Why smacking has no defence Why smacking has no defence
By Decca Aitkenhead
The Guardian, June 17, 2004

It is perfectly normal for two sides of an argument to resort to statistics and surveys in defence of their position. But it is less often the case that both sides deploy exactly the same ones. This is the unusual prospect facing the House of Lords next Monday, when peers will debate and vote on a clause that would ban parents from smacking their children.

Supporters of the amendment point to research carried out in the 90s for the Department of Health, which found that three quarters of mothers had hit their babies before their first birthday. More than a third of four-year-olds were being smacked more than once a week. Overall, 91% of children had been hit, half of them at least once a week.

But these are precisely the reasons why the government is opposed to the amendment, and will not allow a free vote. Ministers look at the same figures, and ask where is the wisdom - let alone the politics - in criminalising something to which the majority of voters readily own up? "We will not do anything," a source close to the education secretary said firmly last week, "that would create an offence of smacking your child, which would cover a little tap in Sainsburys."

The ubiquitous supermarket checkout stalks the debate about smacking with wearisome dependability. But it is a nicely populist image, and so is relied upon to conjure in a flash an image of over-zealous police patrolling the aisles. Until now it has always worked well at worrying people enough to put off reforming the law.

But here is a curious anomaly about the popularity of smacking. Three-quarters of mothers may admit they hit their babies, but in a recent Mori poll, 74% of parents said they were in favour of changing the law to give children the same protection from being hit in the home that adults currently enjoy. In another piece of research three years ago, only 16% said they found smacking an effective way of teaching their children the difference between right and wrong. So what are legislators to make of that? It depends upon what they think the law is there for.

Populists who defend the right to smack like to draw an analogy with the recent downgrading of cannabis. As everyone smoked it anyway, went the reasoning, the law was an ass, so it might as well be done away with. But an argument that was sound for cannabis doesn't stand up here, because I can't remember many cannabis users telling Mori they thought they should be arrested for smoking it. There was no discrepancy between principle and practice.

A far better parallel is drawn with tobacco smoking laws. Large numbers of smokers say they would like cigarettes banned in public places - not because they are hypocrites, but because they know smoking is stupid, and would welcome any assistance to help them stop. The argument that something should not be banned because people do it is so manifestly bogus that its success in defending parents' right to smack has been genuinely baffling. We all do things of which we disapprove. If speeding wasn't against the law, we would all drive too fast, but this is not an argument in favour of doing away with speed restrictions.

Defenders of smacking have perfected their legal sophistry over the years, and their favourite disingenuous warning is that parents would be prosecuted in their hundreds of thousands. They are quite right that 91% of parents are unlikely to stop smacking their children the day the law is changed. But the amendment does not turn smacking your child into a new or special crime. It would merely remove parents' defence of "reasonable chastisement" - an arcane legislative relic dating back to 1860 - thereby granting children the same legal protection from physical harm already accorded to adults. Every prosecution has to pass a "public interest" test, and even the most fanatical human rights lawyer would be hard-pressed to show how a minor slap merited a court case. Nobody goes on trial for gently smacking an adult's arm, so why would they if the arm belonged to a child?

If the point is not to prosecute, some might wonder why the Lords should bother themselves with the amendment at all. But laws, as the government knows perfectly well, serve more than one purpose. Monday's amendment is a new clause to the children's bill, a piece of legislation that stems directly from the tragedy of the Victoria Climbie case. The amendment could not have saved the eight year old from starving to death in a refuse bag in the bath, any more than it will land blameless parents in court. But it can demonstrate that the attitude of a country which allowed that tragedy to happen has changed since 1860, and that we no longer believe the most defenceless people in society deserve our least protection.

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