The Age of Discipline: The Relevance of Age to the Reasonableness of Corporal Punishment
Cope, Kristin Collins, Law and Contemporary Problems
"Corporal punishment is the use of physical force with the intention of causing a child to experience pain, but not injury, for the purpose of correction or control of the child's behavior." (1)
For several decades, the debate about "appropriate" punishment of children has raged on, and today two polarized camps still seem to dominate the discussion. On one side of the debate are those who believe that physical punishment should remain available as a disciplinary tool. On the other side are those who oppose its use altogether. This disagreement is playing out in the academic sphere, as well as in popular culture, and involves complex differences over the rights of parents and children, culture and religion, and the scientific case for and against corporal punishment based on the child's responses and development.
Lawmakers have also struggled with whether parents' use of corporal punishment is dangerous, effective, or justified. One state even saw efforts to ban corporal punishment in the home altogether. In 2007, a Massachusetts state legislator introduced a bill to ban spanking in the home at the behest of a local nurse. (2) The bill was easily defeated, but it evoked intense publicity at the possibility, nonetheless. (3)
Notwithstanding these debates and initiatives, all fifty states continue to allow parents to use corporal punishment as a disciplinary tool, limiting its use to what is "reasonable." (4) Conversely, all states describe unreasonable or excessive corporal punishment as child abuse, (5) but their legislatures have hesitated to specify the acts and injuries that transgress the bounds of reasonableness. The effect of this more "open" standard and approach has been to leave to the courts and other relevant legal actors the difficult task of assessing what is "reasonable" in individual cases, to sort the acceptable from the prohibited. Faced with these objectives, courts have discussed various factors to consider in that assessment. Among the factors are the parent's act, the amount of force used, the extent of injury caused, and the child's behavior and mental condition. Increasingly, courts and legislatures have also begun to consider the child's age in evaluating the reasonableness both of the parent's disciplinary motive and of the nature and degree of the force used. In governments' efforts to determine what is "reasonable" (and thus allowable) corporal punishment, the age of the child has become a focal point--a new and important factor in calling balls and strikes.
Actors in all branches of government are beginning to take steps to make age matter in corporal-punishment law, but the methods for doing so are wide-ranging. This paper first addresses the reasonableness standard and its relationship to the underlying purposes of corporal punishment generally. It then describes the various approaches to the consideration of age: some explicitly introduce age as a factor in assessing "reasonableness" in individual cases, while others use age benchmarks for prohibiting corporal punishment before or after certain ages. This paper then evaluates these varying approaches in the longstanding effort to give meaning to the term "reasonableness" in the context of corporal punishment.
THE REASONABLENESS STANDARD
State legislatures historically have offered little guidance regarding what is reasonable corporal punishment. Originally, statutes defined acceptable corporal punishment through specifying what was not child abuse: forty-eight states and the District of Columbia took this approach. (6) Today, most states still use "reasonableness" as the statutory standard for corporal punishment. Some also say that the punishment must be "appropriate" (7) or "moderate," (8) but, in practice, these terms are just as difficult to evaluate as "reasonable." Such vague standards have left the task of sorting out individual cases of parental behavior to the courts, (9) and the lack of guidance has led them to make inconsistent, and often shocking, rulings. …