Friday, January 26, 2007

Spanking Ban...

Emily Bazlon writes in defense of the spanking ban.

To lay my cards on the table, I am not a spanker, but I don't think it's the state's job to tell me not to be a spanker. Especially in a legal environment where actually killing fetuses is a constitutional right. That was brought home with this quote...

Why, though, are we so eager to retain the right to hit our kids?

I'm quite sure most pro-choice people would cry foul if questioned why they were so eager to retain the right to kill unborn children.

I think this rationale is telling...

The purpose of Lieber's proposal isn't to send parents to jail, or children to foster care, because of a firm smack. Rather, it would make it easier for prosecutors to bring charges for instances of corporal punishment that they think are tantamount to child abuse. Currently, California law (and the law of other states) allows for spanking that is reasonable, age-appropriate, and does not carry a risk of serious injury. That forces judges to referee what's reasonable and what's not. How do they tell? Often, they may resort to looking for signs of injury. If a smack leaves a bruise or causes a fracture, it's illegal. If not, bombs away. In other words, allowing for "reasonable" spanking gives parents a lot of leeway to cause pain.

Who should we worry about more: The well-intentioned parent who smacks a child's bottom and gets hauled off to court, or the kid who keeps getting pounded because the cops can't find a bruise?

First the last question doesn't quite square the issue. Perhaps we should have "worried more" about the innocents who were suffering under Saddam's regime than about soldiers who would be killed in a war, but that doesn't mean the invasion of Iraq was a good idea. There's a difference between knowingly causing harm, and realizing that the tools at your disposal to address them may cause more harm than good.

Second, reading between the lines, the message seems to be that the purpose of the law is to get abusive parents that slip through the cracks of existing laws because they don't cause real damage. Non-abusive parents who keep an occasional spanking in their tool box need not worry -- they're not the targets here, even though they would be in violation of the letter of this law.

I think there's a little too much of this kind of thinking in our laws today. If we "know" someone is guilty, but can't quite build a case, then we'll write a broad rarely-enforced law that we can nail them on. So even though we can't nail Marth Stewart on insider trading, we can get her on obstructing an investigation, and throw her in jail anyway.

Maybe this law would initially only be used to go after truly abusive parents who stay inside the letter of current laws. But my concern is that it would later be used to go after people we decide we don't like. Did you take part in an anti-war demonstration? Write a nasty blog about your local government? Defend a murder suspect and get an acquittal? Let's poke around and see what your parenting techniques are...

Yes, officials should not use their power this way, and we should get rid of those that do. But I hope the past several years have taught us that occasionally we elect people who don't always use their powers in the wisest or most ethical ways. Handing them more power is something we ought to do carefully.

Rule of thumb -- if a selling point of a law is conditions under which it would not be enforced, then it's probably a bad law.

The article concludes with this non sequitur:

A hard-and-fast rule like Sweden's would infuriate and frustrate some perfectly loving parents. It would also make it easier for police and prosecutors to go after the really bad ones. The state would have more power over parents. But then parents have near infinite amounts of power over their kids.

That has a poetic parallelism to it, but is nonsense. There is no relation between the power parents have over kids and the proper power the state should have over parents. I have infinite power over what I will have for lunch today. That doesn't justify the state insisting that I not eat soup.


Schadenfreude said...


So, you're protesting RICO?

If I couldn't beat my children, how would I get them to listen?

JohnMcG said...

Excellent example of how overly broad laws can be used to go after people we decide we don't like.

twiffer said...

ah, vague, over-broad laws. don't you love them? i still labor under two delusions: firstly, that our system of governance was designed with the intention of limiting and checking power (particularly federal power). secondly, that the purpose of our legislative branches is not just to write new laws, but to also refine and precisely define law to insure we have effective laws.

the problem is that such actions actually serve the people, not the re-election chances of a politician. truly effective governance is not flashy. shouldn't really be noticable at all. it should be reasonable, not reactionary, and deal with actual issues. instead of tackling bogeymen on anecdotal evidence (see: every law banning cellphone use while driving, but allowing hands-free phone use. cross reference with studies showing that it's the phone conversation, not holding a phone, that is the driving distraction). but, alas, government has succumbed to corporate reasoning. look busy, or people will think you aren't doing your job. and so on.

JohnMcG said...

Yeah -- the more I think about it, the more troubling the logic is.

Brazelton seems to be arguing that spanking isn't a problem (though probably not as effective as its adherents might claim), but child abuse is. A spanking ban would lower the cultural bar for what acceptable treatment of one's children are, and make real child abuse unthinkable.


Like enacting Prohibition to counter public drunkenness and drunk driving.

And this from a publication that mocks the idea of a culture of life.

Keifus said...

Funny. Frequent spanking thoughout my life has lead directly to unborn babies. Unconceived, in fact.

Oh wait, you mean...


JohnMcG said...

Let me take one more shot.

Most of you know I oppose embryonic research.

Now, if I am going to make a case for banning embryonic research, it won't do for me to say that abortion is bad, and that banning embryonic research would increase respect for preborn life and make abortion less socially acceptable. It won't even do for me to demonstrate that embryonic research has not proven to be more fruitful than other less controversial types of research. I must make a presuasive agrument that it is bad in itself (which I have apparently failed to do).

What Bazlon is proposing isn't even a slippery slope argument, which is that allowing some questionable behavior will inevitably lead to accpepting behavior that is roundly condemned. (e.g. we can't approve same sex marriage, becuase then we have no prinicple from which to disapprobe of polygamy). She is essentially arguing for its converse -- set the legal barrier far outside of what is universally condemned, to ensure social disapproval for what is condemned.

Most of the time, we have had some space between what is socially accpeted and what is criminal. Cursing someone out is frowned upon; hitting him is illegal. Bazlon is arguing for inverting that space -- make cursing someone out criminal so that we're sure that hitting him will meet with disapproval.

Again, that seems to be a novel use for criminal law.

MsZilla said...

That last paragraph of the initial post is right down the line for me.

How I raise my kids is irrelevent to the whole discussion. It's the concept of whether or not the state has any right to dictate that outside of the physically and/or mentally verifiable incidence of actual harm to the child.

I'm also curious about enforcement. Has anyone got any links to how she suggests that this is enforced in the home? I mean, are we going for another Homeland-Security type thing where your neighbors form the Thought Police, or is there something else?

JohnMcG said...

I think the idea was that it would not be actively enforced, but if more serious abuse were suspected but could not be proven, this law would give prosecutors a more easily provable offense.

TenaciousK said...

It's the concept of whether or not the state has any right to dictate that outside of the physically and/or mentally verifiable incidence of actual harm to the child.

There's the rub, though, isn't it? How do you define "verifiable incidence of actual harm"? What if I were to argue that non-penetrative/traumatic sexual abuse of my infant daughter wasn't really hurting anybody? Hell, she'll never remember it anyway, right?

The idea behind anti-spanking legislation is sound - why is it legal to strike a child in a way it is illegal to strike a fellow adult? If you buy the idea that children have full citizenship rights, and those citizenship rights are not mediated by the parent, then the legislation makes sense.

It also makes sense in a similar manner that anti-abortion legislation makes sense (John). If parents retain the right of simple assault, why not aggravated assault? Arguing the children's rights are granted by their parents, even in part, is akin to saying that parents own their children, isn't it? If that's the case, what was the problem with abortion again? If not, then why is simple assault not a problem? Parallels with adults and people like correctional officers don't hold either, because even in those cases, officers must exercise the least traumatic force possible.

There are similar problems with animal cruelty legislation. I remember a case (Oregon?) where a pet turtle had swallowed a fish hook. When the vet explained the turtle was in great pain and would die without surgery (which cost several hundred dollars, BTW), the owner refused. The vet stated that refusing was tantamount to animal cruelty, and reported the guy, who was cited.

Briefly. Reports of more callous treatment of animals are as close as the nearest farmyard, slaughterhouse etc., and the charge was quickly dropped with an appropriately embarrassed haste.

So, the law is full of seemingly-strange contradictions when it comes to the rights of animals and people. But the issue is more complex than appears at first glance.

I think I'll write a post on the topic of child abuse.

catnapping said...

It's the state's job to define crime, ey? If one strikes a police officer, he goes to prison. The state says so.

It's about time they criminalized beating children.