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.


Parent Perspective

by Deidre Dailey

Viewpoint

Deidre Dailey is the parent of a student who was repeatedly suspended from school during his sixth-grade year. Her son is referred to throughout as “John,” a pseudonym.

During the Spring of 2015, I found myself at juvenile court with my eleven year-old son. I was extremely frustrated because I could not believe that instead of helping my son, his school decided to subject him to excessive school discipline and then use the discipline as a basis to now subject him to the juvenile justice system. The housemaster responsible for discipline at John’s school said he filed the petition for Child Requiring Assistance (“CRA”) because my son was a habitual school offender. Over the course of the 6th grade year John was suspended twenty-six times, mostly for what the school termed as insubordination. Instead of providing him with appropriate supports to help John stay focused and motivated as required by his special education program, the school administrators made the conscious decision to keep him out of school.

John started at the local middle school in September, 2015. He was extremely excited and anxious to start his first day. He was most excited about meeting new friends and joining the school basketball team. His first day started out amazing, but shortly after starting school, the problems started. I would receive numerous phone calls throughout the day stating John was insubordinate and not listening to teachers. The housemaster who would make the calls spoke unprofessionally and belligerently to me on the phone. He refused to engage in collaborative conversations and made clear the only consequence for John’s misbehavior was exclusion. It was not until I obtained an attorney from the Children’s Law Center in Lynn that I realized that the housemaster had failed to follow school discipline law. He never provided suspension notices, never conducted suspension hearings, and most importantly, never allowed John or me to discuss the alleged  with him considering John’s mental health challenges. In fact, when I attempted to engage in conversation, he said “the conversation is done” and hung up the phone. Each time an incident at school occurred, the housemaster would call me, give his account of what occurred and request that I immediately come to the school for pick up. By the spring of the school year, I received these calls about every other day. The housemaster during this time stated they were “pretty much babysitting” John.

The excessive school discipline and failure of the school to support John adversely impacted our home and his education. John would shut down after school suspensions. The issues at school caused friction in our relationship. John also missed a lot of instruction because he was so often out of class. During the suspensions, he was never provided with school work or tutoring as required by state law. At the end of sixth grade, I received documentation from the school indicating John had missed forty-seven tests and quizzes. Despite receiving F’s in most classes in middle school, John was promoted each year.

I thought things could not get worse than the CRA petition and twenty-six suspensions of sixth grade. Seventh grade was pretty much the same treatment as sixth, but  eighth grade was the worst. The same housemaster targeted my son throughout the year, resulting in eighteen out-of-school suspensions, threat upon threat of expulsion, and another CRA petition filed in Juvenile Court. The housemaster made it clear to me that he believed, “the next step for John is jail.” John missed out on year-end school activities such as attending a class trip to New York and school dances  because school administrators stated that he engaged in multiple infractions.  However  none of the alleged infractions were violent or drug related. They were instead such infractions a having his cell phone out in class, walking in the hall without a pass, talking in class, and goofing around with friends. When John engaged in these behaviors he was sent out of class to the housemaster’s office and suspended immediately.  He additionally had in-school suspension, where he would sit in seclusion throughout the day without instruction or school work.

One day while at work I received a very disturbing call from the housemaster. He had stated that John had been searched by the school police and his backpack seized. I asked what happened and he stated John was walking with two of his friends when staff heard him say he had a gun. I immediately went to the school. The housemaster said he was suspended for five days. In the meeting I read statements from both of John’s peers with whom he had been walking and talking. The statements corroborated with each other: John was talking about a Taser and a kid from our neighborhood (who was unrelated to the school or any student attending the school) possessed. When I asked the housemaster why would staff say something so scary,–something that John never said– he told me “unfortunately that’s the way the world works.”  Nevertheless, John was suspended once again.

On the last day of John’s five -day suspension I received a phone call from the housemaster. He said to me that if I did not sign John’s IEP and agree to the school district’s proposal for an assessment of John at an out-of-district special education school, the district would expel him. I explained that they already gave John a five-day suspension and they were bullying me into signing something that I did not agree with or want to sign. Again, I involved an attorney who informed the school district that it was unlawful for them to exclude a student twice for the same offense and then advocated for John to continue with his placement at the middle school with more supports to assist him throughout the school day.

Dealing with the school district staff has been very difficult and uncomfortable. I would send my child to school every day with an uneasy feeling because I did not know what to expect that day. I feel as though additional training for staff would be a start towards improving the school environment, particularly for children requiring specialized learning. Schools need to develop ways for staff to work with children instead of just suspending or “babysitting” them.

John’s experience with school exclusion has adversely impacted him. His self-esteem has been diminished as he has fallen victim to the school’s insensitivity and ignorance. His spirit has been broken. No child should ever have to go through something like this, especially from people who they are supposed to trust and at a place where they should always feel safe and supported. Unfortunately, the middle school has failed John and has failed to provide a safe learning place for him.