How Difficult Is It to Bruise a Backside?
Update: Shorter, corrected, clearer me: Either 1) IMO, Indiana’s standard of child abuse is too narrowly focused on the severity and longevity of bruises caused on the child to the exclusion of the emotional and psychological harm to the child through the mother’s causing such bruises in the first place or 2) The standard does include this kind of harm but the prosecutors failed to prove it in this case, which seems incredible to me based merely on the facts of the article. (Update x3: Also, my inner jury is still out on whether I think any punishment that results in bruises at all should automatically rise to the level of abuse and thus IN’s standard is too low to begin with, but I lean toward “of course, yeah.”) Xrlq has called bullshit on almost all of my amateur attempts to question the legal nuance here, and I defer completely to him on those points. I’d probably make a pretty crappy lawyer. But I stand by my conclusion that there is serious and permanent harm done to a child who understands that his mother is willing to bruise him and a radically ignorant mother who could not foresee such bruising based on the implement–whether belt or extension cord–that she chose to use to spank an 11-year-old boy.
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Update x2: Anybody notice how I’m getting a swell series of little snapshot legal lessons by writing something inane and then inviting Xrlq over here to shred it for me? Pretty cunning, don’tchathink?
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Pretty doggone difficult, if I remember from my own days of childhood spankings. Yet this mother’s “discipline” left bruises not only on the child’s rear end but also on the arm and thigh, where blows from the belt or from the extension cord inadvertently landed. Well, was it a belt or an extension cord? The article, insanely, does not make clear the reason why which it was is unknown. One could reasonably assume the child says one and the mother says the other.
Indiana’s Supreme Court has reversed the mother’s 2006 battery conviction. I find this construction quite curious:
“In response to a charge of battery, Willis raised the defense of parental discipline privilege. Considering the totality of the circumstances, we are not persuaded that the State disproved the defense beyond a reasonable doubt,” Justice Robert D. Rucker wrote in Tuesday’s decision.
I never went to law school, so maybe that’s some legal standard I’m unaware of, “disproving the defense beyond a reasonable doubt.” To my silly, law-uneducated mind, the standards ought to be 1) Did she commit the act alleged? and 2) If so, does the act alleged qualify as child abuse?, both proved beyond a reasonable doubt.
Granted it is one of the finest lines in the world, that line between physical parental discipline and physical abuse. I am not acquainted with the facts of the case beyond what’s in the article, but several of those items stick out to me:
1) The boy showed the marks to his school nurse. If he really did take this initiative himself rather than answering questions initiated by a school official, that seems unusual to me, to say the least, and goes to the type of relationship the boy generally has with his mother–untrusting. Children are not above ratting out their parents in a fit of pique, but is an 11-year-old cognizant enough to understand the very serious consequences likely to accrue to his mother and himself by this action of his? If so, it is very telling that he undertook it anyway.
2) Since the implement used for this is apparently in doubt, let’s break down what evidence there is in the article. If you were to spank a child with a belt, which end would you hold the belt by? The buckle, right? And if you held it by the buckle, could any blow that landed mostly on the buttocks but let maybe the end of the belt flick to some other body part leave bruises on that secondary body part? Or could a blow that misfired because of the child’s squirming to escape leave bruises? It seems to me far more likely that the weighted end of an extension cord could make bruises elsewhere if the wildly swinging end made contact in passing. The same effect could be achieved with a belt held by the other end–but in that case, wouldn’t the act automatically qualify as abuse? Who in a legitimate spanking would ever use the buckle end of a belt?
3) The conviction was previously upheld by a court of appeals. The Indiana top court seems to have as its standard of child abuse “serious or permanent harm,” and if that’s the case, no wonder the results of this case are questionable.
The Supreme Court noted that the bruises apparently were “neither serious nor permanent” and concluded that the punishment was reasonable. The court also said that parents have a legal privilege to discipline their child as long as punishment is reasonable and not likely to cause serious or permanent harm.
Leaving aside the very troubling wording of “legal privilege to discipline,” on the surface of it, superficial bruising seems to fall outside the given standard of qualifying as abuse. But just because the bruises are neither serious nor permanent, does that mean the harm was not?
I am not anti-spanking on principle, but I have serious doubts over this case that the article does nothing to help elucidate. Why did the child feel it was better to voluntarily go to the nurse than to stick by his mother? How were the bruises not on his backside caused? And why does the prosecution have to “disprove” her defense that it was outside the abuse line instead of proving that the boy suffered serious or permanent harm? I can imagine only all too well why a child who understands that his mother is willing to bruise him would go to the nurse. There’s permanent harm there even if it wasn’t proved to the justices.
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Extra line for blockquote.
Either the state proved its case beyond a reasonable doubt or it didn’t. How on earth can the state meet that burden if it didn’t disprove any applicable defenses? If it worked that way, the state might just as well dispense with due process altogether by defining mere existence as the sole element of a crime, and making the absence of any otherwise criminal behavior a “defense.” Say the state proves beyond a reasonable doubt that you were in a bank last week. Now it’s up to you to prove that you didn’t rob it?
Sorry, you lost me there. How, exactly, is that “troubling?” Unless you advocate a ban on spanking, or think I should be allowed to “physically discipline” anyone who pisses me off, I don’t see how anyone could seriously contend that there should not be a legal privilege to discipline one’s children.
Maybe, maybe not. But if you read the quote carefully, you’ll not that actually causing serious or permanent harm is not an element of the crime. Disciplining a child in a way that is likely to, is.
Comment by Xrlq — June 12, 2008 @ 11:23 am
Extra line before blockquote.
If there is no law to forbid or modify my current behavior, then surely it is a “right” and not a “privilege,” yeah?
Hmm. That distinction is far too narrow for my comfort. They didn’t prove harm, so that automatically means the behavior in question doesn’t tend to cause it? There’s something wrong with that reasoning even if I can’t spell it out in terms of pure logic.
As for your first objection, about disproving vs. proving, I guess you’re right, but the wording still strikes me as strange.
Comment by Anwyn — June 12, 2008 @ 11:31 am
That’s a false dichotomy. As against the government, all legally valid privileges are rights. One of the most common types of “sucker” answer on the Multistate Bar Examination is any answer that has the constitutionality of a law depend on whether the affected conduct is a “privilege” or a “right.”
To the extent that a distinction can be drawn between “privileges” and “rights,” the word “right” is generally used for rights that have broad application, while “privilege” applies to narrower rights that are limited to certain individuals or activities that are “privileged” above the rest. Take, for example, the Fifth Amendment privilege against self-incrimination. We don’t call it a privilege because it’s any less valid than other constitutional rights, but because it states an exception rather than the rule. There is no generalized right not to testify in court, only a narrow right, a.k.a., a privilege, not to do so if the testimony will incriminate you. Ditto for the attorney-client privilege, the doctor-patient privilege, etc., each of which applies only to certain relationships the state saw fit to privilege above the rest.
As to physical discipline, let’s just say that it is generally not legal to run around hitting people in order to influence their behavior. If someone did that to you or your kid, you could have them arrested. Yet the law privileges you as a parent to do, to a point, the very acts that would be forbidden to everyone else. That is a privilege.
Failure to prove actual harm does not automatically mean that the behavior in question doesn’t tend to cause it, nor does actually proving harm automatically prove that it does. The point is that criminal statutes hold people accountable for their actions based on what they were responsible for konwing at the time. If you severely abuse a child, you don’t skate just because that child happened to be unusually resilient. Conversely, if you use reasonable force but end up accidentally causing terrible but unforeseeable harm, we don’t make you a criminal for that.
Comment by Xrlq — June 12, 2008 @ 1:30 pm
Don’t be too hard on yourself. Not knowing that stuff merely proves that you aren’t a lawyer, not that you’d be a bad one if you were. It’s a good thing I wasn’t born in China; I can’t speak a word of Chinese.
Comment by Xrlq — June 13, 2008 @ 4:13 am
Thanks. :) It’s a timely lesson in questioning so vehemently what I don’t quite understand, then. I guess I wanted to make my case on something other than my distress and concern over a mother bruising her son and calling it discipline. I would not like to judge anyone too harshly or without enough information, but the facts of the case as laid out in that article just don’t sit well with me.
Comment by Anwyn — June 13, 2008 @ 8:04 am
That said, though, your explanations seem to me to support the idea that the judges, while possibly having a little distaste for the facts themselves, adhered to the given standard, which is good in itself.
Comment by Anwyn — June 13, 2008 @ 8:08 am