Here is the facts found by the court:
Prior to the events giving rise to this matter, Mother and her husband (Father) had become gravely concerned about Daughter’s declining academic performance and alarming social tendencies. As Father put it, Daughter “had decided that she did not have to do her school or home work, repeatedly lied to both of us, [and] started showing interest in gang culture.”1 Mother declared that Daughter had become “boy crazy and started to mingle with a new type of crowd,” and that they had found pictures and text messages on her mobile phone “in reference to gangs.” They “had many discussions” with Daughter about these developments, but to no avail: “She would hear us yet continued to go down this road . . . . [S]he began saying that her favorite color is red . . . . [S]he was not doing many of her school and homework assignments and even her teachers expressed . . . annoyance with her disregard for her work. We also discovered that [Daughter] had been lying to us about completing assignments and had been hiding test[s] with low scores that were supposed to have gotten signed by us.” Daughter’s older sister (Sister) also declared that Daughter’s “interest in gangs seemed to be growing.” She “started to become very irresponsible in school by being late to classes, having really bad grades because she was doing hardly any of her school and homework, was lying to my parents about lots of things, and started hanging around wanna-be gangster kids at school.” Daughter herself declared, “I have to admit, for a long time, starting in 6th grade, I was always getting to class late, not doing my school assignments, and lying to my parents.” She acknowledged that milder disciplinary measures had failed to influence her: “When I first started doing all this, my parents grounded me many times, by taking away all my fun stuff like my iPod, my T.V., my cell phone, and I was not allowed to hang out with friends. I don’t know why that stuff didn’t work on me, but I continued to not do what I was supposed to.”
Mother described in more detail the failure of these less stringent methods of discipline: “[A]fter a few weeks of grounding when [Daughter] would get off of restriction she would do better for a short time, but then revert back to the same behavior, over and over. We would go through several sessions of groundings over several months, hoping it would finally make the difference, but grounding proved to be ineffective at setting [Daughter] back on the right path. At this point, we did not know what else to do to help [Daughter]. We talked again, and felt that the only other option out there, would be to try spanking. So the weekend before the incident in question, my husband and I sat [Daughter] down and explained to her that, since she kept lying to us repeatedly about completing assignments, she now needed to get her agenda signed by each teacher so we could be sure she was really doing all of her work. We also informed her that if she continued with this irresponsible behavior, [such as] not doing her assignments, being late to class and lying to us, she would start to receive one spank on the bottom for each thing not done. She understood the new consequences. but still chose to continue the bad behavior.”
According to the Mother, on each of the first three days of the new regime Daughter came home without having “complet[ed] her tasks.” This resulting in her being spanked by Father “with his hand, only on the buttocks, fully clothed, and in a calm manner.” (Capitalization removed.) When Mother picked Daughter up at school on Thursday, April 29, 2010, she had again failed to comply with her parents’ directives. She [*6] gave implausible excuses, a further violation of parental orders. Mother called Father “and told him that [Daughter] still wasn’t doing her work and was late again, and that he needed to come home and deal with this. He told me he wouldn’t be home until late that evening and that I needed to handle it, or else [Daughter] would not respect me or take me seriously as a parent. Because of my hand condition, he said I should just use a wooden spoon. I told him that I’d rather he just spank her when he gets home from work, but he insisted that I should handle it. I finally agreed and told [Daughter] that I would have to be the one to spank her this day and that I was going to use a wooden spoon because my hands hurt.” Father also declared that the idea of using a spoon had been his, and had arisen from the exigency of his not coming home until “very late that evening.”
Mother declared that upon arriving home, she retrieved a wooden spoon and “gave [Daughter] around five or six spanks on the bottom, one for each thing not done and for making excuses. [Daughter] was fully clothed during the spanking. She was not crying or screaming during the spanking.” (Capitalization removed.) Family members [*7] declared unanimously that spankings had been a rarity in the family, that they had only been given in response to misbehavior, that they were never given in the heat of anger, and that they were almost always given by Father, and always with an open hand.
On the next day Daughter disclosed to some friends that she had been spanked with a wooden spoon. One of them reported, or “tricked” Daughter into reporting, the matter to school authorities. An unnamed “mandated child abuse reporter[]”—manifestly a school employee—filled out a “suspected child abuse report.” (Emphasis omitted.) Under “[i]ncident [i]nformation,” the reporter wrote, “Victim says she gets ‘smack’ by parents when she is not doing what parents are expecting from her. She said Mom hits her with a wooden spoon and Dad hits her with his hand. Last time she was hit was on 4/29/10 on her botto[m] / picture was taken.”
That fact pattern set up a clear record for the court to decide whether parents can still use spoons or other objects to discipline their students. The case turned on the state definitions of abuse, which are extremely vague. Under state law, a report is “‘[s]ubstantiated'” if the conduct reported is “determined by the investigator who conducted the investigation to constitute child abuse or neglect . . . , based upon evidence that makes it more likely than not that child abuse . . . occurred.” Since neglect was not alleged, the case turned to two definitions of abuse. First is the “‘willful harming or injuring of a child,” is defined as “willfully caus[ing] or permit[ting] any child to suffer, or inflict[ing] thereon, unjustifiable physical pain or mental suffering.” (Pen. Code, § 11165.3.) Second is the “‘unlawful corporal punishment or injury,'” is defined as “willfully inflict[ing] upon any child any cruel or inhuman corporal punishment or injury resulting in a traumatic condition.” (Pen. Code, § 11165.4.) There is a privilege recognized in California state however when “a reasonable person would find that punishment was necessary under the circumstances and that the . . . physical force used . . . was reasonable.” (CALCRIM No. 3405).
The panel faulted the trial court for refusing to consider such defenses by the mother. The panel held:
As we have said, a successful assertion of the parental disciplinary privilege requires three elements: (1) a genuine disciplinary motive; (2) a reasonable occasion for discipline; and (3) a disciplinary measure reasonable in kind and degree. . . .
The only question presenting any difficulty is whether the measure actually applied—spanking with a wooden spoon, with resulting bruises—was reasonable in kind and degree. To overlook as harmless the trial court’s failure to entertain the reasonable discipline privilege, it would have to appear as a matter of law either that a wooden spoon was an unreasonable means to administer the spanking, or that it was applied with excessive force.We cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline. Although no published California decision addresses this issue, the Attorney General has concluded that “[i]t 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.” . . .
Nor do we think that the infliction of visible bruises automatically requires a finding that the limits of reasonable discipline were exceeded. Certainly the presence of lasting bruises or other marks may support a finding that a parent crossed the line between permissible discipline and reportable abuse. . . . However, such effects alone [do not compel a finding of child abuse.
In some countries, any corporal punishment is treated as presumptively abusive. With four kids, I have yet to spank any of them though I consider spanking to be an option. I simply have never found it necessary. Not because my kids are angels. They can at times be close to feral, but I have found other alternative forms of punishment like taking away electronics (which is akin to an amputation for kids today). I grew up in a house where spanking occurred but not very often. My father (who was abused as a child) rarely spanked the kids and refused (unlike many of the fathers in our building in Chicago) to use a belt or a switch or any object. He used his bare hand and the kid was left fully clothed (despite my putting a magazine in my pants on one occasion). He would only briefly spank us — generally at the suggestion of my mother for severely bad conduct. Indeed, if you said you were sorry or cried, he would stop. (I would generally start to wail upon approaching my father and achieved a record low level of spanking — an early recognition of the value of throwing oneself on the mercy of the court. My next older brother — Christopher — on the other hand was a hard case and would refuse to cry or ask forgiveness.). With five kids, my parents found the threat of corporal punishment to be useful, even if rarely used. They are viewed (by us) as highly progressive because it was common for friends to be beaten by belts or sticks when we were growing up.
What do you think? Should any corporal punishment be viewed as abuse today?
Source: Mercury News