• A person is justified in engaging in conduct otherwise prohibited if he has legal authority to do so.
• A number of jurisdictions have specifically codified a parental discipline privilege. Although Indiana has not yet done so, our courts have construed IC 35-41-3-1—the defense of legal authority—as including reasonable parental discipline that would otherwise constitute battery.”
Willis v. State, 888 N.E.2d 177, 181 (Ind. 2008)(footnotes omitted)
See Smith v. State, 34 N.E.3d 252, 255 (Ind. Ct. App. 2015)(quoting State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008), reh’g denied)(“‘[IC 35-41-3-1] has been interpreted to provide legal authority for a parent to engage in reasonable discipline of her child, even if such conduct would otherwise constitute battery.’”)
• The defense of parental privilege, like self-defense, is a complete defense. That is to say[,] a valid claim of parental privilege is a legal justification for an otherwise criminal act.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)(citing IC 35-41-3-1)
Barocas v. State, 949 N.E.2d 1256, 1259 (Ind. Ct. App. 2011)(citing Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))
See Smith v. State, 34 N.E.3d 252, 255 (Ind. Ct. App. 2015)(citing Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“The defense of parental privilege, like self-defense, is a complete defense to battery of a child.”)
• IC 35-41-3-1 establishes that a parent has a right to employ reasonable corporal punishment to discipline a child. But there are limits to that right and parents may be found guilty of, among other things, battery, if they exceed their disciplinary authority.
Smith v. State, 34 N.E.3d 252, 257 (Ind. Ct. App. 2015)
Elements of the defense
• [T]he Restatement provides, “A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education.” We adopt the Restatement view.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)(quoting Restatement of the Law (Second) Torts, § 147(1) (1965))
See Ceaser v. State, 964 N.E.2d 911, 919 (Ind. Ct. App. 2012), trans. denied(quoting Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“In Willis, our Supreme Court set forth the requirements for the parental privilege, holding that ‘[a] parent is privileged to apply. . . .’”)
See also Barocas v. State, 949 N.E.2d 1256, 1259 (Ind. Ct. App. 2011)(quoting Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“As a standard for determining applicability of the parental privilege, the Willis Court adopted the Restatement of the Law (Second) Torts § 147(1) (1965): ‘A parent is privileged to apply . . . .’”)
Determining the reasonableness of the forced used or the confinement imposed
• The first factor of the test adopted in Willis is the reasonableness of the force or confinement imposed. The Restatement explains the factors that may be considered in determining the reasonableness of punishment: “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 a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.
Barocas v. State, 949 N.E.2d 1256, 1259 (Ind. Ct. App. 2011)(quoting Restatement of the Law (Second) Torts § 150 (1965))
See Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)(quoting Restatement of the Law (Second) Torts § 150 (1965))(“Not only is [the Restatement view] entirely consistent with the law in this jurisdiction, but also it provides guidance on the factors that may be considered in determining the reasonableness of punishment. It reads . . . .”)
See also Smith v. State, 34 N.E.3d 252, 255-56 (Ind. Ct. App. 2015)(quoting Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“In determining whether the force or confinement is reasonable, the following factors should be considered . . . .”)
• We hasten to add that this list is not exhaustive. There may be other factors unique to a particular case that should be taken into consideration. And obviously, not all of the listed factors may be relevant or applicable in every case.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)
See McReynolds v. State, 901 N.E.2d 1149, 1154 (Ind. Ct. App. 2009)(quoting Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“However, this list is not exhaustive, and ‘not all of the listed factors may be relevant or applicable in every case.’”)
See also Ceaser v. State, 964 N.E.2d 911, 919 (Ind. Ct. App. 2012), trans. denied(citing Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“In addition to this non-exhaustive list of factors, the unique facts of a particular case should be considered.”)
• But in either event they should be balanced against each other, giving appropriate weight as the circumstances dictate, in determining whether the force is reasonable.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)
See Smith v. State, 34 N.E.3d 252, 256 (Ind. Ct. App. 2015)(quoting Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“Our supreme court cautioned that the relevant factors ‘should be balanced against each other, giving appropriate weight as the circumstances dictate, in determining whether the force is reasonable.’”)
Overcoming the defense
• In order to negate a claim of parental privilege, the State must disprove at least one element of the defense beyond a reasonable doubt.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)
Barocas v. State, 949 N.E.2d 1256, 1259 (Ind. Ct. App. 2011)(citing Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“To negate a claim of parental privilege, the State must disprove beyond a reasonable doubt at least one element of the defense . . .”)
• Thus, to 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.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)
Smith v. State, 34 N.E.3d 252, 255 (Ind. Ct. App. 2015)(quoting Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))
Barocas v. State, 949 N.E.2d 1256, 1259 (Ind. Ct. App. 2011)(citing Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))
See Ceaser v. State, 964 N.E.2d 911, 919-20 (Ind. Ct. App. 2012), trans. denied(citing Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))(“In order to convict a parent for battery where parental privilege is asserted, ‘the State must prove that either . . . .’”)
• The State may refute a claim of the defense of parental privilege by direct rebuttal or by relying upon the sufficiency of the evidence in its case-in-chief.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)(citing Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000))
Smith v. State, 34 N.E.3d 252, 255 (Ind. Ct. App. 2015)(quoting Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008))
Deciding whether a claim of parental privilege has been disproved
• The decision of whether a claim of parental privilege has been disproved is entrusted to the fact-finder.
Willis v. State, 888 N.E.2d 177, 182 (Ind. 2008)
As applied to teachers
• Although there is a dearth of recent case law addressing the subject, this same justification has long been extended to teachers as well, as long as the teacher acts within the limits of her “jurisdiction and responsibility as a teacher.”
State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008), reh’g denied(quoting Vanvactor v. State, 15 N.E. 341, 342 (Ind. 1888))
• Moreover, teachers are given, in addition to the presumption of innocence shared by all criminal defendants, a presumption of having done their duty when punishing a student.
State v. Fettig, 884 N.E.2d 341, 345 (Ind. Ct. App. 2008), reh’g denied(citing Vanvactor v. State, 15 N.E. 341, 342 (Ind. 1888))
• Considering the facts here—no weapons, no closed fist, no repeated blows, no verbal abuse, and the only alleged injury being a stinging sensation—in context with the right of teachers to be free from criminal prosecution for physical punishment that is neither cruel nor excessive, we conclude that the trial court did not abuse its discretion by dismissing the information charging [the defendant] with battery.
State v. Fettig, 884 N.E.2d 341, 346 (Ind. Ct. App. 2008), reh’g denied
As applied to persons in loco parentis: In general
• [S]ome custodians have the right to use reasonable corporal punishment, but only those custodians who are persons in loco parentis.
McReynolds v. State, 901 N.E.2d 1149, 1154 (Ind. Ct. App. 2009)(citing Dayton v. State, 501 N.E.2d 482, 485 (Ind. Ct. App. 1986))
As applied to persons in loco parentis: Definition and interpretations of in loco parentis
• Of, relating to, or acting as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.
Black’s Law Dictionary ? (10th ed. 2014)
• In loco parentis means in the place of a parent. The doctrine refers to a person who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation without going through the formalities necessary to legal adoption. It embodies the two ideas of assuming the parental status and discharging the parental duties. This status results from intention and generally may be terminated at any time. Historically, in loco parentis has been deployed to protect schools and teachers from liability for restricting and disciplining their pupils. It has likewise served as a basis for the authority of juvenile courts.
Snow v. England, 862 N.E.2d 664, 666 (Ind. 2007)(quotation marks and citations omitted)
See McReynolds v. State, 901 N.E.2d 1149, 1153 (Ind. Ct. App. 2009)(“In the context of determining whether a guardian was required to provide child support, our supreme court discussed the meaning of in loco parentis as follows . . . .”)
• [The defendant] was not a person in loco parentis. [The defendant] was neither a stepparent nor romantically involved with [the victim’s] mother. [The defendant] did not act as a father figure, nor did he have the responsibilities of a father or stepfather. He did not make parenting decisions on his own or even in conjunction with [the victim’s mother]. [The defendant] acknowledged that he didn’t really ask questions about [the mother’s] parental decisions. In short, [the defendant] was a babysitter. He drove the children to school and helped them with their homework. When necessary, he asked [the mother’s] permission to discipline the children, although he did not do so on this occasion. At all times, [the defendant] was subject to [the mother’s] direction. Given the circumstances present here, we conclude that [the defendant] was not a person in loco parentis, and therefore the parental privilege defense is not available to him.
McReynolds v. State, 901 N.E.2d 1149, 1154 (Ind. Ct. App. 2009)(quotation marks and internal citation omitted)