*NOTE: Utah Family Law, L.C., does not support or condone the abuse of children. Duh. We do, however, recognize parents’ constitutional right to rear and discipline their children within the confines of the law.*
Remember when “getting a whipping” was a normal part of children’s vocabulary?
Consider Creflo Dollar, respected pastor of the Atlanta based megachurch, World Changers Church International. Dollar recently made national headlines when his youngest daughter called the police alleging that Pastor Dollar physically abused her by choking and hitting her. Pastor Dollar rebutted by stating that he wrestled her to the floor and spanked her only when she started hitting him.
Had Pastor Dollar been a Utah citizen, would he have been found to have gone too far?
First let’s be clear in stating that the courts in Utah recognize that parents have a constitutional right to rear their children as they see fit. Consider the following interpretations of the Constitution by the Supreme Court:
The fundamental liberty interest of natural parents in the care, custody, and management of their child is protected by the Fourteenth Amendment. Santosky v. Kramer, United States Supreme Court (1982).
The liberty interest at issue in this case – - the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court. Troxel v. Granville, United States Supreme Court (2000).
It is well settled that, quite apart from the guarantee of equal protection, if a law “impinges upon a fundamental right explicitly or implicitly secured by the Constitution it is presumptively unconstitutional.” Harris v. McRae, United States Supreme Court (1980).
Notice that the Court doesn’t give any parameters or guidelines as to the government’s role in the parent/child relationship.
If the government recognizes a fundamental liberty interest in parents rearing their children as they see fit, why would the police come and intervene when Pastor Dollar’s daughter called them?
It’s important to keep in mind that Pastor Dollar’s children are also protected by the Constitution. They as individuals have a right not to be deprived of life, not to be maimed, or severely injured at the whims of another individual. US Constitution 14th Amendment.
That’s right parents: while you are well within your right to punish your children as you see fit, it should be obvious that there is a point where you can go too far. You may be surprised, however, to learn what “going too far” when it comes to Utah law.
The State of Utah carves out a defense from prosecution for child abuse “when the actor’s conduct is reasonable discipline of minors by parents, guardians, teachers, or other persons in loco parentis.” (See Utah Code §[1] 76-2-401 (1)(c)). The defense of justification under Subsection (1)(c) is not available if the offense charged involves causing serious bodily injury, as defined in Section 76-1-601, serious physical injury, as defined in Section 76-5-109, or the death of the minor. (See Utah Code § 76-2-401 (2)).
What constitutes serious bodily injury? Utah Code § 76-1-601 defines it as “bodily injury that creates or causes serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or creates a substantial risk of death.”
Serious physical injury is one that can seriously impair the child’s health; involves physical torture; causes serious emotional harm to the child; or involves a substantial risk of death to the child. Utah Code § 76-5-109. If you still are unsure of what this means, Utah Code § 76-5-109 goes into a detailed list of what constitutes serious physical injury:
- fracture of any bone or bones;
- intracranial bleeding, swelling or contusion of the brain, whether caused by blows,
- shaking, or causing the child’s head to impact with an object or surface;
- any burn, including burns inflicted by hot water, or those caused by placing a hot object upon the skin or body of the child;
- any injury caused by use of a dangerous weapon;
- any combination of two or more physical injuries inflicted by the same person, either at the same time or on different occasions;
- any damage to internal organs of the body;
- any conduct toward a child that results in severe emotional harm, severe developmental delay or intellectual disability, or severe impairment of the child’s ability to function;
- any injury that creates a permanent disfigurement or protracted loss or impairment of the function of a bodily member, limb, or organ;
- any conduct that causes a child to cease breathing, even if resuscitation is successful following the conduct; or
- any conduct that results in starvation or failure to thrive or malnutrition that jeopardizes the child’s life.
If Pastor Dollar’s case was to be heard in Utah instead of Georgia, he might have had justification available to him as a defense, just so long as his actions did not cause serious bodily or physical injury. If his actions caused two or more physical injuries (i.e. ANY bruises, contusions, abrasions, and lacerations Utah Code § 76-5-109(1)(e)(i)-(iv)) his actions may be bumped up from physical injury to “serious physical injury.” Thus, any justification for using corporal punishment as a defense against prosecution could potentially be void.
So what does this mean for you?
Just because you may have justification as a defense it doesn’t mean that you will be free from scrutiny and prosecution from the local authorities. You may have a defense if you were punishing your child in the normal course of parenting as long as you don’t cause serious physical or bodily injury as described above. Just remember how the Utah Code sets limits on the definition of permissible corporal punishment.
If you suspect you child is being abused by your spouse or another authority (e.g., school administers, clergy, daycare, extended family, etc.), you can call the Utah Division of Child and Family services at (855) 323-3237. If you feel your child is in immediate danger, call 9-1-1. For more information on child abuse, you can visit the Division of Child and Family Services website at http://www.hsdcfs.utah.gov/.
[1] This funny-looking symbol, “§” means “section.”
In light of the Judge Adams video,
We often hear from those who fight to uphold this practice for those under the age of 18 (even to the blaming of the social maladies of the day on a supposed “lack” of it), but we rarely, if ever, find advocates for the return of corporal punishment to the general adult community, college campuses, inmate population, or military. Why is that?
Ask ten unyielding proponents of child/adolescent/teenage-only “spanking” about the “right” way to do it, and what would be abusive, indecent, or obscene, and you will get ten different answers.
These proponents should consider making their own video-recording of the “right way” to do it.
Dear 18andsafenow@gmail.com:
Thank you for your comments, but with respect, they are hogwash. To assert that all forms of physical discipline of children constitute child abuse is nothing but shrill, extreme foolishness. Some parents may abuse their children in the name of child discipline, but that does not justify lumping all parents with the child abusers and denying all parents their rights to rear their children responsibly and as they choose.
Children should have a right to their bodies, and the right to say “No!”
Currently in the U.S.:
When an adult does it to another adult, its sexual battery:
http://hamptonroads.com/2011/12/va-beach-restaurateur-pleads-guilty-sexual-battery
When children do it to adults, its a “deviant sexual prank”:
http://www.theday.com/article/20101207/NWS04/101209750
When an adult does it to a person under the age of 18, its “good discipline”.
Research/recommended reading:
Spanking Can Make Children More Aggressive Later
http://tulane.edu/news/releases/pr_03122010.cfm
Spanking Kids Increases Risk of Sexual Problems
http://www.unh.edu/news/cj_nr/2008/feb/lw28spanking.cfm
Use of Spanking for 3-Year-Old Children and Associated Intimate Partner Aggression or Violence
http://pediatrics.aappublications.org/cgi/content/abstract/126/3/415
Spanking Children Can Lower IQ
http://www.unh.edu/news/cj_nr/2009/sept/lw25straus.cfm
Plain Talk About Spanking
by Jordan Riak
http://www.nospank.net/pt2010.pdf
The Sexual Dangers of Spanking Children
by Tom Johnson
http://nospank.net/sdsc2.pdf
“Spanking” can be intentional or unintentional sexual abuse
http://www.nospank.net/101.htm
There’s always a fine line between rearing your child and abuse. It’s always best to be on the precautionary side of things. I agree with the police.
Dear Chad Orlando:
Thank you for your comment.
No, there is not a fine line between child rearing and child abuse. People who want to equate parental discipline with child abuse make this “fine line” claim to fool and cow good parents into “erring on the side of caution” when all it really does is prevent good, responsible parents from utilizing physical discipline in an effective, lawful manner.
To say that you “agree with the police” only proves my point further. Police see some brutal, horrific child abuse. But that doesn’t mean physical discipline should be off limits. Such an argument is known as the logical fallacy of “appeal to the extreme.” Any behavior can be condemned by appeals to the extreme. For example:
1) Don’t eat because overeating leads to obesity and early death.
2) Don’t vote because you don’t want your choice to end up being an evil corrupt leader.
3) Don’t physically discipline your children because it can lead to child abuse.
Erring on the side of caution is often wise, but carried to extremes (as it is with the child abuse crowd), it causes parents to act out of fear rather than to act out of conviction, good sense, and a parent’s desire to do right by his child.
You cannot reason with some children, especially very young children. Sometimes the only thing they understand that will cause them to avoid a bad behavior is the threat of a spanking. My family recently visited Yellowstone National Park. I told my youngest he had to stay on the walkways, hold my hand, and not run because the geysers were unstable and scalding hot, and that if my son fell off the walkway he could be seriously injured. I think he understood, but within minutes he’d forgotten everything I’d told him, let go of my hand, and started running down the walkway. He got a spanking and a stern talking to. Not because I was angry. I feared for his safety. A spanking is something my son understood sufficiently to keep him literally on the strait and narrow until we left the geyser. Yes, my son moped the rest of the way, and that’s a shame, but he was now obedient and thus safe from harm.
Good parents of conscience can and should physically discipline children when the circumstances warrant or demand it. Don’t fall prey to the “physical discipline is all but indistinguishable from child abuse” nonsense.