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Is parental discipline an affirmative defense?

None of this "time-out" crap for Leon McKinney. When it came to disciplining his kids, he was definitely Old School. The Old School, to be sure, seemed to be out of a Dickens novel: upset that the chest of drawers belonging to his 16-year-old son Jarred appeared disorganized, McKinney left the room and returned shortly thereafter with a leather belt, instructing Jarred to take off his sweatshirt so he could "get a whupping." The boy refused the command, and the two started tussling, the fracas ending with McKinney on top of Jarred, pinning his arms and legs down, and then striking him twice with a closed fist, once in the lip and once in the eye. McKinney then learned, to his sorrow, the wisdom of limiting his use of more extreme methods of behavior modification to the summer months. Jarred went to school, his nose started to bleed, people asked questions, and the upshot was McKinney's conviction of domestic violence, which the 12th District affirmed last week in State v. McKinney.

It has been the sad duty of many a defense lawyer to explain to a client that the bar for domestic violence is an exceedingly low one: the statute prohibits "physical harm," which includes "any injury, regardless of its gravity or duration." Actually, it's not even that; an injury in this context can be nothing more than "the invasion of any legally protected interest of another." A shove, however slight, will do. Essentially, the case law has replaced "injury" with "force." Even more subtle than that; as the 6th Circuit noted in a decision the other day about whether a misdemeanor domestic violence conviction is a crime disqualifying someone from owning a gun, it's the distinction between "force in the sense of violent contact" and "force as a scientific concept relating to the movement of matter."

However appropriate this might be for spouses, all but the most ardent New Age parents recognize the problems in applying the same standard for children. The Supreme Court agreed back in 1991 in State v. Suchomski, where it concluded that "nothing in [the domestic violence statute] prevents a parent from properly disciplining his or her child." Remember that part about injury being "the invasion of any legally protected interest"? The court simply found that "a child does not have any legally protected interest which is invaded by proper and reasonable parental discipline," and called it a day. (That didn't help Suchomski, he'd come home drunk, ordered his eight-year-old son to stand at attention, then punched him in the stomach with his fist, and finished up by pounding the kid's head against the wall.)

As I recounted in this post three years ago, though, courts have since struggled with defining the boundaries of "proper and reasonable parental discipline." Some are easy calls, like the one where the defendant drop-kicked his three-year-old daughter. But the cases defy easy categorization: convictions have been reversed for insufficient evidence -- for insufficient evidence, mind you -- where the parent punched his son in the face with his fist, or punched his thirteen-year-old daughter in the leg while threatening to "beat the shit" out of her. The appellate courts have naturally sought to harmonize the results by resorting to a "totality of the circumstances" test; as most recently restated in the 12th District's decision last year in State v. Zielinski, that requires consideration of the following factors:

(1) the child's age; (2) the child's behavior leading up to the discipline; (3) the child's response to prior non-corporal punishment; (4) the location and severity of the punishment; and (5) the parent's state of mind while administering the punishment.

There's some logic to this -- obviously, what might be appropriate discipline for a 14-year-old might not be for a two-year-old -- but not a lot. Does the factor about "the child's response to prior non-corporal punishment" mean that corporal punishment can't be a first resort, for example? The more fundamental problem is the one inherent in "totality of the circumstances" tests: there's no instruction on how the factors are to be weighed, their relative importance, how many a court has to find, and so on. The location and severity of the punishment should be the most critical factor by far, yet the test gives no hint of that. It's basically an invitation for trial and appellate judges to juggle the factors to come up with the result they want.

Instead of moving pieces around on the legal chessboard, it's better to look at the big picture. As the 1st District recognized in State v. Adaranijo, the US Supreme Court has held that a parent has a fundamental constitutional right to raise a child as the parent sees fit. The essence of the law on parental discipline is -- or should be -- that whether you spank your child is your decision, but if you're leaving serious marks or you're causing a lot of pain, you're doing it wrong, and we're going to step in. It doesn't always work out that way; in one particularly wretched decision, the 11th District affirmed a conviction for domestic violence based on a father's shoving a spiral notebook into his 10-year-old son's mouth, despite the absence of any injury to the child. But for the most part, it seems to work the way it should.

A more troubling aspect is the widely-held view that parental discipline is an affirmative defense. Suchomski doesn't mention who bears the burden of proof on this, and the Supreme Court's never addressed it since. The Ohio Jury Instructions indicate it's an affirmative defense, and the appellate courts have uniformly held so. There's little in the way of analysis of why that is so; the usual explanation is the appellate court's citation of bunch of other cases where it was held to be an affirmative defense, and if you look up those cases, they base their result on other cases.

There are two problems with that approach, one theoretical and one practical. The theoretical one is that it shouldn't be this way. An affirmative defense is in the nature of the common law plea of confession and avoidance: you admit that you committed the acts in the complaint, but claim some justification for them. The law proceeds from the assumption that the act you committed is wrong, and it's up to you to prove the contrary. This works for self-defense and insanity; killing is inherently wrong, and if you want to avoid the consequences, it's up to you to come forward with evidence showing that it wasn't wrong in this instance. That doesn't work for parental discipline: treating it as an affirmative defense means that the law presumes that any corporal punishment is wrong, and it's up to you to prove it was "reasonable and proper." That's not consistent with a parent's fundamental rights.

The practical problem is that treating as an affirmative defense means that the key question, whether the discipline really was excessive, is immune from appellate review, at least on a sufficiency of the evidence basis. Why? Because there are cases which hold that self-defense can't be addressed on an insufficiency claim. That claim argues that the state failed to present any evidence to support one or more elements of the crime, so it's only the state's evidence that the reviewing court looks at. The court can review self-defense in the context of a manifest weight claim, but the only issue on sufficiency is whether the defendant used force against the child; if he did, how much force he used, and the propriety of his use of it, isn't relevant.

So if you've got one of these cases, that's something you might want to keep in mind. Argue that it's not an affirmative defense, and the state has the burden of proving that the discipline was improper and unreasonable. That's what the law should be, but it's not going to be that way unless we start raising it.

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