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VOLUME 11 - CHAPTER 253
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253.3 Parental Discipline

    253.3.1 Parental Discipline: Only Reasonable Force Permitted
    253.3.2 Parents’ Right to Discipline: Factors to Consider
    253.3.3 Parental Discipline: Burden Of Proof

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VOLUME 11 - CHAPTER 253

RATIONALE: When appropriate the instructions should assure the jury understands that it is not a crime to discipline a child so long as the physical force is reasonable.

POINTS AND AUTHORITIES: A parent does not commit an unlawful assault or battery by using justifiable (i.e., necessary) physical force which is intended to fulfill the parental rights and duty of care. (Wharton’s Criminal Law (West, 15th ed. 1993) § 186 [The punishment must not be cruel or merciless and must be imposed in good faith with parental affection]; People v. Whitehurst (CA 1992) 9 CA4th 1045, 1050 [12 CR2d 33]; see also 64 Ops.Cal.Atty.Gen. 373 (1981) [recognizing constitutional underpinnings of right and duty to care for child provided parental decisions do not jeopardize health or safety of child].)

    The standard for parental use of force is objective reasonableness. (See State v. Singleton (WA 1985) 705 P2d 825, 827; see also State v. Rigler (DE 1970) 266 A2d 887, 889 [what constitutes reasonable force under the circumstances is fact issue for determination by trier of facts]; State v. Hicks (OH 1993) 624 NE2d 332, 334-35 [charge given by trial court in domestic violence prosecution which in essence told jury that any parental discipline which involved physical harm was beyond bounds of proper and reasonable parental discipline was prejudicial error].)

    The test for objective reasonableness requires consideration of whether a reasonable person in the same circumstances would have believed the force used to be reasonable and necessary discipline. (See generally FORECITE National™ Chapter 48 [Objective Unreasonableness (Reasonable Person Standard)].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

RESEARCH NOTES:

Annotation, Criminal Liability For Excessive Or Improper Punishment Inflicted On Child By Parent, Teacher, Or One In Loco Parentis, 89 ALR2d 396.

See also generally, FORECITE National™ 305.16.1 [Parental Discipline].

    The caretaker of a minor child has the right and duty under the law to exercise reasonable care, supervision, protection and control of the child. In fulfilling these rights and duties, a parent may lawfully use reasonable physical force upon a child. The use of such force is not unlawful, and is neither an assault nor a battery.

    The defendant contends that [he] [she] used physical force upon the child which [he] [she] reasonably and in good faith believed, under the circumstances, was [permissible] [necessary] [lawful] [justifiable] within [his] [her] legally mandated duty and right to care for the child.

    The prosecution has the burden of proving that a reasonable person in the defendant's situation would not have believed that the force used by defendant was within [his] [her] right and duty to care for the child. This requires you to consider all of the facts and circumstances known to the defendant at the time of the alleged criminal act.

    If you have a reasonable doubt whether a reasonable person in the defendant's situation would have believed the force used was within [his] [her] right and duty to care for the child, you must resolve that doubt in favor of the defendant and find that [his] [her] conduct was not unlawful.

[Source: FORECITE National™.]

    It is not a crime for a parent or legal guardian to discipline a child. A parent may use force to discipline a child.  However, the force used must be reasonable under the circumstances.

    The defendant is not required to prove that the force used was reasonable under the circumstances.  Rather, the prosecution must prove beyond a reasonable doubt that the parent used unreasonable force under the circumstances.

[Cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS 17.24 [Parental Discipline] (ICLE, 2nd ed. 1999).]

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 VOLUME 11 - CHAPTER 253

RATIONALE: When appropriate it may aid the jury's understanding to receive instruction on the factors relevant to the issue of whether the parent's discipline is reasonable.

POINTS AND AUTHORITIES: Several courts have identified the circumstances which the trier of fact should consider in determining reasonableness of the punishment: e.g., the age, size, sex, and physical condition of both child and parent, the nature of the child's misconduct, the kind of marks or wounds inflicted on the child's body, the nature of the instrument used for punishment, etc. (See e.g., State v. Hunt (AZ 1965) 406 P2d 208, 222; Harbaugh v. Commonwealth (VA 1969) 167 SE2d 329, 332; Carpenter v. Commonwealth (VA 1947) 44 SE2d 419, 424-25.) These factors are objective not subjective. (State v. Singleton (WA 1985) 705 P2d 825, 827.) Thus, the force that is made lawful by that which is reasonable and moderate as objectively determined by a jury. (Ibid.) This is a limitation upon parental authority. (Ibid.) The parent's belief that it is necessary to punish the child does not permit immoderate and unreasonable force. (See State v. Waller (OR 1975) 538 P2d 1274, 1275.)

    Furthermore, the acceptable limit of a parent's right to administer corporal punishment cannot be defined with a bright-line rule or a precise definition. "The difficulty in defining a bright-line rules stems from the unique set of circumstances present in each individual case. A finding that a certain amount of force is either excessive or unreasonable will vary depending upon the circumstances of the particular case." (In re Jandrew (OH 1997) UNPUBLISHED 1997 Ohio App. Lexis 5999; 1997 WL 802848) [setting forth the factors for the court to consider]; see also State v. Arnold (IA 1996) 543 NW2d 600, 603 [amount of force which would be reasonable or excessive necessarily varies with the age, physical condition, and other characteristics of a child as well as with the gravity of the child's misconduct]; 59 Am.Jur.2d Parent and Child § 22 (1987)].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

USE NOTE:  These instructions assume that the prosecution bears the burden of proof on this issue. (See FORECITE National™ 253.3.3 [Parental Discipline: Burden Of Proof].)

RESEARCH NOTES:

Annotation, Criminal Liability For Excessive Or Improper Punishment Inflicted On Child By Parent, Teacher, Or One In Loco Parentis, 89 ALR2d 396.

See also generally, FORECITE National™ 305.16.1 [Parental Discipline].

SAMPLE INSTRUCTION # 1:

    A parent is justified in the use of force that is reasonable and necessary to restrain or correct the child. In attempting to decide whether the prosecution has proved beyond a reasonable doubt that the force used was not justified as reasonable and necessary consider, along with all other evidence, the following:

    [1]     The age of the child, and whether or not [he] [she] was old enough to understand the punishment and benefit by it;

    [2]     The nature and degree of seriousness of the act for which the punishment was inflicted;

    [3]     The instrument used to inflict the punishment; and

    [4]     The nature of the injuries resulting from the punishment.

[See generally State v. Straight (MT 1959) 347 P2d 482, 490; State v. Hunt (AZ 1965) 406 P2d 208, 222; State v. Singleton (WA 1985) 705 P2d 825, 827; cf. MONTANA CRIMINAL JURY INSTRUCTIONS, MCJI 3-107 [Use Of Force By Parent] (State Bar of Montana, 1990).]

    In deciding whether the prosecution has proven beyond a reasonable doubt that the discipline was not reasonable, consider the age, sex, physical and mental condition and disposition of the child, the conduct of the child, the nature of the discipline, and all the surrounding circumstances.

[See generally State v. Straight (MT 1959) 347 P2d 482, 490; State v. Hunt (AZ 1965) 406 P2d 208, 222; State v. Singleton (WA 1985) 705 P2d 825, 827; cf. WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 950 [Privilege: Discipline By A Person Responsible For The Welfare Of A Child] ¶ 5 (University of Wisconsin Law School, 2000).]

    In deciding whether the prosecution has proven beyond a reasonable doubt that the force was excessive or unreasonable, you must consider the child's age, physical condition, emotional maturity, intelligence level, ability to understand and correct his or her offending behavior, and the gravity of the misbehavior.

[Source: FORECITE National™.]

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 VOLUME 11 - CHAPTER 253

PRACTICE NOTE: To the extent that the defendant's use of reasonable discipline negates the criminal intent element of the charge the prosecution should bear the burden of proof. (See FORECITE National™ 250.4.4 [Defense Theory Which Negates Element Of The Offense: No Burden Of Proof On The Defendant].)

    However, in State v. Hart (OH 1996) 673 NE2d 992, 995 the Supreme Court of Ohio held that "where an exception or proviso in a criminal statute is a part of the description of the offense, it must be negatived by averment in the indictment in order to fully state the offense; but when its effect is merely to except specified acts or persons from the operation of the general prohibitory words of the statute, the negative averment is unnecessary." Thus "... where the use of corporal punishment is not descriptive of the offense and not even mentioned in the statute, it is not a part of the state's burden of proof." (Ibid.)

See also generally, FORECITE National™ 305.16.1 [Parental Discipline].