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©2016 by The Law Offices of David J. Gillis

Is it a crime to spank my child in Florida?

November 27, 2016

 

Many people wonder whether the spanking  of a child is protected under Florida Law or if it equates to a criminal offense.  Generally, parents should refrain from the physical discipline of a child, but it presents an interesting legal question. While each case should be assessed individually, the operative Florida case law establishes that certain behavior is legally protected. 

          The Florida Supreme Court in Raford v. State, 828 So. 2d 1012 (Fla. 2002) has held that "a parent may assert as an affirmative defense his or her parental right to administer ‘reasonable’ or ‘nonexcessive’ corporal punishment, i.e., a typical spanking, in a prosecution for simple child abuse." Furthermore, Florida Statute § 39.01(49), Florida Statutes, plainly states that “Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.”  The privilege also applies to misdemeanor battery according to Kama v. State, 507 So.2d 154 (Fla. 1st DCA 1987). In Kama, the court addressed the principle of “parental privilege” by stating that “although a person who spanks a child technically commits a battery, the parties do not dispute the well established principle that a parent, or one acting in loco parentis, does not commit a crime by inflicting corporal punishment on a child subject to his authority, if he remains within the legal limits of the exercise of that authority.” This holding is based on the long standing rule from Marshall v. Reams, 32 Fla. 499, 14 So. 95, 97 (1893) which recognizes the "right of a parent, or one standing in loco parentis, to moderately chastise for correction a child under his or her control and authority"

            The question is what constitutes ‘reasonable’ or ‘non-excessive’ corporal punishment.  The act of a parent striking his child twice for refusing to eat dinner, resulting in a split lip did not establish that the parent's behavior was so excessive or unreasonable that it was beyond the scope of parental discipline. State v. Figarola, 788 So.2d 1109 (3d DCA 2001).  In Figarola, the Third District affirmed the trial court’s dismissal, citing the parental discipline privilege. Likewise, a mother slapping her child across the face, resulting in a bruise and redness does not establish the parent’s behavior was so excessive or unreasonable or that it was beyond the scope of permissible parental discipline.  Wilson v. State, 744 So.2d 1237 (Fla. 1st DCA 1999). Wilson’s dismissal under the parental discipline privilege was affirmed by the First District. Id. 

           Parents should never go to such lengths to inflict discipline on their children, but I recently found myself defending a client, truly a nice hard working man, charged with a crime for disciplining his child.  Using the arguments above and applying them to the facts, I was able to help obtain an acquittal or not guilty verdict in Broward County.  In that case, the Judge agreed that the discipline was not unreasonable and was legally protected under Florida Law.

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The Law Offices of David J. Gillis

Serving all of South Florida

                                     Phone: 954.765.6526                                            Fax: 954.208.0635

                                       

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