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A defence against physical abuse

When a person is criminally charged with physically abusing a child, it is quite natural for the accused parent or guardian to put up the defence that his act was not abuse, it was merely disciplining or correcting the child.

The law recognizes the parents’ right and prerogative to correct, punish or discipline a child just as the law recognizes the child’s right against cruelty and abuse. How then can the parental right to discipline his child be used as a legal defence?

The legal defence is available to a parent or to any parent who has responsibility over the child.

Stepparents, grandparents, legal guardians, and even teachers can avail of this defence. It is essentially evidentiary.

This means that the accused who puts up this defence must present evidence that on the balance of probabilities proves his acts do not fall under the definition of ‘abuse’ and instead, fall under the definition of ‘correction’ or ‘discipline’. The threshold is ‘reasonableness’.

What is ‘reasonable’ correction or discipline is a matter of fact. The law considers the age of the child, the child’s level of reasoning, the manner of discipline and the harm on the child. For instance, spanking a four month old baby on the bottom cannot be considered discipline or correction.

For one, a baby is incapable of reasoning such that any misbehaviour on the part of a child of this age has a physiological reason behind it: it cries because it is wet, dirty, hungry, hurt or lonely. It does not cry simply to bother the parent. Moreover, spanking a baby whose body is fragile will damage the child physiologically and neurologically. The spanking cannot teach a four month old child anything as the child is incapable of reasoning at his age.

The parent must be able to show by evidence that his purpose in using corporate punishment was not to hurt or intimidate the child but to correct the child and teach the child acceptable behaviour. In the example above, a baby of four months old is better distracted from his crying by giving him his favourite toy to play with.

The parent must also show good reason for using corporal punishment as the mode for correcting and disciplining the child when there are other means of correction available to him such as positive reinforcement, praising, setting boundaries, explaining why behaviour is unacceptable, withdrawing privileges and giving consequences.

The parent must also prove that no permanent or significant harm was caused to the child. Corporal punishment that causes wounding, bruising, or fracture is not ‘reasonable’ discipline or correction. Punishment that is aimed toward the head or neck area of the child is likewise not ‘reasonable’ as significant and permanent harm can result to the child. What is ‘reasonable’ is judged under the factual circumstances in each case.

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Disclaimer : This article is just a summary of the subject matter being discussed and should not be regarded as a comprehensive legal advice for you to defend yourself alone. If you are charged with criminal offences, it is recommended that you seek legal assistance from criminal lawyers.

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