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Is Spanking Still Legal in Pennsylvania? Not Really....

Updated on March 9, 2013

Spanking Law

Is Spanking Still Legal in Pennsylvania? Not Really.....

Opinion--

Technically, the answer is yes-- a parent can still spank a child for disciplinary reasons in Pennsylvania without becoming criminally liable unless the spanking is completely over-the-top and causes some sort of severe injury. In fact, Pennsylvania’s case law on parental physical discipline sets the criminal bar pretty high for a parent. For instance, there was one case in the last ten years where a parent hit a child on the side of the head with an open palm as form of immediate punishment to a sassy teen and accidentally did serious damage to the child’s eardrum but was still let off the hook criminally in court as the parent’s blow was performed under the auspices of parental discipline.

Now, I am absolutely not saying that anyone should damage a child’s eardrum. I’m not even saying that any parent should ever physically discipline a child even if it is carefully done. There is certainly a body of modern child psychology that recommends against all physical discipline. On the other hand, maybe some knowledgeable readers out there would say that very little clinical psychology has ever been scientifically proven and that circumstances vary and a parent knows best-- within reason. Be that as it may, what I would like to point out is the interesting position in Pennsylvania law that while a parent may be able to legally physically punish a child in the sense of not breaking any criminal law, that does not mean that the law of Pennsylvania will allow such physical punishment without repercussion.

While there is a long tradition of criminal cases in Pennsylvania upholding a parent’s right to parent a child as he or she sees fit, including spanking, modern civil Pennsylvania law shows less restraint. In criminal law, there are the constitutional interests of a parent having a right to raise a child as he or she sees fit, and there is the constitutional right of a parent to remain free from prison weighed against how far the state can micromanage parenting actions under its general interest of ensuring the safety of a child. But, in civil law, you only have the parent’s constitutional right to parent versus the state’s right to micro-manage potential safety issues. Pennsylvania’s civil court system has, on numerous occasions, treated spanking as a gateway to child abuse, a quasi-crime.

First, look at the local county children and youth agencies which have been delegated power by the state. These agencies do not allow any physical discipline, including spanking. If one of these agencies comes into your life for any reason, no matter how small, including false or exaggerated reports of negligence by vindictive ex-boyfriends, girlfriends, spouses, family members, etc., then the agency is going to immediately order you not to spank your child. There is some variation by county, but, in general, these agencies do not allow any physical discipline of children. They don’t allow it in foster homes where they place children, they don’t allow it in relatives' homes where they place children, and they don’t allow parents to do it even when they still have custody of their children. Legally, an agency’s right to knock on a parent’s door and start ordering a parent around is pretty questionable, but it’s a reality on the ground. The courts, if it goes to court, are not neutral —they lean hard in the agency’s favor on all matters.

Second, protection from abuse cases come into play with spanking. PFAs are civil restraining orders. There have been numerous reported cases including at the appellate level in Pennsylvania where a protection from abuse order stops a parent from having custody of his or her child based on spanking alone. Sometimes, the parent only gets supervised custody; sometimes, no contact at all! The courts have said that even if a parent is not criminally liable, a parent can be separated from his or her child in a protection from abuse case. Protection from Abuse cases are high volume in Pennsylvania, representing a huge amount of all civil cases. So, they are handled quickly. Add to that high-volume model the fact that the standard of proof is very low, technically 51%. Just convince a judge that there was a fifty percent chance in a he said/she said, and you are probably going to get a one- to three-year protection from abuse order interfering with another parent’s access to his or her child. (The first temporary protection from abuse order is granted over 90% of the time, so there’s no question of at least temporary state interference in a parent-child relationship for a couple of weeks). And, courts default in all decisions toward safety, especially when a child is involved, so, in reality, one could say the burden in is only 35-51%. Just convince a judge that maybe an allegation happened, and a PFA may be granted.

Of course, domestic violence is a horrible, horrible thing. But, like many well-intentioned fixes to horrible problems, people have, without a doubt, greatly abused the draconian PFA law which runs circles around numerous constitutional rights. The point here is that protection from abuse orders are easy to get and have been granted based on spanking. So, if you are a parent, spanking alone puts you at great risk of having your parent-child relationship severely interfered with if there is ever any sort of custody dispute (an important point is that a person does not have to be a parent to file a PFA on behalf of a child).

Between the danger of Children and Youth involvement (even based on a malicious, false report) and Protection from Abuse possibilities (even based on malicious, false accusations), the reality is that civil case law in Pennsylvania is saying you do not have the right to spank your child. Whether you believe spanking is sometimes a good disciplinary tactic or not, a parent is unwise to spank his or her child in Pennsylvania lest he or she discover that this “legal” act can lead to serious unpleasant civil consequences.

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