Commonwealth v. Rosa: The Appeals Court Elaborates the Massachusetts Law on the Parental Privilege to Use Reasonable Force in Disciplining a Child

by David Deakin

Case Focus

In Commonwealth v. Rosa, 94 Mass. App. Ct. 458 (2018), further app. rev. denied, 481 Mass. 1104 (Jan. 24, 2019), a case about the parental privilege to use corporal punishment, the Massachusetts Appeals Court grappled with the extent to which a fact finder should consider a defendant’s approach to parenting.  The Appeals Court unanimously upheld the conviction of a father who kicked his five-year-old daughter in the chest hard enough to knock her down and cause her to cry.  The Court, however, was divided about the basis for the holding that the Commonwealth had overcome the defense.  As each of the three justices on the panel authored an opinion, the criminal bar should expect continuing litigation not only about the scope of the privilege but also about the type and quantum of evidence necessary for the prosecution to overcome the defense.

Legal Standard

The Supreme Judicial Court established in Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015) that a parent can use reasonable force in disciplining a child.  The SJC explained that “no criminal liability will attach to a parent’s use of force against his or her child as long as ‘(1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor’s misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress.’”  Rosa, 94 Mass. App. Ct. at 461 (parentheses in original), quoting Dorvil, 472 Mass. at 12.  Because the parental privilege described above is an affirmative defense, once it is raised by the defendant, the prosecution bears the burden of disproving at least one of the requirements of the defense beyond a reasonable doubt.  See Dorvil, 472 Mass. at 13.  Each requirement is a question of fact.  See id.

Facts

After a bench trial, the defendant in Rosa was convicted of assault and battery by means of a dangerous weapon (shod foot) for kicking his five-year-old daughter in her chest, knocking her to the ground, and causing both her and her two-year-old brother to cry.  The defendant, who had brought his children with him to a drug store, became angry when his daughter ran and hid from him in the store.  The defendant yelled and cursed at the girl.  After a few minutes, the defendant went into the line to check out of the store.  As he did, his daughter approached him and “grabbed his legs.”  He “shoved” her away.  The scene repeated itself, and the defendant spoke angrily to his daughter.  When she approached him a third time, the defendant kicked her in the chest.  As a result, she fell to the ground and cried briefly.  In response to a question from a responding police officer about why he had kicked his daughter, the defendant replied, “I don’t raise pussies.”  At trial, the defendant testified, claiming that he had “nudged,” rather than kicked, his daughter.  The defendant first maintained that he had been concerned that his daughter would be kidnapped and thus used “reverse psychology,” pushing her away so she would stay near him.  At another point in his testimony, however, he acknowledged that, by the time he kicked her, he was no longer concerned about kidnapping, and he did not want her close to him.  Finally, he claimed his comment that “I don’t raise pussies” was meant to convey that he did not want to raise his children to be victims of bullies.

Holding

Justice Wendlandt authored the Court’s opinion affirming the conviction.  Justices Englander and Rubin each wrote a concurring opinion.  Justice Englander’s concurrence primarily emphasized his dissatisfaction with the second prong of the Dorvil standard.  Justice Rubin wrote to express his view that kicking a child could never constitute reasonable force in disciplining a child.

Writing for the Court, Justice Wendlandt explained that “[p]arenting is essential to the reason underlying the privilege, and that aspect of the privilege is embodied in prong two [force used must be “reasonably related to . . . safeguarding and promoting the welfare of the minor”].”  Rosa, 94 Mass. App. Ct. at 463.  In determining whether the force used by the defendant was reasonable (under both the first and second prongs of the standard), therefore, “the trier of fact should take into account a variety of factors, including ‘the child’s age, the physical and mental condition of the child, and the nature of the child’s offense.”  Id. at 461.  The Court seemed to conclude unanimously that evidence of a defendant’s “subjective” “emotional state” cannot, by itself, satisfy the Commonwealth’s burden of disproving the defense. Id. at 462 n.2.  In his concurrence, however, Justice Englander faulted the prosecution for focusing “unduly on what the defendant said to his child, rather than what he did.”  Id. at 470 (Englander, J., concurring) (emphasis in original).  Left for another case to resolve is the extent to which the prosecution can rely on the defendant’s subjective emotional state.  Justices Wendlandt and Rubin – and possibly also Justice Englander – agreed that the prosecution can introduce evidence “that the defendant’s supposedly legitimate parenting purpose is false . . . .”  Id., 94 Mass. App. Ct. at 463.  Justices Wendlandt and Rubin viewed such evidence as relevant to disproving reasonableness under both the first and second prongs of the defense.  It seems that Justice Englander, who would abandon the second prong entirely, see below, would nonetheless agree that the falsity of an asserted parenting purpose is relevant to reasonableness under the first prong, although this is less clear.

Justice Englander concurred because he agreed that the Commonwealth met its burden to disprove the first prong of the defense, the reasonableness of the force used.  He noted, however, that, in his view, “the evidence of unreasonable force here was thin.”  Id. at 468.  The defendant’s abuse in this case, Justice Englander concluded, was more serious than the “spank” that was held in Dorvil, 472 Mass. at 3, to be justified by the parental privilege, and less serious than “the striking of a child in the face with a belt . .  . [leaving] a mark” that was held to be outside the privilege’s scope in Commonwealth v. Dobson, 92 Mass. App. Ct. 355, 357-359 (2017).  He thus concurred that the Commonwealth had satisfied its burden of disproving the reasonableness of the force under the first prong, albeit in a close case.

Justice Englander wrote separately also because of his concern that the second prong of the defense “can be understood as an invitation to pass judgment on how a parent has chosen to parent.”  Rosa, 94 Mass. App. Ct. at 469 (Englander, J., concurring).  Thus, Justice Englander envisioned a “troubl[ing]” scenario in which “a parent will have shown that the force used was reasonable under prong one, but nevertheless is convicted of assault because (in the fact finder’s judgment) the parent’s reasonable force was not reasonably related to disciplining the child.”  Id. (parentheses in original). Justice Englander would omit the second prong from the defense to prevent courts from “becom[ing] involved . . . in evaluating the parent’s judgment about how to discipline their child.”  Id. at 470.  Ultimately, Justice Englander concluded that the reasonableness requirement in the first prong fully captures the requirement that the discipline not be abusive.  Encouraging finders of fact to focus on the reasonableness of parental discipline, rather than on the force used to implement it, Justice Englander concluded, creates “the risk . . . that less articulate parents will have more difficulty justifying their actions,” id. at 470 n. 3, and thus be convicted in cases in which more sophisticated parents might be acquitted (or not charged at all).

Justice Rubin also concurred with Justice Wendlandt’s opinion for the Court.  He agreed with the Court’s opinion that the Commonwealth had satisfied its burden of proof as to all three prongs. As to the third prong, however, he would have gone even further than the Court.  He wrote separately to note that, in his view, kicking a child can never be justified by the parental privilege “because kicking a child always ‘creates a substantial risk of . . . physical harm . . . , gross degradation or severe mental distress.’” Id. at 466 (first ellipses in original; second ellipses added), quoting Dorvil, 472 Mass. at 12.

Conclusion

Although the requirements of the parental privilege are now settled, their limits are anything but.  Not only is the case law still in an early stage of development, see Rosa at 468  n.2 (“[o]ur case law is not yet very developed as to what force can qualify as reasonable . . . .”), but also there is still disagreement about whether and/or to what extent the defendant’s subjective intent and purpose in disciplining the child is relevant to the fact finder’s assessment of the reasonableness of the force used.  In future cases, therefore, defense counsel will likely rely on language from Justice Englander’s concurrence and, indeed, from footnote 2 of the Court’s opinion, to argue that the prosecution should be prohibited from introducing evidence of the defendant’s emotional state and/or intent or, at least, limited in its ability to do so.  Prosecutors will respond that even Justice Englander’s concurrence leaves room for introduction of evidence of the defendant’s animus toward the child and that, at a minimum, the sincerity of the defendant’s stated reason for disciplining the child is always relevant in applying the defense’s second prong.

 

David Deakin is an assistant attorney general and deputy chief of the Criminal Bureau. Before that, he was a prosecutor in the Suffolk County District Attorney’s Office, where he was chief of the Family Protection & Sexual Assault Bureau. This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General.  Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.


Some Thoughts About the Appeals Court

Chief Justice Green_102x126

by Mark V. Green

Voice of the Judiciary

A few months past my first anniversary as Chief Justice of the Appeals Court, I am pleased to have been invited to offer a few reflections about the Court, and my initial experience as Chief.

I am fortunate to have taken on my new duties at a time of great transition at the Court. A number of long term senior managers and other employees have recently retired. In addition, half of the Justices on the Court have been appointed within the last 3 1/2 years. With those changes in personnel, along with the adoption of new technology, have come both the need and the opportunity to reexamine many of our operations, and in many ways to reimagine the Court itself. More directly and immediately, the changes have provided me with the opportunity to assemble a terrific senior management team with the hiring of our new Court Administrator Gina DeRossi and the promotion of Mary Bowe to the position of Chief Staff Attorney, who join our Clerk Joe Stanton, our Law Clerk Manager Maggi Farrell and my incomparable assistant Monique Duarte.

We are very pleased with the success of our movement to a digital platform. By rule, all nonimpounded and non pro se briefs and other materials are now filed electronically, and we take in no paper at all in those cases (which comprise well over 90% of our filings). The Justices have for several years – even before e-filing began – worked with case materials largely without resort to hard copy, preparing for, and participating at, oral argument with iPads. Justices circulate draft opinions to the other members of the panel – and in the case of published opinions, to the entire court – for review by email, and the entire editorial process thereafter is fully electronic. Besides saving trees, the digital platform offers more convenient access to the information, and saves time as the content is transferred from the Clerk’s Office to the Justices, and then among panel members and support staff as opinions are processed toward release; by contrast, when I arrived as part of the Court’s expansion in 2001 all opinions were circulated in hard copy by interoffice mail, and all comments returned in the same matter, often taking days or week for communication of comments that now are often completed in an afternoon.

The increase in convenience and efficiency has translated to an acceleration of our speed. We are reaching cases for argument, and deciding them after argument, as quickly as ever in the Court’s history. Most cases are argued between four and four and a half months after they are briefed and ready; by way of comparison, when I joined the Court, it took fourteen months to reach criminal cases after they were briefed and ready, and twenty-two months to reach civil cases. And over the past twelve months, the median time for release of a decision after argument was fifty-four days. On a somewhat related note, I am also pleased to report that we are hearing argument in an increasing share of our cases – more than 75% now, compared to around 60% just eight or nine years ago, and around 50% in the more distant past. Breaking with tradition, we held panel hearing sessions in July 2018, to positive response, and hope to repeat that pilot program this coming summer.

We are also able to make more information easily available to our stakeholders. Except for impounded cases, our hearing lists and docket sheets are available on our website, as are briefs in cases scheduled for argument. Since January, audio recordings of oral arguments are also now made available on the website within a few days. We recently compiled a manual of our internal operating procedures, and expect to make it available on our website in the near future.

We are expanding our outreach in other ways as well. We regularly conduct panel hearings away from the John Adams Courthouse, at various law schools and other venues in all corners of the Commonwealth. Thanks to the sponsorship of the Flaschner Judicial Institute, and jointly with the Supreme Judicial Court, we held a terrific bench-bar conference in December, and we are currently assessing what we learned from our bar colleagues, and how best to respond to their suggestions. And we are working to improve the frequency and content of our communication with the bar and the public, through the Listserv maintained by Clerk Stanton and the quarterly Review produced by Court Administrator DeRossi.

I previously mentioned the significant number of newly appointed Justices on the Court. They have brought energy, intellect and fresh perspective to an already strong Court. I consider among my most important responsibilities as Chief the duty to instill in our new arrivals a sense of the culture and traditions of the Court. And in that regard, it is a particular priority to preserve and enhance the Court’s culture of collegiality, mutual respect and effective communication, while pursuing the highest level of excellence in our decisional work that we can attain. So far, at least, and with the assistance of my other more seasoned colleagues (and, of course, the talent and dedication of the new recruits), it seems to be working. I am also indebted to many of those who welcomed me when I arrived on the Court, and in particular former Chief Justice Armstrong and Justices Brown, Dreben and Kass, who each came back last spring for a series of “Lunches with the Legends.”

In a little more than three years, on October 6, 2022, the Appeals Court will mark its 50th anniversary. Compared to the Supreme Judicial Court (which celebrated its 325th last year), the Superior Court (which celebrated its 150th a few years before that), or even the Land Court (which is coming up on its 125th in a few years), we are still young. And, as I have mentioned, we are in an exciting time of transition and opportunity. I consider it a unique privilege to be entrusted with stewardship of the Court at this exciting time.

The Honorable Mark V. Green was appointed Chief Justice of the Appeals Court by Governor Charles D. Baker on December 6, 2017, having served on the Court as an Associate Justice since his appointment by Governor Jane M. Swift on November 1, 2001. He holds a bachelor of arts degree in philosophy from Cornell University, with distinction in all subjects, and is a 1982 cum laude graduate of Harvard Law School.