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Parental discipline is a defense in military child abuse cases. Parental discipline can constitute an affirmative defense. However, the right of a parent to discipline a child by use of force is not without limits. When the defense of parental discipline is raised, the military judge should instruct as follows:

The evidence has raised an issue of whether the accused was imposing corporal punishment as a permissible parental disciplinary measure at the time of the alleged act(s) on the child in relation to the offense(s) of (state the alleged offense(s)).

In determining this issue you must consider all the relevant facts and circumstances, including, but not limited to:

  • The amount of force used
  • The instrument used
  • Where upon the body the force was applied
  • The number of times and manner force the instrument was used
  • The age and size of the child
  • The size of the accused

The military judge may specify other significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides.

Service members charged with child abuse need counsel from experienced military criminal defense attorneys. Call Daniel Conway & Associates today at (757) 401-6365.

Unreasonable Force When Disciplining a Child

A parent does not ordinarily commit a criminal offense by inflicting corporal punishment upon a child subject to his or her parental authority because such parental authority includes the right to discipline a child. The corporal punishment must be for the purpose of safeguarding or promoting the welfare of the child, including the prevention or punishment of the child’s misconduct, and the force used may not be unreasonable or excessive.

Unreasonable or excessive force is that designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, extreme mental distress, or gross degradation.

Establishing Reasonable Doubt

If the act(s) of the accused in striking their child was for the purpose of disciplining the child, and the force used was not unreasonable or excessive as I have defined those terms, the accused is considered to have had legal justification for his or her acts and they must be acquitted. However, if you the jury is satisfied beyond a reasonable doubt that at the time of the accused’s acts, the accused was motivated by other than a parental desire to safeguard or promote the welfare of the child, including the prevention or punishment of misconduct, or, that the force used was unreasonable or excessive, then the act may not be excused as permissible, parental disciplinary measures.

The prosecution’s burden of proof to establish the guilt of the accused not only applies to the elements of the offense, but also to the issue of parental discipline. In order to find the accused guilty of the offenses, the jury must be convinced beyond a reasonable doubt that the accused’s acts were not within the authority of parental discipline, or that the force used was unreasonable or excessive.

Contact Daniel Conway & Associates to arrange a free consultation with one of our seasoned military criminal defense lawyers.

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    For the better part of the last decade, Mr. Conway has become a nationally recognized resource on military justice. Daniel Conway is a former Marine staff sergeant and captain. He is a proud graduate of the University of Texas at San Antonio and University of New Hampshire School of Law. Mr. Conway is recently a former President of the New Hampshire Bar Association Military Law Section and a current member of the DC Bar. Mr. Conway has also written a book on Military Crimes and Defenses that is near publication with a major ...

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