Nguyen: Spanking Your Kids: The Parental Privilege Defense
Wednesday, July 08, 2015
Given the level of national attention on domestic violence and child abuse in the past year, the debate about whether people should be allowed to administer corporal punishment on their children has been rejuvenated. While studies show that approval of physically punishing children has declined over the years, many people still believe that spanking as discipline is perfectly reasonable.
People older than my generation tend to favor corporal punishment. It is my generation, those millennials, who have begun to question whether hitting your kids is effective. I find that people who were not hit or who were traumatized from being hit do not believe in it, whereas people who were hit and it “worked” are in favor of it. Additionally, there are cultural influences that affect people’s opinion.
Up until now, the law has recognized that people have the right to discipline their children using force, but there has not been clear guidance about the degree of acceptable force. The Massachusetts Supreme Judicial Court recently clarified the standard in the case of Commonwealth v. Dorvil, where a father was charged with assault and battery after officers saw him kick his two-year-old child in the back and smack her on the bum. The facts about the kick are disputed, but the father admitted to smacking his child on the rear because she sassed him and was misbehaving. The lower courts had found the father guilty, but the SJC reversed.
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTThe court held that the parental privilege defense applied. The parental privilege defense recognizes the Constitutional right of parents and guardians to direct the upbringing and education of children under their control. However, the parental privilege defense must strike a balance between allowing parents to raise their kids how they choose while protecting children from excessive punishment.
The court established a standard which holds that parents will not be criminally sanctioned for using physical force to discipline a minor child under their care and supervision so long as (1) the force used is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the child (including preventing or punishing the child’s misbehavior); and (3) the use of force does not cause, or create a substantial risk of causing, physical harm (more than just “fleeting minor pain or minor, transient marks”), “gross degradation,” or “severe mental distress.”
A use of force by a parent will be evaluated by the court on a case-by-case basis. The prosecution has the burden of disproving one of the three elements listed above to remove the parental privilege defense from a defendant. This means that a parent does not need to prove that their punishment was reasonable, but that the prosecution has to prove that the punishment was excessive.
To determine the first two prongs of the test – whether the force was reasonable – the court will look at the circumstances, including the child’s age, physical and mental condition, and the nature of the child’s misconduct. To evaluate the third prong of the test, the court must decide whether the force used or risk of harm caused was so “extreme” that it is inherently impermissible. It’s almost like a “you know it when you see it” standard.
Furthermore, the court ruled that whether the parent was angry or not at the time of the discipline is
irrelevant. This makes sense because of course sometimes parents will be angry when punishing their children and just because they are angry does not mean they are overstepping their bounds. Conversely, a parent excessively beating a child without one sign of anger should not be able to rely on the parental privilege defense.
The court also declined to establish a bright-line cutoff age below which it is absolutely prohibited to use corporal punishment on a child. The child in Dorvil was two, almost three, years-old and the court determined that she had the capacity to understand and appreciate the reason for punishment. While there is not bright-line test, it follows that using force to discipline an infant who does not understand misbehavior or punishment would likely be found impermissible by the court.
The third prong of the test acknowledges the possibility of a child’s trauma from the use of corporal punishment. I think it is the possibility of lasting effects on a child’s emotional state and psyche that has millennials concerned about the use of any physical force at all when disciplining a child.
Regardless of what side of the debate on which you fall, the bottom line is parents have a choice as to whether they want to use corporal punishment on their children. This choice falls in line with parents’ rights to raise their kids how they see fit and with limited interference from the government.
AiVi Nguyen is a trial lawyer with the Law Firm of Bowditch & Dewey, LLP in Worcester.
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