NZLawyer extra, edition 72, 26 April 2013 – Steven Zindel, principal, Zindels Barristers and Solicitors
Do we over measure the incidents of family violence? Does the state need to become involved in every case?
When section 59 of the Crimes Act 1961 was amended from 21 June 2007, meaning that the use of parental force, for the purposes of correction or punishment, was no longer justified, Parliament sought to reassure the public. The quotation from the Honourable Chester Borrows MP (on the third reading of the Crimes (Substituted Section 59) Amendment Bill on 16 May 2007) was similar to many speeches on the topic:
“Those parents who are worried that this legislation will criminalise lightly smacking a child can rest assured that Parliament’s intention is that this should not be the case, and if at some future time they find themselves on such a charge, they should advise counsel to research Hansard and cite these comments in their defence.”
In fact, it is my unscientific experience as a practitioner in the criminal and family areas that this is precisely what is happening,
…My feeling is that the courts are clogged with thousands of low-level family violence cases. Police and court resources are stretched as a result, and the cases become the grist for the legal aid mill. These cases can drive families apart and the result, in certain cases, may be that individuals’ futures are blighted by convictions which stay with them for years, potentially affecting their careers or their freedom of movement.
…Discretion by the Police, whether to charge or not, seem to be rarely exercised. Background provocation of the worst verbal kind is often ignored. The nature of the charges seems, frequently, to be the most grave available eg assault on a child, assault with a weapon or, when a woman is involved as a victim, male assaults female under section 194(b) with a two year imprisonment maximum; rather than section 196 of the Crimes Act common assault (with a one year imprisonment maximum), or even section 9 of the Summary Offences Act 1981 (with a maximum term of six months imprisonment or a fine not exceeding $4,000).
…Often, even if the complainant wishes for the charge to be withdrawn and there is the involvement of the victim advisor to ensure that the victim was not unduly pressured, such a withdrawal will not be allowed.
…With assaults being treated the same whether they originate from a gangland brawl or over a cross word while preparing dinner in the kitchen. The reality and the need for social control is very different for the two types of cases. It is in society’s wider interests that the criminal law should not be involved in isolated family disruptions when the perpetrator is taking steps to change, unless, of course, the violence is repeated or significant.