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PARENTAL PRIVILEGE DEFENSE TO CHILD SPANKING

In June of 2015, the Supreme Judicial Court of Massachusetts finally formally recognized that a parent may use reasonable force to discipline his or her child.  The SJC began its opinion by commenting that the Court had previously decided cases under the assumption that a parent had a “parental privilege,” to spank a child, and by noting that the scope of the privilege had never been outlined.

In Commonwealth v. Dorvil, a father was convicted, by a judge without a jury, of assault and battery (a misdemeanor carrying up to 2 ½ years at the House of Correction), for spanking his almost-two year-old daughter at a bus station.  (He was also convicted of threatening a police officer at the police station after his arrest.)   Two police officers testified at trial that they saw the father spank his daughter. In response to the father’s claim that his act of parental disciple was privileged, the trial judge held that, “[i]f you’re in public with your kids, it’s not appropriate to discipline in this fashion.”

The case went to the Appeals Court, which affirmed the father’s conviction, based on its determination that the evidence indicated that the spanked child lacked the capacity to understand the purpose of the discipline, and that the father “spanked his child when he was upset and angry and not in a calm and controlled manner. . . .”  The SJC then accepted the case for further appellate review and, “deeply mindful of the dual important interests implicated in the defense:  the welfare of children requiring protection against abuse, on the one hand, and, on the other, the avoidance of unnecessary State interference in parental autonomy as it concerns child rearing,” reversed the father’s conviction for assault and battery.

In its decision, the SJC noted that assault and battery is defined by the common law (as opposed to legislation), and that the defenses to a charge of assault and battery are likewise defined by the common law.  The SJC then examined the English common law, citing The Commentaries on the Laws of England, a mid-1700’s treatise on the common law of England by Sir William Blackstone, which described a “parent or master’s” right to give “moderate correction to his child, his scholar, or his apprentice.”

Moving ahead to post-revolutionary times, the SJC referenced an 1873 treatise on American common law for the proposition that parents have a duty to maintain and educate their children, and with that duty also a right to exercise such disciple as may be required to accomplish such maintenance and education of their children.

As for modern times, the SJC quoted the United States Supreme Court for the long-held proposition that the 14th Amendment protects “the liberty of parents and guardians to direct the upbringing and education of children under their control.”  In fact, the Court noted, “the interest of parents in the care, custody, and control of their children . . . is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.”

Finally, the SJC took notice of studies indicating that a substantial majority of parents today continue to believe that spanking is sometimes necessary to discipline children: “the long-standing and widespread acceptance of such punishment remains firmly woven into our nation’s social fabric.  It follows that we must guard against the imposition of criminal sanctions for the use of parenting techniques still widely regarded as permissible and warranted.”

The SJC then affirmed that a child, though not the property of the government, is likewise not the property of a parent, and that “a parent’s right to direct the care and upbringing of minor children may be limited in light of the State’s compelling interest in protecting children from actual or potential harm . . . the parental privilege defense must strike a balance between protecting children from punishment that is excessive in nature, while at the same time permitting parents to use limited physical force in disciplining their children without incurring criminal sanction.”

After surveying three different approaches used by States to strike a balance between protecting the safety of children and respecting the right and duty of parents to raise their children, the SJC picked what it described as a sort of hybrid approach that “best balances the parental right to direct the care and upbringing of a child with the Commonwealth’s interest in protecting children from abuse.”

The rule now in Massachusetts then, as relates to parental spanking for disciplinary purposes, is as follows, namely:

A parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, provided that:

(1) the force used against the minor child is reasonable;

(2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and

(3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress.


Applying its newly announced rule to the case before it, then SJC noted that the young girl in the case had been smacked with no resulting injury, by her father while in his care, and that the smack was punishment and correction for refusing to go to her mother, and for continuing to play near the street.  “Under these circumstances, the Commonwealth failed to offer evidence sufficient to prove beyond a reasonable doubt that the defendant’s use of force was unreasonable or not reasonably related to a permissible parental purpose.”

I find it interesting that the SJC reversed the conviction for assault and battery in a case where there was some testimony that the father had also kicked his daughter, and where he was alleged to have offered to fight the police, and to have spit at them, especially in light of the SJC’s parting remark that, in applying its newly announced rule, “the balance will tip in favor of the protection of children from abuse inflicted in the guise of discipline.”


Attorney Kevin D. Quinlan

Uxbridge, Worcester County, Massachusetts

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