WHERE AND HOW TO DRAW THE LINE BETWEEN REASONABLE CORPORAL PUNISHMENT AND ABUSE
I. Introduction
Nonaccidental physical injuries children suffer at the hands of their parents occur along a continuum that ranges from mild to severe. At the outer edges of this continuum, one might find, on the one hand, a slight swat to the buttocks, and on the other, a brutal beating. In the United States, the normative consensus appears to be that outsiders to the family are appropriately concerned only when the physical injury at issue causes serious harm; any injury short of a serious one is exclusively “family business.”
Consistent with this consensus, all states’ laws permit the use of “reasonable” corporal punishment;1 simultaneously, they all prohibit nonaccidentally inflicted serious injury. The latter is generally denominated abuse, although some states classify milder but still impermissible injuries as neglect, or simply “inappropriate discipline.” Thus, being able to distinguish between reasonable corporal punishment and maltreatment—whether this is formally denominated abuse or neglect—is critical for the relevant actors: parents who use corporal punishment as a disciplinary tool, child protective services (CPS) staff who are required by statute to intervene in the family to protect children subject to or at risk of abuse, and courts adjudicating issues arising in connection with these cases. The integrity of the distinction and of the methodology employed to make it is also critical for a society that is prominently committed to both family autonomy and child welfare, and in particular to protecting the integrity of the family when it promotes (or at least does not harm) child welfare, and to intervening in the family when it fails in its related obligations.
Unfortunately, few if any states have sufficiently defined the relevant terms “reasonable corporal punishment” or “maltreatment” (abuse or neglect) to consistently guide the relevant actors (those in a single system) in their exercises of discretion; nor have they established a coherent methodology for sorting injuries along the continuum of nonaccidental physical injuries. That administrative regulations and policies promulgated by state and local CPS departments often narrow agency discretion helps CPS itself to be more consistent and may help families know what to expect when they are dealing with CPS. But because appellate courts do not appear to give much deference to agency interpretations of the statutory definitions, these regulations and policies do little to guide the courts’ own exercise of discretion. Moreover, to the extent that the law in statutes and judicial opinions is either less precise or even different from the law as it is applied by CPS, the public and parents are inevitably confused or misled. As a result, decisionmaking about whether an injury or incident remains in the realm of family business or has crossed the line into the impermissible varies, reflecting a multiplicity of purely personal viewpoints, religious and political ideologies, and academic or disciplinary training and requirements. In turn, institutional treatment of and outcomes for children and families are often inconsistent.2
The status quo has been defended or at least explained on several grounds. The vagueness of abuse definitions has been consistently upheld on policy grounds—specifically on the argument that it is important for authorities to retain flexibility to call injuries as they see them given that, particularly in a diverse society, abuse might appear in unexpected forms.3 The difficulty of the definitional project has also been acknowledged. This difficulty stems both from the relatively mundane problem of how textually to craft the definitions so that they capture all and only what we want them to capture, and from the related (but infinitely more complex) problem of how to resolve the ideological tensions at play in this area.
Each of these explanations has merit. First, we do not want to be left with definitions so fine that they disallow necessary protective interventions based in different (nonnormative) or unprecedented and harmful parenting practices. Although such instances are infrequent, the CPS community’s relatively recent experience with non-European immigrants who engage in unusual (for the United States) parenting practices, including family-formation practices, folk-medicine practices, and disciplinary practices,4 demonstrates that concerns about flexibility are both real and legitimate.5 Second, it is incredibly hard to craft precise statutory language; the annals of legislative history attest to the truth of this proposition. It is especially tricky to do so in an ethnically, religiously, and politically diverse setting like the United States, particularly when the context relates to the intersection of intimate family matters and the relationship of the state to the family. Legislators and elected judges operating in a legal context where definitions already exist are likely to be better off if they leave things alone; the alternative, at least politically, is unattractive: entering the culture war that inevitably would result from efforts to codify different rules that respectively privilege and de-privilege particular groups’ parenting norms.
Nonetheless, the premise of this article is that the distinction between permissible and impermissible corporal punishment is too important to leave to the only loosely guided discretion afforded by modern child-abuse definitions. In particular, three negative effects of the status quo beg for at least a periodic reevaluation of the prospects for more-precise tools to make this distinction.6 We have already noted two of these effects: the law’s failure to fulfill its expressive function (or the law’s signaling problems) and inconsistent case outcomes. The third is the risk of error in both directions—false-positive and false-negative findings of maltreatment—and the consequences of resulting errors for children and families.7 This risk is an inevitable result of the inconsistencies that plague the system. Importantly, errors (both ways) also occur because—other than those respecting egregious physical harm—the definitions do not codify a considered or generally accepted sense of the nature of the harm the state intends to prohibit. Again, this has been left mostly unresolved, either purposefully or by default. This means that the definitions fail to provide decisionmakers with information about the right kinds of cases to pursue. The ultimate objective of this article is to propose policy reforms that will ameliorate the risk of errors as well as the systemic inconsistencies and signaling problems already described.
We proceed toward this end on the assumption that reforms will be viable in the long run only if they are the product of a careful accommodation of the delicate political considerations at stake in matters of state–family relations and of the medical and social-science evidence that explains when and how children suffer harm. Specifically, we suggest policy reforms that (1) preserve the traditional structure and substance of reasonable corporal-punishment exceptions to child-abuse law, both of which are themselves premised on a generous reading of parental-autonomy norms,8 and (2) require decisionmakers to take systematic and consistent account of all relevant and valid evidence, including medical and social-science evidence, that can shed light on the reasonableness of parents’ actions. We adopt this approach for two reasons.
First, it is the reality on the ground that parental-autonomy norms interact and even sometimes compete with medical and social-science perspectives as the line is drawn in individual cases between reasonable corporal punishment and maltreatment. Although this article treats only the institutional actors, almost everyone involved in these cases uses one or the other or a hybrid approach to doing the line-drawing work required under the rules.9 This includes parents who use corporal punishment as a disciplinary tool; their neighbors who have to decide whether to report them for child abuse; CPS workers who process reports, investigate cases, and decide whether to substantiate them; and judges who adjudicate claims of excessive corporal punishment.
Second, although legal reform is sometimes warranted in the face of the status quo, we do not believe that such confrontation is necessary here. It makes sense that parental-autonomy norms and scientific knowledge should govern the process of arriving at better definitions of reasonable corporal punishment and physical abuse, and of sorting individual incidents and injuries along the continuum of nonaccidental physical injuries. This approach best reflects what history and social science tells us is good for children: a child-rearing model that recognizes and establishes parents as the children’s “first[,] best” caretakers10 and that intervenes in the family only when necessary to protect the child from harm that would be greater than that inevitably caused by the state’s own intervention.11 This approach also reflects appropriate respect for parents’ traditional role and the “rights and responsibilities” paradigm that has long governed American law in this area. Correspondingly, it acknowledges both that the state cannot replace parents as the children’s “first[,] best” caretakers, and that the state has a proper role to play when parents make too much of their rights and too little of their responsibilities, causing a net loss to their children in the process.
Given these considerations and our objectives—to ameliorate systemic inconsistencies, signaling problems, and false-positive and false-negative errors—our principal suggestion is for policymakers to codify “functional impairment” as the harm the state intends to prohibit. The term, adapted from the medical sciences, refers to short- or long-term or permanent impairment of emotional or physical functioning in tasks of daily living.12 (Currently, most states’ maltreatment definitions prohibit practices and injuries that may lead to functional impairment.)13 Correspondingly, we encourage adoption of functional impairment as the standard for evaluating the reasonableness of the force used and thus for drawing the line between reasonable corporal punishment and abuse. We promote this standard to ensure that the state has the authority to intervene in the family in the face of good evidence that a child has suffered or risks suffering important disabilities, and to restrict state authority to intervene merely to mediate suboptimal conditions. Relatedly, this standard serves to assure, to the extent possible, that the public’s wisdom regarding the normative use of corporal punishment is balanced with medical and scientific knowledge of harm to the child.
Basing decisionmaking about the reasonableness of corporal punishment on a combination of parental-autonomy norms and scientific evidence about harm, as this functional-impairment test would do, is not new. For example, many maltreatment statutes and regulatory schemes are expressly premised on both a respect for family privacy and a focus on child well-being. And California’s Attorney General has suggested that scientific knowledge about the effectiveness of corporal punishment as a disciplinary tool should factor into the evaluation of whether it is legally reasonable to spank a toddler.14 However, these initiatives are not systematic and often lack rigor; they do not necessarily reflect a considered evaluation and reconciliation of the relevant norms and scientific knowledge, or of whether basing a decision on either or both in combination makes sense in a given situation. Nor have they ameliorated the negative effects that are our target: the failure of the law to fulfill its expressive function, inconsistent case analyses and outcomes, and false-positive and false-negative errors. We hope that in its multidisciplinary approach and system descriptions, and in its related suggestions for definitional and methodological reform, this article will begin to do some of this work. In the process, we hope that it will dissolve some of the long-standing conceptual and communications impasses among the various affected disciplines.
The article proceeds as follows: Part II describes what is known about how the relevant institutional actors—legislatures, CPS, and courts—currently find and define the line between reasonable and unlawful corporal punishment.15 Part III separately describes the parental-autonomy norms and scientific knowledge that currently compete for primacy in the discourse about corporal punishment and, as far as we can tell, largely contribute to decisions about the lawfulness of particular incidents “on the ground.” Part IV begins with an argument for definitional and methodological changes that reflects both parental-autonomy norms and scientific knowledge and follows with specific suggestions for policy reform. These suggestions include proposals for redefining reasonable and unlawful corporal punishment and for sorting cases along the continuum of nonaccidental physical injuries.
II. How the Relevant Legal Actors Define and Draw the Line Between Reasonable Corporal Punishment and Abuse
The three legal institutions responsible for where and how the states draw the line between reasonable corporal punishment and abuse are the state legislatures, which announce and define allowances and prohibitions in the first instance; CPS agencies and professionals, also known as departments of social services or DSS, which administer the legislative mandates and thus most directly engage families and children; and the courts, which are charged with interpreting legislation in the last instance, and which thus act as a check on decisions made by CPS. In an effort to develop a comprehensive sense of how each of these institutions makes decisions in this area and, in particular, if and how they might differ in their approaches, we conducted three studies. The first involved a cataloging and examination of all the states’ civil legislation defining child abuse and reasonable corporal punishment. The second involved a series of interviews with CPS professionals, including CPS directors, supervisors, and frontline social workers in counties in several states across the country. Our interviews were designed to establish the degree and nature of the discretion CPS professionals have as they evaluate cases involving parental claims of reasonable corporal punishment. The third study involved a cataloging and examination of all of the states’ published judicial opinions in civil cases concerning the definition of child abuse and the evaluation of reasonableness in the corporal-punishment setting. The results of this data collection are described below.
A. Legislatures
All United States jurisdictions have statutory definitions of child abuse consistent with the medical model of child abuse, which focuses specifically on the immediate and short-term physical effects of abuse on the child.16 Child-abuse definitions typically appear in both the criminal and civil sections of a state’s statutory code. 17 Definitions in the states’ civil codes—which are the focus of this article—typically appear in mandatory child-maltreatment-reporting statutes or in juvenile-court-jurisdiction statutes. The former provide guidance to mandated reporters and the latter establish the basis for the state to exercise jurisdiction over the child and family.18
1. Features of Typical Statutory Abuse Definitions
In general, states define physical abuse of a child to include harm or threatened harm to a child’s health or welfare, nonaccidental physical injury, or serious physical injury inflicted by an act or omission of a parent or another adult responsible for the child’s care. Regardless of their terminology, the definitions focus on harm or injury to the child. Most employ the terms physical harm or physical injury.19 Additionally, many states classify as abuse acts or omissions that create a risk or substantial risk of physical injury or harm. Several states require not only a finding of physical injury but also a determination that the injury harms the child or impairs the health of the child.20 On the other hand, in Arkansas, certain intentional or knowing acts constitute abuse whether or not the child sustains physical injury. For example, a parent who “[s]trik[es] a child six… years of age or younger on the face or head” or “[i]nterfer[es] with a child’s breathing,” among other acts, has abused his or her child under the statute regardless of injury to the child.21
A few states define abuse to include only nonaccidental physical injuries that are “serious.” For example, Pennsylvania defines child abuse as “[a]ny recent act or failure to act… which causes non-accidental serious physical injury to a child under 18 years of age” or “which creates an imminent risk of serious physical injury to a child under 18 years of age.”22 The statute further defines “serious physical injury” to mean an injury that “causes a child severe pain; or significantly impairs a child’s physical functioning, either temporarily or permanently.”23 North Carolina also employs the language “serious physical injury.”24
Although state statutory definitions of physical abuse are similar in that they emphasize harm to the child or nonaccidental physical injury, minor variations among definitions exist. The most notable variation among definitions is their level of specificity. Just over half of state definitions contain only broad language and fail to provide specific examples of injuries or acts constituting physical abuse or to elaborate otherwise on the meaning of physical harm or injury. For example, Iowa’s definition provides that “[c]hild abuse or abuse means any non-accidental physical injury, or injury which is at variance with the history given of it, suffered by a child as the result of the acts or omissions of a person responsible for the care of the child.”25 In contrast, other states enumerate within their definitions specific injuries or acts that constitute physical abuse or otherwise expand on the definition of physical harm or physical injury. For example, Arkansas’ statutory definition provides a list of “intentional or knowing acts, with physical injury and without justifiable cause”26 that constitute abuse, as well as a list of “intentional or knowing acts, with or without physical injury”27 that constitute abuse. Among the acts that constitute abuse with a showing of physical injury are “[t]hrowing, kicking, burning, biting, or cutting a child; [s]triking a child with a closed fist; [s]haking a child; or [s]triking a child on the face or head.”28 Similarly, Florida’s statute provides that abuse is “any willful act or threatened act that results in any physical …injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.”29 It then enumerates injuries that can harm a child’s health or welfare. The enumerated injuries range from willfully inflicted “sprains, dislocations, or cartilage damage” to “intracranial hemorrhage or injury to other internal organs.”30
Definitions with a greater degree of specificity provide additional guidance to CPS workers and judges who are charged with determining whether a given act or injury constitutes physical abuse. In some cases, the act or injury may fall precisely within one of the enumerated classes. In others, decisionmakers may be able to compare the suspicious act or injury to one of the enumerated classes to determine if it is sufficiently similar.31 Statutes containing enumerated lists typically specify that the lists are illustrative and not exclusive, thereby reserving for decisionmakers a certain measure of discretion.32
Finally, a few states use both the abuse and neglect classifications for unlawful physical injuries to a child, sorting cases between these classifications not according to the act or omission causing the injury, but rather according to the relative degree of severity of the injury itself. For example, New York explicitly includes “excessive corporal punishment” within its statutory-neglect definition.33 Thus, it defines an abused child as one who suffers “physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of bodily organ.”34 And it classifies as neglected a child whose physical condition has been impaired or harmed, but not injured seriously enough to create a substantial risk of death or protracted disfigurement or impairment.35 Other states adopting this approach have done so either informally or by administrative regulation. For example, North Carolina’s CPS agencies employ a decision tree that requires classifying as neglect by inappropriate discipline any instance of corporal punishment that transgresses the agencies’ reasonableness criteria but that does not meet its abuse standards.36
2. Statutory Allowances for Reasonable Corporal Punishment
Statutory definitions of physical abuse appearing in state family- or juvenile-court codes commonly except reasonable measures of physical discipline administered by parents.37 This exception reflects the longstanding common-law privilege of discipline, which provides that “[a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training, or education.”38
Twenty-one states, along with the District of Columbia, except reasonable physical discipline from their statutory definitions of physical abuse. These provisions typically use the term “reasonable” to describe legally acceptable corporal punishment, although some employ the term “excessive” to describe corporal punishment that has crossed the line of acceptability. 39 For example, the District of Columbia’s statute provides that abuse “does not include discipline administered by a parent, guardian, or custodian to his or her child; provided, that the discipline is reasonable in manner and moderate in degree and otherwise does not constitute cruelty.”40 The statute then provides an illustrative list of specific acts that are unacceptable forms of discipline for purposes of the exception. Among these acts are “burning, biting, or cutting a child” and “nonaccidental injury to a child under the age of 18 months.”41’ Similarly, in Florida, physical discipline can be considered excessive when it results in “significant bruises or welts,” among other enumerated injuries.42
Finally, in addition to requiring that discipline be reasonable in nature and degree, several states’ statutes formally require decisionmakers to evaluate as a threshold matter whether the injury or incident was disciplinary in nature; the consequences flowing from that evaluation differ, depending on the jurisdiction.43 The most common of these provisions expressly codifies the two-pronged, common-law standard requiring parents seeking refuge under the privilege or exception to prove, first, that discipline was reasonably necessary or appropriate under the circumstances and, second, that the nature and degree of force used itself was reasonable. For example, Hawaii’s statute provides that
[t]he use of force upon or toward the person of another is justifiable [when] … (a) [t]he force is employed with due regard for the age and size of the minor and is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and (b) [t]he force used is not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage.44
At least one state, Ohio, appears to provide parents with statutory authority to cause a child more harm in disciplinary contexts than in nondisciplinary contexts; its corporal-punishment exception provides that physical discipline that is “excessive under the circumstances and creates a substantial risk of serious physical harm to the child”45 constitutes abuse, whereas acts other than physical discipline constitute abuse whenever they “harm the child’s health or welfare.”46
B. Child Protective Services
Although state legislatures are responsible for defining maltreatment in the first instance, the law on the ground is mostly set by the CPS professionals charged with investigating and supervising the investigation of maltreatment reports.47 Specifically, CPS professionals are responsible for determining whether particular factual situations described in the reports qualify as abuse or neglect, or are appropriately classified as reasonable corporal punishment.48 The vagueness inherent in most statutory definitions—including specifically in disciplinary exemptions that, without more, permit “reasonable” and disallow “excessive” corporal punishment—assures that, absent additional constraints, individual CPS professionals and departments have quite a lot of discretion as to the methodology they use to do this triage and as to where they ultimately draw the line between reasonable and unlawful corporal punishment. Even when CPS decisionmaking is administratively constrained, however, personal and community ideology continues to play a considerable role in this process.
1. The Factors that Influence CPS Decisionmaking
Consistent with prevailing statutory language, when evaluating whether an act of corporal punishment was reasonable or abusive, CPS most typically considers the nature and degree of the immediate physical harm to the child.49 The extent to which that injury may have long–term or even permanent physical consequences will generally affect the CPS determination, particularly in those jurisdictions that require a serious or severe injury either statutorily or by custom. Depending on the jurisdiction and the individual decisionmaker, however, such consequences may not be required; indeed, a common CPS practice holds that a bruise lasting for more than twenty-four hours is sufficient to meet the maltreatment standard.50 Relatedly, to the extent that an immediate but not serious or severe physical injury implicates a risk of more-serious harm in the future, CPS may choose to denominate that original injury abuse. In fact, for some CPS agents and departments, risk is one of the most important criteria.51
Other common criteria include chronicity, or the frequency with which a particular child is subject to corporal punishment, 52 the location of the injury on the child’s body,53 the child’s age54 and special-needs status,55 whether an object was used,56 and the immediate or long-term emotional and developmental ramifications of the physical harm.57 Like risk, these criteria can contribute to a finding of abuse even in cases in which the immediate physical injury, standing alone, is relatively moderate and thus would otherwise be classified as reasonable. 58 For example, evidence of chronicity, the use of an object such as a belt or a switch, the child’s fear of the parent or anxiety about the safety of the home, or an injury in a location other than the buttocks (harm to the head or neck is particularly provocative in this regard) may cause CPS to classify as abuse a bruise lasting for more than twenty-four hours, even if that same agency would normally decline to intervene based on the injury alone.59
Finally, in the evaluation of individual incidents and injuries, CPS may consider parents’ rights and family privacy, including parents’ motivation for using corporal punishment and parents’ ethnic or cultural background. Parents’ rights and family privacy may be considered as essential factors to be balanced against harm to the child or as relatively insignificant in light of the agency’s mandate to focus on child welfare.60 Parents’ motivation is more or less relevant to agencies or social workers depending on the extent to which they believe the inquiry should focus entirely on medical harm to the child; when motivation matters in the analysis, parents may be permitted to cause more harm than they would when it is not a consideration.61 Relatedly, CPS professionals may consider the family’s ethnic or cultural background, as in assessing whether a particular form of corporal punishment is normative in the family’s community.62 As with parental motivation, however, those who focus primarily on medical harm to the child will tend to discount or ignore diversity of parenting practices.63
2. Exercising and Constraining Discretion
The factors that a particular CPS social worker or agency considers in drawing the line between reasonable corporal punishment and abuse, and the weight the factors are given, depend on two circumstances: the extent to which the agency or social worker is administratively (by regulation, policy, or protocol) constrained and the decisionmaker’s own community norms, disciplinary training, and personal ideology. The more elaborate the administrative constraints, the less likely it is that divergent norms, training, and ideology will influence the decision. However, because it is impossible to eliminate entirely the need for CPS to exercise discretion—at the margins, the line between reasonable corporal punishment and abuse is “uncertain and wavering” at best64—norms, training, and ideology play a role even within tightly constrained programs. This gap between statutory requirements and “on the street” practice is well known in political science and public-policy analysis more generally.65
CPS agencies and social workers across the country vary in the extent to which they are administratively constrained as they evaluate individual cases of alleged abuse. Until recently, CPS decisionmaking was relatively unconstrained, resulting in a landscape where social workers’ personal orientations influenced results.66 In jurisdictions following this approach, a social worker or agency holding particularly strong views (one way or the other) on the moral or religious foundations for corporal punishment or on the relevance of any emotional or developmental impacts, might render decisions about the reasonableness of individual instances of corporal punishment (at least in part) according to those views. The current trend is to the contrary: jurisdictions at either the state or the county level tend to adopt elaborate regulatory schemes designed to standardize, to the extent possible, the decisionmaking process and the scenarios that will and will not constitute unlawful corporal punishment.67
Some administrative protocols for substantiating maltreatment include only immediate physical factors such as the age and size of the child and the severity, duration, and location of the mark.68 Protocols may also take into consideration other observable or quantifiable factors like the object used, the number of hits or strikes, and the chronicity, but may exclude most or all emotional and developmental factors.69 Increasingly common among these new regulatory schemes are those that focus most broadly on the physical, emotional, and developmental implications of the child’s injury70 and that involve a list of factors (differently weighted and sometimes integrated) that social workers must address in their investigations and evaluations.71 Unlike the approach that takes into consideration only immediate physical factors, this approach involves a more-complex analysis of whether a particular incident involves acceptable or unlawful corporal punishment; that is, in addition to considering the medical nature of the immediate physical injury, it places significant value on risk and on the nonphysical implications of physical injuries.72
For example, North Carolina, which has a state-supervised, county-administered CPS system, has established at the state level a decision tree that requires county CPS agencies and their social workers to evaluate not only the degree (severity) and nature of the physical injury at issue, but also factors such as the injury’s location on the body, whether an object was used, whether the injury is evidenced by a bruise lasting for more than twenty-four hours, the number of times the child was hit, the child’s developmental age, the family’s history with corporal punishment (chronicity) and with CPS, the child’s sense of safety in the home and with the offending parent, the injury’s emotional and developmental implications (including school-related implications), and the risk of future harm.73 Kansas’ Department of Child Protective Services’ investigation protocol similarly contains a fairly long list of factors including medical facts such as the severity and location of the injury as well as developmental implications, including a child’s ability to succeed in school and his or her emotional response, which must be considered during each investigation.74
Notwithstanding these sometimes elaborate constraints, social workers continue to be influenced by considerations external to the protocols. These considerations may be in direct contravention of the protocols, or they may simply supplement formal assessment criteria as social workers exercise their remaining discretion. External considerations include factors that may be part of other protocols inapplicable to the threshold maltreatment assessment, community norms, and personal histories, training, and ideology. For example, when prompted with a list of factors and asked if each was considered during the investigation, CPS officials frequently responded in the affirmative, despite a factor’s absence from the official protocol.75 A Kansas frontline investigator explicitly stated that she considered temporary parental stress, even though it is not a factor in the policy manual. She went on to explain that she tries to take in every possible consideration.76 Additionally, interviews conducted with eleven CPS officials in five states suggest that regardless of each state’s particular protocols and regulations, risk of future harm is a significant factor in evaluating whether a particular instance of corporal punishment is reasonable.77 Some CPS officials acknowledge that they are taking factors pertinent to the post-substantiation safety assessment into account as they evaluate the threshold question of maltreatment, in part because conducting assessments concurrently is more efficient.78 These additional factors include the parent’s level of control in the situation, any temporary stressors present in the home, how the current situation affects future situations, and the risk of future incidents.79
Community culture and norms also influence even those social workers whose decisions are constrained by formal factors, protocols, or decision trees. For example, community attitudes toward corporal punishment often affect the criminal investigation, and if criminal charges are not filed, social workers must consider how such attitudes may weaken their civil maltreatment case.80 One social worker in Oregon, who has worked in both a rural county and an urban county, is particularly sensitive to community ideology and its subsequent effect on judicial decisions.81 She found that judges in urban communities are much less lenient toward parents’ use of corporal punishment compared with judges in rural communities. She attributed this to the election of judges based on the electorate’s ideological views and to judges’ subsequent preoccupation with reelection. Although formally she considers the same factors whether investigating in a rural or urban community, she does consider how specific factors and evidence will be viewed by a particular court or judge.82 Removing a child may not be helpful if a judge will ultimately return the child to the parent. Consequently, social workers consider what a particular judge will do, and that consideration may change how they proceed with the family.83
Finally, personal histories, training, and ideology may continue to influence social workers’ exercise of discretion, regardless of the nature of the administrative constraints under which they are placed. For example, all of the CPS officials interviewed emphasized the importance their jurisdiction’s substantiation protocols place on the child’s sense of safety in the home, but several cautioned that this criterion requires a thorough evaluation of why the child is afraid. ‘ In exercising the discretion required for this evaluation, one frontline investigator in Kansas explained her feeling that a child’s fear of a parent is an important factor that should be taken seriously.85 In contrast, some investigators think the fear of being punished is insufficient.86 One North Carolina CPS supervisor in a rural county hesitated to consider fear a good indicator of abuse.87 She explained by describing her experience with corporal punishment growing up: “When I was a child and my daddy said I was going to get beat when I got home, I was certainly scared and fearful of going home, but this is not abuse.”88 A particularly provocative example of the relevance of personal and professional perspectives involves social workers’ views of the relevance of family privacy and parents’ rights to the maltreatment determination. Specifically, although all interviewees acknowledged CPS’s responsibility to respect family privacy, including parents’ right to use corporal punishment to discipline their children, they also explained their view that their job is to protect children from harm, not to protect parents’ privacy rights. They further explained that this obligation encompasses both children’s physical welfare and their emotional and developmental well-being, and that well-being should be understood, on the basis of social science evidence, to be relevant to proving unlawful discipline.89 Implicit in their perspective is the view that the child’s and parents’ interests are not obviously coterminous and that family privacy and parental rights are not necessarily good for children.
C. Courts
Courts act as a check on CPS decisions to intervene in the family. Depending on the jurisdiction, trial courts may be specially denominated family, juvenile, or dependency courts. They approve (or not) CPS decisions to declare children in need of protection, either temporarily, during the pendency of an investigation, or for a longer term, following substantiation of maltreatment. Trial-court involvement in the CPS process is routine, thus establishing trial-court judges as critical players of the law as it is practiced on the ground. Appellate courts have authority to review trial-court decisions. However, very few trial-court decisions are appealed by either party. Not many parents have the will or the resources to appeal adverse decisions.90 And CPS agencies may face political and procedural hurdles that make appeals difficult for them too.91 As a result, although appellate courts are formally superior institutions and responsible for making common law, they are less relevant on a day-to-day basis than trial courts.
Although trial courts may be more likely than appellate courts to render decisions favorable to CPS because of their ongoing working relationship with its professionals, both trial and appellate courts retain wide discretion in determining whether an act of physical discipline constitutes unlawful physical abuse. This discretion is attributable both to the broad and imprecise language found in most statutory definitions of physical abuse and to the fact that judges are free either to be guided by92 or to disregard unreasonable agency interpretations of that language.93 Ultimately, because of this broad discretion, but also probably because of their different disciplinary orientation, judges have developed their own approaches to drawing the line between reasonable physical discipline and unlawful physical abuse. These approaches vary from state to state and judge to judge. Nevertheless, a careful analysis of the relevant cases shows that, in general, courts consider many of the same factors as CPS does, including the degree and severity of the child’s injury, the child’s real and developmental age, the manner of discipline, and whether a pattern of abuse (chronicity) is present. Importantly, though, this analysis also demonstrates that courts are more likely than CPS to consider parent-focused factors, such as the parent’s right to use physical discipline and the parent’s motivation for doing so in a particular case, and less likely than CPS to consider an injury’s emotional and developmental sequelae. Indeed, depending on the jurisdiction, these parent-focused factors may predominate.
1. Factors Common to Judicial and CPS Decisionmaking
a. Severity of injury
Consistent with state statutes that typically define physical abuse in terms of harm or injury to the child, courts drawing the line between reasonable corporal punishment and unlawful physical abuse focus heavily on the degree and severity of the child’s physical injury. The level of harm or injury necessary for an act of physical discipline to constitute abuse depends largely on each state’s statutory definition of abuse. Courts commonly consider such factors as whether medical treatment was required, how much pain the child experienced, and whether the injury resulted in disfigurement or impairment.94 Courts are reluctant to find that bruising alone is severe enough to constitute physical abuse.95 In fact, some courts have specifically rejected CPS rules and regulations that permit a finding of abuse when a child experiences a bruise lasting more than twenty-four hours.96 In general, courts appear more willing to find physical abuse when punishment results in multiple or very large bruises, bruises with a deep or intense color, bruises lasting a week or more, bruises that are especially painful, or bruises on a location other than the child’s buttocks.97 At least some courts demand more before they are willing to find that the requisite “serious” injury has occurred. For example, the North Carolina Court of Appeals held that bruises on a child’s arm and upper buttocks lasting for several days were insufficient to establish that the child, who had been beaten with a belt, was abused. The court explained that abuse involves “an injury more severe than a bruise as a result of a spanking.”98 And it provided as examples of incidents and injuries that did pass muster: choking, hitting with fists and glass objects, pulling out hair, and burning.99
b. The age and developmental stage of the child
The cases suggest that courts are more inclined to classify a disciplinary measure as abuse when the act is administered against a young child or one with physical or mental disabilities.100 The courts’ consideration of these characteristics can be explained in two ways. First, a spanking administered against a young child or a child with physical disabilities may cause a more-serious physical injury and more-serious long-term consequences to emotional development than the same spanking administered against an older or physically healthy child.101 In this sense, the age and condition of a child is simply part of a court’s consideration of the degree and severity of the child’s injury. Second, a young child or a child with a mental or emotional disability may lack the capacity to understand the purpose of the discipline or appreciate its deterrent effect.102 A spanking that has no disciplinary value because the child lacks the capacity to understand its purpose is more likely to be unreasonable or excessive.
c. Manner of discipline
Courts often consider how much force and how many strikes parents employ when they administer physical discipline, as well as whether they use an object such as a belt or paddle.103 The cases suggest that courts view with more suspicion a parent who uses extreme force to strike a child repeatedly with a paddle or belt than one who swats a child a couple of times with an open hand; correspondingly, such discipline is more likely to be found to exceed the bounds of reasonableness.104 To some extent, these factors simply correspond to the degree or severity of harm inflicted on the child. As one court pointed out, an object may create a barrier between the parent and child and prevent the parent from realizing how hard he is striking the child.105 Uncontrolled, forceful striking or the use of an object to strike a child also might increase the risk of severe injury if the child squirms or otherwise moves as the discipline is being administered.106 Interestingly, there is some evidence that parents choose to discipline with an object instead of a hand because they believe doing so is less harmful to the child. For example, a parent may choose to use a spoon or another object to administer a spanking because doing so makes it less likely that their children will perceive hitting with hands as an acceptable way to solve problems.107 Some courts also infer something about the parent’s motive or intent from the parent’s choice of disciplinary method. Whereas courts may view injuries resulting from a measured, restrained spanking as just the “regrettable result” of well-intentioned corporal punishment, more-extreme methods of punishment are viewed suspiciously because they suggest that a parent actually intends to injure his child.108
d. Pattern of abuse or chronicity
Courts frequently consider whether an act of physical discipline is an isolated event or part of a larger pattern of arguably unreasonable discipline.109 If the individual injuries are relatively minor, a pattern, or chronicity, may cause them to be classified as abuse.110 Courts may place importance on a pattern of abuse because they fear that an escalation of violence in the future could put the child at risk. Though courts seem less likely than CPS workers explicitly to consider a child’s risk of future harm or injury, courts’ emphasis on the history of unreasonable physical discipline in the household indicates some concern for the child’s safety in the event that the child remains in the home.
2. Nonphysical Sequelae and Parent-Focused Factors
a. Emotional and developmental effects
Unlike CPS, which as an institution is increasingly incorporating the emotional and developmental effect of physical injuries into their assessment whether a particular incident of corporal punishment is abuse, courts appear rarely to consider the possibility that physical discipline may be emotionally or psychologically damaging to the child. A review of appellate-court decisions suggests that lower-court records contain little or no information about the emotional and developmental effects of physical discipline on the child.111 Even when these effects are recognized, however, courts are still likely to give them very little weight.112 One judge has surmised that this bias is because judges in general lack the expertise to evaluate evidence related to the emotional or psychological impact of physical discipline on a child.113 Whatever the case, interviews with CPS professionals in one North Carolina county suggest that emotional- and developmental-impact evidence rarely makes it into the record notwithstanding its importance because neither the lawyers (for the state or the parents) nor the judges involved are interested in these facts; they simply want to know the circumstances in which the immediate physical injury occurred and the relevant medical details.114
b. Parent’s motivation
Related to the circumstances in which the injury occurred, and in contrast with the practice of at least some CPS professionals, courts often consider a parent’s motivation for administering physical discipline when they evaluate the reasonableness of the disciplinary act. Specifically, some courts consider whether the disciplinary act was “rendered necessary” by the child’s actions.115 This approach requires courts to evaluate the nature and gravity of the child’s behavior and the parent’s attempts to address the behavior without resorting to physical discipline.116 The child’s age and developmental stage should also be relevant to this inquiry because punishment is pointless (and only potentially harmful) if the child is unable to appreciate its intended lesson. At bottom, the parental-motivation inquiry suggests that courts—unlike some CPS professionals—are not strictly focused on physical harm to the child. They are often willing to view physical discipline, even physical discipline that causes minor physical injury to the child, as reasonable, provided the parent’s disciplinary act was a legitimate attempt to correct the child’s misbehavior.117 If the evidence suggests that a parent was instead acting viciously out of anger or cruelty, however, courts are not willing to afford parents the same discretion.118 Many courts that do not explicitly evaluate the “necessity” of the disciplinary act still take into account the parent’s motivation by considering whether the parent employed physical discipline in a manner indicative of her desire to help, not harm, the child.119 Specifically, courts consider whether the parent-administered discipline in a controlled manner, whether the parent was angry when he or she administered the discipline, and whether any evidence suggests a malicious intent.120
c. Parent’s right to use physical discipline
Finally, when evaluating whether a finding of abuse is warranted, courts commonly refer to a parent’s right to administer reasonable physical discipline.121 The courts’ explicit recognition of this right as part of an attempt to draw the line between physical abuse and reasonable physical discipline suggests that—unlike some CPS agencies and professionals, who view their role primarily as saving children from their parents122—courts are focused either on simultaneously protecting children and preserving parents’ disciplinary autonomy, or, in some cases, primarily on the latter.123
III. The Governing Paradigms for Decisionmaking
The legal actors responsible for determining where and how to draw the line between reasonable and unlawful corporal punishment—CPS agents and courts—are influenced by one of two paradigms, or by a more or less ad hoc combination. The first of these paradigms reflects parental-autonomy norms, and the second, scientific knowledge about the circumstances that cause children harm. The extent to which one or another of the paradigms governs the approach of particular individuals or institutions appears at least in part to reflect political or personal orientation, disciplinary training, or both.124 In view of our prescriptive project in part IV, which seeks intentionally to reconcile norms and knowledge and to propose policy reforms that reflect that reconciliation, this part lays the groundwork for effective multi- and interdisciplinary engagement by describing, first from the relevant disciplinary perspectives, the nature and significance of each of these approaches.
A. Parental-Autonomy Norms
Parental-autonomy norms reflect society’s widely held view that parents have the right to raise their children as they see fit, without outside interference from the government or others. Described variously as “parental autonomy,” “parents’ rights,” and “family privacy,”125 these norms—incorporated in long-standing American political philosophy, constitutional theory, and law—provide that a metaphorical (closed) circle or geographic boundary surrounds the family, in which parents are sovereigns and children, subjects of their sovereignty.126 Within this scheme, parents have both the right to physical custody of their children and the right to make decisions for and about them and their welfare.127 The latter is part of a bundle of adult decisionmaking rights that are known especially in constitutional jurisprudence as decisional autonomy.128
When discipline is appropriate and how it is meted out are considered to be well within parents’ decisional autonomy. As one court explained, “The duty to discipline the child carries with it the right to chastise and to prescribe a course of conduct designed for the child’s development and welfare. This in turn demands that the parents be given a wide sphere of discretion.”129 Although the United States Supreme Court has never had occasion to rule on whether corporal punishment is included among parents’ federal constitutional rights, this disciplinary option is well-established under state law.130 Specifically, states have long provided parents with an exception to tort- and criminal-law prohibitions against physical assaults when they can establish a disciplinary motive for the assault and when the assault itself is “reasonable.”131 Twentieth-century case law is thus replete with holdings like this one: “A parent has the right to punish a child within the bounds of moderation and reason, so long as he or she does it for the welfare of the child.”132 The states’ approach has its origins in “the Colonial period, [when] … [corporal] punishment was thought to be a ‘desirable and necessary instrument of restraint upon sin and immorality,’ as well as having a regenerative effect on the child’s character.”133 This view derived in turn from traditional English doctrine, which holds that a parent “may lawfully correct his child, being under age, in a reasonable manner, for this is for the benefit of his education.”134 Modern maltreatment law has adopted this common-law exception.”135
In general, parental autonomy is viewed as being good for society, good for parents, and good for children. Political philosophy and constitutional theory teach that parental autonomy is good for society because the family is considered to be the fundamental—as in first and foundational—social unit of society. This is the concept of the family as a village within a town, within a county, within a state, within the country; the village being primarily and in the first instance responsible for bringing up the young to become well-adjusted, productive individuals and citizens.136 Parental autonomy is also said to be good for society because children need to be raised by some adult(s), and neither the state itself nor any other individual or group of adults can replace parents as “first best caretakers,”137 and because society’s interest in the perpetuation of heterogenic democracy is best fulfilled when an ideologically diverse group of individuals raises the children.138 Parental autonomy is viewed as being good for parents because it honors the “natural bonds of affection” that tie them to their children and also because it compensates them for taking on the responsibilities of parenting.139 Finally, parental autonomy is viewed as being good for children because, among the adults and institutions that might be imagined as caregivers, parents, guided by their natural bonds of affection, are most likely to take the best care of their own children and to do the best job raising them to be successful adults.140 That aspect of parental autonomy that sees the family as sovereign territory is specifically viewed as being good for children because, when parent and child are bonded, interference by outsiders to the relationship harms their emotional and developmental well-being.141
The theories that support parental autonomy have changed significantly over time. Throughout the nineteenth century, children were generally considered to be one with or the property of their parents (generally of their fathers).142 By the end of the twentieth century, however, these unity and property models of the parent–child relationship were considered anachronistic. Today, children are generally believed to be proper subjects of individualism, albeit with an evolving capacity for mature, thoughtful decisionmaking.143 The concept of the family as sovereign territory protected against interference by a circle of privacy has not changed, although the right of the state to break the circle and to enter into the family to protect its vulnerable members has increased substantially.144
Legal doctrine has changed correspondingly. Parents can no longer lease their children’s services out to others for the duration of their childhoods, nor choose whether or not to school them, nor impose what in some cases once amounted to a parentally inflicted death penalty for disrespect and other important transgressions.145 The boundaries of family privacy are now drawn at a point that balances parents’ interests and rights with those of children and the state. Thus, parents’ rights to force children to work for hire have been curtailed according to their developmental capacity for such work and to assure that they have the time to go to school and to rest so that they are at least competent at that enterprise.146 Parents’ right to choose where their children are educated is intact, but gone is their right not to educate their children at all, because children need an education to be successful citizens.147 Finally, although “[i]t is clear that a parent has the ‘right’ to corporally discipline his or her child, a right derived from our constitutional right to privacy[,] … this right … must be exercised in a ‘reasonable’ manner.”148 Reasonableness has always been the standard, of course, but because its legal iteration is tied to social norms, as these norms evolve to countenance less harm and, at least in some circumstances, to narrow the forms of acceptable corporal punishment, parental autonomy and the boundaries of family privacy have been correspondingly reduced.149
Lawyers and the judiciary, particularly appellate judges, are well versed in the legal doctrine of parental autonomy and its philosophical underpinnings. Indeed, if the question before the court involves, in some respect, a parent’s right to make a child-rearing decision, the constitutional doctrine of parental autonomy will and should be front and center. For the court, this doctrine embodies “first principles” and as such is the law that applies to the case. This is true whether the question is presented as a federal constitutional claim150 or as a state-law claim that itself reflects this constitutional norm.151 Finally, because federal constitutional law formally preempts all other laws—including government-issued regulations, policies, or protocols—inconsistent perspectives on the factors that should influence where and how the line between reasonable corporal punishment and abuse is drawn are largely irrelevant to the legal process.152
For present purposes, this means that lawyers and the judiciary will always be inclined to test CPS interventions designed to protect the welfare of the child against the right of family privacy or parental autonomy, and they will generally read child-abuse definitions and corporal-punishment exceptions through this lens. Thus, for example, judges in jurisdictions where the governing statute requires a finding of “serious” abuse before punishment is unlawful may read “serious” most seriously, to require that CPS show that the injury was life-threatening or at least permanently disfiguring. In such jurisdictions, “mere” bruising, even bruising lasting for several days and in circumstances where the child was afraid to return home, might be an insufficient basis to allow CPS to breach the circle of family privacy.153 Relatedly, CPS interventions based in concerns that are perceived to be inconsistent with the right of family privacy or parental autonomy are not likely to be upheld. It appears, for example, that judges tend to reject as unlawful interventions that rest (or appear to rest) primarily on CPS concerns about the child’s emotional and developmental welfare, preferring instead to focus on the physical harm caused by the injury at issue in the case.154
Florida family-court judge Cindy Lederman has suggested that judges’ tendency to focus on physical harm is due at least in part to the fact that most are neither trained to appreciate the correlation between physical injury and emotional and developmental welfare nor provided by litigants with evidence-based science that would permit them to evaluate claims of this sort. 155 Moreover, most litigants probably do not provide the basis for courts to understand how this kind of evidence might actually be compatible with the right of family privacy and parental autonomy, particularly with its boundaries. In other words, litigants do not appear to work systematically to make the evidence of emotional and developmental welfare relevant to the courts, given the courts’ particular orientation and doctrinal constraints. As a result, it sometimes appears that CPS intervenes in the family to protect a child based on a combination of concerns, including about the child’s emotional and developmental welfare, only to have the court reject the intervention because the physical injury is viewed as insufficient (standing alone) to permit it.
B. Scientific Knowledge of Harm to the Child
Beyond parental-autonomy norms, a reasonable manner of corporal punishment is defined scientifically by the degree of harm caused or risked. In cases of extreme physical injury, serious harm is immediately obvious through the observation (sometimes by a medical expert) of welts, bruises, or bleeding. In other cases, harm must be inferred on the basis of medical and scientific knowledge of the likely effects of a particular kind of assault. This knowledge, and the corresponding legal judgment of whether an assault constitutes physical abuse, has evolved over time. Decisionmakers, perhaps especially CPS professionals, have increasingly defined serious harm to include delayed internal injuries, long-term disability, and even psychological or emotional disorders. And they have increasingly relied on scientific research to conclude whether a particular parent’s behavior is likely to cause “serious harm” to the victim, as well as whether a child’s symptoms are likely to have been caused by parent’s abusive behavior or by some other source, such as an accidental fall.156
Shaken Baby Syndrome (SBS), also known as abusive head trauma and the leading cause of abuse-related deaths in the United States each year, provides a model for the way scientific evidence has been used effectively by CPS and in the legal system.157 Frustrated parents of crying babies under the age of twelve months sometimes shake the baby back and forth or up and down in an effort to stop the crying. This behavior can indeed place the infant into a trancelike state. Although no adverse effect on the infant may be apparent immediately, recent medical research has shown that the long-term consequences can be devastating due to an infant’s unique and fragile anatomy.158 Infants are born with weak neck muscles that cannot hold up a large head, which is prone to jostle back and forth uncontrollably while being shaken. Infants’ brains are soft and malleable, like unset gelatin, in contrast with adults’ brains, which are more like set gelatin. Rapid back-and-forth head movement from shaking can rupture blood vessels and nerves throughout the brain, tearing and destroying brain tissue. Although immediate symptoms may be minimal, over weeks the infant may develop irritability, lethargy, tremors, vomiting, retinal detachment, and seizures, and in some situations, may even lapse into a coma or die. Babies who survive the experience with none of these consequences may still suffer cerebral palsy or mental retardation, effects that may not become evident until after age six.159 One influential study determined that seventy-two percent of known victims suffer permanent neuro-developmental abnormalities or death.160
The anatomy and long-term consequences of internal head injury due to shaking have been discovered only over the past twenty-five years. Because there is no blunt injury, SBS is difficult to detect, so the phenomenon has been doubted.161 Medical reports as recent as 1987 claimed that shaking could not be the cause of permanent injury.162 But these reports later proved inaccurate because they were based on experiments with primates, who have stronger neck muscles than infants.163 More-recent research using experiments on pig brains (a more scientifically accurate comparison), infant autopsies, and longitudinal follow-up of known cases have combined to validate the syndrome.164
SBS is now well-accepted by courts as a medical diagnosis,165 and shaking a baby is increasingly litigated as physical abuse in the juvenile and criminal courts.166 The history of SBS is important for corporal-punishment cases generally because it establishes the role of scientific evidence in the identification of parental behavior (sometimes even normative parental behavior) as abuse. “Serious harm,” which is the criterion for abuse in most jurisdictions, includes not only immediately obvious physical injury but also internal brain damage and long-term psychological and cognitive disability. Because legal cases cannot wait for an ultimate outcome, which might not be apparent for years, published scientific research suffices as evidence that a particular parental behavior is abusive.
Scientific evidence on the consequences of other forms of corporal punishment has also accumulated over the past twenty-five years.167 This evidence has contributed to an understanding that even apparently moderate forms of corporal punishment like SBS—moderate in the sense that a severe physical injury is not apparent to the average layperson—can have harmful effects that merit intervention, and to a more-comprehensive sense of the consequences of severe corporal punishment.168 These effects are stronger if the child is young, if the parent–child relationship lacks a grounding in warmth, and if the corporal punishment is repeated across time. Rather than discovering a cut-off level below which corporal punishment has no ill effects, scientists interpret the research findings as indicating that corporal punishment experiences have a cumulative effect that grows proportionately with the amount and severity of punishment. Furthermore, the relation between corporal punishment and poor child outcomes is an empirical one, meaning that not every case of corporal punishment is followed by child maladjustment.
A review of eighty-eight empirical studies involving 36,309 children has shown that children who have been subjected to moderate corporal punishment display, on average, more-immediate compliance with parental directives but also higher levels of aggressive, delinquent, and antisocial behavior than do children who have not been corporally punished.169 The causal direction of this association has been called into question170 because antisocial children might well elicit more corporal punishment or because the same genes that make parents use aggression toward their children may be responsible for their child’s aggression, apart from any causal link between the parenting and the child’s behavior.171 Indeed, when common genes are controlled, the causal impact of corporal punishment on the child’s aggression is lessened but still present.172
Other longitudinal studies have followed corporally punished and noncorporally punished children over years to examine growth in antisocial behavior and the onset of new outcomes due to corporal punishment. With these empirical controls in place, the impact of corporal punishment on American children can now be estimated with greater confidence. Two recent, rigorously conducted studies illuminate the picture. One study, which followed 3,001 white, African American, and Mexican low-income toddlers from ages one to three, found that, even after controlling for fussiness or other factors that might lead a parent to spank a young child, the experience of being spanked even modestly caused children to become more aggressive and to have lower cognitive development (as measured by the well-validated Bayley Scales of Infant Development).173 A second study followed two cohorts of children: the first, a group of 499 children followed from ages five to sixteen; the second, a group of 258 children followed from ages five to fifteen. This study found that in both cohorts, chronic mild spanking in children from ages five to nine led to increased antisocial behavior problems in adolescence.174 It must be noted that the children who suffered these outcomes were regularly spanked mildly over a long period of time, which was not the case in other studies where the child subjects experienced mild spanking very infrequently.175 The best scientific evidence thus indicates that the impact of regular mild spanking on a child aged one to nine appears, on average, to be significantly adverse but modest in magnitude.176 In general, children who have been regularly, mildly corporally punished by parents are likely to become less cognitively skilled and more aggressive over time and to use aggression in solving future problems, including in raising their children; rarely, however, do they become criminally violent as a result of mild corporal punishment alone.177
Nuances complicate this picture, however: First, mild corporal punishments do not have a uniform impact on child outcomes across all contexts and circumstances. The parent’s behavior per se is less significant than the meaning of the behavior as interpreted by the child.178 This meaning is determined by the family context, including chronicity of the act, the contingency of the act on the child’s misbehavior, mitigating factors such as temporary stress and the child’s instigation of the act, and exacerbating factors such as parents’ taunting and psychological abuse. Thus, empirical studies demonstrate that corporal punishment can be helpful, unimportant, or harmful to the child’s development, depending on the meaning ascribed by the child. A limit on this conclusion is that, beyond a certain level of severity of corporal punishment, harmful outcomes are likely to accrue to the child no matter what context surrounds the act or how it is interpreted by the child.179 This level is not always clear but may be a defining characteristic of physical abuse.
Second, not all corporal punishments are administered in the same way, and the different ways have different impacts. Although it would be simpler if detrimental corporal-punishment behaviors could be defined by specific behaviors, research studies indicate that the behavior itself is less prognostic than the behavior in its context. Multiple studies have shown that when corporal punishment is administered calmly for teaching purposes within a family context of parent–child warmth, its negative consequences for the child are minimal; in contrast, when administered in anger, impulsively, or out of control, corporal punishment is more likely to lead to adverse consequences in the child, including increased anxiety and aggressive behavior.180 When corporal punishment is administered capriciously, inconsistently, and with accompanying verbal and psychological abuse, its impact is more harmful. One reason for these differences is that the child is likely to interpret the parent’s actions differently in these various contexts. When mild corporal punishment is administered calmly for teaching purposes, the child is likely to understand the parent’s positive intent, whereas when it is administered harshly, inconsistently, and angrily, the child is more likely to interpret the act as rejection and to react with anxiety and increased deviant behavior over time.181
Third, cross-cultural studies across the world have shown that the cultural normativeness of corporal punishment alters the impact that it has on a child.182 If a corporal-punishment behavior is relatively common in a culture (such as mild spanking with a bare hand one to three times across the buttocks, as in the United States), then the child is more likely to understand its teaching value and is less likely to develop adverse reactions than if the corporal-punishment behavior is highly unusual (such as placing hot pepper on a child’s tongue, which is unusual in the United States but more common in other cultures). Studies have revealed that spanking has less-deleterious effects in Kenya and India, where it is ubiquitous, than in China and Thailand, where it is relatively rare.183 Ironically, as corporal punishment becomes less common in American society, parents who continue to engage in this practice may find that it begins to have stronger adverse effects on their children.184
In contrast with the nuanced and paradoxical effects of mild corporal punishment, corporal punishment that is cruel or severe has been found in multiple studies to have deleterious consequences. These consequences are diversely manifested and vary across children but can be summarized as disability, or “functional impairment,” a term adapted from medical sciences.185 In psychiatry, a symptom such as alcohol consumption, sadness, or repetitive odd behavior is not diagnostic of a disorder unless it is accompanied by impairment in completing the tasks of daily life, such as holding down a job and maintaining relationships. Applied to corporal punishment, if the consequences for the child include functional impairment, then the parental actions are serious enough to be characterized as physical abuse.
Long-term follow-ups of children found by CPS to have been maltreated indicate that they are likely to suffer a variety of functional impairments, including an increased tendency to commit violent crime, to abuse alcohol and drugs, to acquire sexually transmitted diseases, to suffer from depression, and to victimize their own children.186 Although these studies bring the certainty that comes with identifying and following children whose physical abuse has been officially substantiated, they are complicated by the problem that the interventions accompanying official substantiation (such as removal from the home and labeling the child as abused) might be the actual adverse causal agent rather than the abuse per se.
Another group of studies has followed community samples of children who were identified by researchers as having been severely corporally punished; the identification in these studies was made based on confidential interviews with the children’s parents.187 Their design contrasts children who have experienced severe corporal punishment with those who have experienced either no corporal punishment or only mild corporal punishment. Like the long-term follow-ups of children found by CPS to have been maltreated, these studies also reveal that physically maltreated children are likely to suffer numerous adverse outcomes, including being arrested for violent as well as nonviolent offenses, dropping out of school, becoming a teenage parent, and being fired from employment.188 These outcomes hold across cultural groups and family contexts, suggesting a fairly universal adverse impact of the experience of physical abuse.189
In sum, scientific findings have established that the experience of corporal punishment has consequences for the child. For mild and normative levels of corporal punishment, these consequences may include, on the positive end, immediate compliance with parental commands and, on the negative end, increased anxiety, aggressive behavior, decreased academic success, and lower self-esteem.190 The cost–benefit ratio of these consequences seems adverse to some observers but acceptable to others. In this society and according to the law, the decision about the acceptability of this parental behavior rests with the parent under the principle of parental autonomy to the extent that the consequences, on average, do not exceed the threshold that would lead to functional impairment. Depending on the severity, chronicity, or context of corporal punishment, however, parental behavior can also harm the child, including to the level of functional impairment, and that thus should be identified as physical abuse.
Except in obvious and very extreme cases, developmental science cannot guide the identification of specific parental behaviors that will lead inevitably to the child’s functional impairment. It cannot be concluded, for example, that six swats to the buttocks will lead to impairment but four will not, or that one swat to a two-year-old will lead to impairment but several swats to a seven-year-old will not. The problem is not only that prediction is probabilistic; but a confident prediction comes also from understanding the meaning of the behaviors rather than the behaviors themselves.191 Here, developmental science can be informative. Corporal punishment is likely to lead to functional impairment to the extent that the child (even a toddler or infant) experiences and interprets the parent’s actions as rejecting, hateful, or threatening.
Guidelines for the decisionmaker come from features of both the parent’s behavior and the child’s reaction. Parents’ corporal-punishment behaviors are relatively likely to lead to the child’s functional impairment if the punishment is committed in the heat of anger or out of control (such as alcohol-induced behavior); if it communicates rejection of the child (as when accompanied by hateful words); if it is intentionally cruel, not embedded in a broader relationship of trust and security between parent and child, or if not obviously intended to help the child learn a specific lesson; if it indicates no understanding of the child’s ability to receive the message of the behavior; or if it is not preceded by the child’s misbehavior.
On the child’s end, parental corporal-punishment behaviors are relatively likely to lead to functional impairment if the child experiences fundamental attachment insecurity (indicated by overdependence, avoidance, or dissociative behaviors), if the child indicates a strong fear of being alone with the parent, or if the child communicates feeling hated or rejected by the parent. Although being fearful of corporal punishment itself is not sufficient to constitute a functional impairment, a resulting disruption of the child’s secure attachment to a parent is. Of course, children sometimes lie or fail to communicate clearly, and so clinical judgment by a skilled professional may be particularly helpful to this process.
In the end, the decision whether a parent’s behavior constitutes physical abuse may be best construed as a judgment by a scientifically informed expert. This judgment is not arbitrary, however, and can be made based on the meaning that the behavior communicates to the child and the meaning that the child makes of the pattern.
IV. Reconciling Norms and Knowledge and Proposals for Policy Reform
This article began with the premise that modern child-abuse definitions have three negative effects that require periodic reconsideration: (1) The definitions fail to fulfill the expressive or signaling function of the law; that is, they fail to give meaningful guidance to the relevant legal actors. (2) The definitions yield inconsistent case outcomes. And (3) they risk unacceptable errors, including both false-positive and false-negative findings of maltreatment. Part II elaborated on these points, describing what is known about where and how legislatures, CPS, and the courts draw the line between reasonable and unlawful corporal punishment. Part III described the normative and scientific assumptions that sometimes operate in tandem and sometimes compete for primacy as this line is drawn, in particular by the courts and CPS. This last part begins with an argument for reforms to ameliorate the negative effects of modern child-abuse definitions that reflect both parental-autonomy norms and scientific knowledge, and follows with specific suggestions for policy reform.
A. An Argument for an Intentional Reconciliation of Norms and Knowledge
Law governing where and how to draw the line between reasonable corporal punishment and abuse ought to reflect a reconciliation of parental-autonomy norms and scientific evidence about the circumstances that cause children real harm. These two paradigms together should govern the development of the operative legal definitions and process because, separately and at times in combination, they are the approaches currently used by the relevant legal actors. In contemporary American society, which values both parental autonomy and healthy child development, it makes good policy sense to respect parents’ decisions about disciplining their children and to permit intervention in the family only when children are harmed or in jeopardy of harm. Moreover, intervention in the family itself causes or risks harm to children and families and thus ought to be avoided unless supported by reliable indicia that intervention will do more good than harm.192
Reconciling these paradigms should not be ad hoc or based on intuition or presumed knowledge. Rather, it ought to be intentional: parental-autonomy norms should take primacy when they are firmly entrenched in legal theory and doctrine. Conversely, they should yield when they are not so entrenched and when relevant and reliable scientific evidence indicates that deference will cause real harm to children. Relevant and reliable scientific evidence should take primacy over personal opinions, whatever their basis. And such evidence should otherwise be treated consistently with evidence law generally, as being both admissible and useful to the evaluation of individual cases. Our proposal for policy reform is thus based on the framework of parental autonomy and calls for scientific evidence to be introduced within this framework.
Consistent with this intentional reconciliation of evidence and norms, we propose that the line between reasonable corporal punishment and abuse be drawn at the point—which we acknowledge will be blurry at times—where valid evidence, based in the scientific literature or current case circumstances, indicates that parental conduct has caused or risks causing functional impairment.193 With this criterion, we reject concern for parental behavior that would prevent an average-functioning child from achieving a higher level; we concern ourselves only with parental behavior that causes or risks disability or impairment. This standard—as opposed to a weaker or stronger. one—is appropriate because it best balances the society’s respect for parental autonomy and science’s findings about when children are actually harmed by corporal punishment. Specifically, it is consistent with long-standing parental autonomy and corporal-punishment law, which draw the line of impermissibility at assaults that are either not in the child’s best interests or that will accomplish the opposite of the goal of the corporal-punishment exception—securing the child’s future as a law-abiding and otherwise successful child and citizen.194 Notably, the rationales underlying the traditional corporal-punishment exception focus on the child’s intellectual and emotional development, not on the child’s physical well-being. Indeed, these rationales assume that physical punishment can positively affect intellectual and emotional development. In evaluating the reasonableness of corporal punishment, many decisionmakers prefer to focus exclusively on the immediate physical impacts of corporal punishment and to ignore or minimize emotional and developmental ones. Doing so, however, is antithetical to the purposes of the exception. The functional-impairment standard is also consistent with CPS’s role in the line-drawing process, which—the views of some professionals to the contrary—is to balance the harm that parents are or may be causing their children against the harm risked by intervention, and to penetrate the boundaries of family privacy only when there is good reason to believe that the former is more weighty than the latter.195
B. Suggestions for Policy Reform
Consistent with this argument, policy reforms that can ameliorate the three negative effects targeted by this article—the failure of existing law to satisfy its expressive function, inconsistent outcomes, and a risk of false-positive and false-negative findings of maltreatment—include changes to the structure of some child-abuse statutes and clarification of their included terms. Some of the following recommendations reflect existing best practices in statutory language and court or CPS practice. Others reflect a rejection of existing practices or the development of alternatives that better conform to the premises underlying the corporal-punishment exception and the scientific evidence that supports the resolution of individual cases. The model corporal-punishment provision concluding this section demonstrates how the recommendations can work together to provide the relevant legal actors with a systematic approach to drawing the line between reasonable corporal punishment and abuse that reconciles parental-autonomy norms and scientific evidence.
1. Structure
Corporal-punishment exceptions to child-abuse provisions should be made to track the common-law privilege; that is, the exception should be available for discipline only, and then only for force that is reasonable.196 The two-pronged standard makes better policy sense than approaches that focus or appear to focus only on the reasonableness of the force used because it is the most accurate and thus most helpful statement of the applicable law, and because it emphasizes (or brings into the equation) the oft-forgotten threshold condition for the privilege: that it is ultimately in the child’s interest that the force be used.197 Conversely, this standard makes clear that the privilege does not apply in circumstances that are not in the child’s interests, for example, when a parent lashes out maliciously or without motive or reason. 198 In other words, when the discipline condition is not met, the parent has committed abuse and, in the civil or criminal context, an unprivileged assault or battery. Notably, the merits of this traditional doctrine are reinforced by scientific findings that children are more likely to suffer functional impairments from moderate corporal punishment when they do not perceive a legitimate disciplinary motive.199
2. Burden of Proof
The state should have the burden of alleging and proving that a parent has abused a child. Parents suspected of child abuse who believe that their conduct is appropriately protected by the corporal-punishment exception are responsible for raising this claim and for producing some supporting evidence, including specific evidence tending to show that discipline was appropriate and that the force used was reasonable in the circumstances. When a parent does so, the state has the specific burden of disproving the parent’s claim.
Placing the ultimate burden on the state is appropriate for three reasons. First, regardless of whether the common-law right to use reasonable corporal punishment as a means of discipline is also a constitutional one, it is undoubtedly true that society places a premium on parental autonomy and family privacy, and that the strong expectation of the citizenry is these rights will not be violated by the state without a very good reason. Additionally, and again regardless of the constitutional status of the right to use corporal punishment, most child-maltreatment investigations implicate constitutional limits on state searches and seizures, including the requirement that the state establish a likelihood of maltreatment before it intervenes.200 Second, most CPS investigations result in a finding of no maltreatment. At the same time, the investigations cause or risk causing at least some emotional harm to the child and family.201 Incentivizing the state’s consideration of these concerns before it intervenes in the family should help to reduce the harm caused or risked by unnecessary interventions. Third, as a practical matter, most parents do not have the knowledge or resources necessary to prove the standard proposed below, particularly the second prong: that the corporal punishment at issue does not cause functional impairment. The state, on the other hand, could more easily marshal this evidence given its expertise; furthermore, the evidence would mostly be reusable in its other and future cases.
Formalizing the requirement that parents raise the corporal-punishment exception and provide some supporting evidence as to both prongs of the standard is appropriate within this context because parents would be reminded that the right to use corporal punishment is a special privilege, an exception to the usual rule that assault and battery are impermissible. This requirement, in turn, is good for children and families because it forces parents to consider ex ante their decision and whether it conforms with the norms of the community or legal rules otherwise. Such ex ante examination—coupled with the choice to conform to community norms and legal rules—can reduce the number of cases brought to CPS’s attention, thus obviating potentially damaging intervention in the family. It can also reduce the incidence of functional impairment to children, since impairment is unlikely when punishment is normative and consciously considered by parents for the express purpose of teaching the child in a context of a warm parent–child relationship.202 It is particularly important for parents and other legal actors to know, in advance of their actions, that the scope of the privilege to use corporal punishment is not self-defined; rather, precisely because it is a privilege based in common-law doctrine that itself refers to community norms, those norms will influence when others choose to report, when CPS chooses to intervene, and, if the courts do get involved, how they resolve the case.203
Finally, it is important to acknowledge the inevitable tension between laws that are based in community norms and the nonconforming practices of minority members of the community. In the context of this article, the law currently permits “reasonable” corporal punishment, reasonableness traditionally being defined according to community norms.204 This law is and has always been problematic for those in the community whose norms diverge, for example, because of differing religious or cultural beliefs. The difficulty will likely be exacerbated in the future, as community norms about the reasonableness of corporal punishment evolve increasingly to restrict its permutations and use.205 Our proposal to make functional impairment the basis for line-drawing between reasonable corporal punishment and abuse should ameliorate this problem. That is, although the normativeness of corporal punishment would continue to play a significant role in the analysis, the weight associated with this factor would be systematically checked by evidence of actual harm to the child. Thus, for example, the state would be unable to prove abuse if it could not prove functional impairment. The state’s assumptions about the unusual being bad would, in such a case, be proven incorrect. Of course, regardless of the normativeness of the practice, abuse would be found on evidence of functional impairment. 206
3. Explanation of the Discipline Requirement
The first prong of our proposed two-pronged corporal-punishment rule requires an evaluation of the propriety of discipline in the circumstances. The propriety of discipline should be judged objectively; that is, the decision that the circumstances preceding the use of force required discipline must have been a reasonable one. We contemplate that reasonableness in these circumstances is, as it always is in the law, either a factual finding about the acceptability of the decision according to community norms, or, in the alternative, a legal ruling about what the community’s norms ought to be.207 In doing so, we reject a different approach that would defer to parents on this question, because such deference is ultimately a statement that a disciplinary purpose is not really a condition of the exception.
In the vast majority of cases, the parent’s decision that discipline (or some form of parental intervention) is warranted will be acceptable to the court, so the discipline prong will not often be contested. The court will likely accept the parent’s decision because most parents who use corporal punishment are not malicious, uncaring, or acting in complicated developmental circumstances, and because most cases that come to the attention of the authorities involve a child who has transgressed in some way that the community would agree warrants discipline. The only question in these cases, then, is whether the force used was reasonable.
Formally establishing the requirement that discipline be warranted remains essential, however, to addressing those infrequent instances when parents do act out of malice or a lack of caring, as well as those circumstances in which a child or category of children cannot benefit from and may even be significantly harmed by the disciplinary effort. Examples of the latter include infants and some special-needs children who, because of their level of brain development or pathology, simply cannot make the connection between their conduct and the physical force that follows. This inability to understand cause and effect is significant because children may become functionally impaired as a result of even moderate levels of corporal punishment that they cannot understand as being for their own good.208 Perhaps the most well-known example of the use of science in this context is SBS.209 Without a formal construct in which to argue that discipline is appropriate (reasonable or unreasonable) in the circumstances, the relevance of such evidence may not be apparent to the maltreatment inquiry.
Several states have chosen to codify the common-law standard as we suggest, as a two-pronged test requiring that accused parents establish both a disciplinary motive and the reasonableness of the force used.210 As to the first, disciplinary prong, some states require a finding that discipline be reasonable in the circumstances, whereas others require a finding of necessity.211 The necessity standard places a much higher burden on parents: it is literally the difference between having to establish that the community would or should find a particular discipline acceptable and that the community would or should find such discipline necessary.
For the following reasons, we strongly suggest adoption of the reasonableness standard. First, the need for discipline in many instances is a judgment call whose merits cannot be established with precision, perhaps particularly by outsiders to the family. Unlike the necessity standard, the reasonableness standard permits the fact-finder to defer to parents’ judgment so long as it is within the range of acceptable decisions. Second, society continues to support parents’ right to use corporal punishment, ensuring that normative discipline—discipline that meets the reasonableness standard—generally will not cause functional impairment. Third, the necessity standard risks unnecessary and potentially harmful interventions in the family, an effect that designers of maltreatment law ought to avoid whenever possible.
4. Explanation of the Requirement that the Force Used Be Reasonable
The second prong of our proposed two-pronged corporal punishment requires an evaluation of the reasonableness of the force used. If the state can prove that the use of force in the circumstances was unreasonable, it has established that child abuse occurred. The basis for evaluating this second prong ought to be whether what the parent has done has caused or risks causing functional impairment.
Again, functional impairment refers to short-term, long-term, or permanent impairment of emotional or physical functioning.212 Scientific evidence about which parenting behaviors lead to functional impairment supports the formal incorporation of several factors into this aspect of the reasonableness inquiry: the severity of the physical injury that results from parental conduct; whether the parent’s conduct is normative; the proportionality of the conduct in relation to the child’s transgression; the manner in which the punishment is administered, which includes consideration of the location of the child’s injuries and whether any objects were used; chronicity, meaning the frequency of the corporal punishment; and transparency and consistency, or whether the child knows the rules that will result in punishment and whether the parent administers those rules non-arbitrarily.213 Aside from the severity criterion, all of the factors force examination of the context in which the corporal punishment occurs and of the child’s reaction to that context.214 Depending upon the circumstances, any one of these factors alone or two or more factors in combination might suffice to characterize parental conduct as unreasonable. For example, a one-time incident in which a parent strikes a child so hard that a bone breaks will be severe enough on its own to cause or risk causing functional impairment, so there would be no need to establish the existence or weight of the remaining factors. Conversely, moderate (more than mild, less than severe) corporal punishment will generally be insufficient on its own to cause functional impairment; only if it is coupled with other factors—for example, a lack of proportionality, transparency and consistency, or chronicity—can moderate corporal punishment be predicted to cause functional impairment.
Although all of these factors play a potentially significant role in the analysis of individual cases, the question whether the manner and degree of punishment is normative is relevant in all cases. Nonnormative corporal punishment is more likely than normative corporal punishment to result in functional impairment.215 Thus, if an incident of corporal punishment is normative, it is and ought to be less likely to result in a finding of abuse, and vice versa. Of course, some nonnormative behavior will neither cause nor risk functional impairment and some normative behavior will cause or risk causing functional impairment. Some religiously motivated corporal punishments may fall into the former category, and SBS is (again) a good example of a practice that falls into the latter. In such cases, normativeness should not be determinative.
Normativeness is already central to how reporters, CPS, and judges decide reasonableness; such actors are more likely to view what is unusual to or different for them (based on community culture or personal orientation) as abuse—indeed, in some jurisdictions, it may be the predominant criterion.216 Abnormality is also an empirical criterion, in that norms are defined by the rate of use in a particular culture or society.217 Using empirical data as a check on personal views or current practices can reduce the incidence of ad hoc “know it when you see it” fact-finding, and thus standardize what is and is not considered normative, at least within individual communities or jurisdictions.218 Entirely apart from its usefulness to reduce ad hoc fact-finding, this particular use of scientific evidence is important because what is normative in terms of corporal punishment is rapidly shifting, and as a result, practitioners may not be as aware of actual current normative practice as they believe they are. Empirical knowledge about changes in social norms and parenting practices is becoming more readily available and should be communicated to practitioners, lawyers, and judges regularly.
A problem in the implementation of the normativeness criterion is that the frequency and tolerance of corporal-punishment practices varies across jurisdictions, cultural groups, and time. Parents employ different corporal-punishment practices across the world. Spanking with a bare hand across the buttocks is relatively common in the United States, whereas in other cultures, different practices are relatively common, such as beating with a stick, “coining” a child by rolling a hot coin across the back, and forcing a child to swallow hot peppers.219 Practices vary across jurisdictions even within the United States. Corporal punishment itself is more common in the South than the North, among African American families than European American families, and among lower socioeconomic-status families than middle- and higher-status families.220 Also, religious cultural groups may encourage or discourage specific practices, creating the possibility that a parent will find the use of a corporal-punishment practice to be normative within a narrow religious culture even though it is unusual in the broader society. Further, cultural norms have changed across generations. Parents sometimes defend their corporal-punishment practices based on the family norm they experienced growing up, even in the face of a contemporary societal prohibition.221 Defining a parental practice as “reasonable” based on cultural normativeness is complicated by these varying norms. Without specific statutory guidance, CPS and the courts must decide which cultural norm to apply (from that of the society at large, the individual’s actual familial or cultural frame of reference, or the norm to which the judge aspires for the society) when determining the reasonableness of a particular disciplinary incident.
Resolving how a legislature ought to define the reference community for the purposes of establishing the normativeness of a particular manner or degree of corporal punishment is beyond the scope of this article. But we encourage serious consideration of the question, and in particular, a focus on the different implications of a decision to base normativeness on the views of the broader community in which the family lives or on those of the family’s particular community—the immediate or extended family, including its affiliations, religious and otherwise. Specifically, a decision to base normativeness on the views of the broader community would assure that all children and families are treated similarly under the law, an outcome consistent with equal-protection doctrine and the antidiscrimination norms at its foundation.222 It would also mean, however, that at least in some cases—particularly those involving younger children who are still members only of their parents’ world—the maltreatment finding would be based on a larger group norm that is in fact nonnormative for the child. In other words, the law would create the fiction that the parent’s conduct was nonnormative when, for that child, it would be precisely the contrary. Because it is the child’s perspective on normativeness that matters for purposes of functional impairment, application of this rule to children in this category would be inconsistent with their welfare. In contrast, basing the normativeness finding on the parents’ particular community would assure that the finding is consistent with the child’s point of view—and thus a better predictor of functional impairment—but only so long as the child is too young to be or does not choose to be a member of the broader community and a beneficiary of its different norms. Ultimately, we believe that defining normativeness must depend on the political culture and practical resources of the state or locality responsible for defining the standards by which abuse will be judged. 223
Finally, although lists of illustrative violations in statutory definitions and CPS protocols may help to reduce parents’ and reporters’ concerns about the breadth and vagueness of typical child-abuse definitions, the listed behaviors do not necessarily correspond with harm or functional impairment. For example, a parent’s choice to hit a child on the face or to put pepper in a child’s mouth might trigger scrutiny and even substantiation according to an illustrative list in a particular state or county, 224 but may not result in harm if other criteria such as severity or chronicity are absent. Illustrative lists may thus cause a mixed bag of outcomes that are good—increasing predictability and consistency—and bad—intervention in the family that is unnecessary to protect a child from harm. Because they do some important good, however, and because their contents often reflect nonnormative parenting, either in fact or aspirationally, we do not suggest that they be eliminated. Rather, we encourage their treatment as potentially contributing to rather than as automatically dispositive of the line between reasonable corporal punishment and abuse.
5. Evidence
Standard evidence law applicable to judicial proceedings provides that “all relevant evidence is admissible”; “relevant evidence” means “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”225 This law further provides that
if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied principles and methods reliably to the facts of the case.226
Although the line between reasonable corporal punishment and abuse is drawn initially by CPS and only sometimes and subsequently in a judicial proceeding, the practice required by and principles underlying these rules ought to apply throughout the process. Both CPS and the courts ought to consider all relevant evidence as they make findings in individual cases, including but not limited to reliable scientific evidence.
The line between reasonable corporal punishment and abuse is not fixed or easily identified, particularly in cases at the margins. No scientific or case evidence can identify with absolute accuracy the precise point at which corporal punishment becomes abuse. Nevertheless, more consistent and accurate results can be achieved if CPS and the courts have access to, understand, and use as much relevant and reliable evidence as possible. This evidence includes empirical findings about community norms and practices from both lay witnesses and survey experts, as well as scientific evidence that describes the contexts that cause children to suffer functional impairments.227 This evidence should be used to evaluate both the reasonableness of discipline and the reasonableness of the force used—in other words, to evaluate the merits of both prongs of the corporal-punishment standard. Thus, in order to fulfill their professional obligations, case workers, prosecutors, and judges should be regularly educated about the status of scientific evidence in child abuse and be trained to interpret that evidence.
CPS appears in general to be much more comfortable than the courts with a variety of evidence, including with scientific evidence. What is not clear, though, is whether those agencies and professionals that incorporate emotional and developmental consequences into their assessments are using only valid scientific evidence about those consequences. At least some case workers appear to be using a combination of valid evidence, intuition, or presumed knowledge about the nonphysical sequelae of physical injuries. In addition, in their eagerness to help children exposed to what they perceive to be suboptimal conditions, at least some workers appear willing to classify as abuse incidents and injuries that have not or are unlikely to cause functional impairment. Considering emotional and developmental consequences is essential to the analysis, but it is also essential that these consequences be legitimate and serious. CPS ought to be required to use only that evidence from laypersons and experts that meets rigorous validity standards.
Courts appear less likely than CPS to be comfortable with scientific evidence that is not related to the medical facts surrounding a particular physical injury. In particular, courts and the lawyers practicing before them sometimes appear uninterested in or uncomfortable with scientific evidence about nonphysical sequelae. To some extent this discomfort is due to the exclusive focus of statutory abuse definitions—either in plain text or as interpreted by other courts in the jurisdiction—on the child’s physical injuries. Separately, however, it appears that judges and lawyers do not know what to make of CPS’s claims about emotional and developmental evidence. This uncertainty may be based on their sense that this evidence lacks the indicia of validity necessary in judicial proceedings, or because the law traditionally struggles with claims about emotional damage, both inside and outside of the maltreatment context.228 Whatever the case, requiring relevance and validity consistent with the rules of evidence, and making clear the doctrinal contexts in which the evidence is to be presented, is essential to its acceptability and utility for these legal actors.
The requirement that practitioners, lawyers, and courts use valid scientific evidence to decide whether cases involve reasonable corporal punishment or abuse necessarily implicates the need for experts to be part of the process. This, in turn, raises the question whether our approach is realistic given the system’s already-limited human and financial resources. We acknowledge that scientific expertise is not free and thus that our proposal will introduce new costs into the system. At the same time, we suggest that these costs are worth bearing if they can fix the problems inherent in the current process, specifically its tendency to produce inconsistent and erroneous outcomes. Like other evidence, once certain scientific facts are accepted and established, they will be admissible or judicially noticed without the involvement of costly experts, thus ensuring that whatever costs are added are reduced over time. Moreover, adoption of this proposal should result in some cost savings—for example, by forcing CPS to concentrate its resources more narrowly on the cases involving functional impairment—that will offset some if not all of the cost increases. In other words, we believe that our approach is both necessary and realistic, the latter particularly if policymakers are willing to view the additional costs in their broader context.
6. Model Corporal-Punishment Provision
The following model corporal-punishment provision is based on the structure and principles articulated above. It is designed to be used in the civil child-maltreatment context. However, with some modification, its terms may also be applicable to criminal maltreatment investigations and proceedings. Because it substantially mirrors the common-law tort standard and is otherwise consistent with standard evidence law, it also can be applied in that setting. Although these three areas of law have some different objectives and concerns, there is merit to a jurisdiction’s considering adoption of a single unified rule, as doing so would send a consistent message to the relevant legal actors—including parents, CPS, and judges—about the state’s position on corporal punishment. This single rule, in turn, would potentially reduce the number of incidents in which children were injured in the disciplinary setting and, correspondingly, the number of interventions by the state in the family.
Model Corporal-Punishment Provision
- A nonaccidental physical assault on a child is child abuse unless it is privileged or excused.
- Privileges and Excuses
- The Privilege of Reasonable Corporal Punishment. A parent is privileged to use physical force to discipline his or her child so long as
- he or she is reasonable in determining that the child’s behavior warranted discipline, and
- the force used is reasonable in nature and moderate in degree. Force is reasonable in nature and moderate in degree if it does not cause or risk causing functional impairment. Functional impairment means short- or long-term or permanent impairment of physical or emotional functioning in tasks of daily living.
- The “De Minimis” Exception. A parent who does not have a reasonable disciplinary motive for his or her conduct but who does not cause his or her child more than minimal harm will not be charged with child abuse.
- Burden of Proof. A parent charged with assaulting his or her child bears the burden of asserting and producing some evidence to support the assertion that the assault was privileged or excused. When a parent meets this burden, the state is required to prove that the assault was not privileged or excused.
- Evidence
- Any evidence is admissible and should be considered in the evaluation of individual cases that is relevant to establishing that
- an assault occurred or did not occur;
- discipline was or was not appropriate in the circumstances;
- the force used was or was not reasonable in the circumstances; and/or
- any harm caused to the child was or was not within the de minimis exception.
- Relevant evidence includes, among other things, evidence of traditional parenting practices and scientific evidence (both medical and social-science evidence) that is proffered to provide assistance to the court in understanding the effects of discipline and force in the circumstances.
IV. Conclusion
Notwithstanding efforts in some states to narrow their scope, legal definitions of abuse and neglect continue in general to be broad and vague. Among other things, this means that the line between reasonable corporal punishment and abuse itself tends to be ill-defined. This ambiguity has been rationalized primarily on the ground that the state needs flexible definitions to ensure that it can act to protect children from maltreatment in whatever form it may appear.
Although flexibility is certainly a valid concern, an important ancillary effect is that this ill-defined standard abdicates to the relevant legal actors—parents, reporters, CPS professionals, and the courts—the job of defining maltreatment, and thus also the boundaries of reasonable corporal punishment. Not surprisingly, each of these definers is constrained differently, if not by formal rules, then by cultural, political, religious, and professional training. Parents and lay reporters typically operate on a “know it when you see it” basis, whereas CPS professionals and courts are somewhat, but not ever entirely, constrained in this exercise by the norms of their respective disciplines, social work, and law. Thus, current law fails to give useful guidance to its intended audience, and it provides for inconsistent case outcomes and an unacceptable risk of both false-positive and false-negative errors.
The line between reasonable corporal punishment and abuse will never be exact. But the states can do a much better job of constraining decisionmakers to ensure both that they are only targeting parental behaviors and outcomes for the child that justify intrusions on family privacy, and that these circumstances are consistent and publicly accessible. To these ends, this article contributes to the literature on the subject of broad and vague abuse definitions in law and the social sciences by proposing a legislative solution to the problem of where and how to draw the line between reasonable corporal punishment and maltreatment that is grounded in long-standing parental-autonomy norms and informed by the science that teaches when and how children suffer harm.
Specifically, it proposes the adoption of a standard for reasonable corporal punishment that requires both a reasonable disciplinary motive and reasonable force, and it defines reasonableness according to both normative understandings and scientific evidence of capacity and functional impairment. As a theoretical matter, this standard reflects appropriate recognition of the societal significance of parental rights and responsibilities and permits intervention in the family only when there is evidence of important physical, emotional, or developmental harm to the child. And as a practical matter, it continues to provide the state with the flexibility necessary to target even unusual forms of maltreatment, while simultaneously clarifying the circumstances that will and should trigger state action. This, in turn, should result in more consistent case outcomes as well as fewer false-positive and false-negative findings of maltreatment.
References
[t]here are no fixed rules to govern our judgment. There are simply matters of which we can take account … Many things contribute to the spread of the conflagration—the force of the wind, the direction and width of the streets, the character of intervening structures, other factors. We draw an uncertain and wavering line, but draw it we must as best we can.
Id. The decision where to draw the line between reasonable corporal punishment and maltreatment has been described similarly. See, e.g., interview by Kenneth Dodge and Doriane Coleman with a CPS director, Durham County, N.C. (Feb. 16, 2009) (on file with L & CP) (expressing disagreement with the idea that a continuum spans reasonable corporal punishment and abuse because this suggests, erroneously, that there is a single place where professionals draw the line; explaining that a complicated set of factors must be considered instead and that even using these factors, “rough cuts” still need to be made in certain cases; and noting that these involve subjectivity and common sense on the part of the professionals involved).
[A] legal system that shows strong deference to parents’ child-rearing decisions serves children well. Parents’ strong emotional attachment to their children and considerable knowledge of their particular needs make parents the child-specific experts most qualified to assess and pursue their children’s best interests in most circumstances. In contrast, the state’s knowledge of and commitment to any particular child is relatively thin. A scheme of strong constitutional rights shields the parent expert from the intrusive second-guessing of the less expert state.
“Parental” Rights, 88 Va. L. Rev. 635, 647 (2002). See also Davis et al., supra note 10, at 1 (noting that the arrangement established under the doctrine of parental autonomy is “assumed … [to] serve both the interests of children and of society”).
No question is raised concerning the power of the state reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.