64 Mass. App. Ct. 396 | Mass. App. Ct. | 2005
The defendant, Christine M. Rubeck, was convicted by a jury of assault and battery, G. L. c. 265, § 13A, in the Northampton District Court. She appeals, claiming that her counsel was ineffective in not requesting a jury instruction concerning the right of a parent to use reasonable force to discipline a child for the purpose of safeguarding or promoting the child’s welfare. We affirm the conviction.
The incident giving rise to the complaint occurred in the waiting room of the Valley Medical Group in Florence. Rubeck, accompanied by her two year old son, drove a friend, Colleen Barber, to a medical appointment. While in the waiting room,
The child was “running around and jumping up and down and whining.” Rubeck responded by yelling at the child, grabbing him, pulling him over to her and yelling in his face, saying such things as “shut up, be quiet, sit down.” The child responded, “I don’t wanna” and made other “whiny” statements. Rubeck put her foot on the child’s foot, pulled him toward her and said, “If you don’t stop it now, we’re going out to the car, and you’ll be there, alone, with me.” The child immediately became quiet and “looked afraid.” The child then resumed jumping and running; Rubeck responded by grabbing the child by the collar and yanking him toward her while saying, “Shut up, stop it.”
Rubeck then grabbed the child by the arms, shook him, and threw him down into the chair, a distance of “a couple of feet.” The child was thrown “with force that you don’t use on a child that age,” in a manner that was “too aggressive for a two year old.” The child was crying. Rubeck was yelling in a voice that became progressively louder. She appeared frustrated with the child and “out of control.” Patients waiting to be seen asked medical personnel at the office to intervene. Rubeck took the child outside. The police were called and responded, taking statements from several witnesses.
In Rubeck’s defense, her friend, Barber, denied that Rubeck hit the child or threw the child into the chair, and stated that when Rubeck put the child in the chair, “He would get up and start acting out again, and throwing papers up in the air. . . . He just kept saying, ‘No, I’m not going to sit, Mommy.’... He said no. He kept saying no, when Mommy kept saying, ‘okay, come on, sit.’ ” Barber further testified that Rubeck was not yelling but, rather, was “talking in a normal voice.” On cross-examination, Barber denied the prosecutor’s statement that Rubeck “forcefully put [the child] in the chair. Threw him in the chair,” stating, “No, she did not . . . she . . . put him in the chair. She didn’t throw him. She said, ‘okay, . . . here, sit.’ ”
“A defendant seeking a new trial based on a claim of ineffective assistance of counsel bears the burden to establish both
The Legislature has not chosen to recognize or approve a parental right to use force in disciplining a child, and we know of no case in Massachusetts that specifically recognizes such a right, although there are allusions to this parental right in orneases. See Commonwealth v. Rodriguez, 445 Mass. 1003, 1004 (2005). In Commonwealth v. O'Connor, 407 Mass. 663, 667 (1990), the court discussed such a right, noting, however, that, as of that time, “[n]o Massachusetts decision or statute grants parents or others a right to use reasonable force in disciphning a child.” The court noted other jurisdictions where a common-law principle, that a parent or one standing in loco parentis is “justified in using reasonable force on the child ‘for the purpose of safeguarding or promoting the child’s welfare,’ ” is recognized. Id. at 667-668, quoting from Bowers v. State, 283 Md. 115, 126 (1978), and citing State v. Rigler, 266 A.2d 887, 889 (Del. Super. Ct. 1970); Martin v. United States, 452 A.2d 360, 362 (D.C. 1982); People v. Parris, 130 Ill. App. 2d 933, 936-937 (1971); State v. Black, 360 Mo. 261, 268 (1950); State v. Pittard, 45 N.C. App. 701, 703 (1980). Mpre recent cases have confirmed the existence of the common-law rule in some States. See, e.g., People v. Roberts, 351 Ill. App. 3d 684, 688 (2004). On the civil side, the defense is also recognized. See ibid., quoting from Restatement (Second) of Torts § 147(1), at 265 (1965) (“A parent is privileged to apply such reasonable force . . . upon his child as he reasonably believes to be necessary for its
In an early decision, the court made oblique reference to the use of force to “support . . . the rightful authority of the father,” but in that case, without further discussion, concluded that the jury could find that actions taken by the father and others to remove his daughter, then dying of consumption, from the place where she was living, were “excessive and unjustifiable.” Commonwealth v. Coffey, 121 Mass. 66, 69 (1876).
The right of parents to use reasonable force to discipline their children was most recently discussed in Commonwealth v. Torres, 442 Mass. 554, 568 n.11 (2004). There, the defendant complained that no instruction had been given regarding a parent’s “privilege to use reasonable force when disciplining her children.” The court held that, because the mother’s abuse of her young children was so extreme that her actions could not possibly come within any privilege, no such instruction was warranted.
In Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. 385, 387-388, 395 (1999), the court ruled that a parent’s spanking of a nine year old child with a leather belt, delivering one or two (and no more than five) blows to the child’s fully clothed buttocks in a nonviolent and controlled manner and not in anger, and leaving slightly pink marks with no bruising, combined with an explanation of the reason for the punishment and expressions of caring, did not constitute abuse as defined in the regulations of the Department of Social Services as set out in 110 Code Mass. Regs. § 2.00 (1996). The court noted that the regulations, promulgated pursuant to authority granted in G. L. c. 119, § 5 IB(8), “clearly draw a line between permissible physical discipline and prohibited abuse,” as the regulations clearly specify the types of physical injuries that may not be inflicted on children. Cobble v. Commissioner of the Dept. of Social Servs., 430 Mass. at 395.
Instruction 3.15 of the Massachusetts Superior Court Criminal
Against this backdrop, we conclude that, viewing the evidence in the light most favorable to the defendant, see Commonwealth v. Randolph, 438 Mass. 290, 299 (2002), the instruction was warranted. Here, her friend’s testimony, that Rubeck did not hit or yell, talked in a normal voice, only placed her hands on the arm of the child, and put him in the chair, rather than throwing him, supports a possible conclusion that Rubeck acted reasonably in disciplining her child and bringing him under control.
It is nonetheless arguable that the use of physical chastisement for preservation of discipline might never be justified in the case of a child of two years.
While we are constrained to consider the evidence in the light most favorable to Rubeck, we conclude, nevertheless, that the omission of the jury instruction did not result in a substantial risk of a miscarriage of justice. In closing argument, defense counsel argued forcefully that Rubeck’s actions were justified as a parent trying to exercise control over her child.
Judgment affirmed.
“The use of physical force [in chastisement] by a parent is privileged only when it is used for the ‘training or education of the child or for the preservation of discipline.’ (Restatement, Torts 2d, § 151 [(1965)].) When the child does not have the capacity to understand or appreciate the correction, the
Rubeck does not claim error in failing to request the instruction based on physical contact necessary to restrain the child from interfering with others in the waiting room or to prevent him from engaging in dangerous conduct. In any event, counsel’s argument and the judge’s charge would adequately cover any such physical contact here.