**Greg? ... That troublesome old line ...

.... between abuse and spanking.

http://www.honoluluadvertiser.com/ap...64/1001/NEWS20
http://tinyurl.com/22fhnr

**Greg?


Hawai'i's Newspaper Online Sunday, August 19, 2007

Posted on: Sunday, August 19, 2007

Mom's discipline not abuse, Isle judges rule
StoryChat: Comment on this story

By Ken Kobayashi
Advertiser Courts Writer


PARENTAL DISCIPLINE LAW

State law permits parents, guardians or others similarly responsible
for the care of minors to use force against their children. The use of
force is justified if:

"The force is employed with due regard for the age and size of the
minor and 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

"The force used is not designed to cause or known to create a risk of
causing substantial bodily injury, disfigurement, extreme pain or
mental distress, or neurological damage."

CHILD ABUSE LAW

State law says it's unlawful to "physically abuse a family or
household member," a misdemeanor that carries up to a year in jail.
First-time violators must serve a mandatory two-day jail term.

Source: Hawai'i Revised Statutes
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FACTS OF THE CASE

# Mother of 14-year-old girl hit her daughter for hanging out with
friends instead of attending a tutoring class to improve her poor
grades.

# A jury convicted the mother of abuse.

# Hawai'i Supreme Court overturned the conviction.

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The Hawai'i Supreme Court issued a major ruling last week on the
question: At what point does the use of corporal punishment cross the
line to criminal child abuse?

In a 3-2 decision, the high court ruled that a mother was not guilty
of child abuse for hitting her 14-year-old daughter with a backpack, a
plastic hanger, a small brush and the plastic handle of a tool. The
high court reversed a jury's verdict that had convicted the mother.

Chief Justice Ronald Moon and two associate justices said the actions
of Ijeva Matavale, the mother, fall under the law that permits parents
to use force in disciplining their children.

Two other justices dissented, suggesting the decision will permit any
parent to lose control and inflict the same type of harm.

The clash among the justices underscores the point that what is abuse
to one person is discipline to another.

"People feel very differently about using force for parental
discipline," said Deputy Public Defender Deborah Kim, one of the
mother's lawyers on the appeal. "Some people would never hit a child,
but for other people, it's necessary."

State law makes it illegal for parents to "physically abuse" their
children, but Hawai'i law also allows parents to use force if it's
appropriate for the age and size of the child and if it's related to
helping the minor, including punishment for misconduct. The force,
however, cannot cause serious injury or extreme pain.

In his 44-page opinion, Moon wrote that the ruling does not send any
message about future cases because each must be reviewed separately.

"Clearly, there is no bright line that dictates what, under all
circumstances, is unreasonable or excessive corporal punishment," Moon
wrote.

But in Matavale's case, her use of force "falls within the bounds of
parental discipline," he wrote.

CONTROVERSIAL ISSUE

Child abuse has been a recurring controversial issue. In a current
extreme case, parents Denise and Melvin Wright Jr. are charged with
trying to murder their 12-year-old daughter by starving her.

The high court's decision deals with far less egregious circumstances,
but it concerns an issue about the use of force that any parent of a
rebellious or disobedient child can appreciate.

The differences in opinion on that issue are reflected throughout
Matavale's case.

Her first trial ended with a hung jury. The jury in the second trial
indicated it was deadlocked before it eventually returned the guilty
verdict. The Intermediate Court of Appeals affirmed the conviction,
but the appeal to the state's highest court resulted in a reversal.

Previous high court and appeals court decisions provide a framework of
the boundaries of what parents can do.

Here are several court decisions involving convictions of abusing a
household member:

**Greg? Do you condone this conduct? 0:]

# The boyfriend of the mother of a 14-year-old daughter punished the
girl who didn't bring home a daily progress school report from the
counselor, and instead filled out the report herself, altering grades
and her attendance record. The boyfriend punished her for half an hour
by hitting her on both sides of her face, knocking her to the ground;
threw her on the bed; yanked off her pants and underwear; and whacked
her bottom. He also hit her with a plastic baseball bat until it
broke. The girl suffered bruising on her buttocks, arm, thigh and
torso. The conviction was affirmed.

**Greg? Do you condone this conduct? 0:]

# A father was involved in a beating that included slapping and
punching his 14-year-old daughter in the face, kicking her in the shin
and face and pulling her ears. The girl suffered bruises and cuts. She
had been beaten after she continued to see an 18-year-old boyfriend
against her parents' wishes and ran away with him on a day she was
supposed to be examined to determine if she was pregnant. She was
later beaten after the father and his wife confronted the daughter
about the relationship with the boyfriend and the girl didn't respond.
The conviction was affirmed.

**Greg? Do you condone this conduct? 0:]

# A father struck his 14-year-old daughter above the knees with a
36-inch long belt and cut her waist-long hair to make it level with
her neck. The daughter suffered bruises for about a week. The father
did not want his daughter's friends at the home because he thought
they were a bad influence and warned he would spank her if she
disobeyed. He used the belt after he came home and found the friends
there. When he told them to leave, they refused. The conviction was
reversed because the high court ruled the pain was not severe enough.

**Greg? Do you condone this conduct? 0:]

# A father slapped his daughter in the face, punched her in the
shoulders multiple times with a fist and later again slapped her. She
suffered bruises and a scratch to her shoulder. The hitting occurred
after the daughter stood face-to-face with the father and used
profanity. The conviction was reversed.

**Greg? Do you condone this conduct? 0:]

POOR GRADES

In Matavale's case, Moon gave a lengthy background:

The daughter received poor grades, including two F's, but agreed to
get tutoring. The daughter, however, skipped tutoring classes and hung
out with friends. On the day her report card was due, the daughter —
even though she was reminded by the mother to bring it home — said she
forgot it at school, but eventually disclosed her grades included four
C's, one D and one incomplete.

When the mother demanded to know why the grades hadn't improved, the
daughter refused to answer. The mother then grabbed a plastic backpack
containing a school folder and jacket and hit the daughter on the left
arm as the girl tried to block the blow.

The daughter disclosed she had not been going to tutoring. When the
mother demanded to know where she had gone instead, the girl refused
to answer, prompting the mother to hit her with a plastic hanger about
five times.

When the girl said she had been hanging out with friends, the mother
felt deceived, got a small car brush and hit the daughter on the top
of the left hand and on the knuckles with a plastic handle of a tool.

"It was wrong, but I did it for a purpose," the mother testified. "I
just wanted the best for my daughter."

The daughter was large for her age, 5 feet 4 or 5 and 154 pounds at
the trial, which took place about four months after the incident. The
mother was larger.

The daughter suffered bruises to her left forearm, but no cuts or more
severe injuries, such as fractures.

**Greg? Now really Greg, do you support the appeals court's reversal?
Do you know anything about human anatomy and physical trauma to bones
of the hand and how long lasting they can be (Life, very often)?


POLICE INFORMED

Police became involved in the case when a teacher or counselor
apparently spoke to the girl when she went back to school. A police
officer was called by the school and he met with the girl.

**Greg? Did the school and the authorities intervene inappropriately
and should the parent have used force against the authorities,
possible lethal force to keep them from questioning her daughter about
the injuries?

In her dissent, Associate Justice Paula Nakayama wrote the evidence
did support the conviction and she would not second-guess the jury's
verdict.

Moon wrote that the mother's actions fell under the justified parental
discipline law.

"The dissent attempts to portray mother as an out-of-control parent
who repeatedly used various implements to discipline daughter for her
poor performance in school," he wrote. "However ... the evidence
reveals the mother disciplined daughter for her continuously defiant
behavior in refusing to answer mother's questions and in lying to
her."

The evidence, Moon wrote, was not enough to support the conviction.

Matavale could not be reached for comment, but Kim said her client was
pleased with the high court's ruling.

The decision sets aside the conviction and Matavale's sentence of two
days in jail and two years of probation.

HAWAI' I SUPREME COURT OPINIONS ON PARENTAL CORPORAL PUNISHMENT

"Our opinion today should not in any way be construed as an expression
of approval of the parental conduct that precipitated the prosecution
of the matter before us.

**Greg? Oppsie. It looks very much like NOT a decision on the injuries
at all, but lack of sufficient evidence. Dear me.


"Neither should our opinion be viewed as an endorsement, or any kind,
of the use by parents of corporal punishment of their children. It is
common knowledge that the utility -- not to mention the simple
humanity -- of corporal punishment as a parental tool is the subject
of considerable controversy within American society.

"Nevertheless, it is equally obvious that the permissibility of
corporal punishment reflects a societal judgment that falls well
within the parameters of legitimate and constitutional legislative
policy-making."

- Chief Justice Ronald Moon, quoting from a previous court decision
and applying it to the current case. Moon was joined by Associate
Justice Steven Levinson.

"In sum, I share in the plurality's discomfort with condemning the
mother for her actions in the present case. Most assuredly, even the
most pious of parents are susceptible to the unique aggravation caused
by the disrespect, disobedience, or deception of their offspring,
capable of triggering an uncharacteristic parental reaction.

"Nevertheless, I respectfully disagree with the plurality's decision
...... that the facts presented cannot, as a matter of law, constitute
a case of abuse."

- Associate Justice Paula Nakayama, who was joined by Associate
Justice Jim Duffy.

"With respect to mother's parental justification defense, the
decisions of this court cannot be read to prohibit the use of physical
force in disciplining children altogether.

"The use of parent force is permissible under the penal law, for under
appropriate circumstances, 'a parent might justifiably believe the use
of physical force was the only proper alternative left to the parent
to fulfill his obligation under (state law) to control his or her
child's conduct.'"

- Associate Justice Simeon Acoba, citing a previous court ruling. He
wrote a concurring opinion that the conviction should be reversed.

Reach Ken Kobayashi at .

StoryChat Post a CommentPost a Comment View all CommentsView
All Comments
When you spare the rod, you spare the child. You are saying it
is okay, do it again. Children need discipline and sometimes talking
is not good enough. What ever happened to old fashioned discipline? I
went through alot of discipline as a child and never understood why I
had to be disciplined that way. I now have children of my own and I
understand why my parents had to hit me. I needed a message. Give
discipline when discipline is due and in the end, children will
realize why they needed to be disciplined. You can ground them, but
they will do it again. We need to give them some kind of impact.

Posted: Sun Aug 19, 2007 8:49 am
I see and hear it all the time. Young children giving their
parents "attitude". It gets worse when they get older. A teenager,
thinking and acting as if there are no consequences for their actions.
At some point, as a parent, you need to draw the line of what is
acceptable behavior, and what is not. Cross the line, and face the
consequences.

Then again, I also see how you can't go OVERBOARD with discipline. You
can't go and STARVE your child, break bones, or hit them so hard that
you start leaving huge welts, or break the skin so that they start
bleeding.

I think it's a fair ruling. Each case is different. Each case has
different circumstances. Given the age, size, and actions of the
teenager in this case, I don't think that the discipline went
overboard.

Posted: Sun Aug 19, 2007 7:01 am
a hanger? a backpack? a brush? this girl got off easy! kids
like that need a good lickin

Posted: Sun Aug 19, 2007 1:47 am
Each case should be judged independantly. I have been told
that a slap in the face is child abuse. Now what adult will stand
there and take verbal abuse from a 16 year old and not respond.
Standing there and trying to reason with a teenager who continously
shout obsenities at your face has no reguard for you or any adult.
Sorry but I feel the one (1) slap in the face was warranted.

Posted: Sun Aug 19, 2007 1:43 am


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