguments in defence and a child will be no better off than they are today under s 59. Why can’t everyone in the Parliament see that and put in place something that will protect children and not argue about making good parents ‘criminals’ etc.

ross:

> She can argue ( b ) or (c) only if he was going to continue criminal or offensive behaviour, but the discipline was done well after any behaviour had stopped.

Well, the boy may have intended to continue with his bad behaviuour but may have stopped when he was told he would be punished. So the threat worked but may not have been so successful if the threat had not been carried out. On the other hand, he may have continued to misbehave after the initial incident and before he was punished. The mother has said that the boy’s behaviour improved, so it could be argued that she performed a normal daily task, etc rather than pout up with his persistent offensive behaviour.

You’re looking at the case without all the facts. The jury heard all the facts and acquitted. It’s possible (but maybe less likely) they would do so again under Bradford’s bill. What will happen if such a case results in an acquittal once Bradford’s bill is passed? Supporters of the bill are going to look like idiots.

Ian McGovern:

Let’s get real(which is difficult in the type of country we live in). Forget the hysteria. Just delete s 59. Then an assault is an assault under the Crimes Act. Pure and simple. Forget the ‘trifling or transitory’ and the ‘removing to prevent harm’. With the Bradford Bill and the Borrows amendments, lawyers will have a field day building arguments in defence and a child will be no better off than they are today under s 59. Why can’t everyone in the Parliament see that and put in place something that will protect children and not argue about making good parents ‘criminals’ etc.

Ian McGovern:

Let’s get real(which is difficult in the type of country we live in). Forget the hysteria. Just delete s 59. Then an assault is an assault under the Crimes Act. Pure and simple. Forget the ‘trifling or transitory’ and the ‘removing to prevent harm’. With the Bradford Bill and the Borrows amendments, lawyers will have a field day building arguments in defence and a child will be no better off than they are today under s 59. Why can’t everyone in the Parliament see that and put in place something that will protect children and not argue about making good parents ‘criminals’ etc.

Ian McGovern:

Let’s get real(which is difficult in the type of country we live in). Forget the hysteria. Just delete s 59. Then an assault is an assault under the Crimes Act. Pure and simple. Forget the ‘trifling or transitory’ and the ‘removing to prevent harm’. With the Bradford Bill and the Borrows amendments, lawyers will have a field day building arguments in defence and a child will be no better off than they are today under s 59. Why can’t everyone in the Parliament see that and put in place something that will protect children and not argue about making good parents ‘criminals’ etc.

Ian McGovern:

Let’s get real(which is difficult in the type of country we live in). Forget the hysteria. Just delete s 59. Then an assault is an assault under the Crimes Act. Pure and simple. Forget the ‘trifling or transitory’ and the ‘removing to prevent harm’. With the Bradford Bill and the Borrows amendments, lawyers will have a field day building arguments in defence and a child will be no better off than they are today under s 59. Why can’t everyone in the Parliament see that and put in place something that will protect children and not argue about making good parents ‘criminals’ etc.

Sofia:

Helen Clark and Sue Bradford swear their law change is to not make criminals of normal parents, who may lightly smack a child, but to send a clear message to society that child abuse is unacceptable.

From the evidence of the confusion appearing above, I would think the message to the any errant parent is already an utterly abismal failure.

Thomas:

There are always going to be lawyers available to twist any written law in order to avoid their client’s prosecution. The fact she is again facing charges for beating her kids should sound alarm bells in everyones mind that she is not fit to parent.

Pita:

I fear Judges will have their work cut out applying the “Golden rule” to this piece of legislation.

That said, it will still come down to the 12 jury members to determine guilt or innocence.
Given that they are representative of society it should ensure some lengthy jury room discussion and, on weight of opinion, I’m inclined to believe that they would acquit.

dad4justice:

This whole section 59 fiasco is creating yet more grey area law that lawyers use in the land of litigation, which is presently clogging our judicial systems. An alternative or solution would be for government to look at a balanced and switched on early intervention service that can assist families and children with behavioural and parenting problems. This would be in everybody’s best interests as it would promote healthy child /parents interactions and enable any children to continue a settled routine despite any conflicts, surely that is in the child’s best interests and worthy of more input by government than the section 59 saga.

My own personal thoughts on the alleged riding crop lady is that I feel for her, as I have no doubts the up and coming stressful litigation for her is solely based on political interference. Didn’t the Prime Ministers case get heard in the Timaru jurisdiction? What a crop of ….

cyfswatch:

Posted at http://www.cyfswatch.org

What REALLY happened in Timaru this time around – from the mother herself:

Posted at http://www.cyfswatch.org

Mother says:

I was travelling with my 16 year old son in January last year. He lives with his very violent father, and had been holidaying with us.

He had been very rude that morning refusing to get out of bed and had made us extremely late getting away.

I talked to him about his behaviour and he told me to ” get fucked”.

I told him he was not to use that language around me or toward me.

He told me I was nothing but and fucking whore and he would speak to me however he fucking well liked and there was nothing I could fucking well do about it… (This is how his father used to talk to me.)

My husband told him not to speak to me that way and my son told him to get fucked and called my husband a kiddy fucker.

I said “that will be enough” and reached into the back seat of our truck and flicked the back of my finger tips across his mouth.

With that he punched me full in the face breaking my nose and continued to punch me until my husband stopped the truck and pulled him off me.

He then attacked my husband, punching and kicking him. My husband restrained him after a struggle which included my son kicking him in the head.

As a result of this incident, with CYF pushing the police to do so, I have been charged with assault for the flick to his mouth with my finger tips and my husband has been charged with assault for pulling the boy off me and restraining him.

I have also been charged with being party to assault as I didn’t stop what happened between my husband and my son.

The boy was totally out of control and had already broken my nose. I was not going to get too close to him again.

My son has been “warned” for attacking me and breaking my nose, and attacking my husband.

My husband pleaded guilty to assault yesterday for pulling the boy off me and restraining him. We are disputing the facts presented by the court.

I am committed to trial for the flick to his mouth and being a party to what my husband did. The boy has claimed this was a punch to his mouth but that was impossible for a variety of reasons which will come out in the full hearing.

The police actually withdrew the charges against me and then I believe for political reasons they were pushed through by prosecutions. (And CYF nagging in the background).

I did not in any way assault my son or behave unreasonably in the circumstances.

wicket:

James Cairney said : I’m for a smacking ban as I believe it is a good measure, and unlike certain others I’m not politically motivated so as to pretend it is not what is in order to see it pass.

How, about asking that woman’s son to demonstrate what he did by swinging a baseball bat aiming for your head James to see if you think it is OK?

If you’re willingly accept that, that you’ve have made your point?

phil u:

d4j said..

“..My own personal thoughts on the alleged riding crop lady is that I feel for her, as I have no doubts the up and coming stressful litigation for her is solely based on political interference…”

what a crock d4j..

the stepfather has already pleaded guilty to this vicious beating/kicking/kneeing assault on a boy who was tied up…

his mother has pleaded not guilty to punching him three times in the head..(with a closed fist) just prior to the stepfather getting ‘stuck-in’..

this beating/kicking by the stepfather was witnessed by a passing motorist..

who said this mother (you champion/defend) stood by and did nothing..

as the stepfather kicked the crap out of her biological son..

don’t let the facts get in the way of your spin/fantasy..eh..?

d4j..?

phil(whoar.co.nz)

james cairney:

How on earth would someone swinging a baseball bat at someones head demonstrate that that action is ok, given I am pro ‘smacking ban’? That makes absolutely no sense, what is your point, if you have one?

jim:

How, about asking that woman’s son to demonstrate what he did by swinging a baseball bat aiming for your head James to see if you think it is OK?

Wrong person to ask. Just ask Sue Bradford or Phil U if they like this trouble boy to do a demo on their heads ? Not to smash their heads but the boy is foretold that the demo is to just make it so that he just missed by 1 centimeter.

Paul Marsden:

James Cairney said : I’m for a smacking ban as I believe it is a good measure, and unlike certain others I’m not politically motivated so as to pretend it is not what is in order to see it pass.

Perhaps not James, but methinks the legal profession have got a good wiff of all that lovely dosh they are going to be raking in. This is just another ‘useless’ law dreamed up by a lawyer(s); penned by lawyers (purposely vague and obscure); to be argued by lawyers and, presided over by lawyers.

phil u:

um jim..foretold does not mean the same as ‘before’..eh..?

your statment is nonsensical..

phil(whoar.co.nz)

dad4justice:

Phoool “your statment is nonsensical..”

Do you own a mirror ?

the Swift man:

Ignore Phil Whore.

He’s obviously schizophrenic.

Sad.

Sofia:

I understood that when ACC was introduced, it’s primary function was to free up the log jam in the courts, where injury cases were taking up to 18 months to be heard [and ironically now in some cases ACC’s answer is “See you in court!”] but why introduce loosely defined law that will make the justice system like the proverbial intersection designed by panel-beaters?

“Prevention” is fairly straight forward, but what the hell is the definition of “correction”?

[ I think the most interesting point yet is that ‘If juries are representative of the public, they will be also about 85% opposed to the situation they are giving a verdict on” – see Helen’s comments on defying ‘human nature’ ]

Alec:

I thought ‘dad4justice’ had left.

He is single handedly destroying the quality of comment on this blog, and discouraging thoughtful contributions on nearly every thread Mr Farrar.

Perhaps he should start his own forum, instead of using Kiwiblog as *his* personal blog.

Horace:

Given the details posted by the person “cyfswatch” it would seem that the mother and father had a defence against the charges laid without even considering a ‘smacking issue’. It was a series of assaults. Not a discipline session for a naughty boy.

The two have become confused.

Are you to have me believe a 16 year old “boy” who can punch his mother in the face and kick his father in the head needs a smack?

Complete misrepresentation. He is not a boy, he is a young man. He hasn’t spilt his milk, wet his bed, bitten his sister, thrown a tantrum in a supermarket trolley.

That CYFS are involved hardly lets the light of truth shine brighter.

That the media and Sue Bradford continue to portray the woman as a riding crop beater is mere spin.

The whole is a bad example of what the smacking bill is about. This is a description of assault.

The motivations of the Police in laying charges, then withdrawing them, then laying more shows the confusion and behind the scenes politicing.

Breezy:

Be careful Alec, he might sue you!

dave:

No, the motivation behind the police laying charges on the second charge (now that you’ve mentioned it), withdrawing them and relaying them is merely political. The riding crop woman was charged with assault and at the same time she laid charges against her son after that son broke her nose. Police withdrew charges against the riding crop woman when they realised what the son had done, but did not pursue charges against the son for purely political reasons – but instead relaid charges against his mother when CYFS got their snotty nose involved. Nobody has asked why charges against the boy were not pursued. The boy wasn’t even living with his mom, he was living with his father.
If you really want to know the unreported facts, have a read of my blog posting on the matter.

Porcupine:

Why would this make anhy difference to the Bradford/HC/whacko axis. They have a political agenda in a parallel universe. You cant have a rational debate with organisms form a parallel univerise anymore than you can have a rational debate with irrational people. Get over it and move on. Of course we all await Key repealing this law on day one of his prime ministership…..thats a pause…..not.

phil u:

horace said..

“..Given the details posted by the person “cyfswatch” it would seem that the mother and father had a defence against the charges laid without even considering a ‘smacking issue’…”

(sigh..!..why don’t you go and read the coverage on stuff..?

horace..?

read what this prick of a stepfather did to a boy who was tied up at the time..

instead of believing more of the same self-serving crap that was posted on youtube..

by the defendant..

broaden yr research a bit..eh..?

before you jump to conclusions/make up your own story to fit..

eh..?

phil(whoar.co.nz)

dad4justice:

Phoool read Dave’s blog for the facts -you foolish hunk of dung !

phil u:

did someone fart..?

phil(whoar.co.nz)

Thomas:

I just treat it as white noise.

Paul Marsden:

It is my experience as a casual observer in courtroom antics, is that the one who throws the most ‘shit’ (bull or otherwise), is the one most likely to prevail.

Paul Marsden:

It is my experience as a casual observer in courtroom antics, is that the one who throws the most ‘shit’ (bull or otherwise), is the one most likely to prevail.

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