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17-P-1140                                            Appeals Court

                COMMONWEALTH   vs.   MICHAEL C. ROSA.


                            No. 17-P-1140.

        Hampshire.        June 4, 2018. - November 9, 2018.

            Present:   Rubin, Wendlandt, & Englander, JJ.


Assault and Battery by Means of a Dangerous Weapon.     Parent and
     Child, Discipline. Child Abuse.


     Complaint received and sworn to in the Northampton Division
of the District Court Department on January 17, 2017.

    The case was heard by William J. O'Grady, J.


     Glynis Mac Veety for the defendant.
     Caleb Weiner, Assistant District Attorney, for the
Commonwealth.


    WENDLANDT, J.      In this case, we apply the three-part

framework for the parental privilege defense as set forth in

Commonwealth v. Dorvil, 472 Mass. 1, 12-13 (2015).      Following a

jury-waived trial, the defendant, Michael C. Rosa, was convicted

of assault and battery by means of a dangerous weapon (shod
                                                                      2


foot) against his five year old daughter.1    On appeal, the

defendant argues that the Commonwealth presented insufficient

evidence either to disprove his parental privilege defense

beyond a reasonable doubt, or to prove that his shod foot

qualified as a dangerous weapon.    We affirm.

     Background.    We recite the facts as the judge could have

found them, drawing all reasonable inferences in the light most

favorable to the Commonwealth.    See id. at 3.   On the morning of

January 17, 2017, the defendant was walking with his five year

old daughter and two year old son in downtown Northampton.       As

they headed to a local CVS store, according to the defendant,

his daughter ran ahead and entered the store without him.

According to a CVS employee, the defendant entered the store

with only one of his children, but it is unclear from her

testimony whether the other child entered after the defendant or

before.

     In any event, the CVS employee testified that the first

thing she remembered upon their entry into the store was the

children running around the store and the defendant cursing and

yelling at his daughter.    The defendant's daughter was laughing

and hiding from the defendant.    While walking through the store,

the defendant continued to yell obscenities at his daughter.




     1   He was acquitted of reckless endangerment of a child.
                                                                      3


Eventually, the defendant's daughter, laughing, headed toward

the store's front exit, where she encountered a CVS employee who

said, "Whoa, hold on."    The employee asked her what she was

doing, and she responded, still laughing, that she was hiding

from her father.

    After approximately fifteen minutes in the store, the

defendant stopped at a refrigerated case and picked up a bottle

of iced coffee.    While the defendant waited in line to pay, he

saw his daughter by the front doors, hiding near the metal

detectors.   He did not pursue her, and she approached him.     The

subsequent interaction between the defendant and his daughter

was captured by a video surveillance recording, and was also

described at trial by the CVS employee.

    The surveillance video footage and testimony of the CVS

employee demonstrate that the defendant's daughter approached

him and grabbed his legs.   He shoved her in her chest with his

hand, causing her to take a step or two to regain her balance.

She then attempted to cling to his lower legs with her arms, and

he once again shoved her away, this time causing her to step

back two or three steps before falling down onto her buttocks;

she immediately got back up.    According to the CVS employee's

testimony, the daughter reacted to this pushing in a playful

manner but showed signs of becoming agitated.
                                                                   4


    The defendant then approached the counter to pay for his

coffee.   The CVS employee testified that, at this point, the

defendant warned his daughter to stay away from him, telling

her, "[G]et the fuck away from me.   Trust me, you don't want to

fucking be near me right now."   His daughter came toward him

again.    In response, the defendant lifted his foot and kicked

his daughter in the chest, knocking her to the ground and

causing her and her brother to cry briefly.

    The surveillance video shows that in response to the kick,

the daughter stepped back, lost her balance, fell onto her

bottom again, and remained there for approximately two seconds.

After getting up, the daughter meandered around the area of the

cash register as the defendant finished his purchase, at which

point she left the store with the defendant and her brother.

    The CVS employee called the police to report the incident,

and two police officers stopped the defendant shortly

thereafter.   During the stop, Northampton police officer Brent

Dzialo separated the defendant from his children and asked him

why he had kicked his daughter in the chest.    The defendant

answered, "I don't raise pussies."   The defendant acknowledged

that he had used his foot to make contact with her chest and

push her down but denied kicking her.    Dzialo described the

defendant's footwear (which was admitted in evidence) as "snow

boot style boots/shoes."    Dzialo also testified that the
                                                                    5


defendant's daughter did not have any red marks, scratches,

bruises, or other visible injuries, and therefore, he did not

seek medical attention for her.

    At the time of the incident, the defendant was

approximately five feet, six inches tall, and weighed three

hundred pounds.   His daughter was approximately three feet tall,

and weighed less than fifty pounds.

    The defense at trial was that the defendant's conduct was

protected by the parental privilege defense.    The defendant

denied kicking his daughter, claiming that he only "nudged" her.

He stated that he was concerned about his "daughter getting

kidnapped, missing."   On cross-examination, he asserted that he

had "tried to use other methods that didn't work," and that he

"realized that the only way to get my daughter to stay by my

side was to use a little reverse psychology."    Later, however,

he admitted that by the time he kicked her, he "wasn't in fear

that she was going to be kidnapped," and he did not even "want

her close by [to him]."   Finally, he claimed that his comment to

Dzialo -- that he kicked his daughter because "I don't raise

pussies" -- was meant to convey that he did not want to raise

his children to be victims of bullying.

    The judge found the defendant guilty of assault and battery

by means of a dangerous weapon, expressly crediting the CVS

employee's testimony that the defendant "kicked [his] child in
                                                                      6


the chest," and rejecting the defendant's testimony that he only

nudged his daughter.

    Discussion.     1.   Parental privilege defense.   The parental

privilege defense seeks to balance two competing interests:

(i) protection of the parental right to autonomy over the care

and upbringing of children, and (ii) safeguarding children from

punishment so excessive that it constitutes abuse.     See Dorvil,

472 Mass. at 12.    The privilege provides that no criminal

liability will attach to a parent's use of force against his or

her child as long as "(1) the force used against the minor child

is reasonable; (2) the force is reasonably related to the

purpose of safeguarding or promoting the welfare of the minor,

including the prevention or punishment of the minor's

misconduct; and (3) the force used neither causes, nor creates a

substantial risk of causing, physical harm (beyond fleeting pain

or minor, transient marks), gross degradation, or severe mental

distress."   Id.   "[E]ach of the three prongs constitutes a

question for the trier of fact."    Id. at 13.   See Commonwealth

v. Packer, 88 Mass. App. Ct. 585, 594-595 (2015).      As is the

case with other affirmative defenses, "the Commonwealth bears

the burden of disproving at least one prong of the defense

beyond a reasonable doubt."    Dorvil, 472 Mass. at 13.

    Viewed in the light most favorable to the Commonwealth, see

Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the
                                                                   7


evidence adduced at trial was sufficient to support the judge's

finding that at least one of the parental discipline defense

prongs was disproved beyond a reasonable doubt.   In evaluating

the reasonableness of the force used (prong one) and of the

relation of that force to a permissible parental purpose (prong

two), the trier of fact should take into account a variety of

factors, including "the child's 'age,' the 'physical and mental

condition of the child,' and 'the nature of [the child's]

offense,'" among others.   Dorvil, 472 Mass. at 13, quoting

Restatement (Second) of Torts § 150 (1965).

     Here, there was sufficient evidence for the judge to find

the Commonwealth had met its burden with regard to prong two,

rejecting the defendant's stated legitimate purpose for his

conduct.2   See, e.g., id. (looking at defendant's stated reason

for spanking child).   At trial, the defendant justified his

action on the ground that he was afraid his daughter might be

kidnapped or go missing.   Prior to the kick, however, the

defendant's daughter repeatedly attempted to stay by his side,


     2 The Commonwealth argues that the defendant's extensive use
of profanity alone defeats the parental privilege defense. We
disagree. The Supreme Judicial Court has expressly rejected the
argument that the availability of the defense hinges on the
parent's emotional state. See Dorvil, 472 Mass. at 14
(declining to consider evidence that defendant was angry while
using force because "[t]he view under which the availability of
the parental privilege defense hinges on a parent's subjective
state, however, finds scant support in modern law, and we reject
it").
                                                                   8


only to have the defendant shove her away twice and warn her to

get "the fuck away from [him]."   Indeed, the defendant admitted

at trial that, by the time he kicked her, he no longer feared

she would be kidnapped and did not even "want her close by."     In

light of the defendant's admission that his purportedly

legitimate parental purpose was a pretext, the judge could

reasonably have found that the defendant's decision to kick his

daughter was wholly unrelated to the purpose of safeguarding or

promoting the welfare of the minor.   Cf. Commonwealth v. Grassie,

476 Mass. 202, 210 (2017) ("Commonwealth may establish the

absence of proper use of self-defense by proving beyond a

reasonable doubt [that] . . . the defendant did not actually

believe that he was in immediate danger of death or serious

bodily harm from which he could have saved himself only by using

deadly force").

    Moreover, prior to the trial, the defendant provided a

different explanation for his conduct, stating that he kicked

his daughter because "I don't raise pussies."   At trial, he

explained:   "I mean that, in society today, there's a lot of

children being bullied in schools and I'm not going to raise my

children to be victims."   Certainly, the judge could also

reasonably have found that the defendant's shifting rationale

for the kick belied his assertion that the kick related to a

legitimate purpose of safeguarding or promoting the welfare of
                                                                    9


the minor.   Here, the judge expressly found the defendant not to

be credible, instead crediting the testimony of the CVS employee

that the defendant kicked the daughter in the chest and finding

the defendant's testimony that he merely nudged her not

credible.    See Commonwealth v. Bousquet, 407 Mass. 854, 861-862

(1990) ("[T]he question was one of credibility for the finder of

fact and we shall not substitute our judgment for that of the

trial judge").

     Because the evidence was sufficient to allow the judge to

find that the Commonwealth met its burden to disprove prong two

of the defendant's parental privilege defense, we need not

address either prong one3 or prong three.    See Commonwealth v.

Dobson, 92 Mass. App. Ct. 355, 359 (2017).    The privilege is

available only if the force used is both reasonable and

reasonably related to a legitimate parental purpose.4    See

Dorvil, 472 Mass. at 12-13 ("By requiring that the force be

reasonable and reasonably related to a legitimate purpose, this




     3 Though we need not reach the issue, there was also
sufficient evidence to support the finding that the Commonwealth
met its burden of disproving under Dorvil's first prong that
"the force used against the minor child [was] reasonable."
Dorvil, 472 Mass. at 12.

     4 Prong three additionally specifies "certain types of force
that are invariably unreasonable," clarifying the meaning of the
reasonableness standard and providing guidance to courts and
parents. Dorvil, 472 Mass. at 13. The Commonwealth concedes
that it did not meet its burden with regard to prong three.
                                                                     10


approach effectively balances respect for parental decisions

regarding the care and upbringing of minor children with the

Commonwealth's compelling interest in protecting children

against abuse").     As the Supreme Judicial Court has held, the

Commonwealth may overcome the defense by "disproving at least

one prong of the defense beyond a reasonable doubt" (emphasis

supplied).    Id. at 13.   Significantly, the privilege is based on

the special role parents play in the rearing of their children

and is founded on a recognition that "we must guard against the

imposition of criminal sanctions for the use of parenting

techniques still widely regarded as permissible and warranted."

Id. at 9.    Parenting is essential to the reason underlying the

privilege, and that aspect of the privilege is embodied in prong

two.    Accordingly, where, as here, the Commonwealth provides

evidence sufficient to find that the defendant's supposedly

legitimate parenting purpose is false, there is sufficient

evidence to sustain its burden.

       2.   Sufficiency of the evidence of use of shod foot as a

dangerous weapon.     The defendant additionally maintains that his

assault and battery by means of a dangerous weapon conviction

should be reversed because the Commonwealth presented

insufficient evidence to prove that his boot qualified as a

dangerous weapon.     Where an object that is not dangerous per se

(such as a boot) is alleged to be a dangerous weapon, the
                                                                   11


question is "whether the object, as used by the defendant, is

capable of producing serious bodily harm."    Commonwealth v.

Tevlin, 433 Mass. 305, 310 (2001), quoting Commonwealth v.

Mercado, 24 Mass. App. Ct. 391, 397 (1987).   "Resolution of

these questions is invariably for the fact finder . . . and

involves not only consideration of any evidence as to the nature

and specific features of the object but also attention to the

circumstances surrounding the assault and the use of the object,

and the manner in which it was handled or controlled."

Commonwealth v. Marrero, 19 Mass. App. Ct. 921, 922 (1984).

     Here, the evidence demonstrated that the defendant used his

snow boot to kick -- not to push -- his five year old daughter

in the chest with sufficient force to knock her down onto the

ground.   See id. ("Footwear, such as a shoe, when used to kick,

can be a dangerous weapon").   As set forth supra, the judge

specifically discredited the defendant's testimony that he only

nudged his daughter.5   Cf. Mercado, 24 Mass. App. Ct. at 397


     5 The judge found the defendant not guilty of reckless
endangerment of a child, explaining, "I have to agree with
defense counsel that, at least with respect to the elements that
require the Commonwealth to prove that the defendant engaged in
conduct which created a substantial and unjustifiable risk of
serious bodily injury was not met." The elements of reckless
endangerment of a child under G. L. c. 265, § 13 L, are "(i) a
child under eighteen; (ii) a substantial risk of serious bodily
injury . . . ; (iii) the defendant wantonly or recklessly
engaged in conduct that created this substantial risk, or failed
to take reasonable steps to alleviate such risk where there is a
duty to act." Commonwealth v. Figueroa, 83 Mass. App. Ct. 251,
                                                                   12


(insufficient evidence that shod foot was dangerous weapon where

shod foot was only used to "nudge" the victim).   Viewing this

evidence in the light most favorable to the Commonwealth, see

Latimore, 378 Mass. at 676-677, a reasonable trier of fact could

have concluded that the defendant used his boot in a manner that

created the possibility of serious harm to his daughter.     See

Commonwealth v. Charles, 57 Mass. App. Ct. 595, 599 (2003)

(kicking was "not so minimal as to foreclose an inference that

the shod feet of the defendants were being used as dangerous

weapons").

    3.   Probation.   The judge sentenced the defendant to two

and one-half years in the house of correction with six months to

be served, the balance suspended for five years, and probation

for the duration of the five-year suspended sentence.   The




258 (2013). We disagree with the defendant that the judge's
statement (which apparently relates at least to the third
element of reckless endangerment concerning the defendant's
mental state) is irreconcilable with the finding that the
defendant -- who was five feet, six inches tall and weighed 300
pounds, and used his snow boot to kick his five year old
daughter, who was three feet tall and weighed less than 50
pounds, in the chest -- employed his shod foot as an object
"capable of producing serious bodily harm." Tevlin, 433 Mass.
at 310, quoting Mercado, 24 Mass. App. Ct. at 397. Cf.
Commonwealth v. Coggeshall, 473 Mass. 665, 668 (2016), quoting
Commonwealth v. Hendricks, 452 Mass. 97, 103 (2008)
("substantial risk" of serious bodily injury in context of
reckless endangerment of child means "a good deal more than a
possibility"). The judge expressly stated: "I do credit the
testimony that you kicked your child in the chest. You didn't
nudge your child in the chest . . . ."
                                                                   2


defendant contends that the five-year term of probation was an

illegal sentence because it was longer than the two and one-half

year maximum imprisonment sentence for assault and battery by

means of a dangerous weapon.6   See G. L. c. 265, § 15 A (b).

However, the probation statute, G. L. c. 276, § 87, permits a

judge to place a defendant on probation for a length of time

exceeding the offense's maximum sentence of imprisonment.    See

Commonwealth v. Powers, 73 Mass. App. Ct. 186, 188 (2008).

                                    Judgment affirmed.




     6 The defendant also maintains that the probation condition
that he "comply with all DCF [Department of Children and
Families] requirements regarding the custody of [his] children"
impermissibly interferes with the "province of the Probate and
Family Court or the Juvenile Court." However, he cites to no
conflicting order of these courts. Accordingly, the argument is
unavailing.
     RUBIN, J. (concurring).     The defendant kicked his five year

old daughter in the chest and was charged with assault and

battery by means of a dangerous weapon, to wit, his shod foot.

He did not argue that his conduct, although wrongful, was

justified under the theory of necessity or "competing harms."

"In essence, the 'competing harms' defense exonerates one who

commits a crime under the 'pressure of circumstances' if the

harm that would have resulted from compliance with the law

significantly exceeds the harm actually resulting from the

defendant's violation of the law.     At its root is an

appreciation that there may be circumstances where the value

protected by the law is, as a matter of public policy, eclipsed

by a superseding value which makes it inappropriate and unjust

to apply the usual criminal rule.    See generally LaFave & Scott,

Criminal Law § 50 (1972); Arnolds & Garland, The Defense of

Necessity in Criminal Law:     The Right to Choose the Lesser Evil,

65 J. Crim. L. & Criminology 289, 291-296 (1974)."        Commonwealth

v. Brugmann, 13 Mass. App. Ct. 373, 376-377 (1982).        Rather, the

defendant argued that he was entitled to kick his child because

of the parental discipline privilege, which is the "privilege to

use reasonable force in disciplining a minor child," under which

" a parent or guardian may not be subjected to criminal liability

for the use of force against a minor child under the care and

supervision of the parent or guardian, provided that (1) the
                                                                   2


force used against the minor child is reasonable; (2) the force

is reasonably related to the purpose of safeguarding or

promoting the welfare of the minor, including the prevention or

punishment of the minor's misconduct; and (3) the force used

neither causes, nor creates a substantial risk of causing,

physical harm (beyond fleeting pain or minor, transient marks),

gross degradation, or severe mental distress."   Commonwealth v.

Dorvil, 472 Mass. 1, 8, 12 (2015).   As the Supreme Judicial

Court has explained, "[a]s with other affirmative defenses,

where the parental privilege defense is properly before the

trier of fact, the Commonwealth bears the burden of disproving

at least one prong of the defense beyond a reasonable doubt."

Id. at 13.

    I join the court's opinion rejecting the defendant's claim

on the ground that the Commonwealth has provided sufficient

evidence to disprove beyond a reasonable doubt the second prong

of that privilege as defined by the Supreme Judicial Court's

decision in Dorvil, 472 Mass. at 12.   With respect to the first

prong, I agree with my brother Englander that "the CVS

employee's testimony that the defendant 'lifted his foot' and

'kicked' his five year old daughter 'in the chest' is sufficient

evidence" to support a finding by the judge beyond a reasonable

doubt of the use of "unreasonable force," post at     .   I

therefore also conclude –- and note that the panel thus
                                                                   3


unanimously holds –- that the defendant's conviction of assault

and battery by means of a dangerous weapon (shod foot) must also

be affirmed, independently of the holding of the majority

opinion with respect to Dorvil's second prong, on the ground

that the Commonwealth met its burden of disproving under

Dorvil's first prong that the "the force used against the minor

child [was] reasonable."   Id.

     As to the third prong, although kicking a child might be

necessary to avoid injury or death such that it might in some

circumstance be justified under the necessity or competing harms

defense, because kicking a child always "creates a substantial

risk of . . . physical harm (beyond fleeting pain or minor,

transient marks), gross degradation, or severe mental distress,"

Dorvil, supra at 12, I am of the view that prong three means

that kicking a child cannot be justified under the parental

discipline privilege.   Put another way, I conclude that the

parental privilege does not include the right to discipline a

child by kicking her.

    This is consistent with the reasoning underlying the

Supreme Judicial Court's recognition of the parental discipline

privilege.   That court noted that, because "substantial

majorities of parents continue to say that spanking is sometimes

necessary to discipline children, . . . the long-standing and

widespread acceptance of such punishment remains firmly woven
                                                                   4


into our nation's social fabric.   It follows that we must guard

against the imposition of criminal sanctions for the use of

parenting techniques still widely regarded as permissible and

warranted."   Id. at 9.

    While this accurately describes spanking, the practice of

kicking one's child as a method of discipline is of course not

firmly woven into our nation's social fabric, nor is it widely

regarded as permissible and warranted.   Indeed, our society

abhors kicking even a dog, never mind a child.

    Consistent with the physical risk involved in kicking a

child, as well as society's understanding of its degrading

nature, several states that allow parents to utilize corporal

punishment on their children for purposes of discipline

nonetheless explicitly treat kicking a child as beyond, or

presumptively beyond, the scope of the privilege.   Under

Delaware's law creating a parental discipline privilege, for

example, "force shall not be justified if it includes, but is

not limited to, any of the following:    Throwing the child,

kicking, burning, cutting, . . . [or] striking with a closed

fist" (emphasis supplied).   Del. Code Ann. tit. 11, § 468(1)a

(2018).   That statute makes clear that this is because the

listed acts, including kicking a child, are "likely to cause or

do[] cause physical injury, disfigurement, mental distress,

unnecessary degradation or substantial risk of serious physical
                                                                   5


injury or death."   Del. Code Ann. tit. 11, § 468(1)c.    These are

essentially the factors articulated by our Supreme Judicial

Court in Dorvil, 472 Mass. at 12, that render otherwise

permissible conduct outside the privilege under prong three.

    Because of these factors, and given the instruction in

Dorvil that where there is doubt "the balance will tip in favor

of the protection of children from abuse inflicted in the guise

of discipline," id. at 15, which I take to mean that the law of

the Commonwealth is to be as protective of the dignity of

children and their right as human beings to be protected from

violence as is consistent with allowing parents to discipline

their children using "parenting techniques still widely regarded

as permissible and warranted," I conclude that, under the third

prong of Dorvil, kicking a child may not be justified as a

lawful way of disciplining her.   Rather, such kicking can be

justified on the basis that it is undertaken in order to further

the welfare of the child only in circumstances where it is done

as a matter of necessity under the "competing harms" defense.
    ENGLANDER, J. (concurring).     I concur in the court's

affirmance of the conviction, but for reasons different than the

majority opinion.   As this case shows, the cases in this area

can be difficult -- where the courts are asked to apply the laws

of criminal assault in the context of the parent-child

relationship, and where the law provides that a parent may use

reasonable force to discipline one's child.       I write separately

to make three points.

    First, I would rest the affirmance on prong one of the

standard articulated in Commonwealth v. Dorvil, 472 Mass. 1, 12

(2015), and conclude that there was sufficient evidence of

unreasonable force here.   Specifically, the CVS employee's

testimony that the defendant "lifted his foot" and "kicked" his

five year old daughter "in the chest" is sufficient evidence of

unreasonable force under the standard of review of Commonwealth

v. Latimore, 378 Mass. 671, 676-677 (1978).

    That said, however, it is worth noting that the evidence of

unreasonable force here was thin.    Indeed, the majority does not

rest its analysis on prong one.     See ante at      .   The child was

uninjured.   She went down on her behind, but got up immediately.

There was no further evidence presented as to the force of the

"kick," just the characterization itself.     There was no evidence

as to whether the defendant extended his leg with any velocity,

or merely pushed the child back.    The surveillance video does
                                                                  2


not show this.   When asked at oral argument, the Commonwealth

could cite no other case, from any jurisdiction, where a parent

had been convicted of assault and battery on their child upon a

comparable showing of force, with no injury.1,2

     Second, I disagree with the majority over prong two of the

Dorvil standard, although my disagreement is more with the

standard itself than its application here.   Prong two asks

whether "the force is reasonably related to the purpose of

safeguarding or promoting the welfare of the minor, including

the prevention or punishment of the minor's misconduct."

Dorvil, 472 Mass. at 12.   This is the prong on which the

majority rests its decision.   See ante at     .   The majority

concludes that the parental privilege is overcome because, in

its view, there was sufficient evidence to conclude that what




     1 As the majority notes, the trial judge found the defendant
"not guilty" of reckless endangerment, and in doing so expressly
found that the defendant did not "engage[] in conduct which
created a substantial and unjustifiable risk of serious bodily
injury . . . ."

     2 Our case law is not yet very developed as to what force
can qualify as "unreasonable." Dorvil, 472 Mass. at 3, 13,
holds that "smacking [a] child on the [clothed] buttocks" -- a
spank, if you will -- falls within the parental privilege.
Commonwealth v. Dobson, 92 Mass. App. Ct. 355, 357-359 (2017),
on the other hand, involved the striking of a child in the face
with a belt, such that it left a mark, which was sufficient
evidence of unreasonable force to overcome the privilege. This
case falls between those fact patterns.
                                                                    3


this father did was not reasonably related to "prevention . . .

of the [child's] misconduct."     Ante at     .

    I am troubled by the prong two requirement.     Under prong

one, a parent asserting the parental privilege must already show

that any force he or she used on the child was "reasonable."

Prong two asks a different question, and it is whether the

parent has also shown that the force used was reasonable

discipline -- that is, that the force was reasonable for the

purpose of promoting the welfare of the child, including the

prevention or punishment of misconduct.     See Dorvil, 472 Mass.

at 12.     The prong two requirement thus sets up the possibility

that a parent will have shown that the force used was reasonable

under prong one, but nevertheless is convicted of assault

because (in the fact finder's judgment) the parent's reasonable

force was not reasonably related to disciplining the child.

    Viewed in this light, the second prong can be understood as

an invitation to pass judgment on how a parent has chosen to

parent.     In my view, the courts should tread lightly in this

area.     Whether discipline is required, and how to render it

effectively, are complex questions that vary greatly from child

to child, year to year, moment to moment.     The law should give

substantial leeway to parents to make those judgments, and it

should allow for a range of differences in parenting philosophy,

as well.     I do not think the parental privilege should be
                                                                      4


overcome solely because the fact finder concludes that the

parent's use of force, although reasonable, did not meet its

view of what was appropriate discipline.

     This case illustrates the issue.   There was objective

evidence that the child was misbehaving, and was in need of

control.    She had traveled ahead of her father in a downtown

area.    She later started to leave the CVS building alone,

heading for a downtown street.    She was uncontrolled for fifteen

minutes or more.    The majority nevertheless concludes that there

was sufficient evidence to find that the discipline the father

employed was inappropriate -- not "reasonably related to . . .

prevention or punishment of the [child's] misconduct."      Ante at

.   In accordance with prong two, however, the majority's

analysis does not rest on the nature of the force used, but

rather rests on the evidence of how the father explained his

actions.    In this way the courts become involved, unnecessarily

in my view, in evaluating the parent's judgment about how to

discipline their child.   3




     3 The majority points out that the privilege derives from
parenting, and thus the use of force must be shown to be related
to parenting (hence, prong two). Perhaps, but I am not sure why
the requirement of "reasonable" force in prong one does not
serve that purpose. By using the word "reasonable" in both
prong one and prong two, the standard sets up two separate
requirements, and invites a separate evaluation whether the
force used was appropriate as discipline. See Dorvil, 472 Mass.
at 12-13. The requirement also gives rise to the risk --
                                                                   5


     Third, I note that the Commonwealth's evidence and argument

in this case focused unduly on what the defendant said to his

child, rather than what he did.    The testimony emphasized that

the defendant was loud, profane, and offensive, and that he

swore directly at his young children.     The prosecutor carried

this theme into closing, and indeed spent the bulk of his time

on it.4

     There are two problems with the prosecutor's emphasis on

the defendant's speech.   The first is that the prosecutor

employed it to argue that the defendant was angry, but the court

in Dorvil specifically held that the parental privilege defense

does not hinge on the parent's subjective state of mind,

including whether the parent acted out of anger.     See Dorvil,

472 Mass. at 13-14.   Accord Commonwealth v. Packer, 88 Mass.

App. Ct. 585, 593-594 (2015).     The second problem is that the

offensiveness of the defendant's speech is not relevant to a

prosecution for assault and battery with a dangerous weapon.

While what the defendant said may be relevant to certain

elements of the parental privilege defense, the fact that what




inherent in the standard -- that less articulate parents will
have more difficulty justifying their actions.

     4 For example, the prosecutor argued: "[F]rom the moment he
gets in, . . . he's screaming and shouting obscenities at a five
year old child," and "[H]e's saying things like 'Get the fuck
away from me.' How in the world is that reasonable . . . ?"
                                                                  6


he said was offensive, was not.   See, e.g., Cohen v. California,

403 U.S. 15, 18-26 (1971) (defendant could not be criminally

prosecuted for wearing T-shirt saying "Fuck the Draft").

     With the foregoing reservations, I concur in the

affirmance.5




     5 The conduct at issue might be more effectively addressed
by the Department of Children and Families, rather than by the
criminal laws.
