Violence vs. Child Abuse
Prepared by the Family Defense Network of Ohio
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.
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.
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.
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:
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."
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."
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
for appellant has submitted that the parameters for such defense
are set forth in R.C. 2919.22(B)(3), which reads:
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:***
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***.
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).
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:
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.
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.
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."
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.
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.
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.
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.
is a list of the five most important Appellate Court cases involving
Domestic Violence versus Child Abuse decisions:
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.