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Can I Be Charged with Child Abuse for Spanking?

Child Abuse

Where has common sense gone? I have a client who was charged with child abuse. Now, the first thing that goes through someone’s head is an image of a parent inflicting horrible pain on a child. Unfortunately for my client, he was arrested for slapping his 16-year old daughter after she mouthed off to him. This occurred in a car in one of those, “Don’t make me come back there!” moments just like my dad used to have with me when I acted up in the back seat whining and repeatedly asking, “Are we there yet?” So that’s what happened in my client’s case. He slapped his daughter and someone called the police reporting child abuse because his daughter was crying. There was no bruise. There was no blood. Just a slap across the face to a 16-year old who thinks she knows better than her parents. You’d think that would be the end of the story, but it’s not.

My client had never been in trouble with the law. He’s a successful businessman and was facing felony child abuse charges for slapping his 16-year old daughter who was disrespecting him in front of his mother and her little brother. A conviction for something like this would have ended his career. Imagine being a convicted felon for using reasonable force to discipline your child! Fortunately, he hired me and I got his case dismissed. But it wasn’t without a long fight.

The first thing that happened was that Child Protective Services opened an investigation to determine whether or not my client was a danger to his daughter for disciplining her with the slap for back talking. This is a pretty scary thing. Back when I was growing up, parents and teachers never had to worry about CPS investigating them or the police arresting them for disciplining their child or student. But those days have passed.

CPS interviewed both my client’s children separately and asked them if my client is violent, has ever done this before, if he uses drugs, drinks, or hits his wife. Fortunately, the children truthfully answered “no” to all those questions. CPS then, with my consent and with me being present, interviewed my client and his wife about the “felonious” slap. CPS then came to the conclusion that the action of my client was reasonable and the accusation of child abuse was “unsubstantiated”. The CPS officer even said she would have done the same thing to her daughter had her daughter acted the way my client’s daughter acted.

Here I talk about a recent case I had that was in Federal Court based on the location of the alleged crime. So you’d think that would be the end of the matter and the criminal case, which is separate from the CPS investigation, would be immediately dismissed, right? Guess again! The DA’s office initially refused to dismiss it despite the fact that I presented them with proof that CPS had found there was no child abuse. I kept fighting and eventually, they did the right thing and dismissed the case – months after CPS had concluded there was no child abuse!

But I don’t want this blog post to be a warning that you can’t discipline your child. You can use reasonable force. What is reasonable force? It’s a mushy definition of “what a reasonable person would do.” A lot of help and guidance that is! The California Supreme Court put it this way:

“Since the law imposes on the parent a duty to rear and discipline his child and confers the right to prescribe a course of reasonable conduct for its development, the parent has a wide discretion in the performance of his parental functions, but that discretion does not include the right willfully to inflict personal injuries beyond the limits of reasonable parental discipline….” Emery v. Emery, 45 Cal.2d 421, 429-30, 289 P.2d 218, 224 (1955).

I found numerous cases where hair pulling, arms pulling, and spanking a child by hand or with a wooden spoon or lath are examples of the reasonable use of discipline. The problem is that some parents, like my client, are being arrested for doing things that are reasonable in terms of disciplining their children with reasonable corporal punishment. Yes, I got my client’s charges dismissed and vindicated his good name. But he and his family have needlessly suffered the stress of defending themselves against serious and unsubstantiated criminal charges.

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