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Defenses – § 948.03(2)(b) (2001-02), Harm to Child – Defense of Parental Privilege, § 939.45(5)

State v. Kimberly B., 2005 WI App 115
For Kimberly B.: Anthony G. Milisauskas

Issue/Holding:

¶30      While Wis. Stat. § 939.45(5) recognizes the right of a parent to inflict corporal punishment to correct or discipline a child, that right of parental discipline has its limits. Kimberly seems to suggest that the statute prohibits only force that is “intended to cause great bodily harm or death” or that “create[s] an unreasonable risk of great bodily harm or death.” However, we agree with the State that the plain language of § 939.45 requires that (1) the use of force must be reasonably necessary; (2) the amount and nature of the force used must be reasonable; and (3) the force used must not be known to cause, or create a substantial risk of, great bodily harm or death. If parental conduct fails to satisfy even one of these prongs, then the parent is not protected by the privilege. Thus, to overcome the privilege of parental discipline in Wisconsin , the State must prove beyond a reasonable doubt that only one of these three prongs is not present.…

¶32      Reasonable force is that force which a reasonable person would believe is necessary.  Wis JI—Criminal 950. …

¶33      “The test of unreasonableness is met at the point at which a parent ceases to act in good faith and with parental affection and acts immoderately, cruelly, or mercilessly with a malicious desire to inflict pain, rather than make a genuine effort to correct the child by proper means.” State v. Thorpe, 429 A.2d 785, 788 (R.I. 1981). There is no inflexible rule that defines what, under all circumstances, is unreasonable or excessive corporal punishment. Id. Rather, the accepted degree of force must vary according to the age, sex, physical and mental condition and disposition of the child, the conduct of the child, the nature of the discipline, and all the surrounding circumstances. See Wis JI—Criminal 950.

¶37      Given the evidence before the jury concerning the aggressive nature of the physical punishment, the actual injuries sustained and Kimberly’s demeanor and prior knowledge, the jury could reasonably conclude that Kimberly was not making a genuine effort to discipline Jasmine by proper means ….

 

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