Military Times

When does disciplining a child become abuse under military law?

Q. At what point would a service member's attempt to discipline a child amount to child abuse?

A. Under certain circumstances, service members are allowed to resort to reasonable physical force to discipline their children. However, if too much force is used, or if force is used for the wrong reasons, service members could face a charge of assault consummated by a battery upon a child under 16 years or aggravated assault in which grievous bodily harm is intentionally inflicted when committed upon a child under the age of 16 years, both of which are violations of Article 128 of the Uniform Code of Military Justice (UCMJ). These assault charges carry significantly longer maximum confinement periods than their Article 128 counterparts that do not involve children.

Parents or guardians facing such Article 128 charges because they struck a child may be able to raise a defense of "parental discipline," so long as they can show "the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of her misconduct" and "the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation," the U.S. Navy-Marine Corps Court of Criminal Appeals noted in U.S. v. Gener Pizarro (2006).

The case U.S. v. Christopher L. Stitely (2008), provides a good example of a situation in which a parent was justified in resorting to force to discipline a child, but he used too much of it. The accused in this case, an Air Force staff sergeant, was charged with, among other things, assaulting his 17-year-old stepdaughter as she attempted to move out of his house. As the girl was exiting the house, ignoring her stepfather's demands she not leave, the appellant grabbed her by the hair and pulled her back inside and forced her to sit down.

The U.S. Air Force Court of Criminal Appeals found the appellant appropriately resorted to force "to prevent misconduct, i.e., trying to keep his then 17-year-old stepdaughter from running away from home." However, noting how the appellant caused his stepdaughter to experience "extreme pain" by yanking a ball of hair from her head, the court concluded the appellant used "excessive force" and upheld his assault conviction.

Parents can be convicted of assault even if they only strike a child once. "There is no per se rule requiring loss of blood or other serious injury before finding that any given parental disciplinary action is excessive," the court said in Stitely.

In U.S. v. Jose M. Rivera (2001), the U.S. Court of Appeals for the Armed Forces found the appellant, an Army sergeant, was not entitled to the parental discipline defense when he punched his 14-year-old stepson in the stomach because he was performing poorly at school. This action did amount to an assault consummated by a battery on a child under 16 years, even though the punch left no welt, bruise or other mark. "[O]ne closed-fist punch to the stomach can cause substantial risk of serious bodily injury," the court said. It added that "The burden of establishing substantial risk can be met without physical manifestation of actual harm. A rule that requires physical evidence of injury invites one blow too many."

Service members charged with assault because they forcefully disciplined a child should immediately consult with an experienced military law attorney. Depending on the circumstances, an attorney could help the service member raise a parental discipline defense by showing the service member used appropriate domestic corporal punishment to protect the child's welfare and the amount of force used was not excessive.

Mathew B. Tully is a veteran of the Iraq and Afghanistan wars and a founding partner of Tully Rinckey PLLC. Email The information in this column is not intended as legal advice.

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