*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 § 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/.
 This funny-looking symbol, “§” means “section.”