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Tim Bilecki

How parental discipline can be used as a defense

Navigating the Waters of Parental Discipline: A Defense in Assault Charges Against a Child

In the realm of military justice, the topic of parental discipline often treads a fine line between lawful correction and unlawful assault. The complexity of such cases necessitates a thorough understanding of the legal boundaries that define permissible parental discipline. This blog seeks to elucidate the nuances of using parental discipline as a defense to charges of assault against a child, drawing from the principles outlined in Military Jury Instruction 5-16 on Parental Discipline.

The Foundation of Parental Discipline as a Defense

At the heart of the discussion is the recognition that a parent, by virtue of their authority, has the right to discipline their child. This right, however, is not without limits. The law acknowledges that corporal punishment can be a component of parental discipline, provided it is executed within the boundaries of promoting the child’s welfare and preventing or correcting misconduct. The critical factor distinguishing lawful discipline from unlawful assault is the nature and extent of force applied.

Evaluating the Use of Force

The jury’s role in cases alleging assault under the guise of parental discipline is to meticulously examine all relevant facts and circumstances surrounding the incident. This evaluation includes, but is not limited to, the force’s intensity, the instrument used (if any), the targeted body area, the frequency and manner of application, as well as the child’s age and size relative to the accused. Such an assessment ensures a balanced consideration of what constitutes reasonable discipline versus excessive or unreasonable force.

Criteria for Reasonable Force

The law clearly delineates the criteria for what is considered reasonable force in the context of parental discipline. Reasonable force must aim at safeguarding or enhancing the child’s welfare, encompassing the prevention and punishment of misbehavior. Conversely, force that is likely to cause death, serious bodily injury, disfigurement, extreme pain, extreme mental distress, or gross degradation crosses the threshold into the realm of unreasonable and excessive force.

Direct Quotation from Military Jury Instruction 5-16: Parental Discipline

For a deeper understanding and for reference, it is beneficial to directly quote the pertinent parts of Jury Instruction 5-16 on Parental Discipline:

“The evidence has raised an issue of whether the accused was imposing corporal punishment as a permissible parental disciplinary measure at the time of the alleged act(s) on (his) (her) child in relation to the offense(s) of (state the alleged offense(s)).

In determining this issue you must consider all the relevant facts and circumstances (including, but not limited to (the amount of force used) (the instrument used) (where upon the body the (force) (instrument) was applied) (the number of times and manner (force) (the instrument) was used) (the age and size of the child) (the size of the accused) (here the military judge may specify other significant evidentiary factors bearing on the issue and indicate the respective contentions of counsel for both sides)).

A parent does not ordinarily commit a criminal offense by inflicting corporal punishment upon a child subject to (his) (her) parental authority because such parental authority includes the right to discipline a child. The corporal punishment must be for the purpose of safeguarding or promoting the welfare of the child, including the prevention or punishment of the child’s misconduct, and the force used may not be unreasonable or excessive.

Unreasonable or excessive force is that designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain, extreme mental distress, or gross degradation.

If the act(s) of the accused in (striking) (__________) (his) (her) child (was) (were) for the purpose of disciplining the child, and the force used was not unreasonable or excessive as I have defined those terms, the accused is considered to have had legal justification for (his) (her) acts and (he) (she) must be acquitted. However, if you are satisfied beyond a reasonable doubt that at the time of the accused’s act(s), the accused was motivated by other than a parental desire to safeguard or promote the welfare of the child, including the prevention or punishment of misconduct, or, that the force used was unreasonable or excessive, then the act(s) may not be excused as permissible, parental disciplinary measures.

The prosecution’s burden of proof to establish the guilt of the accused not only applies to the elements of the offense(s) of (state the alleged offense(s)), but also to the issue of parental discipline. In order to find the accused guilty of the offense(s) of (state the alleged offense(s)), you must be convinced beyond a reasonable doubt that the accused’s act(s) ((was) (were)) not within the authority

The Burden of Proof and Legal Justification

It is imperative to note that the burden of proof lies with the prosecution. To secure a conviction, it must be established beyond a reasonable doubt that the accused’s actions were not within the scope of parental discipline as legally defined or that the force applied was unreasonable or excessive. If the accused’s actions were motivated by a genuine intent to discipline the child and the force used does not violate the stipulated criteria, then such actions are legally justified, warranting acquittal.

Authorization to Discipline

Another critical aspect to consider is whether the accused was indeed authorized to use force for disciplinary purposes. This authorization extends not only to parents but also to guardians, those responsible for the child’s general care and supervision, or individuals acting upon the request of such authority figures. The jury must be convinced beyond a reasonable doubt of the accused’s legitimate role in disciplining the child for the parental discipline defense to apply.


Parental discipline in the context of military law requires a delicate balance between ensuring the child’s welfare and upholding the parent’s right to discipline. The legal framework, as outlined in Military Jury Instruction 5-16, provides a comprehensive guide for navigating these complex waters. By closely adhering to the criteria for reasonable force and thoroughly considering the accused’s authorization and intent, the justice system can fairly differentiate between lawful discipline and unlawful assault, ensuring that the scales of justice are appropriately balanced in such sensitive cases.

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