To spank or not to spank?

To spank or not to spank, that is the question for New Zealand voters. The country, which criminalized spanking as a form of "parental discipline" in 2007, has reopened the debate with a non-binding referendum.

To spank or not to spank, that is the question for New Zealand voters. The country, which criminalized spanking as a form of "parental discipline" in 2007, has reopened the debate with a non-binding referendum.

The issue: "Should a smack as part of good parental correction be a criminal offence in New Zealand?"

The answer is in the hands of three million voters, who will have the opportunity to weigh in on the topic starting Friday, July 31. The referendum, which will be held by mail-in ballot, is open until Aug. 21, but don't expect changes to the law should the No camp prove victorious. The government is not bound by the result.

The debate

At the heart of the issue, in New Zealand as in other parts of the world, including Canada, is whether a parent or guardian's decision to use "reasonable force" to discipline a child is in direct opposition to the child's rights and best interests.

Those in favour of spanking argue that, in certain circumstances, a strike on the bum or the hand is acceptable, and caregivers shouldn't be at risk of criminal prosecution if they choose to smack their children. Those who oppose spanking as a form of discipline say that, in modern democratic societies, hitting a child — in any circumstance — is unacceptable. Not only does it encourage violence, they argue, it is an affront to human dignity.

The debate reaches beyond parents and caregivers, dividing the academic and professional communities as well. Volumes of research exist on the effects of spanking children, but there is no sound consensus on the issue.

While a number of organizations — including the Canadian Paediatric Society, the Public Health Agency of Canada, and the U.S. Center for Effective Discipline — discourage spanking, there are still researchers, like Robert Larzelere, a professor of human development and family science at Oklahoma State University, who maintain there is no scientific basis to suggest its reasonable use is harmful to children.

The Canadian context

Section 43 of the Criminal Code of Canada, enacted in 1892, provides parents, teachers and caregivers — including babysitters and foster parents — a defence when they use corporal punishment as "reasonable force" to discipline children. The Supreme Court of Canada upheld the century-old law in 2004 when it was asked to rule on whether spanking constitutes "reasonable force" for disciplining children, or whether it is a form of abuse.

The court heard arguments on both sides of the debate and ruled by a 6-3 margin that the law was constitutional and should stand. Writing for the majority, Chief Justice Beverley McLachlin stated that under Section 43, criminal law does not apply when force "is part of a genuine effort to educate the child, poses no reasonable risk of harm that is more than transitory and trifling, and is reasonable under the circumstances." 

Changes to the section were recommended, however. In her decision, McLachlin ruled out the use of corporal punishment for children under age two or for teenagers. She also came out against using instruments such as rulers and belts, or striking a child on the face or head.

The court also revised legal doctrine that had lumped parents and teachers together. McLachlin wrote "corporal punishment by teachers is unacceptable," but the court nonetheless concluded that teachers could use reasonable force to "remove children from classrooms or secure compliance with instructions."

Shortly after the Supreme Court's decision, Liberal Senator Céline Hervieux-Payette introduced a bill to the Senate to eliminate Section 43. Known as Bill S-209, the legislation was mulled over in the Senate for more than three years as the Canadian Bar Association and the Canadian Council of Criminal Defence Lawyers spoke out against it.

The bill was eventually amended to allow parents and caregivers to use force in very specific situations — such as a small smack to the hand to stop a child who is about to do something dangerous or harmful. But routine discipline and the use of spanking as premeditated punishment wouldn't be allowed.

The bill passed its third reading in the Senate in June 2008 and moved to the House of Commons for approval before it could become law. The House never held a vote, however, as Parliament was dissolved for an election.

Anti-spanking laws around the world

Sweden was the first country in the world to introduce anti-spanking legislation, in 1979. Finland, Norway and Austria followed suit over the next decade. As of March 2009, 24 countries had introduced a full ban on corporal punishment for children — both at home and in school. Italy and Nepal have yet to confirm legislation that would outlaw corporal punishment for children, although both countries have supreme court rulings in favour of prohibition.