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Massachusetts Supreme Court Announces ‘Parental Privilege’ in Child Spanking Case

In a recent appeal from the defendant’s conviction for assault & battery for spanking his child, the Massachusetts Supreme Judicial Court ruled that the father should have been permitted to assert at trial the ‘parental privilege’ defense.  See Commonwealth v. Dorvil.

In this case, the defendant was charged and convicted with assault & battery for spanking his daughter, who was almost three years old at the time.  At trial, the defendant argued that the evidence against him was insufficient to convict him for the crime of assault & battery because, as a parent, he had a privilege to use force in order to discipline his minor child.  The Appeals Court first considered the issue and denied his appeal.  The Massachusetts Supreme Judicial Court thereafter considered the issue and reversed his conviction.

By definition, the crime of assault & battery is the intentional and “unjustified” use of force on the person of another, however slight, without having any right or excuse to do so.

Prior to this case, although having previously ‘alluded’ to the ‘parental privilege’, the Massachusetts SJC had not recognized a parents’ right to use force in order to discipline a child.  The privilege to use reasonable force in disciplining a minor child has, however, been recognized at common law.  The SJC also noted that several other states have codified the parental privilege by statute.  Given the widespread recognition of such a privilege, the SJC now recognizes a parents’ right to direct the care and upbringing of his/her own children (although this right not ‘absolute’); while also protecting the child against abuse and endangerment.  A framework then, was articulated by the court…

In considering and balancing the parents’ right to discipline their children while also safeguarding a child from abuse and endangerment, the SJC held that a parent may not be criminally liable for the use of force against a minor child under his/her care and supervision, 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 so outlining the above conditions, each of the prongs would be questions that would have to be decided by the jury (or the trier of fact).  In reaching its determination, the jury could consider the child’s age, the physical and mental condition of the child, and the nature of the offense.  With regards to the third prong, the jury would have to decide whether the force used or the risk of injury was sufficiently “extreme” so as to be ‘inherently impermissible’.

Boston Criminal Lawyer Lefteris K. Travayiakis has extensive experience in representing persons charged with various crimes of violence, including assault & battery.  To schedule a Free Consultation, Click Here to Contact a Massachusetts Criminal Defense Attorney or call 617-325-9500.