Prosecutorial discretion and indiscretion - Michela Spiteri
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Prosecutorial discretion and indiscretion - Michela Spiteri

It’s a pendulum thing. Things now outrageous once seemed perfectly normal. Most people of my generation were probably slightly afraid of their parents. “Wait till your father gets home!” was the mother (quite literally) of all threats. We were taught to respect, even to fear, our fathers. Parents, after all, were the grown-ups, not our equals or friends. And no was no.  

Today the pendulum has swung the other way – too far perhaps. Twenty years ago, admitting to smacking children wouldn’t have raised a single eyebrow. Few surprises there. But today not many would admit to it. Like breaking wind, nose-picking or removing toiletries from hotel rooms, it’s something we might routinely do but wouldn’t mention. In a world gone politically-correct-crazy, confessing to the occasional slap is to come across as a child-abusive tyrant, unfit to parent.  

And of course there’s always the need to justify yourself. So I’d better do that right now. Yes, I’ve been there and done that, even though my own mother at the time regarded my ‘modern parenting’ as lax and permissive. She had a point: for in general I was a soft touch, especially during my son’s early years. Yet it would be a fib to deny ever spanking his bottom or smacking his wrist. Parenting is a daily struggle and bloody hard work. We love our children and would do absolutely anything to make them happy. But sometimes in our zeal to keep them out of harm’s way, we unintentionally harm them. That’s probably why it’s called tough love: because it’s much easier to be disengaged than it is to follow through with decisive disciplinary action.   

 ‘Tough love’ is an invidious phrase which is not only subjective but also subject to interpretation. And just as there are all sorts of parents, there are all sorts of children. Some parents have to deal with abusive, aggressive, violent and, yes, illegal behaviour on a daily basis. I don’t know what that is like and I’d hate to find out. But I do know that even routine adolescence has its challenges: the transformation from sweet boy or girl to obnoxious teenager would test the patience of a saint. Not all of us can keep a cool head. We’re not all wired that way. And there were times when the timely whack had some point for me – and indeed made a parallel point on my son. But does that make me a bully ‘legitimising’ the use of violence? I hardly think so. 

The legal threshold for slight injuries is so low that I could probably press charges against my beautician

Spanking and smacking – to my mind at least – conjure up the ‘acceptable” chastisement of loving families. Beating (as in ‘the living daylights out of’), bashing and smashing are quite different. And from here on we need to be careful. That’s because so much depends on interpretation. Which means that it’s all the more frustrating when ‘interpretation’ seems absent in our officers of law-enforcement. In my experience, the police vacillate between two extremes:  they’re either seemingly blind to complaints that ought to be taken seriously, or blindly taken in by complaints that should not be taken seriously and don’t merit prosecution.  

Lack of prosecutorial discretion is dangerous too. Failure to file necessary charges is a form of corruption; just as charging someone flippantly and unfairly is equally (if not more) contemptible. ‘Assault’ is a very big word; but if you Google it you’ll find that hit, strike, slap, smack, knock and rap can all be used in its place. The legal threshold for slight injuries is so low that I could probably press charges against my beautician or gym instructor because all you need is skin redness or a scratch and, hey presto, you have your doctor’s certificate. 

The news that former Minister Anton Refalo was going to be charged with assaulting his son came as a shock. It wasn’t the alleged assault, but what I felt the family must be going through that got to me. So I won’t admonish his son publicly for alleged crimes I’ve only read about. It’s the last thing the family needs. This 15-year-old boy, I’m convinced, will be feeling absolutely rotten, believing that he has brought trouble on himself and his father who was not prepared to aid and abet his misdeeds by sweeping them under the carpet.

I was at least consoled by the online comments in Refalo’s defence. His reaction was understandable, they said, even morally right. And there was a general consensus that the reporting officer (and whoever had leaked the report) had acted rashly (and despicably), crossing a line that shouldn’t be crossed. And like the Delia WhatsApp leak, it was clear that people were generally uncomfortable with invasions of family privacy.

The law, obviously, has got to mean business. But wisdom goes a long way, and also discretion and discernment. The media too should take note. Because when these things are conspicuously absent, police investigations and trials-by-media seem politically motivated.

Sometimes, therefore, a situation calls for support, not a report. A child who has made a terrible mistake should not have to bear the added burden of knowing that his father is now in the dock. A court may eventually throw out a frivolous police report, but the damage is still done. And families undone run the risk of never coming together again. 

Cases in ictu oculi should be handled with care. We are perhaps too sensitised these days (though lacking true sensitivity) and inclined to see abuse everywhere. Of course parents shouldn’t be let off the hook. At the same time they should be cut some slack when the situation truly calls for it. The same goes for professionals in daily contact with children. They stand accountable but they also deserve respect… and protection.  

michelaspiteri@gmail.com

This is a Times of Malta print opinion piece

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