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State v. Wilder, attorneys & footnotes

Attorneys for State:

Stephanie Anderson, District Attorney
Julia Sheridan, Asst. Dist. Atty. (orally)
Stephen Dassatti, Asst. Dist. Atty.
142 Federal Street
Portland, ME 04101

Attorney for defendant:

Caroline Gardner, Esq. (orally) 
80 Exchange Street
Portland, ME 04101
FOOTNOTES******************************** {1} . 17-A M.R.S.A. § 207(1) reads as follows: § 207. Assault. 1. A person is guilty of assault if he intentionally, knowingly, or recklessly causes bodily injury or offensive physical contact to another. 17-A M.R.S.A. § 207(1) (1983). {2} . 17-A M.R.S.A. § 106(1) states: § 106. Physical force by persons with special responsibilities 1. A parent, foster parent, guardian or other similar person responsible for the long term general care and welfare of a person is justified in using a reasonable degree of force against such person when and to the extent that he reasonably believes it necessary to prevent or punish such person's misconduct. A person to whom such parent, foster parent, guardian or other responsible person has expressly delegated permission to so prevent or punish misconduct is similarly justified in using a reasonable degree of force. 17-A M.R.S.A. § 106(1) (1983). {3} . This consecutive sentence consists of two maximum 364-day sentences for Class D crimes. See 17-A M.R.S.A. §§ 1252(2)(D) & 1256(2)­p;(3) (1983 & Supp. 1999). {4} . Pierce v. Society of the Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-35 (1925); see also Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923). {5} . Although a parent has a privilege to use reasonable or moderate physical force to control behavior, there is no absolute constitutional right to strike a child. See Sweaney v. Ada County, 119 F.3d 1385 (9th Cir. 1997). The United States Supreme Court does not appear to have directly addressed a parental privilege to physically control a child in a child assault case, but in a civil case it has recognized a similar privilege of a school official to use physical force to control a child in a school setting where one student "was subjected to more than 20 licks with a paddle while being held over a table in the principal's office." Ingraham v. Wright, 430 U.S. 651, 656 (1977). {6} . William Blackstone, Blackstone's Commentaries on the Laws of England 120 (1768); see also William Blackstone, Commentaries on the Laws of England 440 (Oxford Reprint 1966) (stating that a parent "may lawfully correct his child, being under age, in a reasonable manner. For this is for the benefit of his education."); see also Kandice K. Johnson, Crime or Punishment: The Parental Corporal Punishment Defense--Reasonable and Necessary, or Excused Abuse?, 1998 U. Ill. L. Rev. 413, 435 & n.123. The current status of English Common Law with standards apparently similar to section 106(1) is addressed in a European Court of Human Rights matter, Case of A. v. The United Kingdom (1001 1997/884/1096, Strasborg 23 Sept. 1998), which ruled that the standards of the English Common Law contravened the European Convention on Human Rights. That convention, applied to the United Kingdom, was viewed as effectively prohibiting approval of parental corporal punishment. See European Court Ruling Bans Corporal Punishment of UK Children. See The Guardian (Sept. 23, 1998). The European Court case had its genesis in an English jury's acquittal of a stepfather who had been charged with assault after repeatedly striking a nine-year-old boy with a "garden cane" leaving approximately 10 "linear bruises" from "fresh" to a week old. Case of A. at ¶ 9. The stepfather asserted a parental discipline justification for his admitted acts. The judge charged the jury as follows: What is it the prosecution must prove? If a man deliberately and unjustifiably hits another and causes some bodily injury, bruising or swelling . . . he is guilty of actual bodily harm. What does unjustifiably mean in the context of this case? It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in the manner, the instrument and the quantity of it. Or, put another way, reasonable. It is not for the defendant to prove it was lawful correction. It is for the prosecution to prove it was not. Id. at ¶ 10. The acquittal followed. The similarity of the English judge's charge to the "moderate" or "reasonable" terminology of State v. Coombs and section 106(1) is notable. {7} . 19 M.R.S.A. § 218 (1964), repealed by P.L. 1995, ch. 694, § B-1 (effective Oct. 1, 1997), and now entitled "endangering the welfare of a child," 17-A M.R.S.A. § 554(1)(B-1) (Supp. 1999). {8} . The boy testified that his talking a lot sometimes annoys people. {9} . "Recklessly" is defined by 17-A M.R.S.A. § 35(3) as follows: § 35. Definition of culpable states of mind. . . . . 3. "Recklessly." A. A person acts recklessly with respect to a result of his conduct when he consciously disregards a risk that his conduct will cause such a result. B. A person acts recklessly with respect to attendant circumstances when he consciously disregards a risk that such circumstances exist. C. For purposes of this subsection, the disregard of the risk, when viewed in light of the nature and purpose of the person's conduct and the circumstances known to him, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation. 17-A M.R.S.A. § 35(3) (1983). {10} . The 1975 comment to section 106 indicates it was based in part on section 27:6 of the New Hampshire Criminal Code. See 17-A M.R.S.A. § 106 cmt. Alabama, Colorado, Connecticut, and Oregon have similar justification laws. See Johnson: Crime or Punishment, 1998 U. Ill. L. Rev. at 442 n.164. See also section 147 of the Restatement of Torts which indicates there is a justification for a parent using "such reasonable force [and] confinement as [the parent] reasonably believes to be necessary for . . . proper control, training, or education" of a child. Restatement (Second) of Torts § 147 (1965). {11} . But see a contrary case from the Tenth Appellate District which placed the burden of proof for the justification on the parent. State v. Hicks, 624 N.E.2d 332 (Ohio App. 1993). See also State v. Hauenstein, 700 N.E.2d 378 (Ohio App. 1997), a Third Appellate District case which vacated a parent's conviction arising from what appears to have been mutual combat. {12} . The Washington statute states: 9A.16.100. Use of force on children--Policy--Actions presumed unreasonable It is the policy of this state to protect children from assault and abuse and to encourage parents, teachers, and their authorized agents to use methods of correction and restraint of children that are not dangerous to the children. However, the physical discipline of a child is not unlawful when it is reasonable and moderate and is inflicted by a parent, teach, or guardian for purposes of restraining or correcting the child. Any use of force on a child by any other person is unlawful unless it is reasonable and moderate and is authorized in advance by the child's parent or guardian for purposes of restraining or correcting the child. The following actions are presumed unreasonable when used to correct or restrain a child: (1) Throwing, kicking, burning, or cutting a child; (2) striking a child with a closed fist; (3) shaking a child under age three; (4) interfering with a child's breathing; (5) threatening a child with a deadly weapon; or (6) doing any other act that is likely to cause and which does cause bodily harm greater than transient pain or minor temporary marks. The age, size, and condition of the child and the location of the injury shall be considered when determining whether the bodily harm is reasonable or moderate. This list is illustrative of unreasonable actions and is not intended to be exclusive. Wash. Rev. Code. Ann. § 9A.16.100 (West 1999). {13} . Many people believe that parents should not use physical force to control their children. At least nine countries ban corporal punishment of children: Austria, Croatia, Cyprus, Denmark, Finland, Italy, Latvia, Norway, and Sweden. See European Court Ruling Bans Corporal Punishment of UK Children, The Guardian, Sept. 23, 1998. However, in the United States, "greater than ninety percent of American parents use physical force to punish their children." Johnson, Crime and Punishment, 1998 U. Ill. L. Rev. at 420, 428-29 (citing Straus, Discipline and Deviance: Physical Punishment of Children and Violence and other Crime in Adulthood, 38 Soc. Prob. 133, 136 (1991) and Graziano, Physical Punishment in Childhood and Current Attitudes: An Exploratory Comparison of College Students in the United States and India, 7 J. Interpersonal Violence 147, 149 (1992)).
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