California Spanking Ban Would Help Stop Child Abuse

What is it about spanking kids that gets people so worked up?

Occasional spanking may not hurt kids, the studies find, but I’ve yet to meet or read a child psychiatrist who recommends it as a first resort in raising kids. If you can’t hit your wife, your friends, even your pets, why should you be able to hit babies?

News that a legislator from California was proposing a bill to outlaw spanking of kids under the age of three has provoked a firestorm of controversy. While many other nations prohibit spanking, no state in this country outlaws hitting your kids.

As California law now defines it: "Child abuse is a physical injury which is inflicted by other than accidental means on a child by another person. ... It does not include spanking that is reasonable and age appropriate and does not expose the child to risk of serious injury."

The obvious problem with the current law is that it doesn’t provide much guidance about what’s prohibited and what’s not, thus inviting those who violate it to avoid liability by cruising through the loopholes.

What is “reasonable” spanking as opposed to “unreasonable” hitting? Some kids bruise more easily than others; some areas of the body are more likely to show welts and marks; should that define who is liable or what is prohibited?

If you didn’t intend to do anything but “spank,” should it matter if the child ends up with bruises? After all, it was just a spanking. As any good lawyer will argue, criminal punishment requires that you intend to violate the law, and that the law be clear. The best argument for the new law is that, like statutory rape bans do for underage forcible rape, it would make it easier for prosecutors to punish parents who are actually abusive.

Assemblywoman Sally Leiber of Mountain View, Calif., who sparked the latest controversy when she announced last week that she would be drafting a new bill, rejects the argument that parents need to hit kids in order to maintain discipline.

"I think it's pretty hard to argue you need to beat a child 3 years old or younger. Is it OK to whip a 1-year-old or a 6-month-old or a newborn?''

Why? The bill she is working on aims to prohibit "any striking of a child, any corporal punishment, smacking, hitting, punching, any of that.''

Now, no one is going to be sneaking into the homes of good and decent parents to see if they have “lost it” with their kids. If no injury results, no hospital visit is necessary, no one witnessed the assault, the reality is that there will be no prosecution, and no required parenting classes for first-time offenders. What a new law would do is make it easier to conclude that a crime had been committed when doctors or social workers examine an injured baby, or observe a child being hit. It would take away any suggestion of reasonable doubt that drawing the line between spanking and abuse may produce.

What’s so bad about that?

The question may be complicated for older children, but for babies? Is it ever right to hit a baby? Do we really think there is such a thing as age appropriate hitting when we’re talking about infants? If three years isn’t the right limit, what about two? What about one? Who are we protecting here?

You might be of the view that there are more important and appropriate things for government to do than tell us how to raise our kids, but what could be more important than protecting children against the very real threat of abuse?

Sally Leiber doesn’t have kids, as many of the news articles, and even more of the critics, have pointed out. But to paraphrase Condi Rice, so what? Are only mothers able to understand parenting, or make policy to protect children?

There probably isn’t a parent alive who hasn’t been tempted to hit their kids. But I think if we’re being honest, and especially if we’re talking about babies, the temptation comes when we’re on the verge of “losing it,” not because we’re making a careful and reasonable judgment. The other thing a new law would do is change the message to parents about society’s attitude toward hitting kids.

At the margin, it might strengthen all the forces that hold you back in that moment when you lift up your hand. Spanking may not hurt kids, but abuse does, and if we could reduce the latter, is giving up spanking really such a big price to pay?

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Susan Estrich is currently the Robert Kingsley Professor of Law and Political Science at the University of Southern California and a member of the Board of Contributors of USA Today. She writes the "Portia" column for American Lawyer Media and is a contributing editor of The Los Angeles Times. She was appointed by the president to serve on the National Holocaust Council and by the mayor of the City of Los Angeles to serve on that city's Ethics Commission.

Estrich's books include the just published "Soulless," "Real Rape," "Getting Away with Murder: How Politics Is Destroying the Criminal Justice System," "Dealing with Dangerous Offenders," "Making the Case for Yourself: A Diet Book for Smart Women" and "Sex & Power," currently a Los Angeles Times bestseller.

She served as campaign manager for Michael Dukakis' presidential bid, becoming the first woman to head a U.S. presidential campaign. Estrich appears regularly on the FOX News Channel.

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