It is constitutionally presumed that the parent is the best person to raise a child. In addition, the parent, is looked to “to keep control” of the child and God forbid, if and when a child is found to be responsible, for some property damage and/or personal injury to another, then, the parent will be looked to as responsible for the child’s actions. So when a parent turns to corporal punishment and disciplines a child, why is there criticism, interference and most importantly, judgment or punishment from the State? When the discipline, that is administered, is beyond reasonable. Then it’s child physical abuse.
In determining whether there has been an incident of child physical abuse, the State of Maryland first looks to its general definition of abuse. Relating strictly to child physical abuse, Maryland’s Family Law Article§ 4-501(b) defines abuse as an act that causes serious bodily harm … or assault in any degree. Maryland also specifically recognizes that if the person, is a child, “abuse” may also include abuse of a child, as defined in §5-701 of that same article. More specifically, child abuse is therein defined as the physical or mental injury, of a child, by any parent or other person, who has permanent or temporary care or custody or responsibility for supervision of a child, or by any household or family member, under circumstances that indicate that the child’s health or welfare is harmed or at substantial risk of being harmed.
However, a simple reading of these code sections do not clarify the line between an act of reasonable corporal punishment as opposed to child physical abuse. In other words, what is serious bodily harm? Assault? Substantial risk of harm?
First, Maryland’s criminal law article §3-201(b) defines “assault” to include crimes of assault, battery, and assault and battery. There are varying degrees of assault and the difference between them lies in the severity. More specifically, Maryland recognizes “simple assault” which, under common law is identified as “second degree assault.” A second degree assault is a misdemeanor that occurs when someone causes or attempts to cause an offensive physical contact. Thereafter and following second degree assault, in severity, is first degree assault. Maryland’s criminal law article §3-202, states that a person may not intentionally cause or attempt to cause serious physical injury to another. Maryland goes on to define serious physical injury as one that creates a substantial risk of death or causes permanent or protracted serious disfigurement, loss of the function of any bodily member or organ or impairment of the function of any bodily member or organ. And substantial risk of harm relates to any additional potential harm the child could sustain as a result of the actions taken at the time of the inflicted corporal punishment.
Given a literal reading, it would appear that any act of corporal punishment, which by definition is intended to hurt the child, would be viewed as child physical abuse. But not so. A continued reading of Maryland’s family law article §4-501 specifically states that “the definition (of abuse) is not meant to prohibit reasonable punishment, including reasonable corporal punishment, in light of the age and condition of the child, from being performed by a parent or stepparent of the child.”
Simply put, reasonable corporal punishment is permitted discipline and unreasonable corporal punishment is child physical abuse. Some signs that a child has been subjected to physical abuse include, but is not limited to cuts, open wounds, lacerations, scratches, marks and/or bruises on the child. Keep in mind, however, that injuries need not be visible for there to be a finding of abuse. Internal injuries and injuries that prohibit the child from engaging in their regular activities (such as sitting down, properly, walking or making use of any limb) may lead to a determination of child physical abuse. In addition, the improper use of belts and other objects can quickly morph corporal punishment into child physical abuse. Finally, injuries inflicted on an area identified as a vulnerable part of the body, such as the head, neck and face are routinely determined to be unreasonable.
Other elements to consider include any showing that the parent was out of control, angry or acted spontaneously or recklessly; that there was no thought into a proper and effective punishment; that the punishment inflicted was not likely to correct the unwanted behavior; that there was a need for medical attention, formal or otherwise; that there were injuries to multiple parts of the body; that the punishment occurred for an excessive period of time; that the punishment was duplicative and/or that drugs or alcohol were a factor.
On the other hand, corporal punishment may be considered reasonable when the discipline is age appropriate; is appropriate given the child’s developmental level; when the punishment leaves no visible or internal injuries; when the punishment was thought out in advance; when there is no evidence that the parent reacted out of anger or when it can be shown that there was a cooling off period before the punishment was begun; when the punishment is likely to cure the unwanted behavior; when the punishment results in several calculated strikes and not several dozen haphazardly administered strikes; when it can be shown that there were progressive levels of discipline before it became physical; when the punishment was administered to a localized area of the body that is not identified as particularly vulnerable; when the actions cannot be considered reckless and deliberate; when it can be shown that any potential unintended injury was unintentional and accidental and when it can be shown that the child was not placed at any additional substantial risk of harm.
Of course, every case is different and certainly the determination between reasonable corporal punishment and child physical abuse will depend upon the totality of the circumstances, which is quite often subject to interpretation. Who’s interpretation? That of an administrative law judge based on the above cited Maryland laws.
While I regularly represent the Department of Social Services, I too am a parent and I certainly understand some of the situations that parents find themselves in while raising children. I also understand some of the personal positions parents hold when it comes to their right to raise their child, the way they want to raise their child, not to mention the position parents find themselves in when there is some threat that the State may determine that some negative action of the child is a direct result of the ineffective parenting of the parent. However, with that said, I’ve seen a wide range of injuries under the guise of “discipline”. Having seen such, I, like the State, note that there is a line between reasonable corporal punishment and child physical abuse. Thus, I encourage all parents to read this article carefully and consider how easily reasonable corporal punishment can become unreasonable and thereafter, defined by the State as child physical abuse, a finding that will land the inflicting parent on the State’s Child Protective Services Central Registry as a child abuser. And trust me, membership does not have its privileges!
Thanks for reading. Please note that I am licensed to practice law in Maryland and the District of Columbia. As such, this blog is based largely off of the law identified in the article and is not intended as specific legal advice. You may also learn more about my practice at www.kelseylaw.net.
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Categories: Child Abuse and Neglect