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When Does Spanking Become Child Abuse?
Across the world, 43 countries have enacted legislation making corporal punishment of one’s child illegal.[1] But in the US, spanking is still legal in all states.[2] In Texas, physical abuse is defined as “physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child.” Tex. Fam. Code § 261.001(1)(C) (2014). Further, family violence is defined as an act “intended to result in physical harm, [or] bodily injury” to a family member or a threat that places the family member in fear of such harm. Id. at § 71.004(1). Yet the Penal Code specifically states that the use of non-deadly force by a parent, stepparent, grandparent, or guardian is legal if the person “is acting loco parentis [that is, in the place of a parent] to the child” and “when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” Tex. Penal Code § 9.61(a) (2014).
How these two definitions are applied in real world situations may focus on the wording in the penal code “to the degree.” The obvious example is Minnesota Viking’s Adrian Peterson and the allegations that he had whipped his four year old son with a switch. Many people believe this was not “to the degree” a reasonable person would believe necessary to discipline a child.[3]
By contrast is the case of In re Wean, No. 03-10-00383-CV (Tex. App.—Austin Aug. 31, 10, orig. proceeding) (not designated for publication). There, a father challenged the trial court’s protective order which found that he had engaged in family violence and that family violence was likely to occur in the future. Id. The evidence showed that he had spanked his children on their bottoms with a wooden spoon and occasionally left red marks. Id. Yet “the fact that a child is spanked, on its own, does not evidence family violence.” Id. Put simply, spanking is legal, if to a reasonable degree. “[I]nfrequent spankings of a child that leave ‘marks’ or visible bruises 24 hours after the spanking do not constitute sufficient evidence to demonstrate that a parent has engaged in conduct that endangered a child’s physical or emotional well-being.” Id. (quoting In re A.S., 261 S.W.2d 76, 88 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)).
For corporal punishment to become physical abuse, there must be an act “that would transcend a reasonable level of parental discretion regarding discipline.” In re Wean, No. 03-10-00383-CV. Such an act may be evidenced by a severe injury, the instrument used, or the mental state of the parent. Id.
[1] Global Initiative to End All Corporal Punishment of Children, States with Full Abolition, available at http://www.endcorporalpunishment.org/pages/progress/prohib_states.html
[2] Denver Nicks, Hitting Your Kids is Legal in All 50 States, Time, Sept. 17, 2014, available at http://time.com/3379862/child-abuse/
[3] Id.
Stacey Holley Valdez Attorney Stacey Holley Valdez is among the one percent of attorneys in Texas to have achieved Board Certification in the practice area of family law. This certification is awarded to only those attorneys who demonstrate significant experience in family law, the highest ethical principles, and a comm… Read More 
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