Q. At what point would a service member's attempt to discipline a child amount to child abuse?

A. Under certain circumstances, service members are allowed to resort to reasonable physical force to discipline their children. But if too much force is used, or if force is used for the wrong reasons, troops could face a charge of assault consummated by a battery upon a child under 16 years or aggravated assault in which grievous bodily harm is intentionally inflicted when committed upon a child under the age of 16 years.

Both are violations of Article 128 of the Uniform Code of Military Justice, and could carry significantly longer maximum confinement periods than their Article 128 counterparts that do not involve children.

Parents or guardians facing such charges because they struck a child may be able to raise a defense of "parental discipline" if they can show "the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of her misconduct" and "the force used is not 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," the U.S. Navy-Marine Corps Court of Criminal Appeals noted in U.S. v. Gener Pizarro (2006).

Another case, U.S. v. Christopher L. Stitely (2008), offers a good example of a situation where a parent was justified in resorting to force to discipline a child, but used too much. Stitely, an Air Force staff sergeant, was charged with, among other things, assaulting his 17-year-old stepdaughter as she tried to move out of his house. As the girl was exiting the house, ignoring Stitely's demands that she not leave, the appellant grabbed her by the hair and pulled her back inside and forced her to sit down.

The U.S. Air Force Court of Criminal Appeals found that Stitely appropriately resorted to force "to prevent misconduct, i.e., trying to keep his then 17-year-old stepdaughter from running away from home." However, noting how Stitely caused his stepdaughter "extreme pain" by yanking a ball of hair from her head, the court concluded he used "excessive force" and upheld his assault conviction.

It's worth noting that parents can be convicted of assault even if they strike a child only once. "There is no per se rule requiring loss of blood or other serious injury before finding that any given parental disciplinary action is excessive," the court said in Stitely.

In U.S. v. Jose M. Rivera (2001), the U.S. Court of Appeals for the Armed Forces found the appellant, an Army sergeant, was not entitled to the parental discipline defense when he punched his 14-year-old stepson in the stomach because he was performing poorly at school. That did amount to an assault consummated by a battery on a child under 16 years, even though the punch left no welt, bruise or other mark.

"[O]ne closed-fist punch to the stomach can cause substantial risk of serious bodily injury," the court said, adding that "the burden of establishing substantial risk can be met without physical manifestation of actual harm. A rule that requires physical evidence of injury invites one blow too many."

Service members charged with assault because they forcefully disciplined a child should immediately consult with an experienced military law attorney. Depending on the circumstances, an attorney could help the service member raise a parental discipline defense by showing the service member used appropriate domestic corporal punishment to protect the child's welfare and the amount of force used was not excessive.

Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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