I am a litigator; the courtroom is where I am at my best. This week I tried my third case of domestic violence, or domestic assault, MCL 750.81(2), charged against a parent, where I achieved an acquittal through the Parental Discipline affirmative defense. Parental Discipline is an affirmative defense. When an affirmative defense is utilized at trial, the elements or facts of the underlying offense are admitted by the defendant, but the defendant argues justification under the law for committing the offense. In the context of parental discipline, the defendant admits that the child was assaulted or battered, but then argues that the corporal punishment was reasonable.
The current jury instruction read to the jury:
(1) It is not a crime to discipline a child. A parent may use force to discipline a child. But this does not mean that any amount of force may be used. The law permits only such force as is reasonable.
(2) The defendant is not required to prove that the acts alleged[ the assault/battery] here were reasonable. The prosecutor must prove beyond a reasonable doubt that the force used was not reasonable as discipline.
As I mentioned, I have achieved not guilty verdicts for my clients in three trials using this defense. The facts of these cases demonstrate a pattern.
Mother was divorced with custody of her 10-year-old daughter. Mother and daughter have an argument at their home. Daughter tells her mother she is going to call her father/ex-husband. Mother tells her daughter not to call father/ex-husband, daughter makes the call despite the lack of permission. Mother walks over to daughter and physically removes the phone from the child. Father/ex-husband hears the struggle over the telephone and calls the police. Mother takes the stand in her own defense; admits she was angry with the child while she took the phone from her daughter.
Father lives with his two children, a daughter 14 years old and a son 12 years old. Daughter takes batteries out of a television remote control and uses them in her ipod. Father tells daughter to bring back the batteries for the television remote. Daughter refuses. Father asks multiple times for her to return the batteries but daughter refuses. Father attempts to physically seize the ipod for the batteries, daughter resists. Father and daughter engage in physical combat, father pins his daughter on the floor and physically removes the batteries. Daughter leaves the house and calls the police. At trial father takes the stand to defend himself; he admits he was angry with his daughter.
Father lives with his two children; a 14-year-old daughter and 2-year-old son. Father comes home and finds his daughter in her room with friends. Father asks daughter to clean the room and clean the dishes in the kitchen. Father returns to her bedroom to find the room still messy. Father asks the guests to leave, then asks his daughter to start on the dishes. Daughter starts to do the dishes, but she deliberately throws dishes into the sink to splash water on countertop and floor. Daughter starts complaining about being forced to do the dishes; then starts using the f-word. Father smacks the back of daughter’s head with open hand. Father warns daughter not to use that language in the home and tells her he will smack her again if she does. Daughter swears more and is struck three more times for using the f-word. Daughter attempts to escape the home, in the process, knocks father to the floor. Father catches her at door, but daughter breaks free and falls down the entry stairs. Father physically picks up daughter and brings her back into the residence and takes her to the kitchen to finish the dishes. Daughter tells father her bra is broken and needs to change her clothing. When she is in her room alone she opens a window and flees to the neighbor’s home. Daughter is taken to the hospital both the police and child protective services investigate. Father takes the stand at trial and admits he was “upset” with his daughter.
All three victims in these cases were attractive, petite, teenage women. The patterns I see in the cases are the following: 1) Teenage women, incapable of physically repelling their parents; 2) Clear corrective statements by the parents; 3) Borderline absurd or ridiculous reasons for the fray/combat; 4) The parents honestly testify at trial about their anger and reasons for disciplinary action.
In each of these cases; the prosecutors argued the defendants “crossed the line.” Because of their anger, the parents were simply beating their children. In all three cases, the prosecutors pointed to the amount of physical violence used by the parents for what appeared to be seemingly minor child misconduct, in short, calling into question the parents’ decision to use corporal punishment. The teenagers’ cry while they testify. The tears reveal the harsh impact on the children from the violence.
In case 2 and case 3; I was able to introduce some of the teenagers’ history of insubordination and/or problems. These facts mitigate the seemingly quick decision by the parents to use force for minor misconduct. Parental discipline of this fashion doesn’t occur in a void; there is almost always a history of household conflict that builds to the charged offense. When the parents testify they are honest and forthright; they admit to the physical force, conduct that would easily land them in a jail if the victim was an adult. The parents also admit to being angry; once this happens, the prosecutors blast them on cross-examination. They take the heat as best as they can. The parents explain their actions and describe why they thought the child was, in their mind, being insubordinate. I believe, to the jury, the parents appear stressed, at their wit’s end, so to speak, and resolved to their fate, good or bad, but not sympathetic.
I can’t tell you exactly what happens during jury deliberations. I suspect that the jury eventually determines that neither side is lying. Both the children and the parents are testifying truthfully. Without an easy means to dismiss one or the other side, they fall back to the law and jury instructions: The defendant is not required to prove that the acts alleged here were reasonable. The prosecutor must prove beyond a reasonable doubt that the force used was not reasonable as discipline. They decide this was a discipline situation; a poor decision by the parent, but within the discipline arena. Then they decide if the amount of force used was reasonable. That depends on the child, not necessarily the misconduct. Finally, I believe the jurors use their common life experience; that some teenagers are so horrible they tear apart families and parents have to maintain order, even with force. In the end, I believe the decision is too close to call and they choose a not guilty verdict.
Parental Discipline is a powerful affirmative defense in Michigan. For the parents caught in the constant “struggle” with their teenager, don’t allow the police, prosecutor, or your teenager shame you into a guilty plea. Real acts of violence are excused at trial as parental discipline; traditional, sometimes harsh or blunt, parenting is alive and well in Michigan.