`The Myth of the Wooden Spoon

The Therapist
September/October 2014
David G. Jensen JD (former CAMFT Staff Attorney)
Reviewed November, 2022 by Luke M. Martin, MBA, JD (CAMFT Staff Attorney)

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Suppose your patient, a twelve-year-old girl, tells you that one of her parents spanked her on her backside with a wooden spoon, and that such spanking left bruises on her body. Your patient was clothed when the spanking occurred. Does the parent’s use of a wooden spoon to spank the child, even when such action resulted in some “mark” or bruising to the child’s backside, automatically constitute “unlawful corporal punishment or injury” or the “willful harming or injuring” of a child (“Child Abuse”)?

This question was considered by the California Court of Appeal in Gonzalez v. Santa Clara County Department of Social Services (2014) 223 Cal.App.4th 72. In Gonzalez, the Court of Appeal held that a “parental privilege to impose reasonable physical discipline upon a child must be incorporated into CANRA’s definitions of what constitutes the willful harming or injuring of a child and unlawful corporal punishment or injury.” In simpler English, a spanking does not constitute Child Abuse.

Consequently, because of the “parental privilege” to impose reasonable discipline on a child, it is not necessarily Child Abuse merely because a parent uses a wooden spoon to administer a spanking, even if such spanking results in bruising to the child. To distinguish between cases of reasonable physical discipline, which would be protected by the “parental privilege,” and cases of unreasonable physical discipline, which would be criminal in nature, we have to look at more factors than just the use of an object, such as a wooden spoon, and the presence of bruises.

So, what do we look for now?
According to Gonzalez, the distinction between reasonable physical discipline that is “parental” in nature, and unreasonable physical discipline that is “criminal” in nature, hinges on consideration of three questions:

(1) Was there a genuine disciplinary motive for the spanking?

(2) Was there a reasonable occasion for the spanking?

(3) Was the spanking reasonable in kind and degree, meaning in light of the child’s age, the part of the body that was spanked; the instrument used to spank the child; and, the injuries sustained by the child as a result of the spanking?

To distinguish between “parental” and “criminal” spanking, each of these questions must be analyzed in light of the facts of particular situations. These questions give us a framework to follow when dealing with these issues, and you should be conversant with these questions and the framework they create.

A Disciplinary Motive
To sift “parental” spanking from “criminal” spanking, Gonzalez states that the reason for the spanking must be considered. Was the spanking for a “genuine and deliberate disciplinary purpose,” or was it for another more nefarious purpose, such as terrorizing a child, intimidating a child, or seeing a child unclothed?

In Gonzalez, mother and father spanked their twelve-year-old daughter in an attempt to change the daughter’s troubling behavior, which was taking her deeper and deeper into gang involvement. They tried other types of punishment, i.e., groundings and loss of privileges, but nothing worked to curb the daughter’s escalating and troubling behavior. So, they spanked her, really as a measure of last resort. The mother testified that she was reluctant to spank her daughter, and regretted doing so, but as parents, they just did not know what else to do. For these parents, the motive behind the spankings was a genuine desire to arrest their daughter’s troubling behavior.

For the court in Gonzalez, the motive for the spanking is a critical element to consider. The more the spanking was part of a “genuine and deliberate disciplinary” program, the more the spanking was likely “parental” in nature. Conversely, however, the more the spanking was the result of irrational action by parents, the more the spanking was likely “criminal” in nature. Again, the facts of the particular situation will typically guide you in one direction or another.

Other factors to consider regarding motive include whether there is other evidence of violence in the home; whether the parent was too eager to spank the child; and, whether, the parent derived some sort of self-gratification from spanking the child. Any of these factors would tend to make the spanking more “criminal” than “parental.”

A Reasonable Occasion for Discipline
To sift “parental” spanking from “criminal” spanking, in addition to looking for a proper disciplinary “motive,” we must also consider what the child did to warrant the spanking in the first place. Given the facts of the situation, would spanking sound reasonable as a punishment for the child’s bad behavior?

In Gonzalez, the spankings were not for minor manifestations of bad behavior. Rather, the daughter’s underlying misconduct was serious, even potentially life-altering. Over a period of months, her behavior changed dramatically, and not for the good. She refused to complete class assignments. She was late for class. She skipped school. She lied about her activities and whereabouts. And, she became more and more involved with gang members, all of which was alarming to her parents.

Gonzalez emphasizes that a spanking is “parental” when it is calculated to redress serious behavioral concerns. Spanking is likely to become “criminal” when it is done for trivial or minor concerns. In Gonzalez, the daughter was warned that she would be spanked if her bad behavior continued, the daughter agreed to the disciplinary program, and her parents administered the spankings in harmony with the agreed-upon conditions.

A Disciplinary Measure that is Reasonable in Kind and Degree
To sift “parental” spanking from “criminal” spanking, we have seen that we need a proper disciplinary motive as well as a proper occasion for the spanking, but we also need a disciplinary measure that is “reasonable in kind and degree.”

In assessing whether a given instance of corporal punishment is reasonable in kind and degree, the Gonzalez court reiterated that the following factors be considered:

1. The age of the child, meaning a two-year old versus a twelve-year old;
2. The part of the body that was struck, meaning the backside versus the head or back;
3. The instrument used to strike the child, meaning a wooden spoon versus a hammer; and,
4. The amount of damage inflicted, meaning temporary bruising versus severe bruising.

The Court of Appeal in Gonzalez admitted that this was the most difficult element to resolve, and in reaching its decision the court considered and explained the law with regards to the issue of the wooden spoon and the issue of bruises resulting from spankings.

The Issue of the Wooden Spoon
Regarding the use of the wooden spoon, the Court of Appeal states that “[w]e cannot say that the use of a wooden spoon to administer a spanking necessarily exceeds the bounds of reasonable parental discipline.” The key word in this sentence is “necessarily.” Certainly, a wooden spoon can be used excessively, which would result in a criminal spanking. However, the Gonzalez court points out that the mere use of a wooden spoon to spank a child does not automatically mean the spanking was criminal as opposed to parental. To make that determination, we have to look at all of the factors identified by the court in Gonzalez.

In reaching its conclusion about the use of wooden spoons to spank children, the Court of Appeal relied on an Opinion from the California Attorney General that opines that “it is not unlawful for a parent to spank a child for disciplinary purposes with an object other than the hand, provided that the punishment is necessary and not excessive in relation to the individual circumstances (80 Ops.Cal.Atty.Gen. 203 (1997).”

The Presence of Bruising
Regarding the presence of bruising, the Court of Appeal states that “[n]or do we think that the infliction of visible bruises automatically requires a finding that the limits of reasonable discipline were exceeded.”

To distinguish “parental” spanking from “criminal” spanking, the Court of Appeal suggested that bruising from “parental” spanking would result in “temporary bruising,” “slight bruising,” or “bruising that would disappear in a few days.” Conversely, bruising from “criminal” spanking would likely result in “lasting bruises” or “substantial bruising.”

The Court of Appeal explained that “visible bruising demarcates, or at least very nearly approaches, the outer limit for the quantum of damage to be tolerated. However, we do not believe that it necessarily compels a finding of abuse unless there are grounds to find that the parent intended to inflict bruises, knew his or her conduct would do so, or should have known that bruises were likely to result from the amount of force applied and the method of its application.”

For the Court of Appeal in Gonzalez, bruising resulting from the spanking of a child can be “accidental” as opposed to “intentional,” with “accidental” meaning “without intent” or “through carelessness.”

Challenges After Gonzalez
The factors outlined in Gonzalez will affect mandated reporting in a variety of ways. One, it is possible that with some spanking cases there may not be enough factual information regarding motive, occasion, or reasonableness to cross the “reasonable suspicion” threshold and trigger the reporting requirement, and that is alright legally. The law requires you to have reasonable suspicion before you report.

Two, so that we are clear, because this an important concept, any facts suggesting a bad motive for the spanking, or a bad occasion for the spanking, or a spanking that sounds unreasonable in kind or degree crosses the hurdle for reasonable suspicion and triggers the reporting requirement.

Three, you may honestly believe that all spanking is “criminal” and not “parental,” and if you suspect abuse due to spanking you should report it; however, in light of Gonzalez, counties will likely view the issue differently, which could affect the investigation of your report.

What We Know After Gonzalez
With its recognition of a “parental privilege” to impose reasonable physical discipline on a child, the Gonzalez case, for better or worse, fine-tunes the concept of corporal punishment. In the wake of the Gonzalez opinion, there are five principles you need to be mindful of:

1. The mere use of a wooden spoon to administer a spanking does not necessarily mean that “criminal” spanking has occurred.
2. The mere presence of some bruising resulting from spanking does not necessarily mean that “criminal” spanking has occurred.
3. The law recognizes a degree of spanking that is “parental” in nature, even if such spanking involves the use of objects, and the spanking results in minor or temporary bruising to the child.
4. Moving a case of spanking from “parental” to “criminal” requires facts that reveal an improper disciplinary motive; an unreasonable occasion for the spanking; or, a disciplinary measure that is unreasonable in kind and degree.
5. As a mandated reporter you are still not an “investigator” of child abuse, but Gonzalez gives us some additional issues to consider when deciding whether we have “reasonable suspicion” that “criminal” as opposed to “parental” corporal punishment has occurred.

Conclusion
The Gonzalez case refines our thinking about what constitutes “corporal punishment” and “willfully harming or injuring a child,” and this refinement means that mandated reporters must become well-versed in the distinction between “parental” and “criminal” discipline. The three concepts of motive, occasion, and reasonableness must become part of your professional lexicon, both in your verbal discourse with governmental entities and colleagues you consult with, and in your written discourse, i.e., your notes.

If, based on the facts you have at the time, you reasonably believe you have an instance of “parental” discipline, you would not have to report that as child abuse, but you should document why you believe the discipline was “parental” in your notes. You should include references to the factors mentioned in Gonzalez: the motive behind the discipline; the occasion for the discipline; and, whether the discipline was reasonable in kind and degree.

If, based on the facts you have at the time, you reasonably believe you have an instance of “criminal” discipline, report as always to CPS or law enforcement. The salient facts will suggest, or evidence, an improper disciplinary motive, an unreasonable occasion for the spanking, and/or a disciplinary measure that was unreasonable in kind and degree. Either agency will be interested in the facts that caused you to suspect that the discipline was “criminal” as opposed to “parental,” so be prepared to report such facts when interacting with CPS or the police.