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LAW AND THE FAMILY
"A Good Smack Never Hurt
Nobody"
Joel R. Brandes
New York Law
Journal
March 27, 2001
MALTREATMENT of children has been
justified for many centuries by the belief that severe physical punishment was
necessary, either to maintain discipline, to transmit educational ideas, to
please certain gods or to expel evil spirits. [FN1]
The Common Law
Parents have the common law right
to use physical force upon their children, [FN2] although they do not have an
unlimited right to do so. At common law a standard of reasonableness evolved,
so that the use of parental physical force had to be measured against this
standard to determine if it is excessive. [FN3]
It had been said that the common
law right of a parent to use physical force is privileged only when it is used
for the, "training or education of the child or for the preservation of
discipline.'' [FN4] When a 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.
In an English case in which a
father whipped his two-and-one-half-year-old baby daughter with six to 12
strokes of a one inch strap, the court found that, although a father might
correct a child, the physical force the father used upon his daughter was
beyond her capacity to understand and, therefore, the corporal punishment was
not privileged. [FN5]
In New York, the common law
parental right allowing the use of physical force upon children has been
codified in the defense of justification in Penal Law 35.10(1). A parent is
allowed to use physical force on a child, which would otherwise constitute an
offense, that is not criminal "to the extent that he reasonably believes
it necessary to maintain discipline or to promote the welfare of such
person"; this has been codified in our neglect statutes by 1012(f) of the
Family Court Act, which defines "neglect." Under Family Court Act
1012(f)(I)(b) a parent of a child less than 18 is guilty of neglect if he
unreasonably inflicts or allows to be inflicted harm, or substantial risk
thereof, including the infliction of excessive corporal punishment. [FN6]
FCA 1012 provides, in part:
(f) "Neglected child"
means a child less than 18 years of age;
(i) whose physical, mental or
emotional condition has been impaired or is in imminent danger of becoming
impaired as a result of the failure of his parent or other person legally
responsible for his care to exercise a minimum degree of care; ...
(B) in providing the child with
proper supervision or guardianship, by unreasonably inflicting or allowing to
be inflicted harm, or a substantial risk thereof, including the infliction of
excessive corporal punishment.
Surprisingly, there are very few
reported neglect cases dealing with excessive corporal punishment. Determining
whether a particular case of corporal punishment is reasonable under our
neglect statute and not excessive requires a full assessment of the parent's
behavior and the surrounding circumstances. The factors that must be
considered by the court in making such a determination were described in
Matter of Rodney C., [FN7] where the Family Court stated that in determining
reasonableness, the age, sex, physical and mental condition of the child have
traditionally been factors to consider.
Moderate Means
Further, the means of punishment
employed is a critical factor to be considered. Moderate means have long been
equated with reasonableness. It noted that in an English case where a teacher
struck a child on the head with the palm of her hand, deafening the child, the
court found that while, "the blow struck was moderate in the sense that
it was not a very violent blow as punishment, it was not moderate
punishment." [FN8 ]A parent is not privileged, "to use a means to
compel obedience if a less severe method appears likely to be equally
effective." A punishment may not be unnecessarily degrading. Nor may it
be of a character, "which is brutal, or might be regarded as beastly.''
[FN9] Nor may it be "protracted beyond the child's power of
endurance." [FN10]
The court in Rodney C. stated that
in assessing what is or is not reasonable corporal punishment, there must be a
continuation of the principle that, "force applied primarily for any
purpose other than proper training or education of the child or for the
preservation of discipline is not privileged." Force "administered
for the gratification of passion or rage" is excessive punishment.
Although it could not state
precisely the standard of reasonable parental use of physical force, it
pointed out that certain commissions and omissions clearly negate the parental
privilege and constitute the infliction of excessive corporal punishment.
While the Court discussed the fact that cultural diversity and ethnic
background could be considered variables in determining what is and what is
not reasonable corporal punishment, it noted that such a distinction had not
been enunciated by the commentators nor had it been articulated in the cases.
It pointed out that the Legislature enunciated that the purpose of Article 10
of the Family Court Act, the article on abuse and neglect, was "to
establish procedures to help protect children from injury or mistreatment and
to help safeguard their physical, mental and emotional well being." It
noted that in R. v. Derriviere, [FN11] the court held that immigrants had to
conform to the standard of behavior acceptable in England, and it was not a
defense to a charge of assault to show that the standard of parental
correction is harsher in the foreign natives country.
In Rodney C., the Family Court
held that 26 marks on the back of a seven-year- old boy with emotional
difficulties, which were visible three days after the beating was
administered, were evidence of immoderate and unreasonable corporal
punishment. The court also held that: "punishment administered to an
11-year- old boy who is undergoing [emotional] therapy; punishment that
requires him to hold his ankles and keep his knees straight for variable
lengths of time; and punishment that causes him to scream [and to vomit], is
punishment beyond the child's endurance and a punishment beyond his capacity
to understand as correction [and] a degrading punishment as well.''
In Monroe v. Blum, [FN12] the
court found excessive corporal punishment based on evidence of "striking
the child with a plastic-covered bicycle cord, striking her with a belt and
throwing milk on her.''
In Maroney v. Perales, [FN13] a
report of suspected child abuse, concerning petitioners and their daughter,
was filed with the central register established for receiving child-abuse
reports. The basis for the report was an incident of excessive corporal
punishment administered by the father. The report was classified as
"indicated." The Appellate Division found ample proof of excessive
corporal punishment because it was undisputed that the father, with the
acquiescence and consent of the mother, pushed his daughter several times,
pulled her hair, slapped her face, kicked her leg, forced her to retreat into
a closet and threw an alarm clock at the wall near her, and that these actions
were motivated largely by anger.
Systematic Beatings
In Matter of the M. Children,
[FN14] appellant had four minor children. At the time the investigation was
commenced, the children resided with appellant and her paramour. The children
were left alone at times and were repeatedly, systematically and seriously
beaten. Appellant claimed that the children were beaten as punishment and in
furtherance of their religious upbringing.
In view of the appellant's
admissions before the Family Court, the Appellate Division had little
difficulty affirming both the finding of neglect and the award of custody to
the great aunt of the children. Appellant argued before the Appellant
Division, that her right to beat her children was protected by subdivision 1
of 35.10 of the Penal Law, which permits a parent to use physical force in
dealing with his or her infant children if he or she "reasonably believes
it necessary to maintain discipline or to promote the welfare of such
person" and by the First Amendment to the United States Constitution,
which guarantees all persons freedom to practice their religion.
Appellant attempted to excuse the
beatings given to the children by reason of the fact that she was an abused
child. She also claimed, that although "in the eyes of the court [she]
may have been an unfit person because of what the court indicated was a
psychological impairment, significant mental disorders and religious
fanaticism, ... many people are paranoid [sic] in today's society and still
function."
Appellant's counsel suggested that
the case presented "a problem of cultural diversity," which served
to explain away the findings in a psychiatric report rendered to the Family
Court after appellant and her paramour were examined. Counsel further argued
that: "Any white psychiatrist may very often find most black men and
women 'paranoid.' This is most often because they come from different cultures
and the psychiatrist is unable to culturally empathize with the black patient
and the experience inherent in being black in America today. Therefore perfect
fully [sic] normal behavior in black culture may be perceived as an emotional
disorder or paranoia by the psychiatrist from a different culture."
The Appellate Division found these
arguments most disconcerting, especially in this case where the appellant
admitted that she had mistreated her children and had categorically refused to
seek help or to change her ways in any manner. It held that the standards
applied by the psychiatrist who examined the appellant and her paramour, by
the Family Court and by it, were those standards that apply to our society in
general and to the treatment that, as human beings, all parents must accord to
their children.
As parens patriae, the court must
require that uniform humane standards concerning the care and treatment of
children are applied in every case. It decreed that subdivision 1 of 35.10 of
the Penal Law, relied upon by appellant, was in no way intended to permit the
cruel beating of children, nor were the freedoms guaranteed to us by the First
Amendment intended to embrace such behavior in the name of religion.
Accordingly, it agreed that under the circumstances of this case, the children
had to be removed from the home and from the custody of their mother.
Conclusion
We believe that the time has come
to repeal the parents defense of justification found in Penal Law 35.10 (1).
There is no rational basis for its continuation in the 21st century as we can
think of no set of circumstances that justifies beating a child.
FN(1) See Radbill, Samuel Z., A
History of Child Abuse and Infanticide, The Battered Child, ed. Helfer, Roy E.
and Kempse, C. Henry (1968).
FN(2) Restatement Second of Torts
147.
FN(3) Restatement Second of Torts
150.
FN(4) Restatement Second of Torts
151.
FN(5) R. v. Griffin, 11 Cox 402
(1869).
FN(6) Family Court Act 1012(f)(i)(B).
FN(7) 91 Misc.2d 677, 398 N.Y.S.2d
511 (Fam.Ct., Onondaga Co., 1977).
FN(8) Citing Ryan v. Fildes, 3 ALL
E R 517, 520 (1938).
FN(9) Citing In Matter of Carl,
174 Misc. 985, 987, 22 N.Y.S.2d 782, 784 (1940).
FN(10) Citing R. v. Hopley, 2 F
& F 202, 206 (1860).
FN(11) 53 Cr.App.Rep. 637 (C.A.
1969).
FN(12) 90 A.D.2d 572, 456 N.Y.S.2d
142, 144 (3rd Dept., 1982).
FN(13) 102 A.D.2d 487, 478
N.Y.S.2d 123 (3d Dept., 1984).
FN(14) 91 A.D.2d 612, 456 N.Y.S.2d
413 (2d Dept. 1982).
3/27/2001 NYLJ 3, (col. 1)
