Penal Code 273a makes it a crime to “willfully cause or permit any child to suffer, or inflict thereon unjustifiable physical pain or mental suffering.” While Penal Code 273d(a), makes it a crime to “willfully inflict upon a child any cruel or inhumane corporal punishment or an injury resulting in a traumatic condition.”
In Gonzalez, the Court of Appeal decided that one must look at more factors than just the use of an object (i.e. wooden spoon) and the presence of visible bruises when deciding if a parent crossed the legal boundaries. In California “a parent has a right to reasonably discipline his or her child and may administer reasonable punishment without being criminally liable.” It has long ago been decided that a parent may use “physical force if a person would find that the punishment was necessary under the circumstances and that the…physical force used… was reasonable.”
In plain English, a spanking does not constitute criminal child abuse. However, in reaching this purely legal conclusion, neither the Court of Appeal nor do I consider whether spanking is a sound form of discipline.
What do Courts look for?
According to Gonzalez, the distinction between reasonable physical discipline that is “parental” in nature, and unreasonable physical discipline that is “criminal” in nature, centers on three questions:
3. Was the spanking reasonable in kind and degree, meaning in light of the child’s age, the part of the body that was spanked; the instrument used to spank the child; and, the injuries sustained by the child as a result of the spanking?
A Disciplinary Motive
To differentiate “parental” spanking from “criminal” spanking, Gonzalez states that the reason for the spanking must be considered. Was the spanking for a “genuine and deliberate disciplinary purpose,” or was it for another purpose, such as terrorizing a child, intimidating a child, or seeing a child unclothed?
In Gonzalez, mother and father spanked their twelve-year old daughter in an attempt to change the daughter’s troubling behavior, which was taking her deeper and deeper into gang involvement. They tried other types of punishment, i.e., groundings and loss of privileges, but nothing worked to curb the daughter’s escalating and troubling behavior. So, they spanked her, really as a measure of last resort. Mother testified that she was reluctant to spank her daughter, and regretted doing so, but as parents they just did not know what else to do. For these parents, the motive behind the spankings was a genuine desire to stop their daughter’s troubling behavior.
For the court in Gonzalez, the motive for the spanking is a critical element to consider. The more the spanking was part of a “genuine and deliberate disciplinary” program, the more the spanking was likely “parental” in nature. Conversely, the more the spanking was the result of irrational action by parents, the more the spanking was likely “criminal” in nature. Again, the facts of the particular situation will typically guide you in one direction or another.
Other factors to consider regarding motive include whether there is other evidence of violence in the home; whether the parent was too eager to spank the child; and, whether, the parent derived some sort of self-gratification from spanking the child. Any of these factors would tend to make the spanking more “criminal” than “parental.”
A Reasonable Occasion for Discipline
To distinguish “parental” spanking from “criminal” spanking, in addition to looking for a proper disciplinary “motive,” we must also consider what the child did to warrant the spanking in the first place. Given the facts of the situation, would the spanking sound reasonable as a punishment for the child’s bad behavior? In Gonzalez, the spankings were not for minor manifestations of bad behavior. Rather, the daughter’s underlying misconduct was serious, even potentially life-altering. Over a period of months, her behavior changed dramatically, and not for the good. She refused to complete class assignments. She was late to class. She skipped school. She lied about her activities and whereabouts. And, she became more and more involved with gang members, all of which was alarming to her parents.
Gonzalez emphasizes that a spanking is “parental” when it is calculated to redress serious behavioral concerns. Spanking is likely to become “criminal” when it is done for trivial or minor concerns. In Gonzalez, the daughter was warned that she would be spanked if her bad behavior continued, the daughter agreed to the disciplinary program, and her parents administered the spankings in harmony with the agreed-upon conditions.
A Disciplinary Measure that is Reasonable in Kind and Degree
To separate “parental” spanking from “criminal” spanking, we have seen that we need a proper disciplinary motive as well as a proper occasion for the spanking, but we also need a disciplinary measure that is “reasonable in kind and degree.”
In assessing whether a given instance of corporal punishment is reasonable in kind and degree, the Gonzalez court reiterated that the following factors be considered:
The age of the child, meaning a two-year old versus a twelve-year old;
The part of the body that was struck, meaning the backside versus the head or back;
The instrument used to strike the child, meaning a wooden spoon versus a hammer; and,
The amount of damage inflicted, meaning temporary bruising versus severe bruising. The Court of Appeal in Gonzalez admitted that determining reasonableness was the most difficult element to resolve, and in reaching its decision the court considered and explained the law with regards to the issue of the wooden spoon and the issue of bruises resulting from spankings.
Regarding the use of the wooden spoon, the Court of Appeal states that “We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline.” The key word in this sentence is necessarily. Certainly, a wooden spoon can be used excessively, which would result in criminal spanking. However, the Gonzalez court points out that the mere use of a wooden spoon to spank a child does not automatically mean the spanking was criminal as opposed to parental. To make that determination, we have to look at all of the factors identified by the court in Gonzalez.
In reaching its conclusion about the use of wooden spoons to spank children, the Court of Appeal relied on an Opinion from the California Attorney General that opines that “it is not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand, provided that the punishment is necessary and not excessive in relation to the individual circumstances (80 Ops.Cal.Atty. Gen. 203 (1997).” Regarding the presence of bruising, the Court of Appeal states “Nor do we think that the infliction of visible bruises automatically requires a finding that the limits of reasonable discipline were exceeded.”
To distinguish “parental” spanking from “criminal” spanking, the Court of Appeal suggested that bruising from “parental” spanking would result in “temporary bruising,” “slight bruising,” or “bruising that would disappear in a few days.” Conversely, bruising from “criminal” spanking would likely result in “lasting bruises” or “substantial bruising.” The Court of Appeal explained, and we paraphrase, that visible bruising very nearly reaches the edge of the amount of damage that the court could allow. They go on to say that it is not necessarily criminal child abuse if the parent didn’t know it would cause bruises, wasn’t intending to cause bruises, or had no reason to believe the amount of force applied would cause bruising.
For the Court of Appeal in Gonzalez, bruising resulting from the spanking of a child can be “accidental” as opposed to “intentional,” with “accidental” meaning “without intent” or “through carelessness.”
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Some of the content in the article was obtained from The Therapist, September/October 2014