COA: Striking child with cord not protected parental discipline

An Indianapolis mother convicted of felony battery after striking her son with an electrical cord failed to convince the Indiana Court of Appeals that the charges against her could be defeated by the concept of parental privilege.

In Guadalupe Pava v. State of Indiana, 19A-CR-716, Guadalupe Pava was the mother of 9-year-old P.P. One day in June 2018, Irma Martinez, whose family lived with Pava’s, heard P.P. crying and saying he “wasn’t going to do it again.”

When Martinez went downstairs to investigate, she saw Pava striking P.P. on the back with an electrical cord. Pava struck P.P. four times in Martinez’s sight before Martinez was able to take the cord and shield P.P. The child later testified that his mother was angry at him and had struck him 10 times, and Pava testified that P.P. had been pinching his sister and had removed her dirty diaper without permission.

Pava herself began crying and told Martinez “she didn’t know why she had reacted that way.” Martinez went to P.P.’s school the next day to speak with a social worker, while P.P. showed a school employee the marks on his body.

The Indiana Department of Child Services was called then, and a case manager saw “extensive bruising and linear marks all over (P.P.’s) body.” The child was removed from the home and taken to a doctor, who found “[n]umerous, too many to count, red and bruise-like striped areas” on the his body, all less than 24 hours old.

Meanwhile, Pava admitted to both the case worker and to law enforcement that she had struck P.P. She was eventually convicted of two Level 5 felony battery offenses, and the Marion Superior Court entered judgment on a charge of Level 5 felony battery by a person of at least 18 years of age resulting in bodily injury to a person less than 14 years of age.

On appeal, Pava first argued Indiana’s battery statute was unconstitutionally vague as applied to her case and thus violated her rights under the Fifth Amendment and Article 1, Section 12 of the Indiana Constitution. Specifically, she argued that “under the facts of her case, and in conjunction with the parental privilege to discipline one’s child, ‘the decision of what is or isn’t reasonable corporal punishment’ under Indiana Code section 35-42-2-1 is too subjective, and she had no constitutionally acceptable guidance as to whether striking P.P. crossed the line into illegal battery.

“After reviewing the totality of the facts, circumstances, and evidence,” Senior Judge Carr Darden wrote, “we disagree for two reasons.”

The first reason, Darden wrote Wednesday, is that I.C. 35-42-2-1 sets forth a scienter requirement that ensures a person “has fair notice as to what kind of conduct is punishment as battery.” And second, under Willis v. State, 888 N.E.2d 177 (Ind. 2008), the Indiana Supreme Court implemented a reasonableness standard for assessing the parental discipline privilege, he said.

“In Willis, the Court adopted the Restatement of the Law (Second) on Torts, which provides, in relevant part, that a ‘parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his child as he reasonably believes to be necessary for its proper control, training, or education … ,’” Darden wrote.

“… Following the holding in (Morgan v. State, 22 N.E.3d 570 (Ind. 2014)),  we conclude the objective reasonableness standard adopted in Willis would provide sufficient notice of what conduct crosses the line from mere discipline of a child to battery,” the senior judge continued, concluding Pava failed to establish unconstitutional, as-applied vagueness.

The appellate panel likewise rejected Pava’s argument that the state failed to present sufficient evidence to rebut her parental-discipline claim, finding she used “disproportionate and degrading force” against P.P.

“Pava did not stop striking P.P. until Martinez intervened. In addition, she did not try lesser forms of punishment, such as grounding P.P. or taking away privileges, let alone less severe forms of corporal punishment,” Darden concluded. “Pava indicated an awareness that her use of force was unreasonable. She cried after Martinez stopped her and stated she did not know why she struck P.P.”