"When you know better, you do better," said the modern-day poet and philosopher Maya Angelou, putting her finger on what remains a near-universal truth about human development. But in applying it to child rearing - or, more specifically, the burden of teaching children to learn from their mistakes - it's pretty much a foregone conclusion that in much of the world, some measure of physical discipline - often what is termed "an old-fashioned spanking" - will take place.
Even still, Adrian Peterson, the Vikings running back, managed to shock the world last week when he was indicted for disciplining his 4-year-old son with a "switch," a flexible stick or tree branch. Public reaction to the indictment has varied throughout the United States, depending on the region and age demographic of those polled, but with most respondents (and even media commentators) pointing out that they, too, were spanked, hit with a switch or suffered some form of corporal punishment in their youth.
Corporal punishment used to be far more common and acceptable, but the laws have a great deal in recent years to keep up with public sentiment regarding the method.
For the most part, parents have the legal right to raise their children the way they see fit to do so. Most state courts have stated as much, and have even included the use of discipline as a part of that right. For example, in 2012 the Hawaii Supreme Court unanimously opined that "the right to discipline is...inherent in the right of care, custody, and control of one's children" (Hamilton v. Lethem. No. SCWC 27580).
The question for the courts throughout the rest of the United States, and what will ultimately need to be decided in the Peterson case, is two-pronged: what is the meaning of the word discipline, and what constitutes child abuse?
Peterson was indicted in Texas under Section 22.04 of the state's Penal Code, which makes it a crime to intentionally, knowingly or recklessly cause a child serious bodily injury. However, under Chapter 261 of the Texas Family Code, the law specifically excludes reasonable discipline from the definition of child abuse. Peterson's defense team, therefore, will likely focus on two points: the fact that he did not intentionally cause his child serious bodily injury, and that his method of discipline was reasonable.
Unfortunately for him, the courts have recently found that while spanking with an open hand may be considered reasonable, the use of a belt - and, arguably, a switch - may not be. For example, the New York State Appeals Court ruled in July that a father used reasonable force when he spanked his 8-year-old son. Further, the Appellate Division opined that the spanking "did not constitute excessive corporal punishment," but it seemed to imply that, had a belt been used, the ruling might have gone down differently.
Legislatures across the country are currently weighing in on the argument. In 2012, Delaware became the first state to pass a law making spanking illegal. Under that law, parents who inflict pain on a child less than 3 years old are committing a felony, which carries a penalty of up to two years in prison; likewise, those who do so regarding children over 3 years old are committing a misdemeanor that carries a penalty of up to one year in prison. Recently, Gail Finney, a Democrat from the Kansas House of Representatives, introduced House Bill 2699, which would allow parents and other caregivers to use "up to 10 forceful applications in succession of a bare, open-hand palm against the clothed buttocks of a child." If the bill becomes law it will effectively do away with the common standard of "reasonable" discipline to either make spanking legal or illegal, depending on the state.
There's no doubt that children need to be disciplined and spanking is a common method for doing so that gets carried out around the world. But when spanking goes too far, parents are the ones who need to be punished. And that takes us back to Maya Angelou: "When you know better, you do better." That's true for children, but it's even more true for parents.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heather is also a national television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
