Law catching up on punishment vs. child abuse

At our Labor Day pool party this year, a 3-year-old boy grabbed a little girl by the arm when she sat in the plastic race car that the boy had been enjoying earlier. He got a scolding that focused on sharing and the she-had-it-first rule of kids' justice. Off the boy went, frowning miserably for about 10 seconds, before finding some other great toy to fill his limitless desire to play. It seemed that a lesson was delivered, sufficient for the moment, the penalty fitting the crime.

A week later, I read that NFL star Adrian Peterson beat his 4-year-old son to bleeding and bruises with a tree branch, reportedly for pushing a cousin off a motorbike video game. Peterson was charged criminally with child abuse in Texas, where the incident occurred.

From the enactment of the first child protection laws in the United States in the 1960s and '70s, lawmakers have carved out a corporal-punishment exception for parental supervision, control, and discipline of children. But where is the line between corporal punishment and child abuse? And which of these are crimes? I don't think the line is so hard to find.

Fortunately, the law in Pennsylvania is becoming clearer. With recent amendments to the definition of child abuse, there are some specific types of harm for which there is now an explicit line that cannot be crossed. For the first time in Pennsylvania history, corporal punishment of very young children has been declared child abuse per se, including forcefully shaking, slapping, or otherwise striking a child under 1 year of age.

Other changes to the Child Protective Services Law address kicking, biting, throwing, burning, stabbing, or cutting a child of any age in a manner that endangers the child, as well as interfering with the breathing of a child - think of the cases in which a caregiver taped a child's mouth shut or "washed" the child's mouth with soap. Unreasonably restraining or confining a child, such as by locking a child in a closet or bathroom, or leaving a child in a car while you go shopping or gambling, are now explicitly listed as child-abuse offenses.

Next, we ask whether there is an injury or pain that crosses the line. Injuries include bleeding, broken bones, contusions, and other impairments of physical condition. The Peterson case, in which reports indicate that the child suffered cuts and bleeding to his buttocks, inner thighs, and scrotum, would likely be both child abuse and a crime in Pennsylvania, and probably in Texas, too.

The subjective assessment of pain remains controversial, especially when there is little or no bruising. In a change that will go into effect at the end of 2014, Pennsylvania authorities moved the legal pain threshold from "severe pain" to "substantial pain." This is in response to numerous cases that were dismissed despite reports from examining physicians who believed children had experienced painful abuse. While more cases will likely be accepted by authorities under this lower standard, investigators will still need to make a judgment about the pain that the child endured, which may be problematic if the child is nonverbal or the injury has healed. Other states have eliminated the pain threshold entirely from their definitions of physical abuse, focusing instead on the perpetrator's actions and the child's injuries.

Was the injury inflicted by another person, and was it accidental? A child who falls from a swing and breaks an ankle has not been abused, all agree. But what about the child who was struck in the eye by the buckle of the belt her parent swung at the child's rear to discipline her? Following some back-and-forth decisions by the courts on cases like this, the law has been updated to include both intentional and reckless acts. The civil definition of child abuse is now consistent with the traditional culpability framework of both criminal and personal-injury law: We are responsible for the foreseeable consequences of our actions.

Finally, child-welfare investigators and criminal-court judges must ask whether the parental discipline is reasonable. Mostly these inquiries focus on the degree of injury rather than the implement. Whether with a belt strap, electric cord, or tree branch, whipping a child remains shocking to many of us but acceptable under the law, unless to the point of bleeding, a lasting bruise or scar, or (when the legal change takes effect) substantial pain. The diversity of public response to the Peterson case - from dismay at the abuse to defense of the beating to outrage at the prosecution - suggests that we have not yet found consensus on what discipline is reasonable.

The law could go further here and bar all implements in the infliction of corporal punishment - but then parents would have to use their hands, which perhaps feels too close, too personal, too impactful. Is a tree branch somehow better?

Should we continue to exercise discipline of children through punishment to the body? I think not. There are other ways to teach. Timeouts, deprivations of privileges, and even conversation have proven records of success at changing a child's future behavior. By contrast, what many kids are learning from being beaten is that physical force is the way adults respond.

If we want to teach justice and fairness, we might examine the child's offense and the outcome that the parent is seeking. Does the punishment fit the crime? While the law is beginning to catch up, we have a ways to go.