On February 19, 2020 the Supreme Court of Ohio handed down a merit decision in State v. Faggs, Slip Opinion No. 2020-Ohio-523. In a unanimous opinion written by Justice Fischer, in which Justices Kennedy and Donnelly concurred in judgment only, the Court held that reasonable parental discipline is not a component of the physical harm element of Ohio’s domestic violence and assault statutes but is rather an affirmative defense to those charges. The case was accepted on discretionary appeal and conflict certification, and was consolidated with case number 2018-1501. The case was argued on October 23, 2019 at Montpelier Jr./Sr. High School,  Williams County, as part of part of the Court’s off-site program.

Case Background

Clinton D. Faggs III was charged with one third-degree felony count of domestic violence under R.C. 2929.25(A) and one first-degree misdemeanor count of assault under R.C. 2903.13(A). The charges arose out of an incident involving an alleged beating of the seven-year-old son of Faggs’ then live-in girlfriend for the boy’s misbehavior at school.

During Faggs’ bench trial, his lawyer argued that the allegations against Faggs were exaggerated, and that his conduct was nothing more than “a reasonable and necessary exercise of parental discipline and corporal punishment.” The court found Faggs guilty of both charges and sentenced him to 100 hours of community service. Faggs appealed, arguing in part that by erroneously placing the burden of proving reasonable parental discipline oh him, the trial court violated his constitutionally protected liberty interest in raising this child as he saw fit.

The Fifth District affirmed the trial court’s judgment, finding that as long as the burden was on the state to prove every element of the underlying offenses beyond a reasonable doubt, treating reasonable parental discipline as an affirmative defense and placing the burden of proving that defense on the accused does not violate due process. 

Read the oral argument preview of the case here and an analysis of the argument here.

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.”)

How Does the Court Answer the Certified Conflict Question?

By finding reasonable parental discipline to be an affirmative defense which the parent must prove.

Key Precedent

R.C. 2919.25(A) (“No person shall knowingly cause or attempt to cause physical harm to a family or household member.”) (Ohio’s Domestic Violence Statute.)

R.C. 2903.13(A) (Assault is knowingly causing or attempting to cause physical harm to another.)

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

R.C. 2901.05(D)(1) (There are two types of affirmative defenses under Ohio law: (1) those expressly designated by statute as an affirmative defense; and (2) those “involving an excuse or justification peculiarly within the knowledge of the accused.”)

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) (Noting that R.C. 2919.25(A) does not prevent a parent from disciplining his child but prevents parents from causing “physical harm.”)

State v. Ireland, 2018-Ohio-4494 (2018) (“a state does not violate the Due Process Clause by requiring the defendant to prove an affirmative defense by a preponderance of the evidence.”)

Merit Decision

Analysis

Confusion Caused by Suchomski Decision

The court acknowledges its decision in State v. Suchomski has caused confusion about the right of a parent to discipline his or her child and the meaning of Ohio’s domestic-violence statute.  This is the confusing part of that opinion:

“Nothing in R.C. 2919.25(A) prevents a parent from properly disciplining his or her child. The only prohibition is that a parent may not cause ‘physical harm’ as that term is defined in R.C. 2901.01(C). “Physical harm” is defined as “any injury[.]” ‘“Injury” is defined in Black’s Law Dictionary (6 Ed. 1990) 785 as “* * * [t]he invasion of any legally protected interest of another.’” (Emphasis added.) A child does not have any legally protected interest which is invaded by proper and reasonable parental discipline.”

This language, wrote Fischer, has caused confusion in the lower courts about whether the reasonableness of the discipline is part of the state’s burden of proving the physical harm element of the offense, or the defendant’s burden of establishing an affirmative defense. The majority of the appellate courts that have considered the issue, including the Fifth District in this case, have concluded that reasonable parental discipline is an affirmative defense to a charge of domestic violence, with the burden of proving this defense on the defendant. The state argues this view is the correct one.  The Seventh District, in Rosa, the conflicts case here, found that the reasonable parental discipline is part of the analysis of physical harm element of the offense, with the burden on the state to prove it.  Faggs argues this view is correct.  The court adopts the state’s position.

Reasonableness is not an Element of the Offenses

Looking at the plain language of Ohio’s domestic violence statue and the definition of physical harm, the court concludes that nothing in either suggests that the state must prove that the accused’s actions while inflicting corporal punishment was unreasonable. “Instead, to prove the crime of domestic violence, the state is only required to show that a defendant ‘knowingly cause[d] or attempt[ed] to cause physical harm to a family or household member,’” wrote Fischer. And because the only difference between the domestic violence statute and that part of the assault statute relevant to this case is the status of the victim (“family or household member” as opposed to “another”) the court also holds that the reasonableness or unreasonableness of parental discipline is not part of the physical harm element of assault, either.

Reasonable Parental Discipline is an Affirmative Defense Involving Justification

There are two types of affirmative defenses under Ohio law-those expressly designated, and those involving an excuse or justification “peculiarly within the knowledge of the accused.” Some state legislatures have expressly made reasonable parental discipline an affirmative defense, but Ohio has not. Since neither “excuse” nor “justification” is defined in the Code, the court gives them each their ordinary meaning. To do that opinion author Justice Fischer looks to Black’s Law Dictionary (unlike his colleague, Justice Kennedy, who prefers Webster’s New Third International Dictionary ). Looking at the dictionary definition of each, the court concludes that “justification” fits here. Here’s Black’s definition of justification:

“lawful or sufficient reason for one’s acts or omissions; any fact that prevents an act from being wrongful” or a “showing, in court, of a sufficient reason why a defendant acted in a way that, in the absence of the reason, would constitute the offense with which the defendant is charged.”

Next Step

The next statutory step in R.C. 2901.05(D)(1)(b) requires that justification must be “peculiarly within the knowledge of the accused.” This fits like a glove in this situation. After all, who better than the parent or person acting as parent know why a particular use of corporal punishment was necessary in any given situation?

Last Step

The last statutory step is that the accused “can fairly be required to adduce supporting evidence.” Again, this totally fits, pretty much for the same reasons as step two.  It’s fair to require the accused to present evidence, including his own testimony if desired, regarding the facts and circumstances about the level of discipline used and the reasons for it.

Due Process Concerns

Faggs argued that making reasonable parental discipline an affirmative defense with the burden of proof on the defendant (and on him, in this case) unconstitutionally violates a defendant’s right to due process. The court disagrees, noting that both its own past precedent and that of the U.S. Supreme Court have held that requiring the defendant to prove an affirmative defense (which, as a reminder, is only by a preponderance of the evidence) is constitutional.

Bottom Line

Reasonable parental discipline is an affirmative defense to a charge of domestic violence and assault, with the burden of proof on the accused. The certified question is answered in favor of those courts of appeals that so found, and the judgment of the Fifth District is affirmed in this case.

Concluding Observations

This one did not seem particularly difficult.  After oral argument, I wrote,

“ 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.”

Student contributor Maggie Pollitt also correctly called this for the state, writing “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.”