Disproving Parental Discipline Defense Requires Extreme Mental Distress, not just Mental Distress
State v. Dowling (ICA August 30, 2011)
Background. Richard Dowling was charged with one count of abuse of a family or household member. HRS § 709-906. At trial, Dowling's son was shown a series of photographs. He said that the photographs depict bruises on his legs. The son testified that he finished vacuuming the house and put the vacuum away in the closet. However, he could not close the door because the rug was stuck under it. The door blocked Dowling from going to his room and Dowling became angry with this son. Dowling asked his son if he caused the door to get stuck. His son repeatedly denied it and said it was the rug. Dowling thought his son was lying. Dowling pushed his son on the shoulder and he fell onto a bed. Dowling hit the son twice on his leg. The son also testified that Dowling might have punched him with a closed fist. The son testified that it hurt a little bit. The son told his great-grandmother about the incident one week later. He said that some of the bruises on his leg were caused by his father, but others were caused by a wheelbarrow when he was cleaning the yard.
The great-grandmother testified that after church services, the son asked if he could come over for lunch. When they got into the car, he started to cry and showed her his bruises. Dowling's wife testified that the son was complaining about having to vacuum the house. She also testified that the son denied three times that he had shoved the closet door stuck. Although she didn't see Dowling hit their son, she did see saw a gesture by Dowling that had her conclude that he did hit him. The son admitted to her that he shoved the door. She told him to continue doing his chores. She admitted seeing bruises a few days later, but he did not seem anxious.
Dowling testified that he saw his son putting the vacuum away and got the door stuck. He confronted his son about it and became angry when he lied to him and his wife. He put him on a bed and spanked him with an open palm.
The family court found the son's testimony more credible. The family court acknowledged the parental discipline defense. The family court also noted that there was no substantial bodily injury, but found that Dowling caused mental distress to his son. The family court found Dowling guilty. He appealed.
Parental Discipline. The parental discipline defense requires the defendant to show (1) the defendant was a parent or guardian; (2) the force was used against a minor for whose care and supervision the defendant was responsible; (3) the use of force was with due regard to the age and size of the minor and was reasonably related to the purpose of safeguarding or promoting the welfare of the minor; and (4) the force was not designed to cause or known to create a risk of causing substantial bodily injury, disfigurement, extreme pain or mental distress, or neurological damage. HRS § 703-309; State v. Crouser, 81 Hawai'i 5, 10-11, 911 P.2d 725, 730-31 (1996). The prosecution must also "disprove beyond a reasonable doubt facts negativing the justification defense." Id.
Extreme Mental Distress, not just Mental Distress. The prosecution must disprove that "[t]he force used [was] not designed to cause or known to create a risk of causing . . . extreme pain or mental distress[.]" HRS § 703-309(1)(b). According to the ICA, the word "extreme" clearly modifies "pain or mental distress." The ICA also noted that the HSC in dicta interpreted the statute to mean extreme mental distress. See State v. DeLeon, 72 Haw. 241, 244, 813 P.2d 1382, 1384 (1991) (pain inflicted by parent "did not come, in degree, anywhere near . . . extreme mental distress"); State v. Crouser, 81 Hawai'i at 12-13, 911 P.2d at 732-33 (prohibited results cannot be "extreme mental distress"). This meant that mere mental distress is not enough. The prosecution must disprove "extreme mental distress."
So What's Extreme Mental Distress? "[E]xtreme mental distress" is not statutorily defined, and there are no Hawai'i cases interpreting the words. However, "[t]he terms 'emotional distress,' 'mental anguish,' and 'mental distress' are synonymous." First Ins. Co. of Hawai'i Ltd., v. Lawrence, 77 Hawai'i 2, 7 n. 9, 881 P.2d 489, 494 n. 9 (1994). Similarly, in Rodrigues v. State, 52 Haw. 156, 172 P.2d 509 (1970), the HSC recognized the tort of negligent infliction of mental distress. In doing so, the HSC held that "a serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case." Id. at 173, 472 P.2d at 520. Moreover, according to the ICA, the Legislature cautioned that this parental discipline defense "should be interpreted in light of the age of the child." S. Stand. Comm. Rep. No. 2493, 1992 Senate Journal, at 1121.
None found here. According to the ICA, the family court found that there was only mental distress and there was nothing in the record establishing extreme mental distress was designed to be inflicted on the child. Moreover, even if the family court did employ the proper standard--extreme mental distress--the ICA found that the prosecution failed to establish evidence disproving that his conduct was designed to inflict extreme mental distress.
The Force was not Excessive. The force used by the parent must also be given "with due regard to the age and size of the minor and [be] reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct[.]" HRS § 703-309(1)(a). Dowling presented evidence that his son had repeatedly lied to him and he spanked him. It would seem that once that was established, the burden would shift to the prosecution to disprove the defense. The ICA turned to State v. Matavale, 115 Hawai'i 149, 166 P.3d 332 (2007), where the HSC held as a matter of law that the prosecution failed to disprove the parental discipline defense. In that case, a mother hit her daughter with a plastic backpack, clothes hanger, and the flat side of a brush leaving a few marks and bruises. Id. at 151-54, 166 P.3d 324-27. On the other hand, in State v. Miller, 105 Hawai'i 394, 98 P.3d 265 (App. 2004), the viciousness of the father's attack on his child--pulling hair, punches to the face, and body blows--"severed any relationship between the use of force and the welfare" of the child. Id. at 395, 98 P.3d at 266.
In comparing the two cases, the ICA concluded that this case was much closer to Matavale than Miller. It acknowledged that the use of force was a "gray area" that some would find inappropriate. But "gray areas are not resolved by criminalizing such parental discipline."
The Bookends of Reasonableness. The ICA examined the issue of whether the conduct was reasonable or sufficiently linked to the welfare of the child. It presented two very different cases. In Miller, you have a vicious attack that severs any relationship between the use of force and the need for discipline. On the other end you have Matavale, which the HSC had approved of as a matter of law. For the ICA, all it had to do was line the facts according to these two bookends. And it simply cut much closer to the Matavale side of the spectrum.
Chief Judge Nakamura's Concurrence and Dissent. Chief Judge Nakamura believed that the family court misapplied HRS § 703-309(1)(a). He also agreed with the majority that there was insufficient evidence establishing that Dowling's use of force resulted in mere "extreme mental distress." However, Chief Judge Nakamura believed that the should be a new trial to determine whether the prosecution could disprove that Dowling's use of force was "reasonably related to the purpose of safeguarding or promoting the welfare of the minor[.]" HRS § 703-309(1)(a). For the force to be "reasonably related," it "must be both reasonably proportional to the misconduct being punished and reasonably believed necessary to protect the welfare of the recipient." State v. Matavale, 115 Hawai'i at 163, 166 P.3d 336. Determining "reasonableness or excessiveness of physical punishment given a child by a parent is determined on a case-by-case basis and is dependent on the particular circumstances of the case." Id. at 165, 166 P.3d at 388.
Whether Dowling's use of force was reasonably proportional to the child's misconduct and reasonably believed to be necessary to protect the child's welfare is for the factfinder to decide. Chief Judge Nakamura recognized that the evidence could result in an acquittal. But the test for the sufficiency of the evidence is whether there was substantial evidence to support the verdict viewed in the light most favorable to the prosecution. State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998). Viewed in the light most favorable to the prosecution, Chief Judge Nakamura believed there was sufficient evidence supporting the family court's verdict. Thus, Chief Judge Nakamura would have vacated the conviction and remanded for trial. In a footnote, Chief Judge Nakamura wrote that the prosecution "only presented sufficient evidence to disprove the parental discipline based on HRS § 70[3]-309(1)(a) and not based on HRS § 70[3]-309(1)(b). For him, the retrial would be limited to disproving parental discipline based on paragraph (a).
How Many Parental Defenses are there? The Chief Judge disagreed with the majority that it should have simply reversed the conviction based on insufficient evidence. He wrote that there were two possible forms of the parental discipline defense and that the family court only ruled on one, albeit erroneously. For the Chief Judge, parental discipline could be a use of force that did not result in extreme pain or mental distress under HRS § 703-309(b), or it could be the use of force that was designed to be reasonably proportional to the misconduct under paragraph (a).
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