                                     TO BE PUBLISHED IN THE OFFICIAL REPORTS

                                          OFFICE OF THE ATTORNEY GENERAL
                                                    State of California

                                                  DANIEL E. LUNGREN
                                                     Attorney General
                                         ______________________________________

                                        OPINION             :
                                                            :          No. 97-416
                                        of                  :
                                                            :          July 21, 1997
                              DANIEL E. LUNGREN             :
                                 Attorney General           :
                                                            :
                               GREGORY L. GONOT             :
                              Deputy Attorney General       :
                                                            :
                     ______________________________________________________________________

                    THE HONORABLE RAYMOND N. HAYNES, MEMBER OF THE CALIFORNIA
         STATE SENATE, has requested an opinion on the following question:

                          Is it unlawful for a parent to spank a child for disciplinary purposes with an object other than
         the hand?

                                                         CONCLUSION

                          It is not unlawful for a parent to spank a child for disciplinary purposes with an object other
         than the hand; however, the punishment must be necessary and not excessive in relation to the individual
         circumstances.

                                                           ANALYSIS

                          The question presented for resolution concerns corporal punishment administered by a
         parent. Specifically, may a parent spank a child for disciplinary purposes with an object other than the open
         hand? Footnote No. 1 We conclude that the punishment may be so administered as long as it is necessary and
         not excessive in relation to the individual circumstances.

                          Penal Code section 273d, subdivision (a) Footnote No. 2 provides:

                          "Any person who willfully inflicts upon a child any cruel or inhuman corporal
               punishment or injury resulting in a traumatic condition is guilty of a felony and shall be punished
               by imprisonment in the state prison for two, four, or six years, or in a county jail for not more
               than one year, by a fine of up to six thousand dollars ($6,000), or by both that imprisonment and
               fine."

         The focus of section 273d, in regards to parents physically disciplining their child, is on the resulting
         condition of the child, not on the object used to administer the corporal punishment. For a violation of section
         273d to occur, the spanking must result in a "traumatic condition," which for purposes of the statute has been


1 of 4
         defined as "a wound or other abnormal bodily condition resulting from application of some external force."
         (People v. Stewart (1961) 188 Cal.App.2d 88, 91, citing People v. Burns (1948) 88 Cal.App.2d 867,
         873-874.) Where a spanking with an object other than the open hand produces a traumatic condition, Footnote
         No. 3 a violation of section 273d would require a further finding that the infliction of the corporal punishment
         was "cruel or inhuman" under the given circumstances. (See People v. Thomas (1976) 65 Cal.App.3d 854,
         857-858.)

                          Section 273a provides in part:

                           "(a) Any person who, under circumstances or conditions likely to produce great
               bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon
               unjustifiable physical pain or mental suffering, or having the care or custody of any child,
               willfully causes or permits that child to be placed in a situation where his or her person or health
               is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in
               the state prison for two, four, or six years.

                           "(b) Any person who, under circumstances or conditions other than those likely to
               produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts
               thereon unjustifiable physical pain or mental suffering, or having the care or custody of any
               child, willfully causes or permits the person or health of that child to be injured, or willfully
               causes or permits that child to be placed in a situation where his or her person or health may be
               endangered is guilty of a misdemeanor."

         Here again, criminal liability is not contingent upon the type of object used. Rather, the issue is whether the
         parent has inflicted "unjustifiable physical pain or mental suffering" when considering objectively the
         individual circumstances. "Section 273a holds every person to an objective standard of reasonableness
         regarding the causing of physical pain, mental suffering or injury to a child or the endangering of a child's
         person or health." (People v. Deskin (1992) 10 Cal.App.4th 1397, 1403.)

                          A parent may also be convicted of battery upon his or her child (§ 243; see People v.
         Stewart, supra, 188 Cal.App.2d at 90-91), defined as "any willful and unlawful use of force or violence upon
         the person of another" (§ 242). "`"`[T]he least touching' may constitute battery."'" (People v. Longoria (1995)
         34 Cal.App.4th 12, 16.) The amount of force "`"need not be violent or severe, it need not cause bodily harm
         or even pain and it need not leave any mark."'" (Ibid.) No proof of an intent to injure is required, only an
         intent to commit the act. (People v. Lindsay (1989) 209 Cal.App.3d 849, 855.) Again, there is no distinction
         made as between objects by which the force is delivered. Civil tort liability may also arise from a parent's
         unlawful physical punishment of his or her child. (See Emery v. Emery (1955) 45 Cal.2d 421, 429-430.)

                          Under the foregoing statutes, the use of an object other than the open hand when a parent
         administers a spanking to his or her child is not in itself unlawful. However, the particular object used may
         affect the reasonableness of the punishment, which is at the center of the legal right to discipline one's own
         child. In People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050, the court recently explained:

                            "A parent has a right to reasonably discipline by punishing a child and may
               administer reasonable punishment without being liable for a battery. (Emery v. Emery (1955) 45
               Cal.2d 421, 429; People v. Stewart (1961) 188 Cal.App.2d 88, 91 [§ 273d.] This includes the
               right to inflict reasonable corporal punishment. (People v. Curtiss (1931) 116 Cal.App.Supp.
               771, 775 [§273a].)

                          "However, a parent who willfully inflicts unjustifiable punishment is not immune
               from either civil liability or criminal prosecution. (People v. Stewart, supra, 188 Cal.App.2d 88,
               91; People v. Curtiss, supra, 116 Cal.App.Supp. 771, 777.) As explained in Curtiss, corporal
               punishment is unjustifiable when it is not warranted by the circumstances i e not necessary or

2 of 4
               punishment is unjustifiable when it is not warranted by the circumstances, i.e., not necessary, or
               when such punishment, although warranted, was excessive. (116 Cal.App. at p. Supp. 780.)
               "[B]oth the reasonableness of, and the necessity for, the punishment is to be determined by a
               jury, under the circumstances of each case." (Id., at p. Supp. 777.)

                           "Thus as these cases make clear, whether the corporal punishment falls within the
               parameters of a parent's right to discipline involves consideration of not only the necessity for
               the punishment but also whether the amount of punishment was reasonable or excessive.
               Reasonableness and necessity therefore are not two separate defenses but rather two aspects of
               the single issue of parental right to discipline by physical punishment. . . ."

                           The reasonableness of the discipline is a question of fact to be determined objectively in
         light of the individual circumstances presented. (People v. Deskin, supra, 10 Cal.App.4th at 1402.) That
         which is reasonable force when administered by an open hand may constitute excessive force when delivered
         by some other object. As among objects themselves, spanking with a studded belt or the plug-end of an
         electrical cord cannot be equated with spanking with a lightweight paddle or a bedroom slipper.

                          Finally, we note that a child may be made a dependent of the juvenile court if he or she is
         subject to serious physical harm by a parent. Welfare and Institutions Code section 300 states in part:

                           "Any minor who comes within any of the following descriptions is with the
               jurisdiction of the juvenile court which may adjudge that person to be a dependent child of the
               court.

                           "(a) The minor has suffered, or there is a substantial risk that the minor will suffer,
               serious physical harm inflicted non-accidentally upon the minor by the minor's parent or
               guardian. For the purpose of this subdivision, a court may find there is a substantial risk of
               serious future injury based on the manner in which a less serious injury was inflicted, a history of
               repeated inflictions of injuries on the minor or the minor's siblings or a combination of these and
               other actions by the parent or guardian which indicate the child is at risk of serious physical
               harm. For purposes of this subdivision, `serious physical harm' does not include reasonable and
               age-appropriate spanking to the buttocks where there is no evidence of serious physical injury.

                            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                           "It is the intent of the Legislature that nothing in this section disrupt the family
               unnecessarily or intrude inappropriately into family life, prohibit the use of reasonable methods
               of parental discipline, or prescribe a particular method of parenting. . . ."

                           We conclude that it is not unlawful for a parent to spank a child for disciplinary purposes
         with an object other than the hand; however, the punishment must be necessary and not excessive in relation
         to the individual circumstances.

                                                                                *****

         Footnote No. 1
         To "spank" normally means to slap on the buttocks with the palm of the hand, but it may also mean to use some other
         object. (Webster's New Internat. Dict. (3rd ed. 1971) p. 2182.) We are not here concerned with spankings administered by a
         teacher or school official (see Ingraham v. Wright (1976) 430 U.S. 651) or with corporal punishment administered by other
         authorities in settings outside of the home (see 78 Ops.Cal.Atty.Gen. 197 (1995) [use of a paddle to spank a ward of the
         juvenile court as punishment for placing graffiti on property]). We also note that corporal punishment of any type may not
         be administered by a foster parent. (Health & Safety Code, § 1531.5, subd. (d).) Return to text
         Footnote No. 2
         All section references hereinafter are to the Penal Code unless otherwise specified. Return to text


3 of 4
         Footnote No. 3
         In a prosecution under section 273d, "[t]here need not be found a deliberate intent to cause a traumatic condition, but only
         the more general intent to inflict upon a child any cruel or inhuman corporal punishment or injury." (People v. Atkins
         (1975) 53 Cal.App.3d 348, 358.)




4 of 4
