Republished, with permission, from Voice magazine, Sept./Oct. 2011.
On June 15, 2011 in the 214th District Court of Nueces County, Texas, Rosalina Gonzalez pleaded guilty to a felony charge of injury to a child. This bit of information is not particularly attention grabbing. Many would probably not give a second thought to the sad story, dismissing it as just another instance of the judicial system protecting a child, according to law, from an abusive parent. But this case was very different, as prosecutors admitted that this was a “pretty simple, straightforward spanking case” and added that Ms. Gonzalez did not even use a belt or leave any bruises.1 That the prosecution would make such an admission is significant and a strong indicator that Ms. Gonzalez, at least in this instance, was handling her parental responsibilities much like many parents who spank their children. Nothing unusual, particularly forceful or abusive was cited.
Ms. Gonzalez was arrested in December for spanking her nearly two-year old daughter, after the child’s grandmother “noticed red marks on the child’s rear end”2 and took the girl to the hospital for medical examination. Apparently those marks were enough to result in Ms. Gonzalez’ arrest and subsequent plea bargain.
As he pronounced the sentence, presiding judge Jose Longoria chided Ms. Gonzalez, saying, “You don’t spank children today. In the old days, maybe we got spanked, but there was a different quarrel. You don’t spank children. You understand?”3 With the guilty plea and those words at sentencing, Texas law may be profoundly impacted.
Child abuse and Texas legislation
Two particular pieces of Texas legislation are worth noting here. First, Chapter 261.001 of the Texas Family Code, which defines what is and is not considered child abuse or neglect, reads as follows:
1(C) physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child, including an injury that is at variance with the history or explanation given and excluding an accident or reasonable discipline by a parent, guardian, or managing or possessory conservator that does not expose the child to a substantial risk of harm4
The key phrase here is that “reasonable discipline by a parent” is considered not to be child abuse or neglect.
The second piece of Texas legislation worth noting is a portion of the Texas Penal Code, considering justification excluding criminal responsibility, which reads as follows:
PARENT—CHILD. (a) The use of force, but not deadly force, against a child younger than 18 years is justified:
(1) if the actor is the child’s parent or stepparent or is acting in loco parentis to the child; and
(2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare.
(b) For purposes of this section, “in loco parentis” includes grandparent and guardian, any person acting by, through, or under the direction of a court with jurisdiction over the child, and anyone who has express or implied consent of the parent or parents.5
The key phrases here pertain to the justified “use of force” “when and to the degree the actor reasonably believes the force is necessary to discipline a child…” Again, like in the Family Code reference, the term reasonable is prominent.
Previously, spanking as corporal punishment, has been acknowledged as reasonable in Texas. For example, in a 2005 letter from Texas Attorney General Greg Abbott to Texas Education Agency’s Commissioner of Education, Shirley Neeley, Abbott published his opinion that House Bill 383 (adopted by the 79th Legislature) would not limit school authority in regard to corporal punishment. It would make adjustments only to the Texas Family Code, which did before and after acknowledge parental rights to reasonably discipline a child by use of corporal punishment.6 Currently, the Texas Attorney General’s website also hosts a document entitled, “What We Can Do About Child Abuse (Part II),” which includes the following paragraph:
Texas law allows the use of force, but not deadly force, against a child by the child’s parent, guardian, or other person who is acting in loco parentis. Most parents do, in fact, use corporal punishment (in the form of spanking) at least occasionally, and most do not, in fact, consider it abusive. Experts disagree about the advisability of ever spanking a child. Some say that, combined with other methods of discipline, mild spanking of a small child is harmless and effective. Others claim that other methods of discipline work as well as spanking or better, and that spanking is not necessary. Many child advocates and experts in child development contend that all forms of corporal punishment, including spanking, are harmful. Most believe that spanking an infant is always inappropriate. The law does not attempt to arbitrate between the different views on the best method of disciplining a child. What we do know is that severe corporal punishment can be extremely damaging and dangerous, and this is what the law prohibits as abuse.7
The statement is clear that spanking is considered reasonable and permissible, even if it acknowledges broad disagreement over the advisability of spanking. The statement also distinguishes between spanking and “severe corporal punishment,” and in an additional paragraph on the website, describes the point at which discipline becomes abusive:
Some parents who become abusive believe that what they are doing is in the best interest of the child and are confused about when an attempt at discipline crosses the line and becomes abuse. Whether an action is abusive really depends on the circumstances of the individual case. However, the following guidelines may help:
Striking a child above the waist is more likely to be considered abusive; disciplinary spanking is usually confined to the buttocks. Spanking with the bare, open hand is least likely to be abusive; the use of an instrument is cause for concern. Belts and hair brushes are accepted by many as legitimate disciplinary “tools,” and their use is not likely to be considered abusive, as long as injury does not occur. Electrical or phone cords, boards, yardsticks, ropes, shoes, and wires are likely to be considered instruments of abuse. It is best not to hit a child in anger. Abusive punishment is most likely to occur when the parent is out of control. Finally, and most important, punishment is abusive if it causes injury. A blow that causes a red mark that fades in an hour is not likely to be judged abusive. On the other hand, a blow that leaves a bruise, welt, or swelling, or requires medical attention, probably would be judged abusive.
Another abusive form of discipline that does not involve hitting is severe isolation or confinement of a child. Many parents use “time out,” loss of privilege, or confinement to a special area as a punishment or as a time for the child to reconsider his or her choices. But when the child is tied up, gagged, locked in a closet, shut out, starved, or otherwise seriously deprived, the punishment is excessive and may constitute abuse.8
In the case of Ms. Gonzalez, Judge Longoria, by his statement at least, determined that spanking was not only unreasonable—it was impermissible. What makes this situation more lamentable than it already would have been is the reality that there will be no appeal, because Ms. Gonzalez arrived at an agreement with prosecutors to plead guilty. What at first glance would appear to be a seemingly (relatively) minor case, in fact, has become one of great magnitude and it was in effect settled outside of the courtroom. A precedent was set with no forthcoming challenge.
While we cannot predict just how influential this case will be in Texas or anywhere else, it certainly does not make parenting easier for those who believe—as I do—that spanking is an important part of the biblical parental mandate. Further, the outcome of Ms. Gonzalez’ case along with Judge Longoria’s statement is emblematic of a not so subtle societal trend of elevating our own ethical standards above those of our Heavenly Father.
As a decreasingly Christian society, we are ironically growing more confident in our own ethical superiority and sufficiency, all the while abandoning the ethical basis on which this society was grounded on in the first place—that God created us and endowed all people with certain inalienable rights. Along with that early recognition of His own sovereign rights over His creation, was the awareness (at least to some degree) that He knew best and that we must seek His guidance if we were to be the right kind of society.
1 http://nation.foxnews.com/justice/2011/06/20/judge-sentences-mother-span… viewed 10/3/2011.
2 http://www.myfoxphoenix.com/dpp/news/national/texas-mother-spanking-6-17… viewed 10/3/2011.
4 Texas Family Code, Subtitle E, Chapter 261, Section 261.001.
5 Texas Penal Code (1999), Chapter 9, Subchapter F, Section 9.61.
6 The Attorney General’s letter was viewed at https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2005/pdf/ga037… on 10/3/2011.
7 https://www.oag.state.tx.us/AG_Publications/txts/childabuse2.shtml viewed 10/3/2011