Tuesday, April 19, 2005

Corporal Punishment

Update: The reporter who wrote this article on the corporal punishment bill either doesn't understand the law as it exists today or is reading something into the new bill that I don't see. As the law currently stands, parental discipline is a defense to prosecution. It is not an affirmative defense where the burden of proof is on the defendant. Rather, it is one of several justification defenses, where the burden is on the state to negate its existence, as long as the defendant raises the issue; it takes only a scintilla of evidence to raise the issue. Once raised, the state must negate the defense beyond a reasonable doubt. So, I don't understand where the reporter gets this idea:

"Under current law, Texas parents can already pull out the paddle as a means of disciplining their children. If they're charged with child abuse, they can beat the rap if they prove it was simple discipline. Mr. Dutton's legislation shifts the burden to prosecutors to prove that the spanking was more than that."

I also don't see anything in the new bill that explains how the section of the Family Code that it amends would interact with the Penal Code's existing defense. Nor do I see anything in the new bill that says anything about burdens or standards of proof.

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Original post:

This bill "clarifying" that a parent or guardian has the right to use corporal punishment against their child confuses me. Right now, the Penal Code has a defense to assault for parent discipline that allows "the use of force . . . against a child younger than 18 years . . . if the actor is the child's parent or stepparent or is acting in loco parentis to the child; and when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare." I'm not sure how this bill, which modifies the Family Code, would do anything that this section of the Penal Code doesn't already do. That said, prosecutors still prosecute ridiculous cases, and juries still convict under ridiculous circumstances. A colleague of mine defended a woman whose teenage son skipped school, took her car without permission, and was arrested for shoplifting. After she had to leave work to go to the police station, she told her son to take off his ballcap to show respect to the police officer. The son refused. The mom slapped the ballcap off his head. He wasn't injured or even hurt. The police officer, however, promptly arrested the mother for assault. The fresh-out-of-law-school ADAs refused to dismiss the case, and the brilliant jury convicted the woman of Class C ("offensive contact") assault.

3 Comments:

Anonymous Gideon said...

That's an interesting bill - I do see your point about the interaction with the penal code.

I am all for corporal punishment, in moderation. Having grown up in a culture where it is accepted, nay, the norm, I know it has significant value in keeping miscreant children in line. I've often walked the streets here, looking at kids get out of hand and thought to myself "If that were my kid..."

In fact, I remember when I was studying here in 7th grade, I saw a poster in class that said "can you sue your parents for corporal punishment" and I thought that was the oddest thing.

If only there were more parental supervision...

4/20/2005 4:44 AM  
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