Parental discipline is a defense in military child abuse cases. The jury instruction reads as follows:
5–16. PARENTAL DISCIPLINE
NOTE 1: Using this instruction. 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 (his) (her) 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) (instrument) 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) (here the military judge may specify other significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).
A parent does not ordinarily commit a criminal offense by inflicting corporal punishment upon a child subject to (his) (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.
If the act(s) of the accused in (striking) (__________) (his) (her) child (was) (were) 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) (her) acts and (he) (she) must be acquitted. However, if you are satisfied beyond a reasonable doubt that at the time of the accused’s act(s), 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(s) 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(s) of (state the alleged offense(s)), but also to the issue of parental discipline. In order to find the accused guilty of the offense(s) of (state the alleged offense(s)), you must be convinced beyond a reasonable doubt that the accused’s act (s) (was) (were) not within the authority of parental discipline as I have defined that term, or that the force used was unreasonable or excessive.
NOTE 2: Who may claim the defense. This defense may also be employed by a guardian or other person similarly responsible for the child’s general care and supervision or a person acting at the request of a parent, guardian, or other responsible person. When the evidence raises the issue of whether the accused may avail himself/herself of this defense, the military judge must present this issue to the members. The following may be helpful and should precede the instruction in NOTE 1:.
The evidence has raised the issue whether the accused was one who was authorized to use force to discipline (state the name of the alleged victim). One is authorized to discipline a child if (he) (she) is a parent, guardian, one similarly responsible for the general care and supervision of the child, or acting at the request of a parent, guardian, or other responsible person.
In deciding this issue, you must consider (here the military judge may specify significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides).
does not apply. If you are not so convinced, then you must consider the defense of parental discipline.
REFERENCES: United States v. Robertson, 36 MJ 190 (CMA 1992); United States v. Brown, 26 MJ 148 (CMA 1988); and United States v. Scofield, 33 MJ 857 (ACMR 1991; Model Penal Code, Section 3.08(1), reprinted in United States v. Robertson, supra and United States v. Brown, supra.
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