Is Spanking a Child a Crime in Massachusetts?

A parent in Massachusetts can spank a child as discipline without committing a crime when the spanking meets three requirements set by the Supreme Judicial Court. The force must be reasonable. The force must be reasonably related to the child’s welfare, which includes preventing or punishing the child’s misbehavior. The force also must not cause physical harm beyond fleeting pain or minor, temporary marks. Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015).

A parent whose spanking fails any one of the three requirements can be charged with assault and battery under G.L. c. 265, § 13A. A parent who hits a child with a belt or another object can face a more serious charge. The charge is assault and battery by means of a dangerous weapon under G.L. c. 265, § 15A. When a child under fourteen suffers a bodily injury, the parent can also be charged with assault and battery on a child under G.L. c. 265, § 13J.

This page explains the three requirements, the appellate decisions that apply the three requirements, and the charges a parent can face after a spanking. The page also explains the Department of Children and Families investigation that can begin after a teacher, doctor, or police officer reports a spanking.

The Three Requirements for Spanking a Child in Massachusetts

In Dorvil, the Supreme Judicial Court recognized a parental discipline defense to a criminal charge. A parent or guardian who used force against a minor child in the parent’s or guardian’s care can raise the defense. The parent or guardian cannot be convicted for the force when the force meets all three requirements. Dorvil, 472 Mass. at 12.

The first requirement is that the force was reasonable. The second requirement is that the force was reasonably related to safeguarding or promoting the child’s welfare. Preventing or punishing the child’s misbehavior is a permissible purpose under the second requirement. Id.

The third requirement is that the force did not cause physical harm beyond fleeting pain or minor, temporary marks. The force also must not cause gross degradation or severe mental distress. The force also must not create a substantial risk of causing physical harm, gross degradation, or severe mental distress. Id.

The judge or jury decides whether each requirement was met. For the first two requirements, the judge or jury can consider the child’s age and the child’s physical and mental condition. The judge or jury can also consider the nature of the child’s misbehavior. Id. at 13.

When any view of the evidence supports the defense, the defendant is entitled to have the jury consider the defense. Commonwealth v. Packer, 88 Mass. App. Ct. 585, 592 n.9 (2015). The Commonwealth must then prove beyond a reasonable doubt that at least one of the three requirements was not met. Dorvil, 472 Mass. at 13.

Appellate Decisions on Spanking and Physical Discipline

In Dorvil, a father told his daughter to go to her mother. The daughter disobeyed and kept playing on the sidewalk near the street. A witness testified that the father smacked her once on her clothed bottom. The Commonwealth offered no evidence that the smack injured the child.

The Supreme Judicial Court held that the evidence did not prove that the father’s force was unreasonable or unrelated to a permissible parental purpose. The court reversed his conviction for assault and battery.

In Commonwealth v. Dobson, 92 Mass. App. Ct. 355 (2017), a mother struck her five-year-old son with a leather belt. She testified that she disciplined him for misbehaving in his kindergarten class. She told the police that she meant to hit his buttocks but hit his face. The child had a red mark on his face and a four-inch red mark on his leg.

The Appeals Court held that the judge could find that the mother’s force was unreasonable. The Appeals Court upheld the mother’s conviction for assault and battery by means of a dangerous weapon.

In Commonwealth v. Rosa, 94 Mass. App. Ct. 458 (2018), a father kicked his five-year-old daughter in the chest while wearing snow boots. The kick knocked the daughter to the ground in a store. The police officer who stopped the father testified that the child had no marks or bruises.

At trial, the father testified that he only nudged his daughter. He also testified that he was concerned that his daughter would be kidnapped. He admitted that, at the time of the kick, he no longer feared that she would be kidnapped. The judge rejected the father’s testimony that he only nudged his daughter.

The Appeals Court held that the judge could find that the kick was unrelated to the child’s welfare. Id. at 461-462. The Appeals Court upheld his conviction for assault and battery by means of a dangerous weapon. The dangerous weapon was the father’s boot.

Spanking a Child With a Belt or Another Object

A parent who uses a belt or another object to spank a child can be charged under G.L. c. 265, § 15A. The charge is assault and battery by means of a dangerous weapon. An ordinary object is a dangerous weapon when a person uses the object in a way that reasonably appears capable of causing serious injury or death. Commonwealth v. Tevlin, 433 Mass. 305, 312 n.3 (2001).

In Dobson, the Appeals Court wrote that courts have long recognized a belt as a dangerous weapon, particularly when a person uses a belt against a child. The Appeals Court also noted that the Dorvil decision did not address the use of weapons.

If an adult is convicted of assault and battery by means of a dangerous weapon on a child under fourteen, the maximum sentence is fifteen years in state prison. G.L. c. 265, § 15A(c)(iv). The judge can instead impose up to two and one-half years in the house of correction, a fine of up to $10,000, or both. When the child is fourteen or older, the maximum sentence under § 15A(b) is ten years in state prison.

Stepparents, Boyfriends, and Girlfriends Who Discipline a Child

A stepparent can raise the parental discipline defense when the evidence shows that the stepparent had taken on the role of a parent toward the child. Packer, 88 Mass. App. Ct. at 590. The same rule applies to any other adult who is not the child’s parent or guardian. The legal term for the role of a parent is in loco parentis.

A stepparent does not take on the role of a parent merely by marrying the child’s parent. Id. In Packer, the Appeals Court described two factors. The first factor is whether the adult intended to take over the position of a parent. The second factor is whether the adult took on the responsibility of supporting and maintaining the child. Id. at 592 n.8. The judge or jury can infer the adult’s intent from the adult’s conduct and circumstances. Id.

In Packer, a stepmother had lived with the child and the child’s father for years. The child’s biological mother played no part in the child’s life. The child called the stepmother her mother. The Appeals Court held that the jury could have found that the stepmother stood in the place of a parent. Id. at 592-593.

The trial judge had given the parental discipline instruction for the father but refused the instruction for the stepmother. The Appeals Court set aside her conviction. The Appeals Court also distinguished a long-term stepparent from a parent’s short-term boyfriend or girlfriend. Id. at 592.

Spanking by Teachers and Public School Staff

Massachusetts law prohibits corporal punishment of students by public school teachers and other school committee employees. G.L. c. 71, § 37G(a). The statute provides that a teacher may use reasonable force when necessary to protect students, other persons, or the teacher from an assault by a student. G.L. c. 71, § 37G(b).

Criminal Charges After a Spanking

Assault and battery under G.L. c. 265, § 13A is a misdemeanor. If a defendant is convicted, the possible penalties are up to two and one-half years in the house of correction or a fine of up to $1,000.

Section 13J punishes an assault and battery that causes a bodily injury to a child under fourteen. Section 13J defines bodily injury as a substantial impairment of the child’s physical condition. If a defendant is convicted of causing bodily injury, the maximum sentence is five years in state prison or two and one-half years in the house of correction.

In Commonwealth v. Robinson, 103 Mass. App. Ct. 361 (2023), a child had very extensive bruising on one ear. No doctor testified about the effect of the bruise on the child’s bodily functioning or health. The Appeals Court held that the evidence did not prove a bodily injury under § 13J. The Appeals Court set aside the § 13J conviction for the ear injury and ordered entry of a conviction for assault and battery under § 13A instead.

The police arrest some parents after a spanking report. In other cases, the police apply to the court for a criminal complaint. A parent accused of misdemeanor assault and battery who was not arrested ordinarily receives notice and a clerk-magistrate hearing before a complaint issues. G.L. c. 218, § 35A.

The Department of Children and Families and a Spanking Report

Teachers, physicians, nurses, child care workers, and police officers are mandated reporters under G.L. c. 119, § 21. A mandated reporter who suspects that a child has been abused must report the suspected abuse to the Department of Children and Families. G.L. c. 119, § 51A. The Department’s investigation is separate from any criminal case.

Under the Department’s regulations, abuse is a non-accidental act by a caregiver that causes, or creates a substantial risk of, physical or emotional injury to a child under eighteen. 110 CMR 2.00. A caregiver includes a parent, a stepparent, a guardian, a household member, a teacher, and a babysitter. Id.

The Department’s definition of physical injury includes skin bruising and soft tissue swelling. Whether the Department treats a bruise as a physical injury depends on the child’s age and the circumstances of the injury. The Department also considers how many bruises the child has and where the bruises are. Id.

The Commonwealth can offer a parent’s statements to a Department investigator as evidence in the criminal case.

The Department has a policy of not placing a foster child in a home where the parents use corporal punishment on their own children. In Magazu v. Department of Children and Families, 473 Mass. 430 (2016), a married couple applied to become foster and preadoptive parents. The couple spanked their own daughters on the buttocks by hand. The Supreme Judicial Court upheld the Department’s denial of the couple’s application.

The Defense of a Parent Charged After a Spanking

Defense counsel in a spanking case gathers evidence about each of the three Dorvil requirements. For the first two requirements, the evidence includes the child’s misbehavior, the child’s age, and the reason the parent gave for the discipline. For the third requirement, defense counsel reviews the photographs and medical records to learn whether any mark was minor and temporary.

The evidence supporting the defense can come from the Commonwealth’s own witnesses. A parent does not have to testify for the jury to consider the parental discipline defense. Packer, 88 Mass. App. Ct. at 592 n.9.

Attorney Joe Serpa defends parents charged with assault and battery after a spanking or other physical discipline. A parent contacted by the police or a Department investigator after a spanking report should speak with Attorney Serpa before answering questions.

Frequently Asked Questions

Related Serpa Law Office Resources

• Assault and Battery on a Child in Massachusetts Under G.L. c. 265, § 13J
• Assault and Battery Charges in Massachusetts Under G.L. c. 265, § 13A
• Assault With a Dangerous Weapon and Assault and Battery With a Dangerous Weapon in Massachusetts
• DCF 51A Investigations After a Massachusetts Domestic Arrest
• Reckless Endangerment of a Child in Massachusetts Under G.L. c. 265, § 13L
• Massachusetts Clerk-Magistrate Hearing Lawyer
• Massachusetts Criminal Charges Defense