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Saturday, June 14, 2008

Sparing the Rod in Indiana: Reactions of a Parent and Jurisprude

I've been thinking about Mike Frisch's post over at Legal Profession Blog on the recent Indiana Supreme Court decision reversing a criminal conviction in the beating of a child.  Here's Mike's description of the case:

Images5 The defendant was the child's mother. He had stolen her clothes, taken the clothes to school, and lied when confronted. After taking two days to "ponder her options" they had a long conversation. When the child repeated the lies, mother had him remove his pants and "proceeded to strike him five to seven times with either a belt or an extension cord." Some blows landed on his arm and thigh as well as his buttocks. He went to the school nurse, who contacted protective services. The mother was arrested, charged and convicted at a bench trial.

The court held that the parental privilege defense is a "complete defense" that the State did not disprove beyond a reasonable doubt. The court considered the fact that the child was eleven years old and not a "first offender." The punishment was not "unnecessarily degrading" or disproportionate to the offense.

This case also got a lot of play at Volokh Conspiracy (post and comments), which outlines in more detail the legal test 0n parental privilege (Restatement Torts:  "A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education...."), and takes a sympathetic view of the ruling ("I'm not sure how helpful the test the court announces will be, but I'm not sure how the court could have done better.")

My reaction as a parent and jurisprude follows the jump.

Parent:  Despite my comically stereotypical performance of showing up at the Charlevoix Recycling Center in my Prius wearing an Obama t-shirt a few days ago, I'm no liberal when it comes to parenting.  First, I'm not a pacifist, so the mere idea of physical force is not the key here (one of my regrets is that I actually believed Colin Powell's assertions about WMD at the United Nations).  Second, I'm not perfect, and did on occasion use an open hand to smack a kid on the butt to get her or his attention early in my parenting career.  I cannot, however, imagine a circumstance in which as a matter of discipline I would use an object like a belt or a cord to strike a child.

I have come to feel fairly certain, however, that all forms of violence and abuse, physical, verbal, and emotional, are more about the parent's needs than those of the child.   If you can think clearly enough to make the violence or the abuse cold and dispassionate, then you ought to be able to think clearly enough to figure out something better.  And if it's not cold and dispassionate, it's more about the parent's anger and release than about discipline.

Jurisprude:  If Professor Volokh's sympathetic statement is about the court's treatment of the positive law, I guess, well, okay, it's a pretty loose test.  Nevertheless, the Hart-Fuller-Raz-Dworkin debate lives on.  Are you a hard positivist, who thinks this is wholly a descriptive exercise, and there's nothing here that should invoke issues of morality?  Are you a soft positivist who thinks perhaps this is a place where the positive law allows the judge to insert his or her moral views?  Traditional natural law proponent?  How about Dworkinian fit and justification, leading to a single correct answer (many of the commenters at Volokh would look at my comments here and beg to differ)?

My view:  law is a social institution and humanly constructed.  Wanting it to be morally sound doesn't make it so.   What it is is also inherently normative, that is, ought.  (I have written about the Kelsenian view of law's ought in the positive law.)  Trying to infuse law with a moral view, or justify a decision as the correct answer, is more often rationalization of an ought than description of an is.  We have a spectrum of moral views on this issue, ranging from "spare the rod" to "beat 'em with a stick."  I guess the positive law has done the best it can to accommodate those views, but acknowledging a parent's right to beat an eleven-year-old with an electrical cord would test the limit of my ability to separate my moral instincts from my view of the case.

Posted by Jeff Lipshaw on June 14, 2008 at 09:33 AM in Current Affairs | Permalink


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If you can think clearly enough to make the violence or the abuse cold and dispassionate, then you ought to be able to think clearly enough to figure out something better.

Not taking sides here, but what would you do with an 11-year-old who is heading down a path of stealing and lying, and who doesn't alter his behavior in response to any other milder punishment? Preemptively pack him off to juvenile detention? Put him on heavy sedatives? Or what?

Posted by: Stuart Buck | Jun 14, 2008 10:00:29 AM

I don't know. I'm fortunate never to have had that problem.

Does beating really alter behavior? My dog, Rational Actor, will still go through the Invisible Fence and accept the shock if the payoff (chasing a black squirrel, for example) is high enough.

"If you do bad, bad things will happen." Hmm. If it's merely a matter of changing behavior by linking up virtue and happiness, I think I'd prefer "if you lie and steal, you will burn in hellfire and damnation for all eternity." That doesn't work for me personally, but maybe it's as persuasive as the whipping action of an extension cord. At least the temporal court system doesn't have to deal with the problem of the beaten child.

The source of my bemusement here is that I don't think the ordinary spanking of a child should be a crime, as much as it pains me to see a parent thwacking a small child who is merely being loud or annoying (to the parent as well as others) in the airport lounge. The more I think about it, the more I'm sympathetic to Professor Volokh's jurisprudential point, if that's what it was, because I'd have no clue how to apply that legal rule other than my own intuition about the tipping point. Which would not permit the beating of a child with an extension cord or a belt.

Posted by: Jeff Lipshaw | Jun 14, 2008 11:55:33 AM

Jeff: Two questions...

(1) Is your dog really named "Rational Actor"?

(2) Is there an institutional argument for construing the parental privilege more broadly than any theory of good parenting would permit? I'd imagine that such a defense would compare the costs of judicial-social worker-police intervention to the costs of bad apple parents' overusing their privilege. Depending on the magnitude of the former, tort doctrine might provide capacious scope for what even the courts will recognize as really bad parenting, based on such a comparison.

Posted by: Rick Hills | Jun 14, 2008 12:48:28 PM

(1) No. It's Max. But it would be great, wouldn't it? "Here, R.A., here boy." Everything else, however, is accurate, including the trimming of his neck fur to increase the cost of non-compliance.

(2) Yes, from my perspective that law in this instance is a model, and doesn't model this reality very well. Perhaps to put your comment a different way, I don't think ordinary spanking should be a crime, but some place you cross the line. The number of times we have cases on or close to the line probably don't justify a lot of time or worry about it institutionally. You just have to be aware as a parent that if you go beyond a smack on the butt, you pays your money and you takes your chances, because somebody after the fact may think you've moved beyond the non-legal realm of parenting and into the legal realm of criminal battery.

Posted by: Jeff Lipshaw | Jun 14, 2008 1:03:35 PM

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