March 03, 2007
THE SUE BRADFORD INTERVIEW
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.
THE SMACKING DEBATE: QC'S OPINIONS
SUPERNANNY “BUSTED”Top QCs warn s59 repeal would make even ‘time out’ a crime
INTRO: It is now a matter of public record that repealing s59 of the Crimes Act will make parents technically guilty of assault if they smack their children, but Investigate has discovered something even the Bill’s supporters hadn’t considered: it will also open parents to prosecution if they physically put a child into time out. IAN WISHART interviewed leading Queens Counsel about the legal dangers of the anti-smacking Bill:
To say it is shaping up as one of the ‘social engineering’ fights of the Government’s third term would be an understatement. The Crimes (Abolition of Force as a Justification for Child Discipline) Amendment Bill promoted by Green MP Sue Bradford is pushing for a simple repeal of s59, the clause that gives parents a defence of “reasonable force” for the purposes of disciplining a child’s behaviour.
In a letter to the organization Family Integrity last year, police headquarters not only confirmed that even a simple smack would be an assault, but suggested that because the Crimes Act already has increased penalties for crimes against children, an assault on a child would be more serious than an assault on an adult, in police eyes.
But while commentators on both sides of the divide have discussed whether police would lay charges or not, no one has explored whether other forms of discipline could also run foul of the proposed new law.
To explore that specific issue, we asked a number of top QCs to comment on whether a parent who carried or dragged a resistant child to ‘time out’ would also be breaking the law:
STUART GRIEVE, QC:
I would be opposed to the [repeal of s59] because I think that the provision works entirely adequately as it is. If one puts political correctness to one side, and just deals with these cases on an objective and pragmatic basis, the law has stood the test of time and I would have thought most reasonable people would know full well when the line is crossed between reasonable discipline on the one hand, and crossing that line on the other.
So I would be opposed to it, and as one looks at the test now it is left to a jury to determine reasonableness. And being a fan of jury trials anyway, and being a fan of the commonsense of juries, that’s where I would leave it.
Q: What if a parent forcibly manhandles a 7 year old to another room to enforce time out. In your experience, could that be a prima facie assault?
A: Unquestionably! Not under the present statute of course, but those protections aside any unwanted touching, even threat of touching, can be an assault. It is so defined in the Crimes Act.
Q: What about the act of shutting a child in a bedroom or a garage for ten minutes to calm down. If the protection of reasonable force is removed, could that open a parent up to punishment for forcible detention?
A: Could do, I’d have to look at that more closely because that is a technical question, but it could do. If you remove the protection then you’re left with a child being a normal individual, and it would be no different from doing that to some stranger, I suppose.
Q: What advice would you give to law makers?
A: My advice would be ‘don’t repeal it’. I would be asking for examples where it doesn’t work well, or where it hasn’t worked.
Q: Do you have a fear that it could be used in marital break-ups, or as a reason to get CYFS involved in a family?
A: Well it could do. Although I don’t pretend to be a family lawyer I’m well aware of the fact that in these situations as you describe them, frequently false allegations are leveled, generally by women against males, and allegations of sexual abuse and that sort of thing in order to win custody battles and so forth. This will simply give them more ammunition.
GRANT ILLINGWORTH, QC
The thing that tends to mask the situation in the NZ environment is the fact that questions of assault as far as civil law are concerned have become less prominent because of the accident compensation legislation. As you will be aware, under the ACC legislation you can’t generally sue someone for personal injury caused by accident, and accident is widely defined to include situations in which you’re assaulted by somebody. So in New Zealand, even serious assaults don’t get before the courts except in quite unusual situations as a matter of civil liability.
Now, s59 is dealing only with criminal liability, and I suspect it is a lot more complicated than it appears on the surface, because taking away a criminal law defence doesn’t necessarily change the underlying civil law principles. So there are two layers that must be considered. One is the criminal layer, the other is the civil layer. And in order to sort that situation one would have to give it quite a bit of thought and work through the principles.
But to confine the analysis to the criminal law only, if you simply take away a defence of reasonable force then every touching of another person becomes an assault, and you then open up a vast area of potentially criminal conduct. You criminalize a whole lot of conduct which to normal people would be utterly ridiculous to criminalize in relation to the way you treat your kids.
So I think it is a very important step, and I think it is something that has serious, wide-ranging implications and something that has to be considered very very carefully indeed.
I think you do have to distinguish between civil and criminal. Conduct that is not regarded as criminal, or not pursued and charged as criminal, can be taken into account even now in a Family Court context. It doesn’t really matter to the Family Court whether you characterise something as criminal or not criminal, it’s a question of whether it represents proper treatment of the child. It’s going to the fundamental question of what is for the welfare of the child, what is in the child’s best interests. They’re looking at the situation through a different legal telescope.
I think the real problem is that arguably almost every form of physical contact with your children becomes an assault as a matter of the criminal law. If you take away s59, that’s the issue.
And if the child uses force against you, what force can you use against the child? That’s the real crunch issue. There may be lots of situations in which, very appropriately, a parent should avoid using force because it is unnecessary to do so. But there are some situations in which it is necessary and those situations would not necessarily fall within s48, which is the self defence provision.
That’s one area in which use of force in self defence and defence of another is justified and will remain justified. But if you think about it, children can use force against their parents, and the parents won’t be able to use force against the children, unless it is self defence.
S48 says ‘Everyone is justified in using, in the defence of himself or another, such force as in the circumstances he believes them to be it is reasonable to use.’ But it’s got to be in the defence of himself or another. It can’t simply be a child doing something naughty which involves the use of force, and preventing the child – for example – smashing up the living room.
It’s not the defence of yourself or the defence of another. If your child goes beserk and starts smashing the furniture you might not be allowed to touch him. And if that’s the result of revoking s59 – that you’re exposed to a criminal charge of assault if you restrain a child in those circumstances, then that’s completely nuts.
Q: Advice to the legislators as they consider this?
A: Obviously it will go to a select committee and they’ll have the task of going through the various scenarios that could arise if this measure is adopted. That’s the appropriate process, and the normal process when an important change is being considered.
But I think from my own part, having given it only a relatively short period of consideration, that simply to wipe out s59 could create some situations which are completely undesirable.
NICK DAVIDSON, QC
Q: The police are already on record as saying any smack would be a prima facie assault. Presumably that means that any physical contact for the purposes of discipline, such as a mother taking her child by the arm and forcing him into time out, would also be a prima facie assault?
A: Theoretically that must be right. It would come down to an exercise of discretion. But there could be savings in the legislation, such as safety of the child or removing a child from harm’s way. Where it get’s sticky is the very point you mentioned: if someone actually picks up a child and carts them off, because the difference between that and admonishing them, or hitting them, is so marginal as a matter of law I think it can only be dealt with by discretion. I think it’s a very significant point.
Someone who will simply not leave a situation where the parents are sitting outside in the car, waiting for the child to get in the car, and having difficulties because the child is refusing to get in the car, what’s a parent supposed to do? Leave the child on the side of the road, or pick them up and physically put them in the car?
Now if that’s not for their care and protection, what is it? There’s no defence to it.
And I think there’s a failure to recognize the difference between smacking as such, and physically taking, with some force, children – because they can be quite big at 11 or 12 and you might have to deal with them in that way.
To me the question is, if you cannot discipline a child physically, you remove the defence to what is otherwise an assault, the physical handling of a child of itself is not necessarily a discipline and would be treated like any other contact between two people. But in a relationship between parent and child there will often have to be physical interventions.
Now you could not possibly classify an assault as a deliberate application of force to a child, where that is to save the child, or take it to safety. You could not in my view possibly treat that as an assault where the child, for the child’s own sake, should be removed from one place to another. Where a child is out of control, for example.
So I think there must become a series of defences available where what is done is not for the purposes of inflicting force, but is a warrant to apply force for reasons which are for the good of the child.
Now we don’t really have that available to us in law, but if you take assault as an example: you step in to assault someone else to defend someone – that’s defence of another, and that’s a defence. You step in to save someone from committing suicide, that’s a defence. You step in to save someone from any act of self-harm, or the danger of walking across a road against traffic – that’s a defence.
The reason it’s a defence is that it’s not an intentional application of force except by the warrant that you have to do so for the good of that person. Now I think that will become the proper test in law – that where the force is applied for the good of that child, not as a discipline but in order to protect the child in some way, or deal with the child where the child is out of control, but not to inflict force for the sake of that, is the distinction to be drawn as a matter of law.
Q: Grant Illingworth feels that where there are going to be issues is where your child is out of control – not necessarily a danger to themselves or anyone else – but nevertheless –
A: Impossible to control!
A: I think that is exactly the point! The time out situation is the key, because if you narrow down all the examples that you mention, it comes down to this proposition: to protect the child? Absolute defence. To discipline the child? No. To take the child out of a situation where it is causing pandemonium? Questionable, because we don’t have a marked defence on the statute for that purpose. That’s why I think the law will develop a defence that, for the sake of the child as much as for the whole family, the child is removed from a situation where the child for example is just screaming its head off and is just so out of control they’re at a risk of harm.
The example you give, of trashing a house, is much more difficult, because the law in my view must allow a colour of right to prevent anyone doing that. You don’t have to stand by and watch your house being trashed by anybody. I think you’re entitled to protect your property, protect your person. What you can’t do is go beyond the bounds of what the law allows.
I think if you can say that the intentional application of force was warranted, not for the purposes of discipline but for the purposes of restraint, I think the law will have to recognize it as a defence. So what I’m anticipating is that the law will develop a colour of right, it will have to.
Q: What about where a toddler or seven year old is just being outright disobedient, defying boundaries and authority, and in need of discipline, but not in need of restraint for their own safety?
A: Assault has always had various defences of the kind we’ve just been through, and to me it is about marking a boundary about what is effectively a legitimate form of restraint.
I think the law would have to develop a defence, the same way colour of right developed, that what you were doing – a technical assault – was justified because of the circumstances that were presented to the parent.
Q: Courts or parliament?
A: I think the courts will probably be the right place to deal with it. I think a District Court judge familiar with dealing with assault issues generally will see how this fits into a pattern of defences to assault.
I mean, technically there are not many defences to assault. You don’t get charged with assault for taking someone in a headlock who’s threatening someone else, because that’s defence of another, but the trouble is those things don’t generally have application to children. We’re still talking about a form of restraint for a reason to do with the way people live in their homes. And there is the conundrum: how do you take the defences, and they’re well established, that apply outside and say it applies to the relationship between a parent and child inside a house?
I think you’ve hit it on the button. The crucial question is going to be, child hitting another child – grab the child and take it away, that’s not assault. Child causing pandemonium, screaming its head off and threatening its own stability. You couldn’t possibly be charged with assault for taking that child to another room provided it’s reasonable force. That’s not discipline, that’s control.
It’s the point at which it moves to discipline that I think the law has no answer at present. Because if you can’t smack a child, what can you do by way of discipline to say ‘you’re behaving very badly, I do not like your language, you’re going to go and sit in that room there!’
‘I’m not going!’
‘Right, I’m going to pick you up and put you in there’.
That’s technically an assault. What’s the warrant for it? We have no statutory defence to it.
On the other hand there is a tremendous amount of common sense in the police and the courts, so you’re not going to see thousands of parents prosecuted for this. But yes there will be test cases, and the law will evolve.
IN SUMMARY, MAIN LEGAL POINTS:
A simple smack would definitely be a prima facie assault.
Touching a child for any disciplinary purpose, such as forcing them into time out, would definitely be a prima facie assault.
Touching a child for the purposes of his or her own safety, or the safety of others, or the safety of property, would be authorized by s41 and s48 of the Crimes Act, and therefore not an assault
While police would have a ‘discretion’ as to whether to charge, in practice many police stations are already calling in CYF, who take a blanket “no smacking’ approach and would be within their powers to remove children from parents, even if insufficient evidence existed to convict.
July 28, 2006
Donny Osmond interview: June 06 issue
AND THEY CALLED IT...
Ian Wishart catches up with Donny Osmond ahead of his upcoming tours downunder and discovers a pop survivor
(to listen to the podcast of the interview, click here)
It was Wellington, 1973. There was only one TV channel, it was black and white and in our home it beamed in on an old (even then) Bell TV set with an iconic late 50’s US design and a rotating dial numbered 1 to 12 that acted as a channel selector, provided you could find a spanner to wrench it with. With only one channel, programmes rated through the roof, all of them. And in kids TV that season, it didn’t get much bigger than Lost in Space and the Osmonds TV cartoon series.
If it wasn’t enough watching the cartoon Donny being chased by hordes of screaming cartoon chicks across the screen, you could get a dose of the real Donny later in the evening when the weekly dose of the Osmonds live screened for older audiences.
AND THEY CALLED IT….
In other words, the first Donster was inescapable and – being a child superstar – held out by parents everywhere to their kids: “See, look what he’s achieved, and he’s just a few years older than you”, mine would say as they read my lackluster school reports. I remind Osmond of this down the phone line to his Utah home, and he bursts out laughing.
“Yeah, before they ended up hating me!”
They may have called it puppy love once, but thirty-something years later there’s a more mature mongrel edge to the former kid crooner, a sense that life has dished out the same things to Donny Osmond as it has to most of us: love, loss, pleasure, pain, success, crashing failure, hard work, making an honest living and rising again from the wreckage.
Few people know that, apart from singing, Osmond is a master electrician and completely wired his recording studio and home from the ground up. These are skills you learn when the stardom rollercoaster has ground to a halt and you suddenly find yourself with time on your hands and people to feed, as Osmond did when his Donny & Marie TV show ended in 1979. The years that followed pushed him almost to bankruptcy.
“Hand to mouth, basically. It was pretty lean in the early to mid 80s. I was bankrolling everything and I couldn’t get a record deal, couldn’t get a publishing deal, so I was doing demos, and whatever I could do. There was a residual interest out there for Donny and Marie, but that kind of ended in 1985, 1984 because I saw a dead end there. I thought, if I’m going to turn my career around I’ll have to do some drastic things. But I had to do Donny and Marie gigs just to feed the family. I had two mortgages to worry about, trying to sell a home.”
The transition from child star – he was on US national TV at the age of six – to teen idol, was a natural one. But Osmond says the gap between teen idol and adult performer is a much wider bridge to cross.
“Huge! Huge. To make that cross. How do you change the mindset of a whole generation? There’s a certain generation that remembers me for Puppy Love. There’s a certain generation that remembers me just for the Donny and Marie show. How do you alter that, how do you alter history? You just can’t do it.”
“You actually did it quite well in 89 with Soldier of Love,” I venture, recalling the out-of-nowhere hit that took all of us working in radio by surprise that year. I remember the programme director at Auckland’s 89FM playing the new track and trying to make us guess who was singing it, and a collective “you’re kidding??” when the Osmond name was mentioned.
“Yeah,” concedes Osmond, “but see what’s interesting – by the time the Donny and Marie show ended, which was 79, to 89 – that’s a ten year gap. So to a lot of people it was either a surprise to hear that Donny Osmond was recording music like that again, it was a novelty, and it was a whole new generation that discovered me. When Soldier of Love hit it didn’t really feed the bank account that much, but what it did is that it brought up the notoriety to where the demand became a little bit greater. Then Joseph came along and pretty much saved us, and from that point on we were back on track.”
He’s talking about Joseph & The Amazing Technicolour Dreamcoat, the Andrew Lloyd Webber/Tim Rice musical, and his invitation to star in the Canadian production in the early 1990s. That, in turn, led to him starring in the movie version of the musical released worldwide in 1999, and public acclaim that continues even to this very afternoon that we’re talking.
“As a matter of fact, this happened today. I was at the hospital watching over my dad, and as I was pushing him outside the hospital, giving him some sunshine in his wheelchair, this little eight year old girl was being pushed and she’d broken her foot or something, she was coming into the hospital, and she was crying but she saw me, looked up to her mum and said, ‘Mum, there’s Joseph!’
“So to her, Puppy Love – what’s that? Donny and Marie – who’s Marie, you know? I’m a different artist to that generation of people.”
And just look how different they can be:
“For instance, this just happened to me an hour ago. They’re building a house right behind our house, and construction workers are no-bull kind of people, and this guy came around with the biggest beard – he looks like a Deadhead follower basically, or he’d go to a Stones concert – and he came over and he was staring at me. And I was putting up a playset in the back yard for my kids, and I thought – this is freakin’ me out here, you know? And so he said, ‘You Donny?’, and reluctantly I said ‘Yeah, what’s your name?’
“He says, ‘I’m Dennis. Do you need any help?’
“ ‘No, I’m fine,” I said.
“ ‘OK, I just wanted to talk to you, because I’ve been following you, I quite like you’.”
“But my point is that if you can have staying power, there’s an amount of respect that not just the industry but the public at large can give you.”
Having endured the hard knocks, Osmond is more appreciative of success these days.
“I guess I’m in a better place now than I’ve ever been, because I’m in control of my career. You analyse the early years, and I was pretty much being dictated to about what to do, when to do it and where to do it. What to sing. Now I can guide the ship myself, and at this point in my life I don’t really have to worry about what next plateau I want to go to, it’s which next plateau would make me happy – just satisfy me as an artist – rather than just a good strategic move to make.”
“Were you happy as a child performer?,” I venture.
“I didn’t know any other life. I didn’t have anything to compare it to. Certainly some things weren’t very pleasant, like the amount of work that goes into being in show business. You analyse a lot of other careers and they’ve kind of gone to the wayside, in my opinion, directly because of the lack of work that they won’t put forth, because it takes a lot of work not only to get a career but to maintain a career.”
I wonder aloud if it is a product of faster-shifting tastes, a musical here-today, gone-tomorrow mindset amongst the public.
“Well, there’s several philosophies there,” reflects Osmond. “I’ve certainly had a lot of time to think about why that happens. I call it the iTunes society, everybody just wants little bits and pieces. Music has really become disposable, and along with it so are the bands and the artists. They become yesterday’s dinner, you know, leftovers. And more and more it becomes, instead of flavour of the month, or flavour of the moment, it’s flavour of the nano-moment, nowadays.
“Because you can gain stardom quickly if you get a lucky break – what do they call it over there, Australian Idol – well if you can get a lucky break there you’ve got your 15 Minutes of fame, but then the work starts after that 15 minutes.”
So why is Donny still in the business, still hauling in crowds?
“Tenacity,” he suggests, having released his 54th album last year.
Nostalgia? I ask, or is it that we’re harking back to the seventies and eighties as part of a subconscious yearning for lost innocence?
“Interesting observation,” he reflects after a moment. “I have no idea whether it’s to recapture the innocence, but that’s an interesting way to look at it. I’ve never looked at it that way.”
But for Osmond, he’s also been finding success with cover versions of songs like Neil Finn’s Don’t Dream It’s Over. Why that, I wonder?
“Ah, because I wanted to come back to New Zealand and have a great aud –” Osmond cracks up laughing down the end of the phone, and I have a vision of his trademark grin and wall to wall teeth. “No, I just liked the song! It was weird, when I did that album “Somewhere in Time”, I thought, this is a recording artist’s dream, to be able to just take hits – cherry pick the ones you really love – and do them the way you want to do them, and that was one of them.”
“You also did a good cover of Without You, the Harry Nilsson hit?”.
“That is one tough song to sing. You’ll never see me sing that in concert. It took me three days to get the vocal that I kind of settled on. I mean, there’s always places where an artist wants to tweak and make it a little bit better, but my producer said ‘Leave it alone, that’s exactly the way it should be’. But it was three days of spitting blood trying to hit those high notes.”
Still, according to the comments of those attending his concerts, the boy can still deliver. Nevertheless, when your fanbase stretches from unlikely ZZ-Top look-alikes to eight year olds, and then “legions of nostalgic forty-something women – all clad in de rigour Osmondmania uniform of silky scarf and over-tight spangly T-shirt” as one British reviewer put it, there are “dynamics” to be balanced.
“The difficulty there though is that when you do a concert tour, and mum is all excited about coming to see Donny Osmond, the last thing the teenagers want to do is exactly what mum’s doing. Because that’s for the ‘older generation’. So there’s a dynamic that you kind of have to balance, but every once in a while you look out in the audience and it’s just such a cross-section. But primarily I would say it is the 25 to 55 year old women.”
Father of five – the youngest is eight and the oldest 26 – Donny Osmond is now a grandfather at 48, and happy to have found resonance in his life and 28-year marriage to wife Debbie.
“I’m pretty busy [now]. To the point where it’s nice to be able to turn down gigs. But I like to balance my life a little bit more now than I used to. So I turn down more than I accept.”
Having said that, he’s also apologetic about having to postpone his NZ concerts until the end of July due to a terminal illness in the family, but says he’s looking forward to making his first trip here since 1981, trusty video iPod in hand to keep him company on the long flight, packed with thousands of songs including current favourites, Coldplay.
The Donster epitomizes the drive within him. From a seventies child star when CDs hadn’t even been invented, not only has he outlasted most of his peers but he’s happily embraced the latest technology and bands. If that’s not staying power, I’m not sure what is.