Smacking ban proposals raise a big question of our politicians

If I stab you, slap you, punch you, jab you in the chest, trip you up or knock you down – I might find myself up on a summary complaint in the sheriff court. The prosecutor doesn’t have to establish that the contact caused any injuries. The procurator fiscal doesn’t even have to establish any actual physical contact between assaulter and assaulted. So long as my actions put you in immediate apprehension that physical harm may be inflicted on you, I can be competently put to trial for assault at common law. The fiscal would also have to establish the mental element of the crime. As all Legally Blonde fans know, the prosecution must prove not only that the accused has committed a guilty act, but also prove they have a guilty mind. As Elle Woods understood, we need mens rea.

If I tackle you to the ground to save you from a reversing lorry, I’ve no evil intention and so commit no offence. The same goes for the surgeon who opens your chest to perform heart bypass surgery, or the body piercer, or the rugby player who takes the legs out from under the opposition full back on the pitch. If he tried the same trick on a granny in the high street, it would be a different story. The law is sensitive to context.

READ MORE: Maree Todd: Smacking ban 'would send clear message to parents'

So how should it deal with the context of interpersonal violence in families? How, in particular, should it deal with parents who hit their children? As the law stands, if parents smack their children in this country, this is as much an assault as if the parents lay hands on one another. But Scots law currently recognises two defences for parents charged with assaulting their children.

The Criminal Justice (Scotland) Act 2003 created a statutory defence of “justifiable assault”. This sits on top of the older common law defence of “reasonable chastisement”. So what do these provisions say? Essentially, if someone with parental rights and responsibilities is charged with assaulting their child, then the assault can be justified and the accused acquitted. This defence is available to parents up until the child’s 16th birthday.

But in deciding whether the particular assault was justified, the legislation directs the court to consider a range of factors. What was the nature of the assault? What were the reasons behind it? In what circumstances did it take place? How long did it last? What effect did it have on the child? How old was the child at the time? Some actions can already never be justified. If the blow is struck using an implement, involves shaking of the child, or striking their head – there is no defence. The Crown Office estimates it handled around 730 cases of parental assaults on children in the past year.

As the Brexit debate rages, and the House of Commons caves in under the deluge – metaphorical and actual this week – in Holyrood, the Equality and Human Rights Committee has been scrutinising the Children (Equal Protection from Assault) (Scotland) Bill. Sponsored by Green MSP John Finnie, if passed his Bill would strip these defences from the statute book. Corporal punishment of children would be prohibited in the home. In the language of the Bill’s proponents, children would finally enjoy equal protection in law from physical chastisement which adults take for granted.

The case for these reforms is rooted in international human rights norms and evolving conceptions of children’s rights across the globe. You may not realise how out of step the UK has now become on this question. Sweden was the first state to ban the practice in 1979. But the reform agenda has now extended far beyond the confines of liberal Nordic parenting. At the turn of the millennium, just 10 states had joined Sweden in prohibiting the practice. Today, some 58 countries have done so, including Germany, Spain and Brazil.

Ireland ditched its “reasonable chastisement” defence in 2015. In November 2018, France became the latest state to jettison its historical “right of correction”. Scotland is now only one of four EU members states which still permits the physical punishment of children.

It is difficult not to see this through the lens of your own experiences. It seems appropriate that John Finnie’s daughter – Ruth Maguire – is leading the scrutiny of these proposals in the Equality and Human Rights Committee.

I don’t have kids. My parents didn’t believe in corporal punishment. Neither do I. The sight of a bawling parent walloping a bawling child in public has always struck me as deeply unsettling. Ethically, I don’t believe smacking is necessary discipline to impose. My strong impression is that smacking often reflects the parent’s own emotional reactions, rather than what is objectively required to correct the behaviour of wayward children. The moral lesson that force is a legitimate ultimate remedy seems a poor one to teach young people.

But our parliamentarians seem fundamentally confused about what they’re doing with this legislation. The debate goes like this: “We don’t want to criminalise parents.”

“And so how do you propose going about that?”

“By removing the only defence these parents might have if charged with hitting their children.”

Does this make sense to you? It’s all very well arguing this is about protecting children rather than penalising parents – but this is just rhetoric.

Exposing parents to criminal sanctions must be what this Bill is about. Legally, it is all this Bill will achieve, if passed.

This confusion is just the latest symptom of treating criminal laws as tools to “send messages,” quietly ignoring their practical implications. This is part of a wider pattern in Holyrood’s approach to criminal legislation. Time and again our parliamentarians pass new criminal laws on the proviso they won’t be enforced as drafted. We are, always, invited to rely on the police and prosecutors to chase down the real villains, and quietly ignore the sweeping range of behaviour our politicians actually criminalise.

Take a few examples. In 2010, Holyrood carved out a range of new serious organised crime offences, including “involvement in organised crime”. The usual police and prosecution witnesses were rolled out to testify that these offences were vital if the Mr Bigs of Scotland’s underworld were to face criminal sanctions. But if you look to the letter of the legislation, you find it isn’t written that way.

As the LibDem MSP Robert Brown pointed out, if two children conspired together to steal a pork pie technically that could be classified as “involvement in serious organised crime”. The Lord Advocate of the day shrugged off this objection on the basis that no “common sense” prosecutor would apply the law in this way. Maybe so. But it is hardly an insignificant fact that this is what the law actually says.

When Kenny MacAskill proposed abolishing the doctrine of corroboration in 2015, MSPs were falling over themselves to suggest “in practice”, corroboration would still be used by prosecutors in determining which cases to bring to court. The former Cabinet Secretary for Justice said “we’re not going to have people convicted on one single evidence from one single witness.” So why abolish corroboration? There’s no sense to it. It’s cakeism.

The magic thinking behind the Offensive Behaviour at Football Act was informed by a similar sensibility. At the margins, the new Domestic Abuse Act – which came into force on Monday – will criminalise conduct which may not appear obviously unlawful to many Scots. Again, we’re advised to put our trust in prosecutors and the police to apply these sweeping prohibitions in a proportionate way. I hope they do. But its long past time our politicians took proper responsibility for the criminal laws they pass. When it comes to banning smacking – like alcohol free beer and sugar free coke – many MSPs seem to want criminalisation, without criminal consequences. It’s time they grew up.