Monday, April 27, 2015

Corporal Punishment or Domestic Violence

In the state of Nevada, you can legally punish your children via battery as there is a privilege that allows parents to do so.  The Nevada law dealing with corporal punishment is not lengthy or specific, and it comes from the courts not the legislature.  As stated by the Nevada Supreme Court,

A number of states have codified the parental privilege defense. See Willis v. State, 888 N.E.2d 177, 181 n. 5 (Ind.2008) (identifying jurisdictions with parental privilege statutes). Nevada has not, so in Nevada the privilege exists by virtue of common law, see NRS 1.030; 3 William Blackstone Commentaries 120 (1862) (“battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent or master, gives moderate correction to his child, his scholar, or his apprentice,” quoted in *1179 Willis, 888 N.E.2d at 180–81), and by virtue of the “fundamental liberty interest [a parent has] in maintaining a familial relationship with his or her child [which includes] the right ... ‘to direct the upbringing and education of children.’ ” Willis, 888 N.E.2d at 180 (quoting Pierce v. Society of Sisters, 268 U.S. 510, 534–35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)) (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978)).

      Newman v. State, 129 Nev. Adv. Op. 24, 298 P.3d 1171, 1178-79 (2013).

The Court gives us some insight as to the parental privilege in Nevada as it pertains to the intent of the parent in committing the battery on the child.  Prior physical punishment of the child is part of this analysis of a parent's intent, as described below. 

At minimum, as both sides concede, the defense required the prosecution to establish that Newman did not “ ‘intend[ ] to merely discipline [Darian but] ... to injure’ ” or endanger him. State v. Hassett, 124 Idaho 357, 859 P.2d 955, 960 (Idaho Ct.App.1993) (quoting Edward J. Imwinkelried, Uncharged Misconduct Evidence § 5:10 (1993)); see State v. Thorpe, 429 A.2d 785, 788 (R.I.1981) (the privilege is lost “at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain”).
The intent underlying parental discipline and battery are not the same. “A parent who disciplines a child in a physical manner intends to correct or alter their child's behavior. That corrective intent is lacking in a battery.” Ceaser v. State, 964 N.E.2d 911, 917 (Ind.Ct.App.2012), transfer denied, 969 N.E.2d 86 (Ind.2012). “[O]ften the only way to determine whether the punishment is a non-criminal act of discipline that was unintentionally harsh or whether it constitutes the [crime] of child abuse is to look at the parent's history of disciplining the child.” State v. Taylor, 347 Md. 363, 701 A.2d 389, 396 (1997). In such cases, “[a] parent's other disciplinary acts can be the most probative evidence of whether his or her disciplinary corporal punishment is imposed maliciously, with an intent to injure, or with a sincere desire to use appropriate corrective measures.” Id.; see People v. Taggart, 621 P.2d 1375, 1384–85 (Colo.1981) (recognizing that prior acts of excessive discipline may be admissible to “negat[e] any claim of accident or justification”), abrogated on other grounds by James v. People, 727 P.2d 850, 855 (Colo.1986), overruled by People v. Dunaway, 88 P.3d 619, 624 (Colo.2004); Ceaser, 964 N.E.2d at 917 (“By arguing that she exercised her parental privilege in disciplining M.R., Ceaser necessarily represents that her intent was to correct M.R.'s behavior through corporal punishment, rather than to simply batter her daughter,” making admissible the defendant's prior conviction for battering her child); State v. Morosin, 200 Neb. 62, 262 N.W.2d 194, 197 (1978) (recognizing as “peculiarly applicable to child abuse cases” the principle that, “ ‘[w]here an act is equivocal in its nature, and may be criminal or honest according to the intent with which it is done, then other acts of the defendant, and his conduct on other occasions, may be shown in order to disclose the mastering purpose of the alleged criminal act’ ” (quoting 1 Wharton's Criminal Evidence § 350, at 520 (11th ed.))).

     Newman v. State, 129 Nev. Adv. Op. 24, 298 P.3d 1171, 1179 (2013).

There are other considerations in this analysis that are described more fully in cases sighted in the Newman opinion like the Willis case out of Indiana which would be a part of the defense of a child abuse case like the reasonableness of the punishment even if the intent was not to injure and was to correct.

It is essential to retain competent counsel if you are accused of a crime, who can evaluate your case and present an effective defense.
If you are a suspect or have been charged with BatteryBattery Domestic Violence, Child Abuse or any crime related to a Domestic incident, or if a protective order (TPO or EPO) has been issued against you, please visit gerobinsonlaw.com or call 702-233-4225 for help.