There have been several cases involving soldiers convicted of assault on a child under
age 16 in violation of Article 128, UCMJ, when the accused is the parent or step-parent of the victim.
The accused has raised the parental discipline defense arguing that his action was a legitimate exercise
of his parental authority. Before this defense will be successful, the court must find that the accused was
the child's parent, guardian, or someone else responsible for general care and supervision of the child, or
someone acting at the request of the parent or guardian. Secondly, the accused must have used force to
safeguard or promote the child's welfare including actions to prevent or punish the child's misconduct.
Thus, the accused must have had a proper disciplinary motive when he struck the child. Finally, the
accused must have used the proper degree of force in disciplining the child. An improper degree of
force is one 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. US vs. Robertson,
36 MJ 190 (C.M.A. 1992) and US vs. Brown, 26 MJ 148 (C.M.A. 1988).
The accused's seven year old daughter got up from her nap, went through her mother's
possessions, and sprayed her mother's perfume on a bed pillow. The Court found the accused as her
father was the proper party to discipline her and that he had a legitimate parental disciplinary purpose in
punishing his daughter for her misconduct. However, the Court found he used unreasonable force when
he used a belt and struck her hard on her buttocks numerous times. The next day she refused to sit down
at school. The pediatrician who examined her felt the injuries warranted an X-ray to determine how
extensive her injuries were. The accused's assault conviction was upheld. US vs. Robertson, 36 MJ 190
(C.M.A. 1992). In another case, the accused "whipped" his seven year old stepson with a belt for
stealing a quarter from his teacher's desk. This produced welts and "bad bruising" on the child. The
Court found that, while the accused was the proper disciplinary party and the child properly needed
discipline, the method employed was excessive force. The accused's conviction was upheld. US vs.
Brown, 26 MJ 148 (C.M.A. 1988).
In US vs. Ward, 39 MJ 1085 (ACMR 1994), the mother left her 3 year old son in the
care of the accused who was her boyfriend. The child knocked over a candle, but when confronted he
denied culpability. The accused spanked him on his buttocks with his hand. Then two or three times the
accused asked the child if he knocked over the candle. After each negative response, the accused
slapped the child in the face. The Court found the accused to be a proper disciplinary party as the agent
of the mother. Further, the Court held the accused had a proper disciplinary motive based on the child's
misconduct. Moreover, the Court found that the accused used the proper degree of force in spanking the
child on his buttocks. However, at trial a medical doctor testified that he slapped the child on his face
with such significant force that the child could have been knocked off his feet. The Court concluded by
finding that in this regard the accused used "excessive force" known to create a substantial risk of
causing serious bodily injury, extreme pain, or mental distress. Therefore, the Court affirmed his
conviction of assault by slapping the child in the face.
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