The short answer is yes, with caution. According to New York Penal Law Section 35.10, a “parent, guardian, or other person entrusted with the care and supervision of a person under the age of twenty-one (21), or an incompetent person… may use physical force, but not deadly physical force, upon such person when and to the extent he reasonably believes it necessary to maintain discipline or promote the welfare of such person.” This is commonly known as a justification defense.
This justification defense is an exception to the use of force in crimes such as assault and harassment. However, this “justification” exception is often narrowly applied by the courts. In People v. Finneran, the court declined to extend this exception to the coach of a ten (10) year old youth football team. The coach was charged with assaulting a member of the other team, an eleven year old boy who was, according to Finneran, bullying members of his team period. The Court reasoned that the eleven year old was not under Finneran’s care … Consequently, he was not entitled to have the jury consider penal law section 35.10 as a defense to pushing the eleven year old youth of the other squad.
In the case of People v Franklin, an assault 3rd degree conviction was reversed when the Appellate Division ruled that the jury was improperly charged with respect to the defense of justification. Franklin was the boyfriend of the mother of children that he was charged with assaulting. While living in the same home with the children, Franklin was accused of striking the two children with a belt, causing bruises, welts, lacerations, and swelling to the face and body of a five (5) and an eight (8) year old boy.. The Appellate Division found error in the lower courts’ charge to the jury. It held that the jury is not to determine whether the defendant used unreasonable force, rather the issue for the jury to determine is, whether or not, the defendant reasonably believed the force used was necessary to maintain discipline.
Therefore, an individual can use corporal punishment under the belief that it is needed to maintain discipline, but if that belief is unreasonable, he or she would not benefit from the justification defense under P.L 35.10. Moreover, the punishment used to maintain discipline must be within reason and not excessive otherwise it will be viewed as unreasonable.
It is important to note that in analyzing these type of cases, they are often fact-specific. Courts and juries will look at many factors in determining what is reasonably done to maintain discipline. The factors include, but are not limited to: cultural norms, the age of the child, the size of child, what acts or actions incurred the need for discipline, what discipline was administered, how was it administered, over what length of time, was medical attention needed by the child, was medical attention immediately secured, and what, if any, actions were taken to hide the injuries or impede anyone from reporting it.
It should also be noted that although PL 35.10 may provide an affirmative defense to the crimes of assault and/or harassment, an individual can be convicted of endangering the welfare of a minor based on the very same conduct, or face prosecution under the Family Court Act.
Under Family Court Act 1012 a “neglected child” is defined as one “whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parents or other person legally responsible for his care ….by unreasonably inflicting or allowing to be inflicted harm, or a substantial risk thereof, including the infliction of excessive corporal punishment.
Thus, the “Family Court Act” (FCA) definition of neglect is much broader then defined criminal conduct under the penal law. The FCA allows for a finding of neglect when corporal punishment is excessive…. and/or results in the impairment of physical or emotional condition of the child, or poses an imminent danger of such impairment.
What is clear, however, is that both under the Penal law and Family Court Act, any force utilized or inflicted on a child for the gratification of a parent’s passion, rage, or sadistic urges, is, and will be, considered to be excessive punishment.
If you find yourself in need of a legal representation in Criminal or Family Court, call The Law Office of Jeffrey L. Emdin at (212) 265-1350 and [email protected].
