The Supreme Court of Ohio recently held in State v. Faggs, 2020-Ohio-523 that a parent or caretaker who is charged with assault or domestic violence to a child may prove that their actions were a form of “reasonable parental discipline” as an affirmative defense to avoid a conviction.
Ohio’s domestic violence statute provides, in relevant part, that “[n]o person shall knowingly cause or attempt to cause physical harm to a family or household member.” R.C. 2919.25(A) (emphasis added). Ohio’s domestic violence statute provides, in relevant part, that “[n]o person shall knowingly cause or attempt to cause physical harm to another.” R.C. 2903.13(A) (emphasis added). “Physical harm” in this context includes “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” R.C. 2901.01(A)(3). Thus, under the plain text of the domestic violence and assault statutes, any type of “injury, illness, or other physiological impairment, regardless of its gravity or duration” would technically meet the “physical harm” element of the offense. In other words, a parent or person acting in loco parentis (in the place of the parent) who, for example, spanks their child, could technically be charged with domestic violence and/or assault because of how broadly the Ohio General Assembly has defined “physical harm.”
The Supreme Court of Ohio first addressed the issue of reasonable parental discipline in 1991, wherein it held in State v. Suchomski that nothing in Ohio’s domestic violence statute, R.C. 2919.25(A), prevents a parent from disciplining his or her child. The Suchomski Court defined “physical harm” as an “injury,” meaning “the invasion of any legally protected interest of another.” The Court went on to hold that proper and reasonable parental discipline does not invade any legally protected interest of a child.
The defendant in Suchomski moved the trial court to dismiss the indictment on the grounds that Ohio’s domestic violence statute was unconstitutionally vague and overbroad on its face because charging him under the statute could bring about the punishment of a parent who lawfully uses reasonable corporal punishment to discipline a child. The trial court granted his motion, and the appellate court affirmed that decision. However, the Supreme Court of Ohio rejected Suchomski’s constitutionality argument, concluded that the factual allegations were “sufficient to meet all the elements of an R.C. 2919.25(A) charge for domestic violence,” reversed the judgment of the court of appeals, and reinstated the indictment.
Notably, in Suchomski, there was no evidence that the defendant was administering corporal punishment at the time he engaged in the conduct giving rise to the domestic violence charge. Instead, the defendant argued it was unconstitutional for the State to ever charge a parent with domestic violence of his or her own child—irrespective of whether the parent was unequivocally administering corporal punishment or, as was the case in Suchomski, had drunkenly struck a child for no apparent reason whatsoever.
However, since the Suchomski decision did not hinge upon an evaluation of the corporal punishment actually used in that case, Ohio courts have had no additional guidance from the Ohio Supreme Court for nearly thirty years as to how a claim of reasonable parental discipline interacts with Ohio’s domestic violence and assault statute. As a result, a split amongst Ohio’s appellate court developed, with the majority of Ohio appellate courts holding that “reasonable parental discipline” is an affirmative defense, which the defendant must prove by a preponderance of the evidence. On the other hand, a minority of appellate courts have instead held that “unreasonable parental discipline” is a component of the physical harm element in both the assault and domestic violence statutes, which the State must prove beyond a reasonable doubt.
In Faggs, Tyack Law attorneys Holly B. Cline and Jonathan Tyack argued in support of the latter approach on the grounds that the affirmative defense analysis unconstitutionally places the burden on the accused to prove his or her innocence anytime corporal punishment—even if reasonable—has been used. The State, on the other hand, argued that reasonable parental discipline is an affirmative defense because it is an excuse or justification peculiarly within the knowledge of the accused upon which the accused can be reasonably required to adduce supporting evidence. Ultimately, the Ohio Supreme Court agreed with the State’s position that “reasonable parental discipline” is an affirmative defense and concluded that placing the burden of proof on a defendant does not violate his or her due process rights.
Impact of the Ohio Supreme Court’s Decision in State v. Faggs
Although Ms. Cline and Mr. Tyack did not prevail on this issue, the decision is significant and beneficial to criminal defendants for a number of reasons.
First, the Faggs decision was the first time the Ohio Supreme Court recognized “reasonable parental discipline” as an affirmative defense. Many state legislatures have expressly recognized in their criminal code “reasonable parental discipline” as an affirmative defense, while others, including Ohio, have simply recognized in portions of their juvenile and criminal codes, that “reasonable parental discipline” does not constitute “child abuse” in the juvenile context or a particular criminal offense. Indeed, while “reasonable parental discipline” is implied as an affirmative defense to a criminal child endangering criminal charge or child abuse allegation in Ohio, nothing in the Ohio Revised Code expressly recognizes “reasonable parental discipline” as an affirmative defense to a domestic violence charge or an assault charge. And, while the Suchomski decision referenced “proper and reasonable corporal punishment,” the Supreme Court of Ohio did not expressly hold in that case that “reasonable parental discipline” is an affirmative defense to a domestic violence or assault criminal charge in Ohio. Thus, while a criminal defendant is required to prove “reasonable parental discipline” as an affirmative defense, the Faggs decision is notable in that the availability of such an affirmative defense has now been expressly recognized by the Supreme Court of Ohio.
Second, the Ohio Supreme Court first recognized in the Faggs decision that the affirmative defense of “reasonable parental discipline” is available to a person acting in the place of the parent (i.e., in loco parentis). This is significant, as some Ohio courts prior to the Faggs decision have held that the right to use corporal punishment to discipline a child does not always extend to non-parents (for example, boyfriends, other family members, or other persons acting in a parental role). Thus, this recognition by the Supreme Court of Ohio also ensures the availability of the affirmative defense of “reasonable corporal punishment” to a domestic violence and/or assault charge to persons acting in loco parentis.
While the Ohio Supreme Court was not asked to consider what constitutes “reasonable parental discipline,” many Ohio courts have suggested that some of the following factors should be considered by the fact-finder when making that determination: (1) the child’s age; (2) the child’s behavior leading up to the discipline; (3) the child’s response to prior non-corporal punishment; (4) the location and severity of the punishment; and (5) the parent’s state of mind while administering the punishment. Thus, persons asserting “reasonable parental discipline” to a domestic violence and/or assault charge in Ohio should seek to provide evidence on these factors.
Ohio General Assembly’s Ability to Change Court’s Ruling
Notably, the Supreme Court of Ohio decision in Faggs now places the Ohio General Assembly in the position of making changes to the Ohio Revised Code on this issue as it sees fit. Indeed, the Ohio legislature recently did just that in House Bill 228 (effective March 28, 2019) when it shifted the burden of proving beyond a reasonable doubt that a defendant did not act in self-defense back to the State after the Ohio Supreme Court held (and the United States Supreme Court affirmed) that a criminal defendant could be required to prove self-defense by a preponderance of the evidence.
Rep. Terry Johnson, one of the co-sponsors of House Bill 228, explained the need for having the State prove beyond a reasonable doubt that a defendant did not act in self-defense by noting in his written testimony to the members of the Federalism and Interstate Relations Committee that: “America’s founding fathers envisioned a justice system where the burden of proof laid on the accuser and not the accused.” Rep. Johnson further explained in his written testimony that “the inherent right of self-defense [is] central to the Second Amendment right [to bear arms],” such that the State must bear the burden of proving that a criminal defendant did not act in accordance with his or her constitutionally protected right to self-defense. Thus, House Bill 228 “requires that a defendant still present evidence that they acted in self-defense, however the burden of proof that the defendant is a criminal will be restored to the prosecution.”
Likewise, here, the Ohio General Assembly could reallocate the burden to the State to prove that a defendant used excessive and unreasonable parental discipline beyond a reasonable doubt. The Supreme Court of the United States has held that some liberties are so important that they are deemed to be “fundamental rights.” The fundamental liberties protected by the Due Process Clause of the Fourteenth Amendment are “deeply rooted in this Nation’s history and tradition.” A parent’s interest in the care, custody and management of his or her child has been recognized as a fundamental right under the Fourteenth Amendment. Indeed, parents are responsible for raising and controlling their children, and courts have concluded that a parent therefore has a right to use reasonable corporal punishment as a means for implementing at responsibility.
Thus, because reasonable parental discipline is part and parcel of exercising a parent’s fundamental right to raise one’s children, the Ohio General Assembly could similarly conclude that, like with self-defense, the State must bear the burden of proving beyond a reasonable doubt that a person charged with domestic violence or assault did not exercise reasonable parental discipline. Indeed, as Ms. Cline asserted at the oral argument before the Ohio Supreme Court in the Faggs case, “[t]he ultimate resolution of guilt in all domestic violence [and assault] prosecutions involving corporal punishment hinges upon a reasonableness determination by the factfinder.” However, because the Faggs Court held that reasonable parental discipline is an affirmative defense, a parent or person acting in loco parentis who has administered reasonable parental discipline “is always presumed guilty and always bears the burden of proving his innocence by a preponderance of the evidence.” Given that due process dictates the presumption of innocence and that the State bear the burden of proving a defendant’s guilt (not the defendant his innocence), a change similar to House Bill 228 could be promulgated by the Ohio legislature.
In the alternative, some proponents have argued that the Ohio General Assembly should outlaw corporal punishment altogether. Regardless of what the Ohio General Assembly chooses to do—if it decides it is necessary to do anything in response to the Faggs decision at all—the Ohio Supreme Court has both offered clarity for courts across the State of Ohio and placed the ball in Ohio General Assembly’s court on the issue of reasonable parental discipline by its definitive resolution of the nearly thirty-year split amongst Ohio’s appellate courts.
Ohio Supreme Court Appellate Process
There are three types of appeals that can be filed in the Ohio Supreme Court: (1) jurisdictional appeals; (2) appeals of right; and (3) administrative agency appeals. The majority of cases filed with the Court—including the Faggs cased filed by Tyack Law attorneys Holly B. Cline and Jonathan Tyack—are jurisdictional appeals. Jurisdictional appeals are discretionary, which means that the Supreme Court of Ohio must first agree to hear the case before any briefing is done or oral arguments are held. A jurisdictional appeal is an appeal that claims to involve a substantial constitutional question involving either the U.S. or Ohio Constitution, an appeal that involves a felony, or an appeal that involves a question of public or great general interest.
In addition to these types of appeals, the Supreme Court of Ohio also hears appeals of cases involving the death penalty and cases in which there are conflicting opinions from two or more courts of appeals. In the Faggs case, Ms. Cline was able to successfully get the Fifth District Court of Appeals to certify the conflict between its decision in the Faggs case and a decision by the Seventh District Court of Appeals.
Thus, Ms. Cline and Mr. Tyack initiated a jurisdictional appeal and a certified conflict case, both of which were accepted by the Ohio Supreme Court. Having a jurisdictional appeal accepted by the Supreme Court of Ohio is a significant achievement alone. For example, in 2018, a total of 1,858 new cases were filed in the Supreme Court of Ohio, with 1,299 of those new cases being new jurisdictional appeals. While the exact number of jurisdictional appeals accepted by the Court in 2018 is not reported, the Ohio Supreme Court’s 2018 Statistical Summary reflects that the Court decided 273 cases in total in 2018, with 57 of those decisions being jurisdictional appeals the Ohio Supreme Court agreed to hear. Jurisdictional appeals accepted for full merit review are reported as taking approximately 496 days from filing to disposition by Court. Because a similar number of new cases were filed (1,828) in 2017, with a similar number of those cases (1,365) being new jurisdictional appeals, it can be estimated that the Supreme Court of Ohio accepts and renders decisions on less than five percent (5%) of the new jurisdictional appeal cases filed each year.
The Faggs case was Holly B. Cline’s first oral argument and first case before the Supreme Court of Ohio. Ms. Cline graduated from The Ohio State University Moritz College of Law in May 2017 and was sworn in as an attorney in November 2017. The Faggs case was her first appellate case as an attorney, as she wrote the briefs and argued the case before the Fifth District Court of Appeals as well.
This was Jonathan Tyack’s third case before the Supreme Court of Ohio, and first case before the Court as an appellate. In State v. Hampton, 2012-Ohio-2688, Mr. Tyack successfully argued on behalf of the appellee-defendant that the Tenth District Court of Appeals was correct in holding that the failure to establish venue in a criminal felony trial is a basis for acquittal, and therefore, an acquittal order based on the failure to establish venue is a final verdict from which the State may not appeal.