Spanking Your Children in Texas
Spanking children falls under the Texas law prohibiting “Injury to a Child” located in the Texas Penal Code. Spanking a child (under 15 years old) is a Third Degree Felony if the spanking causes any amount of pain. Of course, the purpose of a spanking is to cause pain, so a child will associate painful consequences with a bad choice. Spanking a child can land a person in prison (different than jail) up to a 10 years and cost up to $10,000 in fines. Now you are wondering, “Why aren’t all Texas parents in prison for spanking?” That question has several answers.
First, it is a defense if the person spanking the child is a parent or acting in loco parentis, AND the person spanks “when and to the degree the [parent] reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.” Every time we answer a question, it seems others pops up. So, just “when” is a spanking “reasonably necessary”? What is the “degree” that is “reasonably necessary”?
Spanking is an “Opinion Crime”
Every parent has an opinion as to when a spanking is necessary and to what degree they should spank. Texas law says “reasonable belief” means a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. Once again, the law raises more questions. What does “ordinary and prudent” mean? Unfortunately, that is where the answers stop. When the law stops at “ordinary and prudent” we are faced with an opinion crime. A person may or may not become a felon based on the opinion of others. First, you have the opinion of the person reporting injury to a child. This reporting person could be a family member, teacher, friends, counselor, or anyone. Next you have the opinion of the person receiving the information, usually CPS or law enforcement. Then the injury to a child case makes its way to a prosecutor at a Texas District or County Attorney’s Office. Finally, if the case is not dropped, a 12 person criminal jury reviews a person’s parenting decision.
The screening process thought CPS, law enforcement, and the prosecutor is often not effective. These are professionals that are “victim” oriented. They are largely unconcerned with a parent’s rights to discipline their children. The focus of these decision makers is to err on the side of protecting children, so often these cases get pushed through the system without a true analysis of whether the spanking in question falls within the spectrum of what an “ordinary and prudent” person would do in the same circumstances as a parent. In many cases, the first opportunity to have a reasonable review of the case is when a parent goes to trial for spanking their child. It is still just a matter of opinion as to whether the spanking was reasonable.
Different Opinions on Spanking Children
A 2013 Harris Poll indicates that about 1 in 5 people say that you should never spank your children. The opinion of whether spanking is appropriate varies greatly based on race, age, and cultural background. If the statistics hold true, a person on trial for injury to a child will have an average of 2.4 jurors that think spanking is never appropriate. Just because someone has the belief that spanking a child is never reasonable discipline is not a legal basis for keeping them off of a jury. So, people on trial for injury to a child start with 20% of their jurors believing, “If you spank then you are unreasonable.” So, despite the “presumption of innocence” that a person is supposed to be afforded, 20% of a jury starts with the proposition that a spanking parent is guilty of injury to a child. That is even before the jurors hear any evidence as to the degree and circumstances of the spanking.
You might say, “Isn’t the law too vague to make someone a felon for the rest of their lives?” This is another way of asking, “Does this law violate the fair notice requirements of due process, as guaranteed by the Fourteenth Amendment to the United States Constitution and article 1, section 10 of the Texas Constitution?” You’re not the first person to ask this. Law similar to the current “Injury to a Child” statute has been on the books since 1882. You’ll notice that’s 13 years before Texas became a state in the United States. The vagueness has been challenged many times: Nabors v. State and Perez v. State. Despite the dramatic difference of opinion physically disciplining your child, Texas courts have held that the law regulating a parent’s discipline of their child is not too vague.
Injury to a Child | Spanking in the News
Mugshot of Adrian Peterson
Yes, they can, BUT pause before you pick up the belt, spoon, paddle, or switch. What you may intend to be a valuable lesson that your child will never forget might be a felony that you will never get off of your criminal record.