QLD Queensland State School Removing Right of Self-Defence?

[CRQ]

Hello Learned LawAnswers People,

Today my son came home from school having punched another boy in jaw (my son is 9 and the boy he punched is 10). The expectation is that he may be suspended as the school adopts a first punch policy and what they call zero tolerance for violence.

Interestingly, he felt this was the only way he could get out of a situation in the playground. The other boy was verbally abusing him in the playground. My son did so too. Nothing serious. The other kid swore, but my kid did not, although I believe he may have called the other kid stupid.

Eventually the other boy lost his temper and grabbed my son's shirt and twisted it up around this throat (a shirtfront effectively). My son used an open hand to knock the other boy's hand away, but didn't have the strength to unlock his hand.

His throat was hurting and he was scared, so he swung a punch and hit the other boy's jaw. I don't have all the details yet, but I don't believe any damage was done. The other boy let go and asked my son if he had punched him. When my son said yes, the boy ran and got a teacher as the kids all know the school policy,

I understand it's unlikely we can do anything about the suspension if it is less than 10 days according to Education Queensland policy, but my question is a bit different. I consider my son acted in self-defence. Any adult grabbed in this way would rightly hit out at the person doing it to get free.

So how does a Queensland State School have the ability to remove the right to self-defence given under Queensland State Law?

Thanks

 

[Gorodetsky]

Hi CRQ,

In Queensland, you have the right to physically defend yourself with reasonable force, provided the force is authorised, justified or excused by law.

Reasonable force is the issue here...It's sometimes defined as "equal to or less than" the force of the attack. So defending oneself with a punch in response to a shirtfront might be an escalation.

At any rate, this isn't a criminal matter. The boy has not been charged by police, it won't be heard in court.

You might find that the school policy applys and that it will be determined by teachers or principals.

Your argument that your son struck out in self defence might be better pitched as "a scuffle to break free from a bully who was inadvertently knocked in the face"...Or something like that.

Good luck.

Regards

 

[CRQ]

Hi CRQ,
In Queensland, you have the right to physically defend yourself with reasonable force, provided the force is authorised, justified or excused by law.

Reasonable force is the issue here...It's sometimes defined as "equal to or less than" the force of the attack. So defending oneself with a punch in response to a shirtfront might be an escalation.

At any rate, this isn't a criminal matter. The boy has not been charged by police, it won't be heard in court.

You might find that the school policy applys and that it will be determined by teachers or principals.

Your argument that your son struck out in self defence might be better pitched as "a scuffle to break free from a bully who was inadvertently knocked in the face"...Or something like that.

Good luck.

Regards
Gorodetsky

Thanks for the reply Gorodetsky and what you are saying makes sense.

I understand it's not a criminal code matter (thank God for that!), but I still think it's strange that school policy can take away an individual's right (under whatever law) to defend themself from attack.

I guess the problem for us is that our son has been picked on before (not by this same kid) and literally did nothing because the school promotes a hands off policy. He was thrown up against a wall three times in a row and felt he couldn't lift a finger because the teachers had told them to keep their hands to themselves.

Honestly, I prefer his actions today! He's not at the mercy of a kid who clearly has no regard for any rules if he defends himself, and we all know that teachers don't have the resources to look after 1000 kids with half a dozen teachers in the playground.

Sounds like we will just have to take whatever punishment the school hands out, although I feel they failed several times in the past few years in their duty of care in protecting my son, and I really do believe it is up to him to defend himself, as the law would allow him to do outside of school.

Thanks again,

 

[Rob Legat - SBPL]

Aside from the fact we're not talking about criminal action in this circumstance, there is no 'right' of self defence under the Criminal Code. Rather, the Code provides that it is lawful to use such force as is reasonably necessary to make effectual defence. It's a technical difference, but it is still a difference.

On a personal note, I empathise with your situation. I teach self-defence and run into this issue with kids often, particularly when it is often the child who retaliates who is seen and punished. Schools make a big show of cracking down on bullying type behaviour, but in my experience they're generally either under-staffed, under-skilled, apathetic or powerless towards the problem. I don't see the problem being fixed any time soon. Teaching kids how to deal with the situation appears to be the only practical method unless/until education policies change. I'm not holding my breath.

I don't like to teach avoidance, as it can infringe the child's personal liberty; but not being in the situation is the best defence. If the situation is unavoidable, do one of two things:

(a) If they are going to get hurt, do whatever you need to do to get out. Argue the situation later, and go on the offensive with the school to make it clear the child was protecting themselves because the school failed to do so for them. Watch them try to bury you in bureaucracy, so don't let up. This is the 'rather be tried by 12, than carried by 6' method; or

(b) If they are not in immediate danger of getting hurt, get attention. Don't yell 'help' or 'stop', yell out something like 'don't touch me there'. Something that guarantees someone in earshot won't ignore it (ie a teacher). It's much the same philosophy as yelling 'fire' instead of 'help' for a r**e victim. This will, of course, only put off the problem and possibly make it worse down the track.

 

[CRQ]

Aside from the fact we're not talking about criminal action in this circumstance, there is no 'right' of self defence under the Criminal Code. Rather, the Code provides that it is lawful to use such force as is reasonably necessary to make effectual defence. It's a technical difference, but it is still a difference.

On a personal note, I empathise with your situation. I teach self-defence and run into this issue with kids often, particularly when it is often the child who retaliates who is seen and punished. Schools make a big show of cracking down on bullying type behaviour, but in my experience they're generally either under-staffed, under-skilled, apathetic or powerless towards the problem.

I don't see the problem being fixed any time soon. Teaching kids how to deal with the situation appears to be the only practical method unless/until education policies change. I'm not holding my breath.

I don't like to teach avoidance, as it can infringe the child's personal liberty; but not being in the situation is the best defence. If the situation is unavoidable, do one of two things:

(a) If they are going to get hurt, do whatever you need to do to get out. Argue the situation later, and go on the offensive with the school to make it clear the child was protecting themselves because the school failed to do so for them. Watch them try to bury you in bureaucracy, so don't let up. This is the 'rather be tried by 12, than carried by 6' method; or
(b) If they are not in immediate danger of getting hurt, get attention. Don't yell 'help' or 'stop', yell out something like 'don't touch me there'. Something that guarantees someone in earshot won't ignore it (ie a teacher). It's much the same philosophy as yelling 'fire' instead of 'help' for a r**e victim. This will, of course, only put off the problem and possibly make it worse down the track.

Thanks Rob for your response.

Thanks again also for the confirmation of the technical difference. I guess us laypeople assume we have certain 'rights' to do things, but I understand that a defence is not a right more clearly now.

I agree with you that schools are way understaffed to provide proper duty of care in a playground situation, so teaching children self defence is the only sensible thing to do. I wish the schools would add this to the curriculum, but I too am not holding my breath! A school full of kids who knew how to defend themselves would provide less targets for the bully.

Of course, you may be enabling the bully as well, but I suspect the reduction in fear for the kids who don't want to fight would outweight the disadvantages. Until those days, it's up to parents to understand this problems and act.

Thanks for the tips at the end too. Although I wish the situation never happened, I am impressed with my child's comment: "I was scared, but I felt strong." I am 100% convinced this has come from the self-defence/martial arts lessons he's been having. It's a credit to you Rob that you teach this, so keep up the good work!

Regards,