Domestic Violence vs. Child Abuse
Prepared by the Family Defense Network of Ohio
During my twenty years as a police officer, there were times when our department received bulletins from the Attorney General's office advising us of new legislation which had just been enacted by our lawmakers. Although the new law was not yet in the books, it was enforceable by our officers. Occasionally, we would receive a bulletin regarding a new law that appeared to be in conflict with a current law that had already been on the books for decades.
The Domestic Violence statute was one such example. It appeared that this new law was in conflict with several other statutes, including the current Assault statute and the current Child Abuse statute. We immediately realized that the Child Abuse / Child Endangering statute gave the parent the authority to spank a child, as long as that spanking did not cause serious physical harm to the child. A parent could actually leave a bruise and not violate the law. Now, the new Domestic Violence statute prohibited any family member from hitting any other family member. Along with the new DV law came mandatory arrest policies and Temporary Protection Orders. Suddenly, we were faced with radical members of the Department of Children's Services telling us we were obligated to arrest mom for spanking junior. Parents were now being arrested and convicted under the DV law for doing something that was legal under the Child Abuse statute.
Any time there are conflicting laws, it doesn't take too long for someone to appeal their conviction under one statute by pointing out the conflicting statute. The conviction is first heard by one of the Appellate Courts in Ohio. There are twelve different Appellate Court districts placed strategically around the state. If either party involved in the appeal is unhappy with the Appellate Court decision, they can appeal that decision to the Ohio Supreme Court.
There have been numerous cases where a parent was arrested and convicted under the Domestic Violence statute for spanking their child. Five of those parents were smart enough to appeal their conviction to their respective Appellate Courts. In all four cases, the Court ruled that the Domestic Violence statute DOES NOT APPLY to a parent who is disciplining their child. The most important case was heard in 1993 by the Tenth District Appellate Court in Franklin County. The case was State vs. Hicks. Hicks was the father who was convicted of DV for spanking his child. The Tenth District Court actually stated:
We do not believe that the legislature of Ohio intended to outlaw corporal punishment when it enacted R.C. 2919.25(A). That code section reads: "No person shall knowingly cause or attempt to cause physical harm to a family or household member."
R.C. 2919.25(C) was enacted subsequently. It reads: "no person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family of household member."
Taking these two code sections together, a parent could neither administer corporal punishment nor threaten to administer corporal punishment to his or her child without facing the prospect of criminal liability, unless some sort of affirmative defense for reasonable parental discipline applies.
Counsel for appellant has submitted that the parameters for such defense are set forth in R.C. 2919.22(B)(3), which reads:
(B) No person shall do any of the following to a child under eighteen years of age or a mentally or physically handicapped child under twenty one years of age:***
(3) Administer corporal punishment or other physical disciplinary measure, or physically restrain the child in a cruel manner or for a prolonged period, which punishment, discipline, or restraint is excessive under the circumstances and creates a substantial risk of serious physical harm to the child***.
In Hicks, the Court found the Trial Court in error in a jury charge that told the jury, "…any parental discipline which involved a physical harm was beyond the bounds of proper and reasonable discipline." The case, for this and other reasons, was reversed. What Hicks does is explain that in a plain reading of the Domestic Violence statute, O.R.C. 2919.25(A) and O.R.C. 2919.25(C) corporal punishment by parents would not be possible without an affirmative defense for reasonable parental discipline, which defense the Court found in the Endangering Children statute, O.R.C. 2919.22(B)(3).
The most recent Appellate Court ruling involving this issue occurred on July 18, 2003. The First District Court of Appeals in Hamilton County ruled on another case where a father was arrested and convicted under the Domestic Violence statute for striking his teenage daughter and threatening to "beat the s**t out of" her. The court ruled:
Courts should be slow to intervene between parent and child. The criminal court is not the place to resolve petty issues of discipline. The domestic violence laws are meant to protect against abuse, not to punish parental discipline.
As to the threat to "beat the s**t" out of his child-which he obviously did not do- we surmise that it was rhetorical only. Should we jail every parent for such a threat? Were these words made criminal, who would be free? Ralph Kramden, who was never known to hit anyone, would be in jail forever.
The Ohio Supreme Court has held that nothing in the domestic-violence statute prevents a parent from properly disciplining his or her child. A child does not have any legally protected interest that is invaded by proper and reasonable parental discipline. Thus, as any corporal punishment necessarily involves some physical harm, the harm required to constitute domestic violence must be greater than that here. At least one court has held that, to rise above parental discipline and become domestic violence, the parent's act must create "a risk of death, serious injury, or substantial pain."
A parent may use corporal punishment as a method of discipline without violating the domestic-violence statute as long as the discipline is proper and reasonable under the circumstances.
Police departments receive legal bulletins from the Attorney General's office every time there is an Appellate Court or Supreme Court ruling regarding decisions about conflicting laws. It is the responsibility of the department to educate their officers and to instruct them in arrest procedures concerning those decisions. Unfortunately, it seldom happens, and officers are unaware of the conflicting laws. New police officers going through the police academy receive one full week of Domestic Violence training, and only about fifteen minutes of Child Abuse laws. Police officers are still wrongly arresting parents for disciplining their children under the Domestic Violence law.
Although there have been cases where a parent has been convicted of Domestic Violence against their child (State v. Suchomski, 58 OhioSt.3d 74, 567 N.E.2nd 1304 (1991), none of these cases involved the parent DISCIPLINING their child. In Suchomski, the father came home drunk, dragged his son out of bed, and rammed his head into a plaster wall. This wasn't discipline, this was an act of violence, hence the ruling by the Court.
Ohio law has always required the use of the more specific statutory section over a more general statutory section. Case law in Ohio dictates that a parent cannot be charged under the Domestic Violence statute for using physical discipline on their child.
Below is a list of the five most important Appellate Court cases involving Domestic Violence versus Child Abuse decisions:
In State v. Hicks, 88 Ohio App.3d 515, 624 N.E.2d 332, 1993 Ohio App. LEXIS 3481 (1993), the Franklin County Appellate Court (10th District) set out standards not developed in Suchomski, op cit. Hicks is the leading case in this area and is followed at State v. Jones, 140 Ohio App.3d 422, at 429, 747 N.E.2d 891, 2000 Ohio Ap. LEXIS 5719 (2000) and explained at State v. Hart, 110 Ohio App.3d 250, at 254, 673 N.E.2d 992, 1996 Ohio App. LEXIS 1709 (1996) and State v. Hauenstein, 121 Ohio App.3d 511, at 516, 700 N.e.2d 378, 1997 Ohio App. LEXIS 3151 (1997) and is cited in State v. Miller 134 OA3d 649 at 651. The most recent case described above is State v Adaranijo, Ohio App.3d xx 2003-Ohio-3822.