The Gasper Law Group, PLLC
As a child, when I was really out of line, my parents would occasionally spank me. No doubt I deserved it often, probably far more than I was actually spanked. My parents always explained why it was that I was being spanked, and used an open hand to my buttocks. It was always done in love, but no doubt sometimes it hurt to sit down afterwards.
Through the years I have met numerous friends that were also punished with physical discipline. A couple of my favorite stories involved grandparents that, when my friends were out of line, would make them go into the woods to choose with which switch they wanted to be spanked. This was apparently a difficult decision. A thinner stick may leave a thinner welt, but would travel much faster and could sting more. Whereas a larger stick would leave a bigger welt, but the thickness of it prevented it from striking so quickly. No doubt, such use of switches for physical discipline of children seems archaic now to many people. Yet, my friends seem to have turned out quite well despite it and are even thankful for it.
However, in this day and age of the nanny-state knowing better than parents, local officials’ seemingly constant belief that they know best, and mandatory reporting requirements of virtually anyone that is paid by the government and works with children to report anything that could be potential child abuse, things are no longer so simple. Ironically, in an age where children are more and more incorrigible and undisciplined, the government works to limit traditional methods of instilling discipline and values in our children. For many, there is a narrow list of acceptable ways to discipline children. If you stray outside that list, or discipline in any way that can be considered strict, you are out of line and must be punished. And unfortunately the system is certainly not consistent in what is worthy of punishment.
In my practice, I often see wonderful parents charged with child abuse for using long-accepted methods of physical discipline with children that were in need of it. Worse, there is no rhyme or reason to what local law enforcement or the Department of Human Services (DHS) sees worthy of being punished. While I was a Deputy District Attorney, I knew one law enforcement official that believed it perfectly appropriate to whip a teenage child’s buttocks with a handful of long plastic zip-ties, even if the whipping left welts. At the same time, another officer that believed that open-handed spanking of a child’s behind was illegal if it left any mark at all.
Naturally, any spank that causes a little stinging, which is the point, will leave a bit of a red mark. In this age of “better safe than sorry,” if in doubt, you can count on law enforcement charging a parent with child abuse for using physical discipline on their children.
Such different perspectives among even law enforcement in what is misdemeanor child abuse begin to make sense when one looks at the law on the matter. Colorado Revised Statute (CRS) § 18-6-401(1)(a) states in part that “[a] person commits child abuse if such person causes an injury to a child’s life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child’s life or health . . . ..” Injury can be defined simply as something that causes physical pain, whether or not there is actual visible injury.
The Colorado Revise Statutes do provide what we lawyer types call an “affirmative defense” (or justification defense) for the physical discipline of children.
CRS § 18-1-703(1)(a) states that the use of physical force that would normally be an offense is excusable when “[a] parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person.”
Sounds good right? The Colorado Legislature in all its wisdom accounted for the physical discipline of children—so what’s the problem, right? Wrong. The problem is who decides what is “reasonable and appropriate.” In practice, for the purpose of charging with an offense, it will be whichever officer happens to investigate an allegation and whichever deputy district attorney happens to get the case. Moreover, many officers and most county court deputy district attorneys, due to their typical younger age, do not themselves have children. Very few have teenagers. Yet, they essentially sit in judgment over whether someone is accused of abusing their children through physical discipline.
Sure, a client charged with child abuse for using physical discipline with their children can choose to go to trial and have a jury decide if they are guilty or not. But who will be on the jury? Perhaps there will be parents that have raised children and are qualified to determine what is “reasonable,” or at least will have the experience to know that every child and circumstance is different . Or perhaps there will be a jury full of nineteen-year-old pacifists that abhor the very idea of touching one’s children in discipline. There is no way to know. Thus, even defensible spanking child abuse cases typically end up in a plea bargain that allows a parent to avoid the risk of trial, and thus the risk of being permanently labeled a child abuser.
So we have come full circle: Can you spank your children? The answer should be yes if done appropriately, but the reality is that the vagueness of the statute leaves what is “reasonable” to the eye of the beholder. It simply depends which “beholder” is investigating an allegation.
If you do choose to use appropriate physical discipline with your children, there are some tips that make it less likely that utilizing traditional physical discipline will get a loving parent slapped with allegations of child abuse:
1) Do not spank your children with objects. While many of us were spanked with a switch, belt, or wooden spoon as children, the reality is that the outline of a belt buckle or spoon on the behind of a child tends to elicit emotional responses in officials. If you choose to spank your child, it is safest to use an open hand.
2) Do not spank hard enough to leave bruises, or even welts or red marks. These can be interpreted as physical injury and can lead to action by law enforcement.
3) Never ever spank in anger. Usually, when a child has significant marks from spanking, there was anger involved in the disciplining. Pause, breathe, explain to the child why he or she is being spanked before beginning, and do not spank overly hard. For a young child, the idea of spanking is often as effective as the spanking itself.
4) Limit spanking to the buttocks themselves. For various reasons, officials become easily offended by even red marks on a child’s upper legs.
5) Do not use physical discipline as a first resort. Programs such as Love and Logic teach alternative methods of discipline that can be very effective. Use spanking only when a situation truly calls for it. Law enforcement officials are less likely to jump to the offensive conclusion that you beat your children if physical discipline is used sparingly and in appropriate circumstances, and not regularly.
Disclaimer: This blog addresses the legality of spanking in a criminal defense context, but not the advisability of physical discipline from a child development perspective. While THE GASPER LAW GROUP routinely defends child abuse cases involving spanking, whether and how physical discipline is used is a choice each family makes.
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