Corporal punishment for children is a sensitive topic. For most of human history, the notion of a spared rod spoiling a child was a given. Like many truisms, that may not be quite true.
A recent University of Texas at Austin study, conducted over five decades and focused on 160,000 test subjects, showed that spanking children was associated with “unintended detrimental outcomes and was not associated with more immediate or long-term compliance, which are parents’ intended outcomes when they discipline their children.” In other words, spanking your children doesn’t teach them to behave better. It teaches them to solve their problems through physical violence. Even worse: the study found that spanking results in long-term antisocial outcomes that are no different than those resulting from outright physical abuse.
Now, Louisiana is a conservative state. Many parents here know what they know, and they have little or no interest in studies that tell them how their children should be raised. For many Louisianans, corporal punishment is an important tool in molding unruly children. That view is not unique to Louisiana: corporal punishment is not illegal in any of the fifty states, and nationwide, spanking is still widely viewed as a valid form of punishment. National surveys found around 80 percent of preschoolers reported being spanked, with about 50 percent of older children reporting being paddled with an object.
While spanking is still universally legal and enjoys widespread acceptance, courts can sometimes serve as engines of social change. Is it possible that this study could start altering the landscape on child custody? Specifically, what will courts do when parents disagree about the merits of corporal punishment, but one parent can back up her opposition with hard scientific proof that it is detrimental?
As it stands, the law in Louisiana has not caught up with the findings of this study. Our Civil Code specifically obligates parents to discipline their children. “Parental authority includes rights and obligations of physical care, supervision, protection, discipline, and instruction of the child.” La.Civ.Code art. 223. Louisiana Civil Code Article 228 provides: “Parents have the right and obligation to correct and discipline the child in a reasonable manner.” Louisiana’s criminal law goes so far as to carve out an exception for otherwise criminal conduct for a parent disciplining their child “in a reasonable manner.” La.R.S. 14:18(4). The question, therefore, is what level of physical discipline is “reasonable.”
The UT study would seem to indicate that answer is “none.” However, since the study was published in 2016, to my knowledge, it has not been raised in any child custody cases in Louisiana. Yet there is some indication from Leal v. Olivier, a case from the third circuit last November, that the law on corporal punishment may be realigning with that view.
The mother in Leal sought an Order from Protection from Abuse after the father allegedly disciplined the parties’ nine year old daughter by striking her several times with a belt. There was no indication the father administered this punishment out of anger. Rather, he was attempting to discipline the girl for being disrespectful in school, for lying, and for rude behavior. The father spoke with the girl for some twenty minutes beforehand, explaining to her why her disruptive conduct required discipline. He then struck her with a belt four times. Afterwards, the only visible sign of the punishment was a bruise on the girl’s thigh. Nevertheless, the mother’s opposition to corporal punishment led her to seek a protective order against the father.
The trial court did not even reach the question of whether the father’s conduct was reasonable because it felt the father had a blanket right to “whip” his child (and yes, the court used the word “whip,” which tells you all you need to know about the court’s predisposition here). But whether the punishment is reasonable is the clear legal standard, and the appellate court corrected the trial court’s error for not doing so. That is not surprising.
What is surprising is that the appellate court found such comparatively mild corporal punishment actually was unreasonable. It frankly isn’t clear what the appellate court felt was unreasonable about a punishment that is commonly administered in households all throughout Louisiana everyday. The court noted the size difference between father and daughter, the bruising, and the fact that the girl still felt pain 24 hours later. It did not suggest the father lost his cool, nor did it question the father’s motives or his intentions. Rather, the punishment itself was unreasonable.
Honestly, a little more analysis by the appellate court as to why such a common practice was facially unreasonable would have been helpful. While the court’s conclusion dovetails with the conclusion of the UT study, there is no indication the court considered this study in its decision. Still, parents and family law attorneys everywhere would do well to sit up and notice the possible seachange this portends regarding a parent’s right to discipline her children. Certainly, with this precedent in one hand, and the findings of the UT study in the other, a parent challenging the other parent’s right to administer corporal punishment could mount a formidable argument.
