Thursday, January 25, 2007

Spanking Martha Stewart

I hope it's not too late to weigh in on Mike's earlier post about the proposed spanking bill in California. I haven't read the draft law, if one exists at this point, so I'm speaking from a somewhat general position. Mike asks why one might oppose such a law, and says that since religion doesn't seem to be the foundation for the opposition, a general fear of the "nanny state" might be behind it. I detect, though I may be wrong, a whiff of disagreement in his description of such a position.

Let me offer a few responses that don't necessarily depend on opposition to the nanny state as such, although they certainly may support wariness about "nanny state" legislation. They all amount to the same basic thing: that however commendable such a law might be in ideal circumstances, there is no guarantee that its application would be ideal. We might take three cuts at such an objection. The first is a basic vagueness/overbreadth objection: however carefully such a law is drafted, parents may well be concerned that their actions in disciplining children, however innocent and well-meaning, might be construed as falling under the application of the statute. Second, as is often the case with such laws, there might be a concern about selective enforcement: given the breadth of conduct that might be construed as falling under the statute, and law enforcement's tendency to use whatever tools come to hand, a parent might reasonably be concerned that law enforcement officials would use such a law selectively and unfairly when seeking grounds to lay charges against someone. Hence the reference to Martha Stewart in the title of this post, which is not (just) a cheap effort to increase our visitorship via Google search by drawing in fans of a special kind of Martha Stewart Living: a spanking law might serve the same prosecutorial bootstrapping function that 18 U.S.C. 1001 served in the Stewart case and other white-collar criminal cases, to the criticism of some. That leads me to a third and final possible objection: a parent might be reasonably concerned about the collateral consequences of such a law, as with other laws, also designed for the protection of children, that in some cases lead to collateral legal consequences for those who have been convicted under such laws that far outweigh the gravity of the conviction itself.

Thus, it seems to me that even if one believes spanking is never justified -- and much will depend on how one defines "spanking" in these circumstances -- one might still reasonably believe that such a belief ought to be enforced as a social norm rather than through law, even if one is not inclined to condemn the proponent of such a law as a would-be "nanny."

Finally, for those who are interested in such issues, let me fulfill my function as one of the Canadians on this blog (actually, we seem to be legion on this blog) by pointing out that the Supreme Court of Canada kinda got there first, in this opinion. The opinion actually comes at the issue from the other side: the Court upheld a section of the Criminal Code that "justifies the reasonable use of force by way of correction by parents and teachers against children in their care."