“Parental Privilege” Recognized As An Affirmative Defense In Child Spanking Case

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In a decision handed down on June 25, 2015, the Massachusetts Supreme Judicial Court recognized a “parental privilege” to use reasonable physical force to discipline a minor child as an affirmative defense in a criminal action. (See Com. v. Dorvil, 472 Mass. 1 (2015)).

In Com. v. Dorvil, the defendant father, who admitted he had given his then 2-year old daughter a “pat on the butt”, had been convicted in the lower court of assault and battery. Defendant’s conviction was upheld on appeal but subsequently reversed upon further appellate review of the MA Supreme Judicial Court.

In its decision, the Court considered the scope of “parental privilege” or “parental discipline.” Acknowledging the need to balance a parent’s interest in directing the care, custody and control of their child(ren) with the State’s compelling interest in protecting children from actual or potential harm or abuse, the Court held that a parent may not be held criminally liable for using reasonable force in the discipline of his/her minor child, 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. Com. v. Dorvil, 472 Mass. 1, 12 (2015).

In a more recent decision handed down on October 27, 2015, the Massachusetts Appeals Court considered that an instruction on the affirmative defense of “parental discipline” may also be available to a stepparent. See Com. v. Christine M. Packer, No. 13-P-928, slip op (October 27, 2015). In Com. v. Packer, defendant’s (stepmother’s) conviction of assault and battery on her 14-year old stepdaughter was set aside because, at the time of trial, the Court’s instructions to the jury provided that they could consider the “parental discipline” defense only as to the child’s father (a codefendant) but not as to the child’s stepmother. In its decision, the Court determined that it is for the trier of fact to determine whether the defendant stepmother was acting in a parental role (in loco parentis) in order to then consider the parental discipline defense.


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