The Affirmative Defense of “Parental Discipline”

I am sure that the idea of this concept seems troubling to most. But, let’s try to think this out rationally and first attempt to conceptualize the competing views without law, common law, or even case law. As my Family Law Professor used to say when evaluating a disputed issue, a case or a law, “Tell me a story.”

Scenario 1:

Good father, hell GREAT father, and a Child acting out. Not just wild, but violent- Hitting, kicking, screaming, being a real terror. Dad tries to reason with the tyke, but it’s not happening. Warning 1- “You cut that out mister (or missy) or you are getting a time out”. Didn’t work. 2- “You stop that or you’re losing TV, Dessert, Games (You name it).” Nothing- it’s getting worse. 3- “If you don’t cut that out you are getting a spank on the tush!” “Ye right, you wouldn’t” the tiny brat replies as he/she continues to terrorize the house like Godzilla loose on Sesame Street.

Scenario 2:

Child cries because her toy was taken away- slap.  

(Spank and Slap have a different effect, don’t they?)

Scenario 3:

Yank on the arm for letting go of the hand.

Scenario 4:

Grab arm when running away on the street.

The Scenario’s are endless. Now, Imagine each scenario in different years in our history. Surely certain acts that society frowns upon today would be unquestionably acceptable 60,50,40 years ago. How many times have we heard about the “ruler” that used to be used as a disciplinary tool in grade schools?

There are many other considerations that one might propose should be taken into account as well. Should we take into account age? Age of the child? Age of the adult to see what era they grew up in and what was acceptable parental behavior when they were a child? Amount of warnings given before the disciplinary action?

One major problem that I have with adopting a defense such as this is the question of where to draw the line. This presents the slippery slope problem; If the law allows this defense in for one scenario, based on certain specific facts, will that case then be used as good case law to support a parent’s case in one of the less “accepted” scenarios?  This might lead s court to the application of a “reasonableness” test- would a reasonable man/woman in the parent’s scenario have acted the same way? My next issue then is who will bear the burden of applying this test, the judge or the jury. If this is left to a jury, I do not believe that any jury can be unbiased on this issue. People hold very strong views, on both sides, about child abuse versus discipline standards.

Furthermore, How much government intervention are we prepared to accept into parenting/ into the family? The trend in history has become much more accepting of this type of intervention as apposed to the older tradition of Laissez-Faire/ hands off practices. Examples include, the demise of inter-spousal tort immunity, the addition of different grounds for fault divorce, the laws requiring parents to educate their children, etc.

While some may think that they have the “right to parent,” history has shown us that that right is not inalienable.

In a recent Kansas Court case the trial court refused to accept this affirmative defense to a charge of battery and refused to instruct the jury the same.  The case opinion noted that the judge acknowledged that, under the specific facts, the father had presented evidence in support of the (common law) affirmative defense. Likewise, the prosecutor acknowledged a right to raise the defense, unless that force “crossed the line.”  There is no comparable statutory defense in the Kansas Criminal code. The Jury there came out with a verdict of guilty and the Father appealed based on the lack of jury instruction presenting them with the Father’s ability to use this affirmative defense.

As the case noted, Parental discipline is a common-law defense:

“Long before the advent of contemporary child abuse legislation, it was a well-recognized precept of Anglo-American jurisprudence that the parent of a minor child or one standing in loco parentis was justified in using a reasonable amount of force upon a child for the purpose of safeguarding or promoting the child’s welfare. ” Bowers v. State, 283 Md. 115, 126, 389 A.2d 341 (1978).

The court of appeals reversed, holding that “the trial court had a duty to instruct the jury on the affirmative defense of parental discipline and the failure to properly instruct the jury denied the defendant due process of law.”

Was this the correct outcome?

For more info on the case, see State v. Wade, Kan. Ct. App., No. 102433, 12/30/10

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