Distinction between parental discipline, abuse highlighted


	Edward M. Stern, J.D., has a private law practice in Newtonville, Mass. Stern serves as assistant dean for pre-law advising at Boston University and is a visiting lecturer for the University of Massachusetts/Boston Department of Sociology.

By Edward Stern, J.D.

The Sept. 10 edition of Lawyers USA recently reported the case of State v. Matavale, (Hawaii) The full text can be found at lawyersusaonline. com.

The case arose with a mother using a plastic backpack, a plastic hanger, and a car brush, to strike her 14-year-old daughter who was described as 5'4" or 5'5" and 150 or 154 pounds. The mother was described as physically larger than the daughter.

The mother claimed and the daughter agreed, that the daughter lied about working with a tutor. When she was supposed to be at the tutoring sessions, she had gone to the mall. The daughter allegedly also lied about her report card. The mother admitted to being angry and concerned that her daughter might not pass her classes and was "trying to teach her daughter a lesson."

The hanger left marks that were reported by the child's school to the appropriate social services agency. The child testified that she did not feel unsafe in her home. There were small bruises but no welts, fractures or scratches.

The mother was convicted by a jury of the offense of abuse of family or household members. She appealed. Her grounds, in part, were that there was insufficient evidence to prove beyond a reasonable doubt that her conduct was not justified as parental discipline.

In its decision, the court referred to a parent's right to direct his/her child's upbringing as found in federal and Hawaii's constitutions. Sweaney v. Ada County, Idaho noted however, that although a parent has a privilege to use reasonable or moderate physical force to control behavior, there is no absolute constitutional right to strike a child. The state, however, in the interest of protecting the child's welfare, has a right to limit parental freedom in raising their children. To this end, the Massachusetts legislature has carved out a law, HRS § 703-309 (1), recognizing a parent's privilege to exercise physical control over a child so long as it does not result in harm to the child.

The lower court ruling was vacated and the conviction and sentence were reversed. There was a dissent filed by the two judges who would have upheld the jury's conviction although in the decision the dissent stated: "Most assuredly, even the most pious of parents are susceptible to the unique aggravations caused by the disrespect, disobedience or deception of their offspring, capable of triggering an uncharacteristic parental reaction."

Many states have dealt with this troubling, evolving issue. In the past, children were dominated by the wishes of their parents, and parents had almost complete control over the children's upbringing. Over time, there's been some modification to limit possible abuse. Abuse is difficult to define except in the extreme. Abuse, which causes permanent harm, particularly permanent physical harm, is not permitted today. However, in the physical harm area, less than broken bones or permanent harm is more difficult to monitor.

In 2005, in Massachusetts in the case of Commonwealth v. Rubeck, the defendant was convicted by a jury of assault and battery on her two-year-old son.

The incident occurred in the Valley Medical Group waiting room. Rubeck, accompanied by her son, drove a friend, Colleen Barber, to a medical appointment. In the waiting area, the son began to misbehave.

Reportedly, the child began to run around, jump up and down and whine. His mother responded by yelling at him, grabbing him, pulling him over to her and saying such things as "shut up, be quiet, sit down." The child responded, "I don't wanna" and other "whiny" statements. Rubeck put her foot on the child's foot, pulled him closer and said, "If you don't stop it now, we're going out to the car and you'll be there, alone, with me." The child immediately became quiet and "looked afraid." The child then resumed jumping and running. Rubeck responded by grabbing the child by the collar and yanking him toward her while saying, "Shut up, stop it."

According to the prosecution, Rubeck grabbed the child by the arms, shook him and threw him down into the chair, a distance of "a couple of feet." The child was thrown "with force that you don't use on a child that age," in a manner that was "too aggressive for a two-year-old." The child was crying as Rubeck was yelling in a voice that became progressively louder. She appeared frustrated with the child and "out of control." Patients waiting to be seen asked medical personnel at the office to intervene. Rubeck took the child outside. The police were called and responded, taking statements from several witnesses.

In Rubeck's defense, her friend, Barber, denied that Rubeck hit the child or threw the child into the chair and stated that when Rubeck put the child in the chair, "He would get up and start acting out again and throwing papers up in the air…. He just kept saying, 'No, I'm not going to sit, Mommy.' He kept saying no, when his mother kept saying, 'okay, come on, sit.'" Barber further testified that Rubeck was not yelling, but, rather, was "talking in a normal voice." On cross-examination, Barber denied the prosecutor's statement that Rubeck "forcefully put the child in the chair" stating that she didn't throw him in the chair but put him in the chair saying, 'okay, …here, sit.'"

In the Commonwealth v. Rubeck, the Massachusetts Appeals Court discussed two prior cases which served as direction for the Dept. of Social Services in Massachusetts:

"The right of parents to use reasonable force to discipline children was most recently discussed in Commonwealth v. Torres. There, the defendant complained that no instruction had been given regarding a parent's "privilege to use reasonable force when disciplining her children." The court held that, because the mother's abuse of her young children was so extreme that her actions could not possibly come within any privilege, no such instruction was warranted.

In Cobble v. Commissioner of the Dept. of Social Servs., (1999), the court ruled that a parent's spanking of a nine-year-old child with a leather belt, delivering one or two (and no more than five) blows to the child's fully clothed buttocks in a nonviolent and controlled manner and not in anger, and leaving slightly pink marks with no bruising, combined with an explanation of the reason for the punishment and expressions of caring, did not constitute abuse as defined in the Department of Social Services regulations as set out in 110 Code Mass. Regs. § 2.00 (1996). The court noted that the regulations, promulgated pursuant to authority granted in G.L. c. 119, § 51B(8), "clearly draw a line between permissible physical discipline and prohibited abuse," as the regulations clearly specify the types of physical injuries that may not be inflicted on children.

A footnote in Commission v. Aubech states: "The use of physical force [in chastisement] by a parent is privileged only when it is used for the 'training or education of the child or for the preservation of discipline.' (Restatement, Tots 2d, § 151 [(1965)].) When the child does not have the capacity to understand or appreciate the correction, the value of the training, education or discipline is lost upon him and, therefore, the parental privilege of the use of physical force is negated."

The conclusion to be drawn from this discussion is that it is better not to strike your children at all. If you do and there are sufficient marks or there are witnesses, which will result in reporting the incident, then a parent will be investigated and perhaps tried. No one "wins" in these cases. The child may have to testify against the parent. Even if the parent prevails, there is the time, the expense and the embarrassment. Additionally, if a child is removed from the parent's care, does the state have a better alternative for the child? One assumes and hopes this last question is answered in the affirmative if a child is truly at present and/or future risk of long-term harm.

Distinction between parental discipline, abuse highlighted (January 2008 Issue)

By Edward Stern, J.D.

Distinction between parental discipline, abuse highlighted
(January 2008 Issue)