Can I Spank My Child? A Look at Indiana’s Parental Privilege

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To Spank? Or, Not to Spank? That is the Question

As society becomes more and more politically correct and sensitive, the more and more often we are seeing cases filed against parents for spanking their children for Battery on a Minor as a class-D or Level 6 Felony. Why you might ask? While most people realize that each parent has the right to discipline their own child, be it physically through spanking, etc. or some other form of nominal punishment, many people don’t know where the line is between spanking (perhaps leaving a red mark or bruise) and potential criminal charges. In this blog the Indianapolis Criminal Defense Attorneys at Banks & Brower will explain how courts and prosecutors evaluate these types of cases.

What we have found, is that most of the case law set out by the courts show that there needs to be a longer lasting effect of the spanking and that bruises alone are not likely to be enough for a conviction of battery.

What does the law say?

According to Indiana Code § 35–41–3–1.  “[A] person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.” This statute has been interpreted to provide legal authority for a parent to engage in reasonable discipline of his/her child, even if such conduct would otherwise constitute battery.” McReynolds v. State, 901 N.E.2d 1149, 1152 (Ind. Ct. App. 2009)(quoting State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008). “Thus, [a] parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training, or education.” Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008) (quoting Restatement (Second) Torts, § 147(1) (1965)). “The defense of parental privilege, like self-defense, is a complete defense to battery of a child.” Willis, 888 N.E.2d at 182.
“[T]o sustain a conviction for battery where a claim of parental privilege has been asserted, the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control her child and prevent misconduct was unreasonable.” Id. “In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:

(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive; (d) the influence of his example upon other children of the same family or group;
(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious of permanent harm.”

Willis, 888 N.E.2d at 182 (quoting Restatement (Second) Torts, § 150 (1965)). “However, this list is not exhaustive, and not all of the listed factors may be relevant or applicable in every case.” Id. “[A] more severe punishment may be imposed for a serious offense, or an intentional one, than for a minor offense, or one resulting from a mere error of judgment or careless inattention. The fact that the child has shown a tendency toward certain types of misconduct may justify a punishment which would be clearly excessive if imposed upon a first offender.” Restatement (Second) Torts, § 150 cmt. c. (1965). See also State v. Wilder, 748 A.2d 444, 455 (Me. 2000) (concluding that to trigger criminal liability the physical harm caused by the parent’s use of force as a method of discipline must result in more than transient pain and minor, temporary bruises); (T.G. v. Dep’t of Children & Families, 927 So.2d 104, 106 (Fla. Dist. Ct. App. 2006) (Bruises are not necessarily indicative of excessive corporal punishment).

In Willis, defendant, a mother, struck the child five to seven times with a belt or extension cord. Some of the swats landed on the child’s arm and thigh leaving bruises. The child was eleven years old and had stolen the mother’s cloths to sell and was lying to the mother. The court found nothing particularly degrading about this manner of punishment nor was the punishment disproportionate to the offense. The main question the court analyzed was whether the punishment was likely to cause serious or permanent harm. The child testified that the swats hurt for a minute but did not hurt the next day when he returned to school. The bruising of the child was still apparent, but there was not any indication that the school nurse provided any medical attention or even suggested that medical attention was necessary. The court held the state had not disproved the defense beyond a reasonable doubt and set aside the conviction.

In McReynolds, defendant was effectively a caretaker living in the home. Due to the child’s lying and wetting his pants, defendant spanked the child who was seven years old at the time. There was disputed testimony as to what kind of corporal punishment was used but the court used the facts that defendant had used a belt and a wooden clothes hanger with metal prongs to spank the child at least five times. The child was taken to the hospital for other reasons and they discovered the child had severe bruising and bleeding on the child’s buttocks and the child remained in the hospital for two days. The court held the force was disproportionate to the offense, unnecessarily degrading, and could even result in permanent scarring and long-term emotional trauma.

As anyone can see, most courts will use the Willis factors in determining what type of injuries give rise to a criminal case being filed and whether or not there is enough evidence to convict a parent of battery. Indiana has long been a conservative state and will continue to be so into the foreseeable future. In so being, Indiana is a place that tends to support parent’s rights to raise and rear your children as you see fit, and in most circumstances, to allow for corporal punishment. However, parents need to be careful as more and more agencies and schools are quick to report what they believe to be “abuse” to Child Protective Services. And, with overzealous prosecutors quick to file criminal charges in cases like these to please constituents, it’s important to know your rights.

As such, if you or a loved one find yourself in a situation where you could be facing potential criminal charges involving your children, give the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower, LLC a call today. As former prosecutors, we can help you through any of your criminal defense needs. Call us today at 317.870.0019 or email us at We are able to be reached 24/7/365.