Maryland Criminal Lawyers/Attorneys are often called upon to defend people who are charged with Assault or Child Abuse as a result of incidents of parental discipline with their children. I have blogged about this issue in the past but it is worth repeating that prosecutors and police are far more aggressive today in terms of initiating criminal prosecutions in cases that were traditionally viewed as legitimate parental discipline.
My case last week in Prince Georges’ County Maryland involved an incident between my client and his 14 year old son at a restaurant. The facts were that my client’s son was graduating from middle school this past June. Originally the ceremony was scheduled to take place at 3:00pm. However a change in the time was made by the school a few weeks prior to the scheduled date. The time was moved up to 1:00pm. My client’s estranged wife, with whom my he is currently entrenched in a bitter custody dispute, decided not to pass this information on to my client and as a result he missed the graduation.
He showed up at the school at 3:00pm with his mother whom he had flown in from out of town to attend the ceremony only to find out that the ceremony had concluded about an hour before he arrived. Needless to say, he was quite angry and immediately called his ex-wife on the phone. She played dumb and claimed to have thought that she passed the time change on to him and to express how sorry she was that they had missed the graduation. She informed him that they were at a restaurant and invited them to come to their location so they could at least take pictures.
When he arrived he had unpleasant words with his ex-wife and then began inquiring of his son why he (his son) had not informed him of the time change. His ex-wife tried to intervene in this conversation so my client took his son by the arm and led him to the men’s room to continue the discussion outside the presence of his ex-wife. It is an unfortunate reality that very often in custody disputes one parent or the other (usually the wife in all honesty) will accuse the other of child abuse whether it be sexual or physical. When these allegations are false or at least exaggerated to the point where a mere disagreement involving minor non-injurious contact is elevated to the level of a criminal assault, it is an obvious attempt to gain leverage in the custody battle. That is exactly what happened in this case. The ex-wife filed criminal charges against my client describing the incident using words like “grabbed and “yanked” and “pulled” and other language intended to make the situation sound like a vicious attack when nothing could have been further from the truth.
In this case the good news was that the court commissioner whom his ex-wife appeared before to swear out the charges, charged the case only as second degree assault which is a misdemeanor instead of charging child abuse which is a felony. Typically, the commissioner will also charge at least second degree child abuse even in cases in which there is no injury. As a result of the fact that only a second degree assault was charged, the case was set in for trial in the Prince Georges’ County District Court. In my view, there were two defenses to this case. First, that the contact between my client and his son did not result in any injury and was so minor that it did not rise to the level of a criminal assault regardless of the relationship between the parties. The law in Maryland has long recognized that there will be situations in which there is some minor physical contact between parties in public places that although unwanted, does not rise to the level of a criminal assault. The second argument is that even if the contact between my client and his son would be considered an assault if the parties were not parent and child, because they are, the contact is protected by the parental discipline privilege.
Anglo American Law has long recognized the so called parental discipline privilege as a defense to the charge of child abuse. Essentially what the privilege means is that a parent of a minor child may use a reasonable amount of force upon a child for the purpose of safeguarding or promoting the child’s well being. In 1978 the Court of Appeals in Bowers v. State, made its most comprehensive attempt to date to explain exactly what is permissible discipline by a parent. The court first made clear that in order to violate the statue, the conduct must be intentional and may not be accidental regardless of the extent of the injury. After making that obvious point the court went on to describe child abuse as such conduct which exceeds that which is properly required for disciplinary purposes. Said another way the punishment may not exceed the justification or it destroys the privilege. The conduct must be malicious, cruel and outrageous treatment that is either not for the purpose of discipline at all or exceeds the bounds of moderation. In layman’s terms I think that means that the punishment must fit the crime and in any event may not be cruel and outrageous. If it does not it will be deemed to be malicious. And if the child sustains a physical injury as a result of that malice, the parent will be subject to prosecution for second degree assault.
The State first called my client’s ex-wife who repeated the story she wrote in the application for statement of charges again describing a vicious attack. The State next called my client’s son who told a very different version of the events that occurred that day. The boy testified that his father had taken him by the arm and led him to the bathroom. He agreed that my client was very angry and that he had applied some pressure to his arm. However, he testified that the incident had caused him no pain and had not resulted in any injury to him.
Upon the conclusion of his testimony the State rested. I had originally intended to call my client as well as his mother and brother to testify but because of the weakness of the State’s case I opted to rest without calling any witnesses. I then made the above arguments. The judge in the case ruled that, as I had argued, there are some “touchings” that are going to occur in public places that are so insignificant that they do not rise to the level of a criminal assault irrespective of whether the person wanted to be so touched. He found that given the testimony of the alleged victim that he was not harmed in any way, this case was an example of a touching that is not a criminal assault and found my client not guilty.