Parental Discipline

The Army Court of Criminal Appeals has issued an important decision in

United States v. Brassfield, __ M.J. ___ (Army Ct. Crim. App. 2024) (en banc)

The court reaffirms that a servicemember accused of assault against their child may raise the defense of “it was parental discipline.” The definition of what is or isn’t criminal corporal punishment has changed over the years. The Court of Military Appeals (CMA) (predecessor to the Court of Appeals for the Armed Forces (CAAF)), said so in United States v. Brown, 26 M.J. 148 (1988). The CMA adopted a two-part test from the Model Penal Code.

1. The force is used to safeguard or promote the welfare of the minor, including the prevention or punishment of his misconduct and
2. the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, mental distress, or gross degradation.

The use of parental discipline is an affirmative defense. When there is some evidence of an affirmative defense, the military judge is obligated to instruct the members (jury) about the defense so they can consider it. For example, in United States v. Rich, 79 M.J. 472, CAAF said the military judge must give instructions for any special defense. In United States v. Davis, 76 M.J. 224, CAAF makes clear that an instruction on that defense is required where the evidence reasonably raises a special (affirmative) defense.

These are matters a military defense counsel should know.

One of the obligations of a military defense counsel is to make sure the jury is properly told what the law is and what they can consider in favor of the defense. Sometimes, the defense counsel doesn’t do that. The good news is that in United States v. MacDonald, 73 M.J. 426 and some other cases, the appellate courts say that “the military judge has a sua sponte duty to instruct the members on that defense; a defense is reasonably raised when some evidence, without regard to its source or credibility, has been admitted upon which members might rely if they chose).”

If you are accused of assault on your child, talk to us, or your military defense counsel about what the prosecution has to prove and how you might defend against the charges. The lawyers and Cave & Freeburg, LLC, are experienced in these and other cases.

The prosecution has to prove that you assaulted the child, that there was an injury. In defense, you have to show that you didn’t intend to have the punishment be one of these factors: death, serious bodily injury, disfigurement, extreme pain, mental distress, or gross degradation, and/or you can show you had no idea your physical punishment could cause one of those factors. Keep in mind that your conduct is evaluated under the objective standard of reasonableness.

For example, a slight slap with a belt might be OK, but if the body was hit with the buckle end, that might be viewed as unreasonable punishment.

In Brassfield, the evidence showed multiple bruising from an Army web belt which left signs of the “whipping” several days later.The father testified that he was aiming for the buttocks, but his sons kept jumping around so the belt hit them elsewhere.

The military judge found that the appellant’s subjective intent was to promote the boys’ welfare and punish them for stealing of money from their stepmother, and the repeated lies.” The military judge also found, however: that the force used was objectively unreasonable and excessive. Basically, the accused’s directing his children to remove their clothing before striking them, the nature and extent of injuries to the children’s bodies, the locations of the injuries on their bodies, and the extreme pain described by the children.