Virginia Lawyers Weekly VA Lawyers Weekly
Appellant’s convictions of assault and battery of her twin children are reversed. Appellant used reasonable corporal punishment to discipline them. As a result, she had a “parental privilege” to administer such discipline.
Overview
Appellant Woodson’s assault and battery convictions arose from using a belt to spank her twin children for violating her rules about cell phone usage. Woodson’s son had a cell phone. While he was out of the room, the phone alarm went off.
Her daughter, whose cell phone had been taken away, picked the phone up to turn off the alarm. Woodson saw this and investigated. There was a message on the phone from a mutual friend of the twins despite Woodson’s order not to give the cell phone number to anyone.
Each twin blamed the other for giving out the number. Woodson told her son to get a belt and then told both of them to lay on the bed.
“She then hit them with the non-buckle end of the belt. Daughter testified that the belt hit her on the bottom and legs, ‘more than between six and ten times,’ whereas son testified only that he was spanked without additional detail.”
At school, the son told a school resource officer “that he did not feel safe going home. The record is unclear on the full extent of what son reported that day.
“At a minimum, he told the school resource officer, as well as a later-arriving investigator from the sheriff’s office, about a ‘whipping’ his father had given him with a belt over the weekend, and also that his mother had ‘spanked’ him that morning with a belt.” …
The daughter “confirmed that she also did not feel safe going home. Neither child specifically identified their mother as the reason that they were afraid.”
At her bench trial, Woodson called two family service specialists who interviewed the twins. “Both testified that while they observed some discoloration on the twins, they saw nothing that they would describe as linear marks or bruising. …
“The twins … identified bruises in photographs that the investigator had taken. They told the court that those bruises came from Woodson’s actions. Daughter pointed to marks on her back in a photograph and testified they looked like belt marks she had seen on her skin when she looked in the mirror right after the incident.
“On cross-examination, however, she admitted telling the family services specialists that she had seen no red marks on her skin from the belt that day. Son identified a single mark on his leg in a photograph as originating from what he described as Woodson’s ‘spanking.’”
The trial court denied Woodson’s motions to strike and found her guilty of two counts of assault and battery.
Parental privilege
“A parent has the privilege to discipline his or her child ‘within the bounds of moderation and reason.’ Carpenter v. Commonwealth, 186 Va. 851, 861 (1947). This discipline may include corporal punishment. …
“[O]ur Supreme Court first set out factors that pertain to the reasonableness or excess of punishment in 1947:
“‘Where a question is raised as to whether punishment has been moderate or excessive, the fact is one for the jury to determine from the attending circumstances, considering the age, size and conduct of the child, the nature of his misconduct, the nature of the instrument used for punishment, and the kind of marks or wounds inflicted on the body of the child.’”
Four published cases have applied these factors.
“The seriousness of the physical injuries carried the day in each of these prior cases. While the other factors identified in these cases are important, we can think of no combination of ‘other’ factors that could make a parent’s discipline ‘reasonable’ where it resulted in significant physical harm. …
“Absent significant harm, a factfinder may conclude that a combination of factors show the child was at risk of serious harm – which still makes the discipline unreasonable. But the nature of the child’s misconduct, and the trial court’s view that the misbehavior did not warrant corporal punishment, cannot be the primary factor.”
Application
“In concluding that parental privilege did not apply, the trial court explained that the testimony of the two children was ‘very credible’ and considered their fear in returning home. The court observed that ‘the photos may not have shown everything that they should have shown but they showed enough.’
“Then the court explained that ‘[t]his was over a texting violation. So the question is what could have been done by a parent and what should have been done and what shouldn’t have been done.’
“Finally, the court determined that ‘[t]he evidence was that instead of taking the phone and restricting their privileges the mother had them go get a belt, the children were laid across a bed and they were hit with the belt. In this court’s opinion, that’s excessive force for the violation considering the size of the children, the mother, the circumstances.’
“No one has argued that this case involved significant physical harm, and a reasonable factfinder could not conclude that the combination of other factors demonstrate that the discipline that morning placed the twins at risk of serious harm.
“While the court mentioned that Woodson used a belt, her use of the soft end of a belt was not so unusual, cruel, or degrading without the presence of significant injury or other evidence about the number or location of the strikes.
“Neither could Woodson’s size change this calculus since she was of average height and build. That both twins expressed fear of returning to their home is a matter of serious concern, but there was insufficient evidence here that this fear was linked to Woodson in particular[.] …
“Instead, the primary factor the trial court relied on was the nature of the twins’ misconduct. The court characterized what occurred as a mere texting violation and suggested that Woodson should have made a different parenting decision[.] …
“[A] criminal prosecution cannot rest on a debatable parenting decision without other evidence that the conduct was excessive. Disagreement with Woodson’s decision to use corporal punishment, combined with evidence of only transient marks from the soft end of a belt, falls short of what a reasonable factfinder could conclude is excessive.”
Reversed and remanded.
Woodson v. Commonwealth, Record No. 0610-21-2, May 3, 2022. CAV (Lorish). From the Circuit Court of Hanover County (Brodie). Dennis J. McLoughlin Jr. for appellant, Robin M. Nagel for appellee. VLW 022-7-113, 13 pp.
