What’s On Their Minds: Who Has the Burden of Proving Reasonable Parental Discipline in a Domestic Violence Case? State of Ohio v. Clinton D. Faggs, III

By Marianna Bettman on October 31, 2019

Update: On February 19, 2020, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.

“Has the U.S. Supreme Court ever recognized that the right to raise one’s children includes the right to inflict corporal punishment?”

Justice DeWine, to counsel for Faggs

“Why is it unreasonable to put the burden on the state in this case?”

Justice Donnelly, to the assistant county prosecutor

On October 23, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Clinton D. Faggs, III, 2018-1592. At issue in this case is whether, in a criminal prosecution of a parent for domestic violence pursuant to R.C. 2919.25(A), the State bears the burden to prove unreasonable parental discipline, or if reasonable parental discipline is an affirmative defense. The case was accepted on discretionary appeal and conflict certification, and was consolidated with case number 2018-1501. The case was argued in the auditeria of Montpelier Jr./Sr. High School, Williams County, as part of part of the Court’s off-site program.

Case Background

In 2017, Clinton D. Faggs (“Faggs”) lived with his girlfriend, H.K. (“Mother”) and her seven-year old son, T.M. Though T.M. is not Faggs’ biological child, at the time, Faggs acted as a parent and the primary disciplinarian to T.M. who had a long history of being disruptive at school and at home.

In January of 2017, T.M. broke a computer at school, causing school officials to send him home. At home, Faggs used the cord of an Xbox controller to hit T.M. several times on the arms and legs, though Faggs was apparently aiming for T.M.’s buttocks. T.M. also claimed that Faggs strangled him and slammed his head against the living room wall, though T.M. did not have any physical injuries that matched those allegations. The following day, Mother contacted the Delaware City Police Department about Faggs’ treatment of T.M. Faggs was charged with several counts of assault and domestic violence against T.M. and Mother. Pertinent to this appeal are the charges related to T.M.

In a bench trial in August of 2017, the trial court found Faggs guilty of domestic violence and assault against T.M. In doing so, the court made this finding:

“The court, as far as the burden of proof here, certainly I think that if the burden of proof’s on the defense by a preponderance, they have not met the burden of proof. If the State burden of proof is to show that it’s unreasonable, the court would find that they have met that burden of proof.”

Faggs was sentenced to four years of community control.

The Appeal

In a unanimous decision, the Fifth District affirmed the trial court’s judgment, upholding the conviction against Faggs. On the issue pertinent to this appeal, the Fifth District held that “reasonable parental discipline” is an affirmative defense to a charge of domestic violence. Furthermore, the appellate court stated that placing the burden of proof of an affirmative defense on the defendant did not create a due process violation.

Certified Conflict Question

“In a criminal prosecution of a parent (or an adult acting in loco parentis) for domestic violence under R.C. 2919.25(A), where the defendant’s acts relate to corporal punishment of a child, does the State bear a burden to prove unreasonable parental discipline, or is reasonable parental discipline in the nature of an affirmative defense?”

Certified Conflict Case

State v. Rosa, 2013-Ohio-5867 (7th Dist.) (“in order to convict a parent of domestic violence pursuant to R.C. 2919.25, as part of the ‘physical harm’ element, the State bears the burden of proving the parent’s discipline was improper and unreasonable.”)

Read the oral argument preview of the case here.

Key Statutes and Precedent

R.C. 2919.25(A) (“No person shall knowingly cause or attempt to cause physical harm to a family or household member.”)

R.C. 2901.01 (A)(3) (“Physical harm to persons means any injury, illness, or other physiological impairment, regardless of its gravity or duration.”)

R.C. 2903.13(A) (“No person shall knowingly cause or attempt to cause physical harm to another or to another’s unborn.”)

R.C. 2919.22(B)(3) (No parent, or person acting in loco parentis, may administer excessive corporal punishment.)

R.C. 2901.05(D)(1)(b) (An affirmative defense is “[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.”)

Meyer v. Nebraska, 262 U.S. 390 (1923) (parents have a fundamental liberty interest in raising their children as they see fit.)

In re Winship, 397 U.S. 358 (1970) (the prosecution must prove every element of a crime “beyond a reasonable doubt” for the defendant to be convicted.)

Patterson v. New York, 432 U.S. 197 (1977) (state legislatures have the power to allocate burdens of proof and burdening a defendant with proving an affirmative defense does not inherently violate due process.)

State v. Suchomski, 58 Ohio St.3d 74 (1991) (R.C. 2919.25(A) does not outlaw reasonable corporal punishment of a child by a parent.)

State v. Ireland, 2018-Ohio-4494 (2018) (a defendant’s burden to prove an affirmative defense does not violate due process “even when the evidence used to prove the affirmative defense might also negate an element of the offense at issue” so long as the states still must prove every essential element of the offense beyond a reasonable doubt.)

At Oral Argument

Arguing Counsel

Holly B. Cline, The Tyack Law Firm Co., LPA, Columbus, for Appellant Clinton D. Faggs, III

Douglas N. Dumolt, Assistant Prosecuting Attorney, Delaware County, for Appellee State of Ohio

Faggs’ Argument

The ultimate resolution of guilt in all domestic violence prosecutions involving corporal punishment hinges upon a reasonableness determination by the factfinder. Nothing in the domestic violence statute prohibits reasonable parental discipline. Under the state’s position, that reasonable parental discipline should be an affirmative defense, a parental defendant who has administered reasonable corporal punishment is always presumed guilty and always bears the burden of proving his innocence by a preponderance of the evidence. That is wrong. The state should bear the burden of proving the unreasonableness of the parental discipline.

The ultimate decision on whether the discipline was reasonable belongs to the jury, but the state should bear the burden of proving the unreasonableness of the parental discipline. The defendant should not have to prove that his actions were reasonable. In the child endangering statute, the state does bear that burden. In that context, the state is charged with showing the excessiveness of the corporal punishment. Yet in the context of a domestic violence prosecution, the burden is for some reason shifted to the defendant.

The statutory definition in 2901.05(D)(1)(b) requires that an affirmative defense meet three requirements-first, that it is an excuse or justification, second that it is peculiarly within the knowledge of the accused, and third that it is fair for the accused to be required to adduce supporting evidence. In this case, reasonable parental discipline does not meet those requirements. Specifically, it is not an excuse or justification, because if it were, it would mean the defendant is conceding that the state has met the essential elements of the offense, but that his conduct should be excused, or he is less culpable. But reasonable parental discipline doesn’t provide an independent basis for escaping liability, like an excuse or justification. Parents are acting according to their fundamental rights to raise their children when they exercise reasonable parental discipline. And this Court has the discretion to review this constitutional argument if it was not raised below.

Unlike cases involving insanity or self-defense, there are at least two people who are involved here-the child and the defendant. In most cases there is another parent or sibling that has witnessed the incident. In this case the state elicited from the mother and the child himself much of the information about the disciplinary purpose including the child’s history, prior attempts at non-corporal punishment, and the fact that discipline was being administered at the time of the incident. In many cases, as was the case here, there is a way for the state to find out that information. That information is not peculiarly within the knowledge of the accused.

State’s Argument

This case involves nothing more than a straightforward application of R.C. 2901.05 and a finding that reasonable parental discipline meets the elements of an affirmative defense under subsection (b). Such a decision would be an important step to make sure that children are protected, but it would also comport with the constitutional protections afforded to defendants across the state. And the legislature has enacted R.C. 2901.05 to allow for affirmative defenses that are not just specifically delineated by the legislature.

While in this case the child involved was declared competent to testify, if that had not been the case, there would have been no eyewitness to what happened here, and the state would have been forced to rely on circumstantial evidence of the injuries. Not all assaults leave marks. So, the legislature has made a specific choice to allow courts to adopt affirmative defenses in these cases as long as they comport with due process.

Last year, in Ireland, this Court provided 5 alternative definitions, in the disjunctive, of what could be excuses or justifications. Arguably, reasonable parental discipline hits all of them directly.

In deciding whether to bring a charge like the one in this case, prosecutors around the state regularly exercise discretion. In many cases prosecutors, as elected officials, will make a judgment call that what the parent did seemed reasonable even though technically it meets the elements of domestic violence, and no charges will be brought. Even if the case is presented to a grand jury, the grand jury may not return an indictment because the prosecutor doing his or her job would inform the grand jury that reasonable parental discipline is a defense and is something they can consider at the time if there is evidence to support it. If the state is aware there is clear proof of the affirmative defense, it would seem to be an exercise in futility to bring the charge to begin with. In cases where it is a close call, that is what juries are for. Juries represent the collective judgment of the community about what is reasonable parental discipline. And this differs from community to community.

While not directly at issue, it would be helpful for this Court to provide clear guidance about the factors to be considered in determining what is reasonable parental discipline. Such factors might include the nature and extent of the discipline, the defendant’s mental state at the time he was committing the act, the prior discipline history of the child, prior efforts of non-corporal punishment and whether they were successful or not. Such factors are peculiarly within the knowledge of the defendant, which is why reasonable parental discipline is well suited for an affirmative defense. In a single parent household, the defendant is the only person who is going have that information, and law enforcement has to rely almost exclusively on the suspect to provide that information.

Another reason why it is so important for this to be an affirmative defense and not an element the state must disprove is because the mental state of the defendant is a black box that the state can almost never get into. The importance of the defendant’s state of mind at the time he or she is administering the discipline cannot be overstated. In this case, because there was an ear witness and because the mother was aware of some of the prior disciplinary acts, this could have been demonstrated, but it always going to be very hard to show what is going on in the defendant’s mind or his purpose.

While the state agrees there is a fundamental right to parent one’s child, in this case the Court need not address whether there is a constitutional or a fundamental right to physically discipline a child in Ohio. And specifically, in this case, the issue is moot, because the trial court made alternative findings that the state proved its case regardless of which side had the burden of proof because of how unreasonable the discipline by the defendant was in the case.

What Was On Their Minds

Corporal Punishment

Why should we apply the dicta in Suchomski, about what injury means, asked Justice DeWine, adding that was just dicta. Ordinality when we see terms in a statute, we apply their commonly understood meaning—why wouldn’t we do that here?

Is corporal punishment that rises to the level of causing physical harm really an excuse or justification, asked Justice Donnelly? Has a parent ever been indicted for spanking his or her child?

If a parent has tried other non-corporal means of punishment, and then the parent decides to use corporal punishment, and the child is injured, what difference do all the previous attempts make, asked Chief Justice O’Connor?

Reasonable Parental Discipline: Affirmative Defense or Element of the Offense?

Suchomski doesn’t say whether this is an affirmative defense or not, does it, asked Justice DeWine? Why isn’t it an excuse or justification? He commented that the definition of injury seemed easy to meet, but the common law has long recognized reasonable parental discipline as justified. He added he found the defendant’s argument about why this wasn’t an affirmative defense to be “circular.”

What determines reasonableness for disciple, asked Justice Stewart, adding that what might be reasonable to the prosecutor might not be reasonable to a jury or to the judge. If the prosecution looks at the situation and brings a charge, haven’t they then determined that there was no justification? What happens if it is a close call? What should parents from across the state be able to take from the decision the Court renders in this case? Do parents and people in parental positions need to know what the community standards are or tolerate with regard to corporal punishment?

Are there some circumstances where even if the child is injured, that would be considered reasonable discipline, asked Chief Justice O’Connor? How far can a parent go in disciplining a child, and causing injury?

Constitutional Issues

Were these raised below, asked Justice DeWine?

Burden Shifting

Let’s say a child comes to school and has bruises or marks from corporal discipline, Justice Stewart said. And that is reported to law enforcement and there is an investigation done. At that time, the investigating officer may find out what happened by interviewing the child and the parent. The child’s grades are going down, the child missed curfew, hit his sister in the head—those are the things that brought about the corporal punishment. Then the prosecutor gets to determine whether charges should be brought. What makes better sense than for the information to be accumulated and for the prosecutor to decide whether the elements of the offense are there or bringing child endangerment or domestic violence charges and then letting the trier of fact determine whether parental discipline then overcomes those charges? Later she asked if determining where the burden lies was akin to Ohio’s self-defense jurisprudence?

Didn’t the trial court in this case find that the state had met its burden, asked Justice Donnelly?

Peculiarly Within the Parent’s Knowledge

One of the considerations involved seems to be the parent’s reason for spanking the child, noted Justice French. Isn’t that something that would be peculiarly within the knowledge of the parent? Here’s why I did it; here’s what I thought, the purpose was I meant to punish the child, I meant to reprimand the child. How could someone else be in a position to talk about that? There might be a lot of other information in this case, but the court will be writing a rule that would apply in all similar cases. There might be cases where it’s only the parent and the child. Even if there are witnesses, no one else can talk about what the disciplining parent intended to do, his or her corrective purpose. In thinking about the next case, where we don’t have that additional information, why would it not be peculiarly within the knowledge of the defendant to get to that information?

How it Looks from the Bleachers

To Professor Emerita Bettman

Like a win for the state both on the burden of proof and the sufficiency of the evidence. I think a majority of the court will answer the certified question by finding that reasonable parental discipline is an affirmative defense. I think Justice French pretty well nailed it with her series of questions about why this information is peculiarly within the knowledge of the disciplining parent.

Regardless, I don’t think the state can lose this particular case, because the trial court made this specific finding:

While the assistant county prosecutor did mention this finding in passing, I was surprised he didn’t make more of it.

To Student Contributor Maggie Pollitt

I think the Court will most likely rule for the State. The Court seemed persuaded by the State’s argument that reasonable parental discipline fits the statutory requirements of an affirmative defense because it is peculiarly within the knowledge of the defendant. Even though the knowledge is not always peculiar to the defendant (sometimes more than just the defendant witnesses abuse), the State capitalized on the fact that children are not always capable of testifying and that oftentimes, domestic violence occurs behind closed doors. Therefore, where an injury exists, there should be a presumption of domestic violence. The Court seemed more comfortable with presuming defendants guilty than running the risk that abusive defendants will not be prosecuted where a high burden exists for the State.

I think that Faggs’ counsel made a persuasive argument in her brief that using the domestic violence statute to convict a parent based on “physical harm” circumvents the child endangerment statute, which requires the State to prove that the use of corporal punishment was excessive. To me, this illustrates Faggs’ argument that the burden of proof belongs with the State and not with the defendant. However, I think Faggs’ counsel failed to explain this to the Court and struggled to explain her due process argument. I think the State capitalized on this weakness used its policy arguments, as well as the principle of constitutional avoidance, to win over the Court.