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Parental Liability in California

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CORPORAL PUNISHMENT IN CALIFORNIA

Although Christians debate and disagree about the issue, the Bible appears to permit the use of corporal punishment:

"Foolishness is bound in the heart of a child; but the rod of correction shall drive it far from him.Proverbs 22:15

"Withhold not correction from the child: for if thou beatest him with the rod, he shall not die.Proverbs 23:13

"The rod and reproof give wisdom: but a child left to himself bringeth his mother to shame." Proverbs 29:15

Therefore, for the Christian, the issue of whether or not California law permits corporal punishment is of interest and concern.

May I spank my child?

Yes.  California law permits spanking.  However, the punishment must be necessary and not excessive in relation to the individual circumstances.

What is spanking?

To "spank" normally means to slap on the buttocks with the palm of the hand.  However, it may also mean to use some other object.

May a parent to spank a child for disciplinary purposes with an object other than the hand?

Yes.  However, the punishment must be “necessary” and “not excessive” in relation to the individual circumstances.

What is “necessary” discipline?  Necessary means behavior by the child that deserves discipline or punishment.

What is reasonable, that is, “not excessive” correction?

The following factors are often used determine whether a punishment is excessive are:

1.  Was a visible mark left?  If yes, what length of time did the mark remain?

 2. Was the physical force was applied out of anger?

3. What is the age of the child?

4.  Did the punishment have a traumatic impact on the child?

5.  What object was used?  (Example: Hand or lightweight paddle versus metal pipe, baseball bat, plug-end of an electrical cord, or studded belt)

An objective standard is used to determine reasonableness.  It is not what the parent believes is reasonable, but what the judge or jury believes a reasonable person would do or not do.

Further, for a conviction to occur, an intent to injure is not required; rather, all that is required is an intent to do the act.

May a foster parent administer corporal punishment?

No. See California Health & Safety Code, 1531.5(d).

May a school utilize corporal punishment?

No. California public schools may not use corporal punishment. 

Education Code, Section 49001 defines corporal punishment as "the willful infliction, or willfully causing the infliction of physical pain on a pupil."

In private schools, there is no outright law prohibiting corporal punishment.  However, such punishment must be necessary and not excessive in relation to the individual circumstances.

The United States Supreme Court, in the case of Ingraham v. Wright 430 U.S. 651 (1977), ruled that school corporal punishment is not subject to the Eighth Amendment prohibition of cruel and unusual punishment. Paddling is still used in schools in various Southern states.  However, use is reported to be on the decline.  30 states ban corporal punishment in public schools, including California.  Two states, New Jersey and Iowa, also prohibit private schools from using corporal punishment.

California prohibits public school authorities from imposing corporal punishment (including painful behavioral interventions) on students (including students with exceptional needs). (Education Code  49000, 49001, 56520(a)(3), 56523(a), 56523 (b)(1).). However, permitted is a waiver of any of its provisions if necessary to implement an individual student's IEP, so long as federal law is not violated (Education Code 56101).

GUIDELINES FOR INSTITUTING CORPORAL PUNISHMENT

Corporal punishment, in it broadest sense, includes bodily punishment of any kind.

In the U.S.A., necessary and reasonable spanking is the most widely accepted form of corporal punishment.  However, any kicking, punching, beating, face slapping, and temporary starvation are clearly not appropriate methods of corporal punishment.

One or two spanks on the buttocks with the intent to correct problem behavior, done with an attitude of love and concern, is what parents should strive for.

In contrast, beating by striking, kicking, punching or choking with an intent to injure or to abuse, performed while angry will not correct but rather produce emotional and/or physical injury and, further, may result in prosecution by authorities.

Even a reasonable and necessary spanking of a child in a public place may result in complaints being filed with Child Protective Services by third parties.  Therefore, although there is no state law prohibiting spanking in public, it may be wise to consider your surroundings before administering the physical discipline.

 For further more specific guidelines, see article “Spare_the_Rod?  Near the end of the article, is a helpful section entitled, “Guidelines for Disciplinary Spanking.”

 
GENERAL CASE LAW

 People v. Whitehurst (1992) 9 Cal. App. 4th 1045, 1050:

“A parent has a right to reasonably discipline by punishing a child and may administer reasonable punishment without being liable for a battery. (Emery v. Emery (1955) 45 Cal.2d 421…; People v. Stewart (1961) 188 Cal. App.2d 88, 91….) This includes the right to inflict reasonable corporal punishment. (People v. Curtiss (1931) 116 Cal. App. Supp. 771, 775...

However, a parent who willfully inflicts unjustifiable punishment is not immune from either civil liability or criminal prosecution. (People v. Stewart, supra, 188 Cal. App.2d 88, 91; People v. Curtiss, supra, 116 Cal. App. Supp. 771, 777.) As explained in Curtiss, corporal punishment is unjustifiable when it is not warranted by the circumstances, i.e., not necessary, or when such punishment, although warranted, was excessive. (116 Cal. App. at p. Supp. 780.) "[B]oth the reasonableness of, and the necessity for, the punishment is to be determined by a jury, under the circumstances of each case." (Id., at p. Supp. 777.)

Thus as these cases make clear, whether the corporal punishment falls within the parameters of a parent's right to discipline involves consideration of not only the necessity for the punishment but also whether the amount of punishment was reasonable or excessive. Reasonableness and necessity therefore are not two separate defenses but rather two aspects of the single issue of parental right to discipline by physical punishment.

 

DISCUSSION OF PENAL CODE SECTION 273d

 Penal Code 273d(a) states:

 "Any person who willfully inflicts upon a child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition is guilty of a felony and shall be punished by imprisonment in the state prison for two, four, or six years, or in a county jail for not more than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and fine."

 Section 273d does not focus on the means or method used to inflict the physical discipline by a parent, guardian, or other person on a child.  But for a violation to occur, there must be a resulting "traumatic condition"

 “A traumatic condition” means "a wound or other abnormal bodily condition resulting from application of some external force." (People v. Stewart (1961) 188 Cal.App.2d 88, 91.

 When a child is spanked with a physical object other than an open hand which causes a traumatic condition, a violation of Penal Code 273d requires a further finding that the infliction was "cruel or inhuman" under the circumstances. (See People v. Thomas (1976) 65 Cal.App.3d 854, 857-858.)

 To be convicted under Penal Code Section 273d, does a person have to intend to injure the child?

 No.  

 "There need not be found a deliberate [specific] intent to cause a traumatic condition, but only the more general intent to inflict upon a child any cruel or inhuman corporal punishment or injury." (People v. Atkins (1975) 53 Cal.App.3d 348, 358.)

 In other words, the parent must intend the act (which is cruel and inhuman), but does not have to intend to injure (cause trauma) to the child.

DISCUSSION OF PENAL CODE SECTION 273a:

 Section 273a provides in part:

 "(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

 "(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered is guilty of a misdemeanor."

 Criminal liability is predicated upon whether or not the parent has inflicted "unjustifiable physical pain or mental suffering" when considering objectively the individual circumstances.

 "Section 273a holds every person to an objective standard of reasonableness regarding the causing of physical pain, mental suffering or injury to a child or the endangering of a child's person or health." (People v. Deskin (1992) 10 Cal.App.4th 1397, 1403.)

 BATTERY

 A parent may also be convicted of battery upon his or her child (Penal Code 243; see People v. Stewart, supra, 188 Cal.App.2d at 90-91), defined as "any willful and unlawful use of force or violence upon the person of another" (Penal Code 242). "`

 No proof of an intent to injure is required, only an intent to commit the act. (People v. Lindsay (1989) 209 Cal.App.3d 849, 855.)

 Even potential civil tort liability may also arise from a parent's unlawful physical punishment of his or her child. (See Emery v. Emery (1955) 45 Cal.2d 421, 429-430.). 

WELFARE AND INSTITUTIONS CODE SECTION 300

 A child may be made a dependent of the juvenile court if he or she is subject to serious physical harm by a parent. Welfare and Institutions Code 300. states in pertinent part:

"Any minor who comes within any of the following descriptions is with the jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the court.

"(a) The minor has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted non-accidentally upon the minor by the minor's parent or guardian. For the purpose of this subdivision, a court may find there is a substantial risk of serious future injury based on the manner in which a less serious injury was inflicted, a history of repeated inflictions of injuries on the minor or the minor's siblings or a combination of these and other actions by the parent or guardian which indicate the child is at risk of serious physical harm. For purposes of this subdivision, `serious physical harm' does not include reasonable and age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.

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"It is the intent of the Legislature that nothing in this section disrupt the family unnecessarily or intrude inappropriately into family life, prohibit the use of reasonable methods of parental discipline, or prescribe a particular method of parenting. . . ."

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change. No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own legal counsel prior to relying on any information on this website.


 2010

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