National District Attorneys Association

 

NATIONAL CENTER FOR PROSECUTION OF CHILD ABUSE


Volume 16, Number 11, 2004

Update


When Parental Discipline is a Crime: Overcoming the Defense of Reasonable Force at Trial

By Victor I. Vieth1

The most recent issue of Update provided readers with an overview of the prevalence of corporal punishment and concrete strategies for overcoming the reasonable force defense during the investigation.2 This article presents strategies for overcoming this defense during the trial.

Themes

Once the investigation is complete, charges have been filed, and it is clear the case is going to trial, the prosecutor will need to develop a theme for the case. A theme is “generally a message of the case which allows you to characterize all of the evidence as consistent with the conclusion that the child was abused.”3 In a child physical abuse trial involving the defense of reasonable force, the following themes may be appropriate:

  1. Parental license to discipline is not a license to maim a child.

  2. Children were not given to us as an outlet for our anger. Children are ours to guide, nurture, and love.

  3. This is not a case of discipline. It is a case of parental stress unleashed on a vulnerable infant.

  4. A spanking preceded by an explanation of the infraction and followed by an affirmation of parental love looks like discipline. Take away an explanation of the infraction, take away the affirmation of love and the conduct looks less like discipline. Add a litany of derogatory insults hurled at the child and a pattern and location of injuries unexpected from a spanking, and the picture of child abuse develops.

  5. A child may fear a father’s hand, but when the child fears his father, there is danger in the home.

  6. The difference between reasonable discipline and child abuse is the marks left behind. While the tears which follow a spanking eventually dry, child abuse leaves a footprint on the heart.4

  7. The defendant speaks of his adherence to the old-fashioned virtue, “spare the rod,” but apparently pays no allegiance to the old-fashioned virtue, “pick on someone your own size.”

  8. At the root of parenting lies the fundamental obligation to protect a child from harm. In this case, the parent not only failed to protect but actually promoted harm to the child.

Jury selection

Most Americans receive corporal punishment as children and administer it as adults. Accordingly, prosecutors should anticipate a jury pool with a significant number of spankers. Many of these jurors may have deep-seated religious or cultural beliefs concerning corporal punishment.5

To overcome these dynamics, a prosecutor must convince jurors that the corporal punishment administered by the defendant is different from the discipline jurors may have administered to their children. In other words, the prosecutor must help the jury differentiate between corporal punishment and child abuse. The difficulty is that many jurors may not have a working definition of child abuse, simply because they have given the subject little thought. In the course of the trial, a prosecutor must teach the jury that discipline ends and child abuse begins where they as jurors have already drawn the line.

Most parents inflicting corporal punishment do not use belts or other objects.6 Most parents do not remove the child’s clothing when administering punishment or strike a child hard enough to leave bruises or otherwise injure the child. Specifically, more than 80 percent believe a child should never be spanked hard enough to leave bruises.7 Most parents believe corporal punishment should only be used as a last resort and not as a common occurrence. Indeed, nearly 70 percent of Americans deem it child abuse “if a child is repeatedly slapped or spanked.”8

Assuming the jury panel is in keeping with these majority views and the State’s case involves conduct exceeding these bounds, the prosecutor will have an opportunity to convince the jury the defendant’s conduct was unreasonable. This process begins with voir dire.

Voir Dire

To draw the distinction between reasonable and unreasonable corporal punishment, voir dire should focus on types of corporal punishment present in your case that most jurors will likely frown upon. This may include exploring the use of objects, the need to inflict injuries, punishing children for accidents, the age a child should be spanked, and the location of blows.

Objects. Ask your jurors whether they have ever found the need to strike their children with belts, boards, spoons, and other objects. Even if a juror denies the use of such objects, explore her feelings about the use of such instruments.

Injuries. Ask the panel if anyone has ever hit a child so hard that medical attention was necessary. Inquire whether any potential juror feels it is appropriate to strike a child hard enough to leave bruises, welts, or other injuries.

Accidents/infractions. Remind the jury that toddlers have accidents. This is part of growing up and does not warrant a beating. Consider the following line of inquiry: Do you agree that toddlers have accidents? A toddler may trip and knock over a vase? A toddler may accidentally spill milk? Should a toddler be spanked for an accident over which he has no control?

Age of the child. Most jurors will appreciate that discipline must be age appropriate. Get the jurors to articulate these sentiments through questions such as these: How old should a child be before spanking begins? Would it be appropriate to spank a baby? Why not? How old should a child be when spanking stops? Would it be appropriate to spank a teenager? Why not?

Location of the blows. Most jurors envision corporal punishment as a limited number of swats to the buttocks. Get the jury panel to articulate that blows to other parts of the body would be excessive or dangerous. The following inquiry illustrates this approach: Would it be appropriate to hit a child in the head? The genitals? The stomach? Why not? Is it appropriate to hit a child with a fist as opposed to an open hand? Why not?

Other questions. Additional inquiries during voir dire may include the following: Do you feel it is appropriate to spank children? Why or why not? What infractions warrant corporal punishment? Should spanking be used as a primary means of discipline or only as a last resort? Have you read any of the literature on the issue of spanking? What have you read? What do you think of what you have read? Should a parent spank out of anger? Why or why not?

Expert witnesses

Medical experts. Medical personnel can explain not only whether various injuries are consistent or inconsistent with the history given by a child or parent, they can provide insight as to the degree of force used. For example, a physician can explain the buttocks to be a particularly fatty and relatively safe place to strike a child and that the presence of bruises on the buttocks suggests a fair amount of force was applied.

Physicians may also be able to test or refute a claim that the child bruises easily. A physician can explain the danger of particular instruments. For example, belt and loop marks may damage underlying tissue and leave a permanent scar. A belt may wrap around a child and damage the genitals or strike the kidneys.

Psychologists. Depending on the jurisdiction, therapists may be able to testify as to common behaviors associated with abused children, the potential psychological harm of experiencing and witnessing acts of violence, and the reason a child may delay reporting abuse.

Cross-examination of the Defendant

As noted earlier, a good cross-examination begins with a good investigation. Police officers need to find out as much as possible about the assault. Information is the ammunition of a prosecutor and it is incumbent on the investigator to fully arm the prosecutor prior to the battle. If this is done, there may be at least seven areas in which the prosecutor can attack the accused.

1. Size differential. It is often helpful to remind jurors how small children are in comparison to adults. This can be accomplished by asking the defendant four questions: How tall are you? How much do you weigh? How tall is your son/daughter? How much does he/she weigh?

2. Purpose of the discipline. Explore with the defendant the reason it was necessary to hit the child. Questions may include: did you hit the child as a means of discipline? What infraction did the child commit? When was this rule developed? How was it communicated to the child? Was this the first time the child violated this rule? Have your other children violated this rule? Does violation of the rule always result in corporal punishment? Do you use any form of discipline other than hitting the child? What other forms of discipline do you use? Have you found these other forms of discipline to be effective? If the answer is no, ask if you understand his testimony to be that each time the child misbehaves, the only recourse is physically striking the child. If he admits that other forms of discipline are used, point out that he did not use them in this case. In closing, you may be able to use this fact as evidence that the conduct was not discipline but an expression of anger.

3. The number of blows. Even if it was reasonable to strike the child, you may be able to establish the number of blows administered was excessive. If your facts support this hypothesis, the following questions may be helpful: How many times did you strike the child? If your case involves multiple injuries and the defendant answers with low number, ask him if he is telling the jury that one blow accounts for the sum total of the child’s injuries. You may be able to get him to enlarge his answer or, at the very least, you have emphasized the implausibility of his answer. In addition, explore the degree of force. Was each blow to the child of equal force or were some blows harder than others? Did the child cry? If the defendant denies the child cried, you can highlight the absurdity of the response. Are you telling the jury that you struck this three-year-old girl hard enough to leave bruises but that she didn’t cry? If the defendant admits the child cried, flush out the details. How many blows did it take before she cried? If the defendant concedes the child cried after one blow, ask the defendant why it was necessary to administer additional blows. Think of a situation where a parent strikes a child’s hand when the child reaches for a dangerous object. One blow should cause the child to pull away and possibly cry. If the purpose of the punishment was to have the child not touch the object, the goal has been accomplished and any additional blows can be argued to be unreasonable.

4. The use of objects. If the child was struck with an object, explore the need to use such an instrument. You may be able to establish that use of the object needlessly increased the risk of harm. The following inquiry illustrates this approach: Was the purpose of the discipline to administer enough pain to change the child’s behavior? Certainly you did not want to administer more pain than was necessary, did you? In this case, you did not hit the child with an open hand, did you? You used a belt? A Spoon? A Wooden stick? A fly swatter?

5. The removal of clothing. In cases where the defendant removes the child’s pants and underwear before hitting the victim, you may be able to contend this act is not an attempt to discipline but to increase the severity of pain endured by the child. The following cross-examination questions may set up this argument: Did you remove the pants and underwear of the child to increase the pain she would feel when you spanked her? You didn’t? Please, Sir, tell the jury why you removed your daughter’s pants and underwear before hitting her?

6. The suspect’s feelings prior to the assault. Ask the defendant how he felt about his son’s misbehavior that resulted in the need for discipline. If the accused admits being angry with his child you can argue this anger led him to excessive conduct. If anger is denied, you may be able to point out the implausibility of the statement. When your son spilled grape juice all over the paperwork you had spent hours working on, you weren’t angry?

7. The love questions. In many physical abuse cases, particularly those involving severe injuries to the child, the accused refuses to admit the crime. On cross-examination, you may be able to explain this denial to the jury by using the following questions: do you love your child? Do you feel your child loves you? Do you believe it would be wrong for a parent to abuse his child? Would you be able to live with yourself if you abused your child? Would you find it difficult to publicly admit to a jury of your peers that you had abused your child?

Conclusion

Few topics are as emotionally charged as corporal punishment. While prosecutors may have to walk on eggshells when choosing to charge these acts as assaults, there is no need to shy away from filing charges when the interests of justice demand it. When, however, the case does not involve broken bones or other egregious harm, the success of the prosecution may turn on the ability of the investigator and the prosecutor to distinguish the case from the corporal punishment many jurors may themselves have inflicted as parents.

 

1 Director, National Center for Prosecution of Child Abuse, Alexandria, VA; Director, National Child Protection Training Center at Winona State University, MN.
2 Victor I. Vieth, When Parental Discipline is a Crime: Overcoming the Defense of Reasonable Force in the Investigation Stage, UPDATE, Vol. 16 No.10 (2004).
3 Investigation and Prosecution of Child Abuse Third Edition 316 (SAGE Publications 2004).
4 Anna Salter coined the reference to child abuse as a footprint on the heart. John E.B. Myers, A Mother’s Nightmare-Incest 26 (SAGE Publications, Thousand Oaks, California 1997).
5 See Irwin A. Hyman, Reading, Writing, and the Hickory Stick 39-41 (Lexington Books, Lexington, Massachusetts 1990).
6 A 1985 national survey revealed that approximately 90% of the respondents do not hit children with objects. Murray A. Strauss, Beating the Devil out of Them 26 (Lexington Books, New York 1994). Strauss concludes that “even though hitting a child with a belt or hairbrush is still legal, I think that public opinion has shifted to the point where most people would consider it physical abuse rather than corporal punishment.” Id. at 26-27.
7 Poll: Discipline OK, Abuse Isn’t, USA TODAY, p. 8A, April 8, 1994.
8 Id.

 

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