The days of corporal punishment have gone by the wayside, but not completely. Many of you from the baby boomer generation have recollections of parental discipline that was a bit harsher than the more common “time out” methods of parenting in recent years. Massachusetts has a rather recent parental discipline privilege established by common law. In Commonwealth v. Dorvil, 472 Mass. 1 (2015), the SJC expressly recognized the existence of such privilege and set forth the following:
”[A] parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, 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.”
In cases of alleged assault and battery or illegal discipline of a child, the question posed is whether the use of such force by a parent on a child was reasonable, under the totality of the circumstances, as a matter of lawful parental discipline as set forth in Dorvil. Normally, it is for a factfinder (jury or judge) to determine if the parental action constitutes reasonable parental discipline.
In Comm v. Dobson, 92, Mass. App. Ct. 335 (2017), following a bench trial/jury waived, use of a belt to a child’s face was deemed not protected by the parental discipline privilege. In Comm v. Rosa, 94. Mass. App. Ct. 458 (2018), a parent was convicted at a bench trial of A&B by means of a dangerous weapon (shod foot) involving his five year old daughter. There, the Appeals Court also ruled on appeal that the parental conduct was not protected by the parental discipline privilege. In order for parental discipline to come within the privilege defense, the three criteria set forth in Dorvil above must be met. Although the law provides for the use of some parental corporal punishment, beware of the limits, which really comport to common sense.
Author: Barry M. Ryan, Esq.