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Domestic Violence and Assault Defenses: Defending the Caregiver (Parental Discipline Defense)

By: April Campbell

Ever since the 1990’s, when Ohio’s highest court explained that parents have a fundamental right to discipline their children, our courts have been plagued with questions regarding this right. Most notably, is how this right interplays with criminal domestic violence and assault laws.  The main question afflicting courts has been this: In domestic violence and assault cases, is reasonable parental discipline an affirmative defense? Or, is it the state’s burden to prove that a parent’s discipline of a child was unreasonable to obtain a conviction?  

Good question. Conceptually though, the right of parents to discipline their children is at odds with the idea of affirmative defenses. It is lawful conduct, a constitutional right. Thus, it is unlike other affirmative defense, which are normally reserved for justifying unlawful conduct. 

Even so, it is nice to have an answer. Last week the Court finally got to it, and held that reasonable parental discipline is an affirmative defense. State v. Faggs, Slip Opinion No. 2020-Ohio-523 (Feb. 19, 2020).  The prosecutor has no burden of proof at all. Okay, that’s settled. 

More important, though, is the other question the Court answered. And it is an answer that should cause defense attorneys to step back and take notice. Applying this affirmative defense not just to parents, the decision assumes that the defense covers those standing “in loco parentis” to the child too. 

In short, the Court just blew this defense wide open. Realistically, the Court’s answer to the “in loco parentis” question is just a sensible application of what we all know to be true: in this modern era, who the “parent” actually is, is who the child goes home to. 

But realistic or not, thanks to Faggs,  this defense will spring up more now than ever, as advocates  and courts wrestle with an increasingly broader class of parental figures, to determine exactly who this defense applies to now.  If I were a betting girl, I’d say that the likeliest result of this decision is more litigation. I’d wager a pretty penny on it.  

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