A Maryland Lawyer Referral Service refers many cases to mdattorney.com. As a Maryland Criminal Attorney or Maryland Criminal Lawyer I regularly handle cases involving allegations of both sexual child abuse and physical child abuse. In most physical child abuse cases, the issue of the parental discipline privilege is central to the defense. I had a case last week in Baltimore County in which my client was charged with child abuse as well as misdemeanor assault but before I get to that particular case I think an overview of the law on child abuse as well as the parent discipline privilege will be helpful.
The Child Abuse Section of Maryland Criminal Code was last Amended in 2002. In this Amendment the Legislature separated child abuse into two degrees, first and second degree. First degree child abuse states that a parent or any other person with permanent or temporary custody of a child may not cause the death or “severe physical injury” of a child. Severe physical injury is defined by the Code to mean brain injury or bleeding within the skull, starvation, or physical injury that creates a substantial risk of death or causes permanent or protracted serious disfigurement or impairment of the function of any bodily member or organ. First degree child abuse is a felony and any person convicted under this section is subject to imprisonment of up to 25 years.
Second degree child abuse is far more vague in its definition of abuse than is first degree. In fact, it does not contain a definition. It simply says that a parent or any other person with permanent or temporary custody of a child may not cause abuse to a minor. However, in 1973 when the legislature first defined abuse they made clear that in order to violate the statute, the parent or other person must cause some physical injury. Second degree child abuse is also a felony carrying up to 15 years in prison.
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.
Now in the real world what happens in the overwhelming majority of second degree child abuse cases is that the prosecutor will also charge second degree assault which although carrying a penalty of up to 10 years, is a misdemeanor. Typically in these cases prosecutor will offer the defendant a choice of going to trial on the felony or accepting a plea bargain to the misdemeanor usually with a period of probation and parenting or anger management classes to follow. The prosecutors know that most people are not going to risk a felony conviction and jail, not to mention the legal fees for a jury trial, even if they truly believe that their conduct was not extreme and is covered by parental discipline privilege. Indeed most of the people whom I have represented have taken this deal, even when I have told them that I am all but certain of success in front of a jury.
This is what happened in my case in Baltimore County. The facts are that my client’s 14 year old step son, who is a difficult child to say the least, came home one day and said to my client, who looked up from his perch on the coach to see who had come home, “what the F*%# are you looking at. My client told him that he would not be disrespected in his own house to which the boy said F*$% You! My client rose from the couch and smacked the boy across the face. He would have been fine legally had he stopped there but he didn’t. Instead he knocked the boy to the ground and, according to the boy’s mother, repeatedly struck him with his fist about the head and body. The mother came to court and was prepared to testify against my client. It’s pretty hard to convince a jury that your client’s actions were justified when his own wife is testifying that they were not. True to form, the prosecutor offered my client a plea to second degree assault with probation and parenting class which he, of course, accepted.