Out of 1400 Australians, in a poll by News Corp (http://www.news.com.au/lifestyle/parenting/survey-finds-majority-of-parent-think-its-ok-to-smack-but-most-opt-for-other-methods/news-story/df4f09a59083cd8bfff864e37bddaba5), 75.7% believed that it is acceptable to smack children to deter misbehaviour. 39.5% have said that they would be furious if they see their friends smack their kids.
Although, smacking children is a controversial issue, in certain circumstances, it isn’t a criminal offence to smack your kids in Australia.
In NSW, It is a defence to a charge of assaulting a child (under the age of 18 years) if:
- The physical force you applied, was for purposes of punishing the child; and
- You were the parent or a person acting for a parent of the child; and
- The physical force you used on the child was reasonable, considering the child’s age, health, maturity, nature of the child’s alleged misbehaviour, or other characteristics and circumstances.
The above defence is expressed under section 61AA Crimes Act 1900 (NSW) (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ca190082/s61aa.html).
Suppose you are charged with assaulting your 16 year old son.
The police have charged you with assault occasioning actual bodily harm, alleging that you smacked your son with a belt over his leg, where the assault has caused a small abrasion over the leg area.
A charge of assault occasioning actual bodily harm carries a maximum penalty of up to 5 years imprisonment, including a criminal conviction- It carries serious consequences on a finding of guilt.
First step- Establishing an Assault
In order for the Court to find you guilty of this charge, the police must first establish, beyond reasonable doubt, that you belted your son, which resulted in the small abrasion over his leg. To establish this, the prosecution will, in the absence of other witnesses or footage, need the child to attend court to give this evidence in front of the Magistrate.
Usually, the child’s evidence will be given via audio visual link from a separate room, which is shown on a screen in the court room where the Magistrate and lawyers sit during the hearing.
If the Magistrate is satisfied beyond reasonable doubt, that you belted your son, the remainder of the case will ultimately depend on the findings of fact made by the Magistrate.
This includes, the specific details of the force used by you. For example, the number of times you belted your son, how hard the application of force was, and the extent of injury or injuries occasioned by the assault. The reasons for this will be explained below.
Second Step- Raising the Defence of Lawful Correction
Once the Magistrate is satisfied by the police evidence, that the assault occurred, the Magistrate must then consider whether you have raised the defence of lawful correction.
For the Magistrate to consider this, you, as the defence, must raise this defence into evidence. This can be done by raising it in a record of interview you did at the police station when arrested. It may also be raised by giving evidence under oath, in the witness box, during the hearing of your case.
You will be required to prove, on the balance of probabilities, the defence of lawful correction under section 61AA Crimes Act. The test of proving a case on the balance of probabilities is much easier to satisfy than the test of beyond reasonable doubt.
Section 141 of the Evidence Act 1995 (NSW) (http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_act/ea199580/s141.html) establishes the standards of proof required by the prosecution, and the defence, in a criminal proceeding.
This means, you will be found not guilty if, on the balance of probabilities, the Magistrate accepts that, for the example here:
- You smacked your son’s leg with a belt, for the purposes of disciplining him. You will need to give evidence, in court, about the circumstances of this; and
- You are the alleged victim’s parent or you are a person acting for a parent of the child; and
- The application of force, with the belt, applied by you was reasonable. You will need to give evidence about this during the hearing.
Was the Force Used Reasonable?
In determining whether the force used was reasonable, the Magistrate will, based on the evidence, consider this from a common sense approach.
For example, if the Magistrate finds, beyond reasonable doubt, that you smacked your son, over his leg 10 times with a belt- the force will clearly not be considered reasonable force. You will likely be found guilty.
On the other hand, if the Magistrate accepts, on the balance of probabilities, that you smacked your son over his leg, once. That you did this without using your entire strength, leaving a small abrasion- then the force used is much more likely to be accepted as reasonable in the circumstances.
Factors relevant in determining the reasonableness of the force include:
- Your son’s age;
- Your son’s mental and physical health;
- Your son’s maturity;
- Circumstances of your son’s alleged misbehaviour
When is the Application of Force Not Reasonable?
Section 61AA(2) of the Crimes Act 1900 (NSW) provides a non-exhaustive list of when the application of force is unreasonable, and therefore a criminal offence.
It is unreasonable force where the force used was:
- To any part of the child’s head or neck; or
- To any part of the child’s body, where the force applied was in such a way, that it’s likely to cause harm lasting more than a short period.
What constitutes a “parent or a person acting for a parent of the child”
Section 61AA(6) Crimes Act expresses what constitutes a “parent” or “Person acting for a parent”, which are pre-requisites in a successful defence of lawful correction.
“Parent” of a child includes a person having all the duties, responsibilities, powers and authority for a child who is under 18 years of age, which, by law, parents have in respect to their children.
“Person acting for a parent” of a child, includes:
- Step-parent of the child; or
- De-facto partner of a parent of the child; or
- Relative (by blood or marriage) of a parent of the child, or a person to whom the parent has entrusted the care and management of the child; and
- That person is authorised by a parent of the child to use physical force to punish the child
Perhaps the use of time-outs, or taking something away that the child values, are better alternatives to discipling children than the use of physical force for the purpose of deterrence.
For more information on other defences to Assault charges, see more information on Assault Charges (https://www.criminaldefencelawyers.com.au/criminal-law/offences/assault/common-assault/).