Is Spanking a Crime in California?

The Adrian Peterson story out of Texas may have you wondering.

Well, the short answer is no, but of course, it’s not that simple, and if you go too far in the eyes of the beholder, your spanking can get you charged with child abuse.

The primary California laws against child abuse punish anyone who “willfully inflicts upon a child any cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.” Pen. Code § 273d. They also punish anyone who willfully causes or permits a child to suffer unjustifiable physical pain or mental suffering. Id. § 273a. Other, related laws also address child neglect, endangerment, sexual abuse, and emotional abuse, not to mention other, generally-applicable laws like those against assault or battery.

So, to be clear, you can be charged and convicted of child abuse any time you willfully inflict on a child “an injury resulting in a traumatic condition.” It’s definitely worse if your spanking was cruel or inhuman, but it need not be.

A “traumatic condition,” however, is not what it may sound like. Under the law, it can include any wound or bodily injury, however minor or serious. See CALCRIM No. 822. It doesn’t matter that you didn’t intend to leave a mark, only that you intended to deliver the spanking. People v. Atkins (1975) 53 Cal. App. 3d 348, 358.

If you argue that you spanked your child to discipline him, not to abuse him, then the state must prove that you were not disciplining him reasonably, and the court will likely instruct the jury that your spanking was justified if a reasonable person would find that some punishment was necessary under the circumstances and that your spanking was reasonable. People v. Whitehurst (1992) 9 Cal. App. 4th 1045.

The crime is a wobbler, which means it can be charged as a felony or a misdemeanor depending on the facts of the case and your criminal history. A misdemeanor conviction can put you in the county jail for up to one year, while a felony conviction can put you in county jail or state prison for two, four, or six years. Then there are sentencing enhancements. A second felony conviction within ten years, for example, tacks on an extra four years. And each conviction in which a child suffered “great bodily injury” results in a “strike” on your record under California’s three-strikes law.

What about spanking your child with something other than your hand? I’m glad you asked. In 1997, a California state senator posed that very question to the Office of the Attorney General: “Is it unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand?” In response, the Attorney General published a formal opinion concluding that it was not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand, but the punishment must be “necessary and not excessive in relation to the individual circumstances.”

The bottom line is that it’s not a crime in California to spank your child, but it had better be reasonable. That means that the spanking must be necessary (or at least justifiable) and not excessive under the circumstances. In the end, however, what’s reasonable may depend on the opinion of a prosecutor and, ultimately, a jury, not you.