Corporal Punishment In Virginia: Is Spanking Legal?

Posted on May 1st, 2013, by Benjamin Griffitts in Criminal Defense. Comments Off on Corporal Punishment In Virginia: Is Spanking Legal?

Virginia CodeThe most important role of a parent is in the instruction of a child so that he or she may enter adulthood as a well-adjusted and contributing member of society. One of the biggest frustrations of many parents is finding the appropriate method for disciplining a child. Does corporal punishment play a role in modern parenting? Is spanking legal in Virginia? If it is legal, are there clear boundaries in the law so that parents do not commit a crime in disciplining their children? defines corporal punishment as “physical punishment, as spanking, inflicted on a child by an adult in authority.” Spanking is a legal form of discipline from a parent to a child. However, not all spankings are created equal. Parents who use physical punishment to discipline their children can sometimes be charged with assault and battery of a family or household member, in violation of Virginia Code Section 18.2-57.2, or even child abuse. The Virginia appellate courts have reviewed a number of these cases and have provided some guidelines for assessing when a spanking is not spanking, but a battery or even child abuse. Unfortunately for many parents, there is no bright line that differentiates appropriate punishment from unlawful or criminal conduct.

Some of the rules for determining when spanking is legal are found in the Virginia Supreme Court case, Harbaugh v. Commonwealth, 209 Va. 695, 697-98 (1969). That case tells us that corporal punishment cannot be an excuse for a parent to exhibit “uncontrolled passion” or uses force that “exceeds the bounds of due moderation.” Where an allegation is brought of abuse or battery by a parent of their child, and the parent claims to have simply been exercising their right to discipline, the Harbaugh case instructs the court to consider “the age, size and conduct of the child, the nature of the misconduct, and the kind of marks or wounds inflicted on the body of the child.” These criteria do allow courts to make subjective assessments of the appropriateness of the punishment. Generally, if a child suffers an injury—more than temporary redness—such as a cut or a wound that results in bleeding or bruising, the possibility exists under Harbaugh that the punishment was excessive. If the injury appears in an area other than on the rear end of the child, extra scrutiny will be applied. The use of instruments for spanking—even belts—will be given a close look, as will the number of spankings applied.

I am aware of two cases where very similar facts resulted in opposite court rulings as to the legality of a parent’s spanking their child. Both cases involved the use of a belt, an elementary age child, and repeated non-physical attempts at discipline with no improvement in the child’s behavior. Both involved wiggling children and a parent attempting to spank the child’s bottom. In the first case, the child wiggled and was struck on the back. The parent in anger struck the child again as the child continued to wiggle, and hit the child on the arm and another part of the body. In the second case, the child wiggled and was struck on the head– and the parent immediately rendered care for the accidental striking. The court found the parent in the first case to have exhibited “uncontrolled passion”—because after the first strike accidentally hit the child’s back instead of the bottom, the parent continued to use the belt to spank, hitting other parts of the child’s body. The court saw this as excessive found the parent guilty of battery. In the second case, the court found the parent’s striking the child on the head to have been an accident, as evidenced by the parent’s immediately ceasing the disciplinary conduct and rendering care to the child. Had the parent in the second case intentionally struck the child in the head, even once, the court likely would have found that to have been a crime. But had that parent intentionally struck the child on the bottom once or maybe a couple of times, without striking the child’s head, the court likely would not have seen that as a crime.

These cases are anecdotal evidence, and should not be seen as the standard for the courts, but they are instructive as to how a parent who chooses to spank their child might do so legally. If a parent approaches discipline from a sober perspective, not overcome with emotion, and doesn’t spank to the degree that the child suffers an actual injury, he or she should be within their rights as a parent.

If you have been charged with a crime for spanking your child, it is important that you find an experienced criminal attorney to assist you. The criminal lawyers at Livesay & Myers, P.C. are experienced in representing clients on charges arising from corporal punishment in Fredericksburg, Manassas, Fairfax and across Northern Virginia. Contact us to schedule a consultation today.

Special thanks to Robert Dean whose memo on this subject was valuable in its recitation of the case law.

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Ben Griffitts is a senior associate attorney at Livesay & Myers. An attorney since 2004, he has years of experience defending clients on criminal charges in Northern Virginia—from serious felonies, violent crimes, and drug charges to traffic offenses and misdemeanors. As an experienced personal injury attorney, he has also handled every type of automobile accident case in Virginia.

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