Right: the "smacking police"? Opponents of making smacking a crime say that parents should not be at risk of acquiring a criminal record merely for disciplining their children.'
Arguments against making smacking illegal
1. Making it illegal to for parents to smack their children would be impossible to enforce
It has been claimed that any law that seriously intended to prohibit smacking would be unenforceable. Most parental disciplining of children occurs within the home and is therefore outside the direct observation of law enforcement officers and others who might otherwise press a charge or lodge a complaint.
Child psychologist Michael Carr-Gregg has stated, 'What are we going to do? Have the smacking police?'
The Victorian Opposition Leader, Daniel Andrews, has stated, 'Parenting is hard and it's not made any easier by unenforceable and intrusive proposals like this.'
It has also been noted that making smacking illegal would allow for the possibility of false complaints made by children against their parents. Some legal experts fear that if smacking were made an offence then there could be vexatious complaints made against innocent parents by children seeking to exert control over their care-givers or to exact revenge for other forms of discipline applied to them.
There is also concern that a law against smacking parents risked criminalising parents for what a majority of Australians regard as a minor and legitimate parental activity. It has further been noted that any resultant prosecutions may well not be in the child's best interests as they would put strain on the family unit and may result in fines or other impositions on the parent that could disadvantage the whole family.
In 2006 Terry Grange, the spokesperson for the Association of Chief Police Officers, said if the child was not suffering or at risk of serious harm as a result of corporal punishment the matter should be dealt with by social services and not the police.
Constable Grange stated, 'The ACPO firmly believes that children should receive the protection of the criminal law but we are concerned that, unless there is clear and unambiguous guidance, revision of the defence could lead to parents being brought into the criminal justice system for minor incidents when this is not in children's or the public's interests.
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2. Verbal and emotional abuse may be more harmful than a quick smack
In an opinion piece published in The Australian on August 5, 2013, Adam Shand wrote, 'The rage of parents blights many families. It's ugly, unpredictable and kids learn to walk on eggshells around us, accepting excuses about work stress, financial issues and marriage problems.
In that context, I would argue the occasional smack is the least of a kid's problems. It's a question of proportionality.'
A 1991 American survey defined verbal aggression directed at children as including such practices as putting children down, insulting them, swearing at them, and saying and doing things to spite them.
An analysis of data from a nationally representative sample of 3,346 American parents with a child under 18 living at home found that 63 per cent of the parents reported one or more instances of verbal aggression directed at their children.
The research indicated that the more frequent the verbal aggression the higher the chances of the children becoming physically aggressive with others; experiencing a variety of interpersonal problems and becoming juvenile delinquents.
Results such as these have led some experts to suggest that the issue is not whether the parents use physical discipline or not; what is significant is the manner in which the discipline is applied.
3. Children are already protected under assault laws
It has been noted that children are offered the same protections against abuse and assault as are available under the law to all Australians.
In addition, numerous states have introduced laws to regulate the manner in which parents may use physical punishment to discipline their children.
The Crimes Amendment Act 2001 (NSW) introduced an amendment specifying that physical punishment by a parent should not harm a child more than briefly and specifies the parts of a child's body that can be subject to force. This amendment to the Crimes Act 1900 (NSW) did not entirely remove parental capacity for corporal punishment nor explicitly ban the use of physical force towards children, but it did introduce strict guidelines on what is acceptable.
Though there is no legislation concerning corporal punishment by parents in Victoria, there is a common law defence for parental use of corporal punishment. Victorian common law allows parents to administer corporal punishment to children in their charge provided the punishment is neither unreasonable nor excessive.
Similarly, physical punishment by a parent towards a child remains lawful under the Tasmanian Criminal Code Act 1924 (Tas). The Act reads, 'It is lawful for a parent or a person in the place of a parent to use, by way of correction, any force towards a child in his or her care that is reasonable in the circumstances.'
Again, under the Criminal Code 1913 (WA) it remains lawful for parents to physically discipline their children. Section 257 of the code states that, 'It is lawful for a parent or a person in the place of a parent.... to use, by way of correction, toward a child or pupil under his care, such force as is reasonable under the circumstances.'
The requirement that any parental punishment that is administered be 'reasonable' is common across Australian states and territories.
4. Making it illegal for parents to physically punish their children has not reduced child abuse
It has been claimed that there is no significant link between smacking one's child and becoming a child abuser. Statistics do not suggest that banning parental use of corporal punishment recuses child abuse.
Sweden brought in a ban on smacking in 1979 and more than 20 countries followed. However, according to a paper published in the International Journal of Criminology and Sociology in 2013, the rate of assaults increased dramatically in Sweden. Compared to 1981, criminal statistics in 2010 included about 22 times as many cases of physical child abuse, 24 times as many assaults by minors against minors and 73 times as many rapes of minors.
Similar findings were reported in an Oklahoma State University paper published in 1996 which stated 'Although the Swedish anti-spanking law was intended to reduce child abuse, the best empirical study since then indicated that the rate of child abuse in Sweden was 49% higher than in the United States one year after the anti-spanking law was passed.'
This paper ended by suggesting 'In conclusion, the available Swedish data indicate that we cannot reduce child abuse just by mandating that parents stop using corporal punishment. Parents also need new, effective techniques to replace corporal punishment if it is to be outlawed. It is even possible that mild corporal punishment may play an important role in preventing escalation to abuse for some parents.'
Australian Family Association spokesman John Morrissey has stated that his organisation 'defends the right of a reasonable parent to smack their child as part of a range of strategies to discipline them.' The Association argues, 'The fact that parents and teachers no longer smack children as much as in previous generations hasn't created a more peaceful society," Morrissey says. "(It) hasn't resulted in more pacified children or a gentler society. Look at Saturday nights in any capital city and the violence that young people are perpetrating.'
5. Moderate physical punishment will develop more resilient and successful children
It has been argued a little stress, even if it is physical, is part of becoming a resilient individual. In an opinion piece published in The Australian on August 5, 2013, Adam Shand wrote, 'The greatest challenge is to avoid the victim culture that is overwhelming the resilience of our kids. There are bigger things to worry about than a smack on the bottom.'
Adam Shand further wrote, 'My daughter's school recently advertised a seminar on how to deal with pampered kids who become useless, fragile adults. They quote from Harvard psychologist Dan Kindlon's book Too Much of a Good Thing: Raising Children of Character in an Indulgent Age.'
Professor Kindlon has claimed, 'The body cannot learn to adapt to stress unless it experiences it. Indulged children are often less able to cope with stress because their parents have created an atmosphere where their whims are indulged, where they have always assumed ... that they're entitled and that life should be a bed of roses.'
It has also been claimed that moderate use of physical discipline with young children will result in their being more successful in later life. A recent study found that children who are smacked before the age of six perform better at school when they are teenagers. They are also more likely to do voluntary work and to want to go to university than those who have never been physically disciplined.
The study, which was conducted by Marjorie Gunnoe, professor of Psychology at Calvin College in the United States state of Michigan, found there was not enough evidence to prove that smacking harmed most children.
Professor Gunnoe stated, 'The claims that are made for not spanking children fail to hold up.'
6. A large majority of Australians support parents' right to use reasonable corporal punishment to discipline their children
Surveys have shown that the overwhelming majority of Australian adults (80-90%) endorse the legitimacy and occasional necessity of mild physical punishments of misbehaving children by their parents. This points to the widespread belief that parents have a responsibility to administer reasonable chastisement if it is merited, and that such punishment is effective in disciplining children and controlling misbehaviour.
It seems reasonable to infer that the respondents are drawing upon their experience both as children and parents in reaching that conclusion. There is evidence of declining resort to physical punishment. For most parents, it seems, physical punishment of children is rarely random or capricious and is almost invariably tied to 'pulling them up' sharply and immediately with the intention of teaching them an understanding of acceptably social, or safe, behaviour.