Can a Parent Spank a Child in Massachusetts? Commonwealth v. Dorvil Recognizes Parental Privilege Defense

Assault and battery.  On June 25, 2015, in Commonwealth v. Dorvil, SJC Number 11738, the Massachusetts Supreme Judicial Court reviewed an assault and battery conviction from the Brockton District Court.  The charge and conviction were based on a parent spanking a three year old child in public that was observed by a police officer.  In Dorvil, the SJC "expressly recognized a parental privilege defense" for the first time, which justified the use of reasonable force by a parent to discipline a child.  The Court noted that it weighed two important interests in reaching its opinion: the welfare of children requiring protection from abuse on one hand, versus the avoidance of unnecessary State interference in parental autonomy as it concerns child rearing on the other hand.

In reversing Dorvil's assault and battery conviction, the Massachusetts SJC articulated the framework with which Massachusetts Courts will analyze these cases.  The Court held that a parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, "provided that (1) the use of force against the minor child is reasonable; (2) the force is is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates the substantial risk of causing, physical harm (beyond fleeting pain or minor transient marks), gross degradation, or severe mental distress."

Each of these three factors are to be determined based on the facts of the case by the trier of fact (jury or jury-waived judge).

Attorney Mark Stevens
Law Offices of Mark Stevens
5 Manor Parkway
Salem, NH 03079
Admitted in New Hampshire and Massachusetts

(c) 2015 Attorney Mark Stevens, 5 Manor Parkway, Salem NH 03079

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