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SJC-11738

COMMONWEALTH vs. JEAN G. DORVIL.

Plymouth. February 5, 2015. - June 25, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, 

& Lenk, JJ.

Assault and Battery. Parent and Child, Discipline. Child 

Abuse.

Complaint received and sworn to in the Brockton Division of 

the District Court Department on May 16, 2011.

The case was heard by Julie J. Bernard, J.

After review by the Appeals Court, the Supreme Judicial 

Court granted leave to obtain further appellate review.

Jacob B. Stone for the defendant.

Audrey Anderson, Assistant District Attorney, for the 

Commonwealth.

Rebecca Kiley, Committee for Public Counsel Services, for 

Committee for Public Counsel Services, amicus curiae, submitted 

a brief.

LENK, J. We are called upon in this case, where the 

defendant stands convicted of assault and battery for spanking 

his minor child, to examine the contours of a parental privilege 
2

defense. On appeal, the defendant contends that the use of 

force to control and discipline his child in the circumstances 

was justified, excusing him from liability for conduct that 

otherwise would constitute a crime. Although we have on several 

prior occasions assumed that such a common-law privilege exists, 

we have neither expressly recognized it nor considered its 

proper scope. We do so today, deeply mindful of the dual 

important interests implicated in the defense: the welfare of 

children requiring protection against abuse, on the one hand,

and, on the other, the avoidance of unnecessary State 

interference in parental autonomy as it concerns child rearing.

1

1. Background. a. Overview. After a jury-waived trial, 

the defendant was convicted of assault and battery for spanking 

his daughter, then almost three years old. He also was 

convicted of threatening to commit a crime, based on his conduct 

while he was held at the police station following his arrest. 

He was acquitted of two other charges stemming from the same 

series of events.

In his appeal to the Appeals Court, the defendant argued, 

among other things, that the evidence was insufficient to 

sustain a conviction of assault and battery in light of the 

parental privilege to use force in disciplining a minor child. 

 

1 We acknowledge the amicus brief submitted by the Committee 

for Public Counsel Services on behalf of the defendant.
3

The Appeals Court, in an unpublished memorandum and order issued

pursuant to its rule 1:28, determined that the defendant's 

conduct fell outside of the parental privilege defense and 

affirmed the defendant's convictions. See Commonwealth v. 

Dorvil, 85 Mass. App. Ct. 1117 (2014). We granted further 

appellate review, limited to the assault and battery conviction,

to clarify the scope of the parental privilege defense. We now

reverse that conviction.

2

b. Facts. We recite the facts based on the evidence 

introduced at trial. We construe the evidence offered to 

support the defendant's conviction of assault and battery in the 

light most favorable to the Commonwealth. Commonwealth v. 

Latimore, 378 Mass. 671, 676-677 (1979). We note conflicting 

testimony where relevant in light of the defendant's acquittal 

of certain charges.

The Brockton police station sits across the street from the 

Brockton Area Transit bus terminal. At shortly before 4 P.M. on 

May 13, 2011, Detective Ernest S. Bell of the Brockton police 

department was arriving at the police station at the end of his 

eight-hour shift; at the same time, Lieutenant Mark Porcaro was 

arriving to begin his eight-hour shift. Both officers observed 

 

2 As stated in the Appeals Court's memorandum and order, the 

judgment on the count of the complaint charging threatening to 

commit a crime is affirmed.
4

a commotion at the bus terminal, although their accounts of the 

incident at trial differ somewhat.

Bell testified that he observed the defendant yelling,

"[S]hut up, shut up," at a young child and a woman while walking 

on the sidewalk near the bus station. Bell then saw the 

defendant kick the child in the backside. He described the kick 

as "kind of like a football kick," and indicated that the 

defendant was wearing sneakers at the time. The defendant then

shouted, "[S]hut up," again before bending over and "smack[ing] 

the child on the buttocks." Right after the kick and the smack, 

Bell observed the woman bend down and pick up the child; Bell

testified that he regarded this as an effort "to shield" the 

child from the defendant. Throughout the incident, according to 

Bell, the defendant appeared "very upset" and "angry," and he 

was shouting sufficiently loudly to be audible at the police 

station, approximately thirty-five yards away. Bell indicated 

that the child was crying and "looked frightened."

Porcaro also observed the defendant yelling at the woman 

and child, and saw the defendant kick the child. Porcaro, 

however, testified that the kick "wasn't like a full blown, 

swift kick"; instead, he said, "it was . . . slow and there was 

almost like a hesitation to it, but he eventually came . . . up 

and made contact with the girl." Additionally, although the 

police report that Porcaro completed following the arrest 
5

indicated that he saw the defendant hit the child, he testified 

at trial that he did not have any memory of the child being hit.

The police officers approached the trio and separated the 

defendant from the woman and the child. The defendant, the 

child's father, denied kicking the child, instead saying that he 

was "just playing around with her." With respect to the 

spanking, the defendant indicated that he was "disciplining his 

child." The child's mother, Crystal Steele, likewise stated 

that the defendant and the child were "horseplaying," but that 

the defendant then became upset when the child was disobedient.

The defendant was arrested, brought to the police station 

for booking, and placed in a holding cell. Six hours later, at 

approximately 10 P.M. that evening, Porcaro had another 

encounter with the defendant; their accounts of the encounter 

again differ. Porcaro testified that, while he was 

administering to a prisoner with a medical emergency in a nearby 

holding cell, the defendant began talking, yelling at him and 

another officer, and spitting on the plexiglass. According to 

Porcaro, the defendant claimed that Porcaro was "lying about 

seeing him kick the girl," called Porcaro various insulting 

names, and indicated that "he wanted to box" Porcaro.

The defendant testified in his own defense at trial, along 

with Steele. The defendant denied calling Porcaro names, and 

denied yelling or spitting at the officers. The defendant did 
6

testify, however, that he told Porcaro, "[I]f you know where 

there's a ring around here, . . . we can go box it out." The 

defendant insisted that this was not meant as a threat.

As to the initial incident at the bus terminal, the 

defendant and Steele offered accounts at trial that were 

essentially similar to one another and to the accounts that they 

gave to the police officers at the scene. The defendant stated 

that, after the trio got off the bus, he was playing a game 

where he chased his daughter and lifted her up with his legs,

"like [he] was playing soccer." He continued in that manner for 

a period, chasing his daughter and yelling loudly at her. He 

indicated that at the time she was "happy," explaining, "[S]he 

likes when I play like that with her."

The defendant then told his daughter to go to her mother. 

She responded, "[N]o," telling him, "[Y]ou go to your mother." 

He chastised her for talking back to him. He cautioned that he 

would spank her if she continued talking back, saying, "[D]addy 

will pow pow, if you don't stop." He then "tapped her" on "her 

butt" in an effort to make her "calm down." The defendant 

testified that the child never fell down or began crying, either 

when they were playing or when he spanked her. He also denied 

ever telling his daughter to "shut up."

Steele similarly testified that, after the defendant and 

the child got off the bus, they were "playing . . . very 
7

loudly," and that she had seen the defendant and their daughter

"play together in a similar manner in the past." The defendant 

then told the child to go to her mother; Steele explained that 

the child "was running around," and speculated that the 

defendant "didn't want her to run into . . . the street or 

anything." The defendant then told his daughter, "[W]e're not 

playing anymore," and "gave her a little tap on her behind." 

Steele indicated that the child was not crying and did not 

appear fearful when she picked up the child after the spanking.

c. Proceedings. The defendant was charged with assault 

and battery by means of a dangerous weapon (a shod foot), based 

on the kick; assault and battery, based on the spanking; and 

witness intimidation and threatening to commit a crime, based on 

the defendant's statements indicating his desire to "box" 

Porcaro at the police station. Defense counsel argued in 

closing that there had been no kick, and, as the defendant and 

Steele testified, the defendant simply had been playing with the 

child. As to the second count, counsel conceded that the "pat 

on the butt" did occur, but asserted that the pat was 

permissible because the defendant had "a right to use reasonable 

force in disciplining [his] child." As to the third and fourth 

counts, counsel argued that there was no evidence that the 

defendant "had a specific intent to try to influence the outcome 

of an investigation or a criminal action or prosecution," and 
8

that the evidence failed to show that the defendant "intended to 

harm and place . . . Porcaro in fear."

After closing arguments, the judge denied the defendant's

renewed motion for a required finding of not guilty. The judge 

found the defendant guilty of assault and battery and 

threatening to commit a crime, and not guilty of assault and 

battery by means of a dangerous weapon and witness intimidation. 

The judge issued no written findings of fact or conclusions of 

law. Her remarks at sentencing, however, provide some 

indication of her thinking.

The judge acknowledged that "it's not easy being a parent." 

She indicated that the defendant had not been convicted for the 

kick, noting that, in light of the inconsistency between the 

police officers' testimony, the defendant "could've been playing 

around with [his] daughter." The judge explained her decision 

to convict the defendant of assault and battery, however, by 

observing that, while she did not "think [the defendant]

intended to kick [his] daughter, . . . [he] did hit her." In 

apparent response to the defendant's argument that the spanking 

was permissible in light of his parental privilege to use 

reasonable force in disciplining the child, the judge concluded 

that, "[i]f you're in public with your kids, it's not 

appropriate to discipline in this fashion."

The defendant appealed. He challenged the sufficiency of 
9

the evidence to support each conviction, argued in particular 

that the evidence to support the conviction of assault and 

battery was insufficient in light of the parental privilege 

defense, and contended that certain statements in the 

Commonwealth's closing argument were not supported by the 

evidence. The Appeals Court affirmed. With respect to the 

assault and battery conviction, the Appeals Court acknowledged 

that it previously had held that a parent may use reasonable 

force to discipline his or her minor child. The court 

determined, however, that the evidence indicated that the child 

lacked the capacity to understand the discipline, and that the 

"defendant spanked his child when he was upset and angry and not 

in a calm and controlled manner, as required for parental 

discipline to fall within the reasonable force defense." We 

granted further appellate review, limited to the question of the 

sufficiency of the evidence to support the conviction of assault 

and battery.

2. Discussion. "The punishments for the crimes of assault 

and assault and battery . . . are established by statute, but 

the elements necessary to convict a person of these crimes are 

determined by the common law." Commonwealth v. Porro, 458 Mass. 

526, 529 (2010). "An assault and battery is the intentional and 

unjustified use of force upon the person of another, however 

slight . . . ." Commonwealth v. McCan, 277 Mass. 199, 203 
10

(1931). In accordance with the crime's common-law character, we 

have turned to the common law to articulate defenses to a charge 

of assault and battery, such as the justification of selfdefense, see Commonwealth v. Shaffer, 367 Mass. 508, 511 (1975), 

or defense of another, see Commonwealth v. Martin, 369 Mass. 

640, 646-647 (1976).

This court has not expressly recognized a parental 

privilege defense to use force in disciplining a child, nor have 

we articulated the scope of any such privilege. We have, 

however, alluded to the privilege on several occasions. See

Commonwealth v. Rodriguez, 445 Mass. 1003, 1004 (2005), cert. 

denied, 548 U.S. 924 (2006) (observing that court has "not 

addressed the issue [of the parental privilege defense] one way 

or the other," and determining that defendant's request for jury 

instruction on that defense "[would] be best addressed on 

remand"); Commonwealth v. Torres, 442 Mass. 554, 568 n.11 (2004)

(rejecting defendant's contention that trial judge erred in

failing to give instruction regarding parental privilege

defense; "[o]n any view of the evidence, [the] frequent beating 

of . . . very young children . . . would not come within that 

privilege"); Commonwealth v. O'Connor, 407 Mass. 663, 664, 667, 

669 (1990) (where defendant was convicted of assault and battery 

on fourteen year old daughter of his girl friend, observing that 

"[n]o Massachusetts decision or statute grants parents or others 
11

a right to use reasonable force in disciplining a child," and

concluding that defendant could not avail himself of such 

privilege in any event because he did not stand "in loco 

parentis to the victim"); Commonwealth v. Coffey, 121 Mass. 66, 

68-69 (1876) (noting defense of "father's parental right and 

authority," but concluding that evidence supported jury's 

finding that force used was "excessive and unjustifiable," or 

that "acts were not done in the exercise or support of the 

rightful authority of the father, but in the execution of a 

scheme of" another).

The Appeals Court, by contrast, has expressly recognized a 

parental privilege defense, although the court confronted the 

issue in an ancillary context, and its treatment of the 

privilege was consequently not exhaustive. In Commonwealth v. 

Rubeck, 64 Mass. App. Ct. 396, 396-397 (2005), the defendant was 

convicted of assault and battery for her conduct towards her two 

year old son in the waiting room of a medical center. The 

defendant argued that her attorney had provided ineffective 

assistance in failing to request a jury instruction stating that 

a "parent, or one acting in the position of a parent and who has 

assumed the responsibilities of a parent, may use reasonable 

force to discipline (his/her) minor child. However, a parent 

may not use excessive force as a means of discipline or 

chastisement." Id. at 399-400, quoting Massachusetts Superior 
12

Court Criminal Practice Jury Instructions § 3.15 (Mass. Cont. 

Legal Educ. 1st Supp. 2003). The Appeals Court concluded that 

"the instruction was warranted," although the court affirmed the 

defendant's conviction because it determined that the omission 

of the jury instruction did not produce a substantial risk of a 

miscarriage of justice. Commonwealth v. Rubeck, supra at 400-

401.

Despite the lack of express recognition by this court, a 

privilege to use reasonable force in disciplining a minor child 

has long been recognized at common law. Blackstone, for 

instance, remarked that "battery is, in some cases, justifiable, 

or lawful; as where one who hath authority, a parent or a 

master, gives moderate correction to his child, his scholar, or 

his apprentice." 3 W. Blackstone, Commentaries *120. A midNineteenth Century commentator similarly observed that parents 

have a duty "to maintain and educate their children," and 

possess the concomitant "right to the exercise of such 

discipline as may be requisite for the discharge of their sacred 

trust." J. Kent, Commentaries on American Law 203 (O.W. Holmes, 

Jr., ed., 12th ed. 1873).

In a number of States, the parental privilege defense has 

been codified by statute; in others, it remains a common-law 

doctrine. See Johnson, Crime or Punishment: The Parental 

Corporal Punishment Defense -- Reasonable and Necessary, or 
13

Excused Abuse?, 1998 U. Ill. L. Rev. 413, 440-446 (Johnson). In 

either instance, "[a]ll American jurisdictions allow parents to 

use at least moderate or reasonable physical force when they 

reasonably believe that such force is necessary to control their 

children." State v. Wilder, 748 A.2d 444, 455 (Me. 2000). 

Neither the Commonwealth nor the Committee for Public Counsel 

Services, appearing before the court in this case as amicus 

curiae, has argued that the court should not recognize a 

parental privilege defense at all.

The widespread recognition of a parental privilege defense 

accords with important constitutional values. The United States 

Supreme Court has long held that the due process clause of the 

Fourteenth Amendment to the United States Constitution protects 

"the liberty of parents and guardians to direct the upbringing 

and education of children under their control." Pierce v. 

Society of Sisters, 268 U.S. 510, 534-535 (1925). See Meyer v. 

Nebraska, 262 U.S. 390, 400 (1923). Indeed, "the interest of 

parents in the care, custody, and control of their 

children . . . is perhaps the oldest of the fundamental liberty 

interests recognized by [the United States Supreme] Court." 

Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion). 

See Santosky v. Kramer, 455 U.S. 745, 753 (1982) (recognizing 

"[t]he fundamental liberty interest of natural parents in the 

care, custody, and management of their child"); Quilloin v. 
14

Walcott, 434 U.S. 246, 255 (1978) (observing, "[w]e have 

recognized on numerous occasions that the relationship between 

parent and child is constitutionally protected"); Stanley v. 

Illinois, 405 U.S. 645, 651 (1972) (indicating, "[i]t is plain 

that the interest of a parent in the companionship, care, 

custody, and management of his or her children 'come[s] to this 

Court with a momentum for respect' . . ." [citation omitted]).

The use of moderate corporal punishment to discipline one's 

children is viewed by many in our country as an integral aspect 

of parental autonomy that furthers the welfare of those 

children. Indeed, while surveys suggest that support for 

corporal punishment has declined in the United States over the 

past one-half century, substantial majorities of parents 

continue to say that spanking is sometimes necessary to 

discipline children. See Hanes, To Spank or Not to Spank, 

Corporal Punishment in the U.S., Christian Sci. Monitor (Oct. 

19, 2014); Reeves & Cuddy, Hitting Kids: American Parenting and 

Physical Punishment, Brookings Inst. Long Memos No. 4 (Nov. 6, 

2014), http://www.brookings.edu/blogs/social-mobilitymemos/posts/2014/11/06-parenting-hitting-mobility-reeves

[http://perma.cc/2H8A-W6JX]. Of course, others "believe that 

parents should not use physical force to control their 

children"; indeed, "[a]t least nine countries ban corporal 

punishment of children." State v. Wilder, 748 A.2d at 457 n.13. 
15

Notwithstanding these contrary views and disputes as to the 

efficacy of such parenting techniques, the long-standing and 

widespread acceptance of such punishment remains firmly woven 

into our nation's social fabric. It follows that we must guard 

against the imposition of criminal sanctions for the use of 

parenting techniques still widely regarded as permissible and 

warranted.

The parental right to direct the care and upbringing of 

children, however, is far from absolute. Although a "child is 

not the mere creature of the [S]tate," Pierce v. Society of 

Sisters, 268 U.S. at 535, our law has long rejected "the notion 

that children [are] the property of their parents." Custody of 

Kali, 439 Mass. 834, 840 (2003). Accordingly, this court has 

recognized that a parent's right to direct the care and 

upbringing of minor children may be limited in light of the 

State's "compelling interest [in] protect[ing] children from 

actual or potential harm." Blixt v. Blixt, 437 Mass. 649, 656 

(2002), cert. denied, 537 U.S. 1189 (2003). This interest is 

particularly powerful in the context of corporal punishment, 

given the risk that the parental privilege defense will be used 

as a cover for instances of child abuse.

In the absence of legislation delineating the scope of the 

parental privilege defense, therefore, we must articulate a 

framework that respects a parent's primary responsibility to 
16

direct the care and upbringing of a child, while protecting the 

child against abuse and endangerment. Otherwise put, the 

parental privilege defense must strike a balance between 

protecting children from punishment that is excessive in nature,

while at the same time permitting parents to use limited 

physical force in disciplining their children without incurring 

criminal sanction. A survey of other jurisdictions' 

articulations of the parental privilege defense reveals three 

types of approaches to this balance. See Johnson, supra at 440-

446. The first type of approach requires that the force "be 

judged by an objective standard of reasonableness," id. at 442, 

and typically provides that a "parent is privileged to apply 

such reasonable force . . . as he [or she] reasonably believes

to be necessary for [the child's] proper control, training, or 

education." Restatement (Second) of Torts § 147 (1965).3 The 

 

3 For examples of this approach, see Ala. Code. § 13A-3-24

(permitting "reasonable and appropriate physical force"); Ariz. 

Rev. Stat. § 13-403(1) (same); Ark. Code Ann. § 5-2-605 (same); 

Colo. Rev. Stat. § 18-1-703 (same); Conn. Gen. Stat. § 53a-18

(permitting "reasonable physical force"); Ga. Code Ann. § 16-3-

20 (permitting "the reasonable discipline of a minor by his 

parent or a person in loco parentis"); La. Rev. Stat. Ann. 

14:18(4) (permitting "reasonable discipline of minors by their 

parents, tutors or teachers"); Mich. Comp. Laws. § 750.136b(9)

(in child abuse statute, providing that "[t]his section does not 

prohibit a parent or guardian, or other person permitted by law 

or authorized by the parent or guardian, from taking steps to 

reasonably discipline a child, including the use of reasonable 

force"); Minn. Stat. § 609.06 (permitting "reasonable force"); 

Mont. Code Ann. § 45-3-107 (permitting "the use of force that is 

reasonable and necessary to restrain or correct the person's 
17

 

child, ward, apprentice, or pupil"); Okla. Stat. tit. 21, § 643 

(permitting parental "use of force or violence" provided it "is 

reasonable in manner and moderate in degree"); Or. Rev. Stat. 

§ 161.205 (permitting "reasonable physical force . . . to the 

extent the person reasonably believes it necessary to maintain 

discipline or to promote the welfare of the minor or incompetent 

person"); S.D. Codified Laws § 22-18-5 (permitting force 

provided it is "reasonable in manner and moderate in degree"). 

See also Newby v. United States, 797 A.2d 1233, 1241 (D.C. 2002) 

(recognizing "parent's privilege to use reasonable force to 

discipline her minor child without being subjected to criminal 

liability"); Raford v. State, 828 So. 2d 1012, 1020 (Fla. 2002) 

("a parent may assert as an affirmative defense his or her 

parental right to administer 'reasonable' or 'nonexcessive' 

corporal punishment"); People v. Ball, 58 Ill. 2d 36, 40 (1974) 

(determining that use of force by parents and teachers is to be 

analyzed under "a reasonableness standard"); Willis v. State, 

888 N.E.2d 177, 182 (Ind. 2008) ("A parent is privileged to 

apply such reasonable force . . . upon his [or her] child as he 

[or she] reasonably believes to be necessary for its proper 

control, training, or education" [citation omitted]); State v. 

Arnold, 543 N.W.2d 600, 603 (Iowa 1996) (holding that "parents 

have a right to inflict corporal punishment on their child, but 

that right is restricted by moderation and reasonableness");

Bowers v. State, 283 Md. 115, 126 (1978) (adopting "wellrecognized precept of Anglo-American jurisprudence that the 

parent of a minor child or one standing in Loco parentis was 

justified in using a reasonable amount of force upon a child for 

the purpose of safeguarding or promoting the child's welfare");

State v. Suchomski, 58 Ohio St. 3d 74, 75 (1991) (holding that 

"[a] child does not have any legally protected interest which is 

invaded by proper and reasonable parental discipline"); Newman

v. State, 298 P.3d 1171, 1179 (Nev. 2013) ("The parental 

privilege defense comes down to punishment -- was it cruel or 

abusive -- or did it amount to a parent's use of reasonable and 

moderate force to correct his child?" [citations, quotations,

and alterations omitted]); State v. Thorpe, 429 A.2d 785, 788 

(R.I. 1981) (recognizing that "a parent has a right to use 

reasonable and timely punishment as may be necessary to correct 

faults in his/her growing children"); Harbaugh v. Commonwealth, 

209 Va. 695, 697-698 (1969) (holding that "parents or persons 

standing in loco parentis may administer such reasonable and 

timely punishment as may be necessary to correct faults in a 

growing child"); Keser v. State, 706 P.2d 263, 270 (Wyo. 1985) 

(recognizing parental privilege defense where "a parent in 

punishing his children . . . act[s] in good faith with parental 
18

second type of approach omits the reasonableness requirement, 

instead granting a general privilege to use force while defining 

specific types of force as impermissible. Johnson, supra at 

442-443.4

Finally, some jurisdictions employ a third approach that 

combines features of the first two. See Johnson, supra at 443-

444. These jurisdictions follow the first approach in requiring 

that the force used be objectively reasonable, while following 

the second in identifying certain types of force as invariably 

unreasonable. Some jurisdictions adopting this approach only 

identify "deadly force" as inherently unreasonable.5 Others, 

borrowing from the Model Penal Code, specifically prohibit force 

that "create[s] a substantial risk of death, serious bodily 

 

affection, [does] not exceed the bounds of moderation, and [is] 

not . . . cruel or merciless" [citation omitted]).

4 See Ky. Rev. Stat. Ann. § 503.110 (exempting force 

"designed to cause or known to create a substantial risk of 

causing death, serious physical injury, disfigurement, extreme 

pain, or extreme mental distress"); Neb. Rev. Stat. § 28-1413 

(exempting force "designed to cause or known to create a 

substantial risk of causing death, serious bodily harm, 

disfigurement, extreme pain or mental distress, or gross 

degradation"); N.J. Stat. Ann. § 2C:3-8 (exempting "[d]eadly 

force"); 18 Pa. Cons. Stat. § 509 (exempting force "designed to 

cause or known to create a substantial risk of causing death, 

serious bodily injury, disfigurement, extreme pain or mental 

distress or gross degradation").

5 See Alaska Stat. § 11.81.430; N.Y. Penal Law § 35.10; Tex. 

Penal Code § 9.61.
19

injury, disfigurement, or gross degradation."6 Still others 

provide an extensive list of impermissible forms of corporal 

punishment,7 or provide that "the physical force applied to the 

child may result in no more than transient discomfort or minor 

temporary marks on that child."8

We conclude that a combined approach best balances the 

 

6 N.D. Cent. Code § 12.1-05-05. See Del. Code Ann. tit. 11 

§ 468; Mo. Rev. Stat. § 563.061 (exempting force "designed to 

cause or believed to create a substantial risk of causing death, 

serious physical injury, disfigurement, extreme pain or extreme 

emotional distress"); N.H. Rev. Stat. Ann. § 627:6 (excluding

"the malicious or reckless use of force that creates a risk of 

death, serious bodily injury, or substantial pain"); Utah Code

Ann. § 76-2-401 (prohibiting the parental privilege defense "if 

the offense charged involves causing serious bodily 

injury, . . . serious physical injury, . . . or the death of the 

minor"); Wis. Stat. § 939.45 (exempting "force which is intended 

to cause great bodily harm or death or creates an unreasonable 

risk of great bodily harm or death"). See also Model Penal Code 

§ 3.08.

7 See Del. Code Ann. tit. 11, § 468 (specifically 

prohibiting "[t]hrowing the child, kicking, burning, cutting, 

striking with a closed fist, interfering with breathing, use of 

or threatened use of a deadly weapon, prolonged deprivation of 

sustenance or medication"; Haw. Rev. Stat. § 703-309

(prohibiting "throwing, kicking, burning, biting, cutting, 

striking with a closed fist, shaking a minor under three years 

of age, interfering with breathing, or threatening with a deadly 

weapon"); Wash. Rev. Code § 9A.16.100 (permitting force "when it 

is reasonable and moderate," while identifying certain forms of 

force as "presumed unreasonable . . . : (1) Throwing, kicking, 

burning, or cutting a child; (2) striking a child with a closed 

fist; (3) shaking a child under age three; (4) interfering with 

a child's breathing; (5) threatening a child with a deadly 

weapon; or (6) doing any other act that is likely to cause and 

which does cause bodily harm greater than transient pain or 

minor temporary marks").

8 Me. Rev. Stat. Ann. tit. 17-A, § 106. See Wash. Rev. Code 

§ 9A.16.100.
20

parental right to direct the care and upbringing of a child with 

the Commonwealth's interest in protecting children from abuse. 

Accordingly, we hold that a parent or guardian may not be 

subjected to criminal liability for the use of force against a 

minor child under the care and supervision of the parent or 

guardian, provided that (1) the force used against the minor 

child is reasonable; (2) the force is reasonably related to the 

purpose of safeguarding or promoting the welfare of the minor, 

including the prevention or punishment of the minor's 

misconduct; and (3) the force used neither causes, nor creates a 

substantial risk of causing, physical harm (beyond fleeting pain

or minor, transient marks), gross degradation, or severe mental 

distress. By requiring that the force be reasonable and 

reasonably related to a legitimate purpose, this approach 

effectively balances respect for parental decisions regarding 

the care and upbringing of minor children with the 

Commonwealth's compelling interest in protecting children 

against abuse. By additionally specifying certain types of 

force that are invariably unreasonable, this approach clarifies 

the meaning of the reasonableness standard and provides guidance 

to courts and parents.

In applying the framework, each of the three prongs 

constitutes a question for the trier of fact. In evaluating the 

reasonableness of the force used, and of the relation of that 
21

force to a permissible parental purpose (the first two prongs of 

the test), the trier of fact may consider, among other factors,

the child's "age, the "physical and mental condition of the 

child," and "the nature of [the child's] offense." See 

Restatement (Second) of Torts, supra at § 150. In evaluating 

the third of the three, the trier of fact must decide whether 

the force used or the risk of injury it created was, in context, 

sufficiently "extreme" as to be inherently impermissible. See 

Model Penal Code and Commentaries § 3.08 commentary, at 140 

(1985). As with other affirmative defenses, where the parental 

privilege defense is properly before the trier of fact, the 

Commonwealth bears the burden of disproving at least one prong 

of the defense beyond a reasonable doubt. Cf. Commonwealth v. 

Glacken, 451 Mass. 163, 167 (2008); Commonwealth v. Rodriguez, 

370 Mass. 684, 687-688 (1976); Willis v. State, 888 N.E.2d 177, 

182 (Ind. 2008).

Having articulated this framework, we conclude that the 

evidence adduced at the defendant's trial was insufficient to 

sustain a conviction of assault and battery. Bell testified 

that he witnessed the defendant "smack[]" the child once on her 

clothed bottom. The defendant and the child's mother testified 

that he administered the spanking because the child disobeyed 

his direction to go to her mother, and continued playing on the 

sidewalk near the street. The Commonwealth offered no evidence 
22

that this "smack" resulted in any injury to the child. Under 

these circumstances, the Commonwealth failed to offer evidence 

sufficient to prove beyond a reasonable doubt that the 

defendant's use of force was unreasonable or not reasonably 

related to a permissible parental purpose.

The Commonwealth offers two arguments in support of the 

contrary conclusion. First, the Commonwealth asserts that the 

judge could have found "that the defendant in his angry state 

was not disciplining the child at all, but struck her out of 

anger and frustration." That remark finds support in 

Commonwealth v. Rubeck, 64 Mass. App. Ct. at 400-401, where the 

Appeals Court, in affirming the defendant's conviction of 

assault and battery on her two year old son, observed that 

"there was evidence that [the defendant] did not use reasonable 

force in a calm, nonviolent and controlled manner to train or 

educate her two year old child, but rather that she screamed, 

yelled and used unreasonable force, that she was frustrated and 

out of control, and that the use of force escalated and 

continued as [the defendant] grew more angry and frustrated."

It is true that certain older decisions from other 

jurisdictions granted wide leeway to parental authority, so long 

as parents did not act with "malice." See, e.g., State v. 

Jones, 95 N.C. 588, 592 (1886) ("The test, then, of criminal 

responsibility is the infliction of permanent injury by means of 
23

the administered punishment, or that it proceeded from malice, 

and was not in the exercise of a corrective authority"). See 

also Johnson, supra at 435. The view under which the 

availability of the parental privilege defense hinges on a

parent's subjective state, however, finds scant support in 

modern law, and we reject it. Model Penal Code and Commentaries 

§ 3.08 commentary, at 140 ("Older decisions tended to treat the 

motive of the actors as decisive . . . . Modern authority has 

tended towards a more objective test of moderation").

As a means of balancing parents' right to direct the 

upbringing of their children against the State's compelling 

interest in protecting children from abuse, a focus on a 

parent's emotional state is at once over- and underinclusive. 

It is understandable that parents would be angry at a child 

whose misbehavior necessitates punishment, and we see no reason 

why such anger should render otherwise reasonable uses of force 

impermissible. Conversely, we see no reason why the 

Commonwealth should be barred from protecting children against 

unreasonable methods of discipline -- methods that, for 

instance, threaten serious physical or emotional injury --

simply because it lacks evidence that a parent acted from anger. 

As the facts of this case aptly demonstrate, moreover,

interactions between parents and children may appear ambiguous 

to outside observers and are susceptible to misinterpretation, 
24

leading to significant difficulties of proof at trial and 

heightened risk of wrongful convictions.

Second, the Commonwealth notes that the child at issue here 

was two years old at the time of the spanking, and cites dicta 

from Commonwealth v. Rubeck, 64 Mass. App. Ct. at 400, 

indicating that "physical chastisement for preservation of 

discipline might never be justified in the case of a child of 

two years." While we agree that a child's age is one among a 

number of factors to be considered in assessing the 

reasonableness of corporal punishment, we reject a bright-line 

cutoff age below which any corporal punishment is impermissible. 

The child here was approximately one and one-half months away 

from her third birthday at the time of the incident. According 

to her mother's uncontroverted testimony, she spoke "very well," 

communicated "in full sentences," and was "very advanced for her 

age." Indeed, her response to her father's direction that she 

go to her mother -- "[N]o, you go to your mother" -- evinces a 

well-developed verbal acuity. According to the defendant's 

testimony, moreover, he warned the child of the impending 

punishment before administering it, stating that "daddy will pow 

pow, if you don't stop." Under these circumstances, the 

Commonwealth failed to offer sufficient evidence to prove that 

the defendant's use of force was impermissible because the child 

lacked the capacity to understand or appreciate the reason for 
25

the punishment. Accordingly, we reverse the defendant's 

conviction of assault and battery.

3. Conclusion. We recognize that the balance we strike 

with the parental privilege defense may well be imperfect and 

that absolute equipoise between the goals of protecting the 

welfare of children and safeguarding the legitimate exercise of 

parental autonomy is likely unattainable. To the extent that 

that is so, the balance will tip in favor of the protection of 

children from abuse inflicted in the guise of discipline.

Judgment reversed.