NATIONAL CENTER FOR PROSECUTION OF CHILD ABUSE
Volume 16, Number 10, 2004
When Parental Discipline is a Crime: Overcoming the Defense of Reasonable Force in the Investigative Stage
By Victor I. Vieth1
Studies indicate that more than 90 percent of young children receive physical discipline and 33 to 50 percent of adolescents are similarly chastised.2 Twenty-three states allow the infliction of corporal punishment on schoolchildren.3 In the 1990s, there were more than 500,000 acts of corporal punishment in American schools.4 Noting the widespread acceptance of hitting children as a means of discipline, researchers Graziano and Namaste write:
With the exception of warfare, self-defense, and the often necessary use of force by the police, no human interactions other than adult-child interactions carry such clear social support for the unilateral use of physical punishment by one party on another.5
The criminal law reflects society’s tolerance of inflicting corporal punishment on children. A parent charged with assaulting a child is typically afforded the defense of reasonable force. To the extent jurors adopt our deeply rooted cultural acceptance of hitting children, a prosecutor faces a daunting task in overcoming this defense. This is particularly true if the facts of the case do not involve life-threatening or otherwise egregious injuries to the child.
Corporal punishment and the criminal law
The criminal law has evolved into at least two distinct approaches to cases of corporal punishment. These approaches can be classified as the majority rule and the minority rule.
Majority rule. States utilizing this approach hold that a parent is not criminally liable for an assault on a child if the blows to the child’s body constitute reasonable force and are administered as a means of discipline.6
Minority rule. Under this rule, a parent is not criminally liable for an assault on a son or daughter even if the force is unreasonable so long as the parent does not act with malice. Under this rule, an error in judgment does not bring criminal liability.7 Some case law, though, provides that excessive punishment is relevant to proving malice.8
There are myriad versions of these two rules. There are cases applying the defense of reasonable force to egregious acts of abuse, including homicide.9 Some statutes expand on the definition of reasonable force and state the defense does not apply to punishment involving extreme pain, mental distress or a risk of substantial bodily injury.10 Some analysts interpret Minnesota’s reasonable force statute to bar the defense of reasonable force in any case involving a charge of assault.11 If this is true, Minnesota has effectively outlawed corporal punishment. If this has in fact happened, it would not be a novel legal doctrine. A number of countries, including Sweden, Finland, Denmark, Poland, Norway and Austria have completely banned corporal punishment.12
Whether a prosecutor resides in a state adopting the majority rule, the minority rule, or some variation, the analysis of a corporal punishment case remains largely the same. Obviously, prosecutors in reasonable force states will not, because they cannot, pursue cases of mild corporal punishment. Even in countries banning corporal punishment, mild discipline such as spanking does not result in arrests or prosecutions.13 This is to be expected in that prosecutors exercise discretion in charging out all crimes.
We do not, for example, charge with theft hotel patrons who keep a pen. Not every playground fight results in a trip to juvenile court. Even if a prosecutor aspired to become a mindless machine pursuing each violation of each statute, he would likely lack the time and resources to do so. Supreme Court Justice and Nuremberg prosecutor Robert H. Jackson perceptively noted the nature of our work when he called on prosecutors to pursue cases in which “the offense is the most flagrant, the public harm the greatest, and the proof is the most certain.”14
If it is true that prosecutors, by necessity or choice, will only pursue corporal punishment cases exceeding the bounds of a traditional spanking,15 the task for the prosecutor is to convince a jury that the case at hand involves corporal punishment unlike that administered by jurors in their own homes.
Investigation strategies to overcome a defense of reasonable force
No matter how skilled an attorney, a prosecutor’s success or failure is frequently dependent on the quality of the investigation. In physical abuse cases involving the defense of reasonable force, police officers often focus only on the degree of harm inflicted on the child. This, however, is only one factor. In deciding the reasonableness of force, courts consider “the child’s age, the type of discipline inflicted, the means used, and the degree of injury or pain.”16 In addition, a jury may consider the necessity for the punishment.17 Corporal punishment is not reasonable when it is “not warranted by the circumstances.”18
Even mild blows may be unreasonable if administered out of anger and not from a sincere effort to discipline. The blows may also be unreasonable if the child did not deserve any punishment or was too young to understand the purpose of the discipline. Even if warranted, discipline may be unreasonable if it continues after the purpose is achieved. In light of the foregoing, an investigator interviewing the victim, the victim’s family, and the suspect, may wish to explore the following five factors.
First, what were the suspect’s feelings leading up to the assault? Many parents acknowledge that they sometimes inflict corporal punishment because they as adults have lost control of their emotions and are simply hitting the child as an expression of anger.19 Accordingly, an investigator needs to explore how the suspect felt when he came home that day. Was he tired? Did he have any difficulties with his boss or co-workers? Was he excited about the prospect of playing with his son or did he need a rest? When his son broke the antique vase which belonged to the suspect’s grandmother, did the suspect feel angry? Through inquiries such as these, the suspect or other witnesses may give a prosecutor the needed ammunition to prove the assault had nothing to do with discipline but was an old-fashioned expression of hostility.
In exploring the suspect’s feelings prior to the assault, it is important to determine what was said to the child. If striking the child was an attempt at discipline, it is logical to expect the caretaker to calmly explain the child’s infraction, the consequences for the infraction and, once discipline is administered, to re-affirm parental love for the child. Indeed, this is the protocol recommended by advocates of corporal punishment.20 If this scenario is absent and instead the child was screamed at and called derogatory names, the picture looks less like discipline.
Second, determine if disciplinary practices other than corporal punishment are used in the home. If the suspect acknowledges that time-outs are routinely used in the home, the decision to use a more aversive form of discipline may indicate it was not discipline at all but a reflection of anger.
Third, determine not only the use but also the effectiveness of less aversive disciplinary practices in the home. If the suspect acknowledges that non-corporal discipline is effective with the victim, the decision to resort to violence in the present case may be suspicious.
Fourth, obtain the details of the rule violated which necessitated punishment. When was the rule established? How was the rule communicated to the child? Was this the first time the child violated the rule? If not, how was the child disciplined for previous violations? If the rule was developed only after the child committed the offense, any punishment may be inappropriate if the child could not have reasonably recognized his behavior to be wrong. If previous infractions resulted in mild discipline, explore with the suspect the reason he chose to increase the severity of the punishment.
Fifth, determine who in the household the rule applies to and the consequences others receive for abridging the rule. If the rule applies only to the victim or if comparably situated siblings who abridge the rule do not get hit, it is possible the rule is simply a pretense for inflicting pain on the victim.
Sixth, it may be helpful to discuss family pets with the suspect. An abused animal may indicate a high level of violence in the home. Indeed, some studies indicate there is a correlation between animal and child abuse.21 On the other hand, many people treat pets with tenderness. Even when the pet commits infractions similar to what can be expected of young children, such as urinating on a bed, the animal is not severely punished. If an investigator establishes facts such as these, it opens the argument that even the dog was treated better than the child. Accordingly, the assault was not discipline but abuse.
Prosecutors are like the quarterback in football. We get too much credit when we win a case and too much blame when we lose. In reality, we are only as good as our supporting cast. If the investigator does a thorough investigation, prosecutors have a fighting chance to overcome a defense of reasonable force. Of course, the prosecutor must carry the ball when the case comes to trial. In the next issue of Update, we will discuss appropriate trial strategies for overcoming this defense should the case come to court.
1 Director, National Center for Prosecution of Child Abuse, Alexandria, VA; Director, National Child Protection Training Center at Winona State University, MN.
2 John E.B. Myers, Evidence in Child Abuse and Neglect Cases, Second Edition, Sec. 3.2 (1992) citing Graziano & Namaste, Parental Use of Physical Force in Child Discipline: A Survey of 679 College Students, 5 J. Interpersonal Violence 449 (1990); Graziano, Lindquist, Kunce & Munjal, Physical Punishment in Childhood and Current Attitudes, 7 J. Interpersonal Violence 147 (1992).
3 Irwin A. Hyman, Ed.D, Using Research to Change Public Policy: Reflections on 20 Years of Effort to Eliminate Corporal Punishment in Schools, 98 Pediatrics 818, 819 (October 1996).
5 Myers, supra note 2.
6 Victor I. Vieth, Corporal Punishment in the United States: A Call for a New Approach to the Prosecution of Disciplinarians, 15 Journal of Juvenile law 22, 36-37 (1994).
7 Id. at 37-38.
9 In Kansas, for instance, it was reversible error not to give the defense of reasonable force in a case in which the child was whipped with a belt, forced to stand on her head while kicked in the face, and eventually killed. See State v. Severns, 148 P.2d 488 (Kan 1944).
10 This is essentially the law in Hawaii. See State v. Crouser, 81 Haw. 5, 911 P.2d 725 (1996); Haw. Rev. Stat. Section 703-309.
11 See Vieth, supra note 6 at 41-45.
12 Irwin A. Hyman, Corporal Punishment, Psychological Maltreatment, Violence, and Punitiveness in America: Research, advocacy, and public policy, 4 Applied & Preventive Psychology 113, 119 (1995).
14 John Jay Douglass, Ethical Issues in Prosecution 13 (National College of District Attorneys, Houston, Texas 1988).
15 For a discussion of factors a prosecutor may wish to consider in deciding whether to file charges in a case of corporal punishment, see Vieth, supra note 6 at 47-56.
16 John E.B. Myers, Evidence in Child Abuse and Neglect Cases, Third Edition, Sec. 4.3 (1997).
17 Id. quoting People v. Whitehurst, 9 Cal. App. 4th 1045, 12 Ca. Rptr. 2d 33 (1992).
19 In a random sampling of 1003 mothers in two Minnesota cities who used corporal punishment in the previous six months, 44% said in a majority of instances when corporal punishment was inflicted, it was because the parent had “lost it.” Murray A. Strauss, Ph.D., Spanking and the Making of a Violent Society, 98 Pediatrics 837 (October 1997).
20 According to corporal punishment advocate James Dobson, a “parent can absolutely destroy a child through the application of harsh, oppressive, whimsical, unloving, and/or capricious punishment. I am certainly not recommending such. However, you cannot inflict permanent damage to a child if you follow this technique: identify the rules well in advance; let there be no doubt about what is and is not acceptable behavior; when the child cold-bloodedly chooses to challenge those known boundaries in a haughty manner, give him good reason to regret it; at all times, demonstrate love and affection and kindness and understanding.” Dr. James Dobson, Dare to Discipline 17-18 (Tyndale House Publishers, Inc. Wheaton, Illinois 1970).
21 A study of 57 families involved with welfare agencies as a result of child abuse found that animals had been abused in 88% of the homes. Child Abuse and Animal Abuse: Chain of Violence, 4 UPDATE (December, 1991, American Prosecutors Research Institute’s National Center for Prosecution of Child Abuse, Alexandria, VA). Being physically cruel to animals is part of the diagnostic criteria for conduct disorder. Diagnostic and Statistical Manual of Mental Disorders Fourth Edition 90 (American Psychiatric Association 1994).