How Is Spanking Still Legal?

I am not a lawyer; this article contains no legal advice. Note that I use single quotation marks for scare quotes, double quotation marks for verbatim quotes.

In a discussion about the punishment of children, somebody pointed out that corporal punishment is still legal. I searched online in disbelief, being sure I could refute his mistake. I had assumed the law was protecting children against this type of violence, at least on paper, and that many parents just failed to comply with the law.

But I was the one who was mistaken: shockingly, corporal punishment is still legal in all 50 states. What shocks me less, however, is that everyone commenting on the issue, including children’s rights advocates, completely misses the mark in their evaluation of this sad state of affairs, as evidenced by the responses to a particular court ruling.

The linked page references an article in The Boston Globe (BG) about the Massachusetts Supreme Judicial Court (SJC) overturning the assault-and-battery conviction of a father for spanking his two-year-old (!) daughter:

The SJC was ruling on a 2011 case involving a commotion at a […] bus terminal, where Jean Dorvil was walking with his daughter and her mother. According to police, Dorvil kicked his daughter in her backside while yelling “shut up,” and then spanked her. The officer said he saw the mother pick up the child to shield her, and that the child was crying and looked frightened.

The first person to miss the mark (apart from Dorvil himself, of course) is the judge who had originally convicted him of assault and battery. The decision was right, in my non-legal opinion, but for the wrong reason: the ruling written by Justice Barbara Lenk from the SJC quotes (p. 6) the judge as saying that “[i]f you’re in public with your kids, it’s not appropriate to discipline in this fashion.” Was he saying that the attack would have been fine if it had happened behind closed doors? Was he worried that onlookers might be offended? If so, that’s a social standard, so it couldn’t be objective.

Dorvil had appealed the judge’s decision; his appeal was denied. Good, but why? Because, as quoted by SJC (ibid.), “the child lacked the capacity to understand the discipline” and because Dorvil spanked her “when he was upset and angry and not in a calm and controlled manner, as required for parental discipline to fall within the reasonable force defense.” I grant that emotion precludes objectivity, if that’s what the judge meant, but he had already violated objectivity himself by referring to a social standard. And was he saying that attacking one’s daughter is fine as long as she understands why and as long as one is cold and calculated instead of angry? What kind of standard is this?

As BG writes, “[t]he SJC rejected that line of argument.” So do I, but for different reasons, and leading to the opposite conclusion. SJC argues (p. 14):

It is understandable that parents would be angry at a child whose misbehavior necessitates punishment, and we see no reason why such anger should render otherwise reasonable uses of force impermissible.

I disagree that “misbehavior necessitates punishment” because, among other reasons, parents can use their words instead of force. And calling it “misbehavior” tacitly accepts the authoritarian notion that the parent is always right, whereas in reality, parents are as fallible as everyone else. Also, the father is on trial here, not the child. But perhaps most importantly in this instance, I believe SJC likewise partly used a non-objective, ie wrong, standard for determining whether a given use of force is “otherwise reasonable”. At first, Lenk cites several conflicting legal precedents (pp. 6-9) which in turn refer to “reasonable” or “moderate” vs “excessive” force – in other words, they beg the question. But then Lenk, just like the previous judge, turns to a social standard, leading SJC to unanimously conclude spanking is a “parenting technique[] still widely regarded as permissible and warranted”.

It is, sadly, true that many people still approve of the legality of assaulting children: BG cites a report from 2013, only two years before SJC’s ruling, according to which report close to 80% of men and 65% of women think children may, at times, need a “good hard spanking” – and those are just the people who felt comfortable saying so, meaning the real numbers are higher. But a social standard cannot be objective because it is arbitrary: by that logic, ‘society’, popular opinion, what have you, could just as well demand the opposite decision, as I’ve written before. Case in point: the original judge and SJC came to opposite conclusions, even though both referred to a social standard. There’s a reason judges shouldn’t be swayed by popular opinion. Further, rights aren’t a popularity contest. And then there’s the issue that an appeal to social norms can be a trick to avoid accountability: it’s blaming ‘everyone else’ instead of taking personal ownership.

It is only after invoking this social standard, citing how “the long-standing and widespread acceptance of [corporal] punishment remains firmly woven into our nation’s social fabric” (p. 9), that SJC feels comfortable combining precedent (pp. 10-12) to define a three-pronged framework of acceptable use of force, ie “limited physical force” that is not “excessive in nature” – in other words, ‘reasonable’:

[W]e hold that a parent or guardian may not be subjected to criminal liability for the use of force against a minor child under [their] care and supervision […], provided that (1) the force used against the minor child is reasonable; (2) the force 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 (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress.

Observe the circularity of both (1) and (2) in referring to what’s “reasonable” while setting up a standard of reasonableness. Then note the self-contradictory nature of (2): aggressive violence against a minor cannot possibly “safeguard[] or promot[e] [his] welfare” but must necessarily harm it. Observe also that speaking of “the minor’s misconduct” makes it sound once more as if the child were on trial. In regards to (3), I believe SJC underestimates the effects of spanking, which absolutely include “severe mental distress” and other awful consequences (see below) – and anyone with a modicum of self-esteem would find being spanked grossly degrading, especially (but not only) in public. Also recall that “the child was crying and looked frightened”, as BG writes, which, when taken seriously, should meet SJC’s standard of mental distress. By its own criteria, SJC should not have overturned the ruling.

During the original trial, both Dorvil and the mother had conceded the spanking did occur because his daughter had “disobeyed his direction to go to her mother, and continued playing on the sidewalk near the street” (SJC’s ruling, p. 13). But Dorvil had denied kicking his daughter and telling her to shut up. The cops who had witnessed what had happened stated that he had indeed kicked his daughter, but the court had still concluded that there was insufficient evidence the kick ever happened. The district attorney’s office disagreed. BG quotes:

We respectfully disagree that there was insufficient evidence in the case, particularly where there was testimony the defendant kicked the child like a football.

Again, spanking is still widely socially accepted, whereas kicking would raise eyebrows even with staunch disciplinarians. Dorvil presumably relied on this social sanction when he admitted to spanking his daughter.

I disagree strongly with SJC that the use of force was reasonable, even if it was ‘only’ spanking. Authoritarians always downplay their violence, eg by claiming the child ‘won’t even remember’. No. Nobody, including, no, especially the parents, is to lay so much as a finger on a child. If the child was in danger due to her vicinity to traffic then the only appropriate amount of force would have been to pick her up and carry her to safety. I call this ‘force’ because it would have overridden her preference of remaining near the road; assuming she really was in danger, this is one of the few cases where it would be fine to disregard that preference. But that’s it. No violence or punishment whatsoever. I’m evaluating this concrete relative to the proper, objective standard for parental force I give in this article – in short, just enough to save the child in sufficiently dangerous situations. For the reasons stated in that article, in addition to the criticisms laid out above, I believe my standard is superior to SJC’s three-pronged approach. Note also that neither the BG article nor SJC’s ruling mention any traffic-related danger; they instead say Dorvil took issue with his daughter’s alleged disobedience. Violating Dorvil’s authoritarian sensibilities is decidedly not proper cause for force. On the contrary, disrespect for authority is a hallmark feature of rationality.

After the original trial, the district attorney’s office also missed the mark. BG quotes them as saying that they “have never opposed recognition that a parent should be permitted to use a reasonable amount of force, if necessary, to discipline or control a child.” Referring to “discipline” and “control” is not even trying to sound helpful or caring; it’s openly, brazenly authoritarian and enables people like Dorvil.

Even Jetta Bernier from Massachusetts Citizens for Children, a children’s advocacy group, misses the mark when disagreeing with SJC’s second of the three prongs, which, again, states that physical punishment is fine as long as it “reasonably relate[s] to the purpose of safeguarding or promoting the welfare of the minor”. She explains, as quoted by BG, that “[i]t implies that physical punishment can, in fact, support the welfare of children” – I agree it cannot; as I’ve said, it’s a contradiction in terms. But then she concludes: “I would object to that altogether. It doesn’t communicate to children what they did wrong and what they should do instead.” Her conclusion is technically correct – corporal punishment explains nothing and guarantees no particular behavior. But it isn’t this failure to induce behavior that makes it wrong. That’s still granting that physical punishment would be appropriate if it were effective. It wouldn’t.

Then there are the scientists who, as the original article says, find that “[t]he more you spank your children, the more likely they are to defy you and to develop issues including anti-social behavior and cognitive difficulties” (emphasis removed). Science can sometimes help convince people that even ‘light’ spankings are detrimental physically and ‘cognitively’ – hence my conclusion above that SJC underestimates the effects of physical punishment. But the quoted finding is still compatible with the false notion that children should obey. And again, what if the study had instead found that spanking does lead to obedience and improves social ‘behavior’ – would that make spanking appropriate? If not, why bother conducting such studies in the first place? And what does it say about the moral standing of children in society that our ethics have failed us to the point we need science to tell us, if only implicitly, that spanking is bad, though only because it’s counterproductive? In reality, such ‘studies’ scientize a moral issue. They’re on the same level as ‘studies’ showing that whipping a slave reduces rather than increases his productivity. His productivity isn’t the problem – his enslavement is.

But then there are the people who not only miss the mark but commit evil. Aside from Dorvil, that’s SJC. Recognizing parents’ alleged “privilege” to discipline children using “reasonable” force, SJC understands “the risk that the parental privilege defense will be used as a cover for instances of child abuse” (SJC’s ruling, p. 10). (Did it not occur to them that, if their three-pronged framework was wrong, this might have been such an instance?) They thus aim to find a middle ground between these two conflicting interests and rule in a way that, BG writes, “strike[s] a balance between parental rights and protecting children against abuse” (emphasis added). Martin Healy from the Massachusetts Bar Association commended SJC because, according to BG, “the decision carefully balanced parents’ constitutional right to raise their children as they see fit with the need to protect them against abuse” (emphasis again added). Observe both SJC’s and Healy’s failure to recognize spanking as child abuse; that what’s really being balanced, therefore, is the parents’ ‘right’ to abuse and the child’s right to freedom from abuse; and thus SJC’s and Healy’s failure to recognize this ‘balancing’ act as pure evil.

SJC added, I’m guessing to address any criticism preemptively (p. 15): “[T]he balance will tip in favor of the protection of children […].” Well, isn’t that nice. That puts detractors of this awful ruling in a tough spot because supporters can always say: ‘but see, the compromise eventually favors the children!’ In reality, the opposite is the case. Just ask yourself who benefitted from this ruling, the father or the daughter? And what does it say about parenting culture that a child’s freedom from abuse requires ‘balancing’?

An objectivist evaluation helps to understand why a ‘balance’ or middle ground of this sort is evil. Consider this passage from Ayn Rand’s Atlas Shrugged:

“There are two sides to every issue: one side is right and the other is wrong, but the middle is always evil. The man who is wrong still retains some respect for truth, if only by accepting the responsibility of choice. But the man in the middle is the knave who blanks out the truth in order to pretend that no choice or values exist, […] who dispenses justice by condemning both the robber and the robbed to jail, who solves conflicts by ordering the thinker and the fool to meet each other halfway. In any compromise between food and poison, it is only death that can win. In any compromise between good and evil, it is only evil that can profit. In that transfusion of blood which drains the good to feed the evil, the compromiser is the transmitting rubber tube.
   “[…] When men reduce their virtues to the approximate, then evil acquires the force of an absolute, when loyalty to an unyielding purpose is dropped by the virtuous, it’s picked up by scoundrels—and you get the indecent spectacle of a cringing, bargaining, traitorous good and a self-righteously uncompromising evil.

Or consider this passage of hers:

There can be no compromise on basic principles. There can be no compromise on moral issues. There can be no compromise on matters of knowledge, of truth, of rational conviction.

Or this one:

There can be no compromise between a property owner and a burglar; offering the burglar a single teaspoon of one’s silverware would not be a compromise, but a total surrender—the recognition of his right to one’s property.

Likewise, there can be no compromise between an assailant and his victim, even if (or especially when!) the assailant is the parent and the victim his child. There can be no ‘balance’ between a ‘right’ to abuse and a right to protection from abuse. Any cowardly attempt to strike such a ‘balance’ results in no balance at all but comes entirely at the cost of the victim, in this case Dorvil’s daughter. It would be the recognition of his (non-existent) right to violate her (moral if not legal) right to freedom from physical harm.

As Rand explains, there can be no such thing as a ‘right’ to violate someone else’s rights. That’s a moral standard, not a legal one, but I doubt a conscientious judge would have found it impossible to find a legal standard to avoid a compromise between good and evil in this case. On the contrary, SJC even cites such a standard (see below). And if courts can invoke arbitrary social standards, why couldn’t they invoke objective moral ones?

That brings me to the real reason parents shouldn’t spank their children, the one everyone I’ve mentioned failed to see: because it’s immoral and disgusting; because it’s an attack on the child’s personhood; because it has no place in an otherwise mostly civilized society. At its core, it’s a failure to recognize children as people in their own right.

The reasons SJC felt the need to ‘balance’ the parents’ ‘right’ to discipline and the child’s right to freedom from abuse are twofold:

1. SJC followed a popular but completely mistaken notion of what the parents’ proper role is. It is not that of disciplinarian or master. Children are not obliged, neither legally nor morally, to obey – that is to outsource their own thinking, in other words sacrifice their own judgment, to their parents or to anyone else. Again, no parent has a ‘right’ to violate his child’s rights. That means, specifically, that no parent has a right to ‘discipline’ or ‘control’ his child, physically or otherwise. A parent does, however, have an obligation to keep his children safe from danger, including the danger the parent himself may present, and also, more importantly, to help his children by their own lights. Lulie Tanett from Taking Children Seriously identified this latter obligation.

2. This failure to identify the parent’s proper role led to SJC’s failure to realize that discipline – ie the coercive attempt to induce behavior in a child – is itself a form of abuse. Once you understand this, it becomes clear that there is no point in allowing ‘acceptable’ forms of abuse; that the solution is to get rid of abuse altogether and replace it with the institutions of persuasion and consent. But since she does not understand this, Lenk concludes (p. 15):

   We recognize that the balance we strike with the parental privilege defense may well be imperfect and that absolute equipoise between the goals of protecting the welfare of children and safeguarding the legitimate exercise of parental autonomy is likely unattainable.

   (It is unattainable, but not for the reason Lenk thinks. It’s that what she euphemistically calls the “legitimate exercise of parental autonomy” – effectively the parent’s limited ‘right’ to assault and batter his child in the name of discipline – does not exist. The way to get unstuck here is to stop referring to rights that don’t exist and to stop trying to balance things that cannot be balanced.)

   The law should fully and uncompromisingly recognize the personhood of children, grant them the same protection from bodily harm as adults, and reflect the proper role of parents as I have described it. Accordingly, the appropriate response would have been for SJC to condemn the spanking unequivocally and confirm the original judge’s ruling while correcting his philosophical mistakes.

   However, as Rand explains, many people are afraid to pronounce judgment for fear of being judged themselves. Those who invoke social standards typically fall under that category. Maybe this was a case of ‘give me something that’s socially acceptable, let me blame society. I’ll let you off the hook and they’ll let me off the hook.’ Or maybe it wasn’t. Whatever the case, you can see reflected in SJC’s decision the rampant institutionalized discrimination against children. Imagine if courts invoked a social standard to rule that physically attacking one’s wife, or a black person, or some other adult, could not be pursued criminally as long as the amount of force was ‘reasonable’ in disciplining them as well as socially acceptable, as it used to be for wives and black people. No moral judge would possibly rule that way. Not today. But when it comes to children, people don’t even bat an eye.

Compare the length and complexity of SJC’s three-pronged laundry list with the much simpler element of battery for adults, where I understand a mere “non-consensual touching of a person’s thigh would be offensive conduct amounting to battery”. What seems to matter here is the victim’s lack of consent, not the perpetrator’s alleged standard of ‘reasonableness’ or some other caveat. Additionally, in their ruling, SJC cites (p. 6) Commonwealth v. McCan, 277 Mass. 199, 203 (1931), which states that “assault and battery is the intentional and unjustified use of force upon the person of another, however slight […]” (emphasis added). Note that it does not say ‘upon the adult person of another’ – it already applies to children, too. Yet the double standard applied to children in practice is jarring.

SJC makes no further mention of this case in their ruling, but why would any proper interpretation of this standard of assault and battery deny children protection from violent parents? As I’ve explained, a parent’s role is not that of disciplinarian, so disciplining cannot fall under this precedent’s conception of the justified use of force. And even if that were a parent’s proper role, how does it make any sense that parents are not held to a higher standard, rather than a lower one, when it comes to their own defenseless children compared to adults, who could well defend themselves? How is it that parents are legally obliged to treat a random stranger with more respect in this regard than their own children? If the law didn’t discriminate against children in this way, the applied standard of assault and battery would be the same for them as for adults. And if the law truly cared about children’s freedom from abuse, it would view any kind of corporal punishment as assault and battery, especially if the assailant is the parent – and that would be the end of it.

Both the original ruling and SJC’s overturning thereof show how a rotten cultural background and appeals to social standards can poison judicial decisions; how misconceptions about children result in their legally entrenched discrimination to this day.

Bernier, the ‘scientists’, and the others merely fell short. But Justice Lenk along with the remaining SJC Justices should be ashamed of themselves for helping evil remain in that poor girl’s life; for making her pay a price that should have been her father’s to pay; and for setting a precedent that the law will enable abusive parents as long as the abuse is popular and ‘reasonable’.