To some degree the argument is circular. As between unconsenting adults, it is certainly black-letter common law that any touching is a battery and any credible threat of it is an assault. However, under various guises, the law has also traditionally recognized some kind of privilege as between parent and child. The discussion here can be read to be about the scope of the privilege. Since most child-abuse cases will arise under state law, a common-law privilege might be relevant, and inasmuch as any claim for religious exemption would fall either under pre-Smith state religious freedom doctrine or a state RFRA, in states where these apply, centrality (responding here in part to Mark Scarberry) ought not to be an issue. As a fan of common-law approaches to religious freedom issues, you might find this line of reasoning attractive.
On Tue, Aug 4, 2009 at 1:07 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > It also seems noteworthy to me that one of the arguments on > the list for having any bruise-inflicting corporal punishment of children be > criminal was equally applicable to minor spanking as well. The argument > was, “I have to wonder if there is anyone on this list who would not > consider it a battery (or assault depending on what your state calls what > used to be common law battery) if someone deliberately hit them to the point > of bruising them. Sounds like a tort or a crime to me, and I find it hard > to imagine how a claim of religious belief would justify it. I suppose > adults could consent to such interpersonal behavior. but since children > cannot legally consent to such harms, I have to wonder how Vance can justify > such abuse.” But I take it that everyone on the list would consider it a > battery if someone spanked them even without bruising them, no? > > > > So when the logic of the arguments suggests the illegality of > *all* corporal punishment, it seems reasonable for people who support some > corporal punishment to think that the other side’s position would go beyond > just prohibiting bruising. > > > > Eugene > > > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Vance R. Koven > *Sent:* Tuesday, August 04, 2009 7:01 AM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Wisconsin convicts parents for denial of medical treatment > > > > Actually, it didn't. It began with an inquiry into what level of insult (in > the broadest sense) to a child should be prosecuted as child abuse > regardless of the justification based on religious or even secular concepts > of parental discipline. I was attempting to draw a distinction between > serious harm and minor bruises--my example was a black-and-blue bum, which > of course would normally heal quickly. That *is* spanking. My suggestion is > that the harm to the child be proven as a matter of fact, rather than > presumed as a matter of law, in order to avoid defects in the legal adoption > of theories that should not be graven in stone. > > On Mon, Aug 3, 2009 at 9:21 PM, Paul Finkelman <paul.finkel...@yahoo.com> > wrote: > > Art: > > This discussion began with a defense of "bruising" children. That is hardly > spanking. I think if you look at those beyond death row -- simply violent > criminals - you will find abuse in almost every circumstance. > > > ---- > Paul Finkelman > President William McKinley Distinguished Professor of Law > Albany Law School > 80 New Scotland Avenue > Albany, NY 12208 > > 518-445-3386 (p) > 518-445-3363 (f) > > pf...@albanylaw.edu > > www.paulfinkelman.com > > --- On *Mon, 8/3/09, artspit...@aol.com <artspit...@aol.com>* wrote: > > > From: artspit...@aol.com <artspit...@aol.com> > > > Subject: Re: Wisconsin convicts parents for denial of medical treatment > > To: religionlaw@lists.ucla.edu > Date: Monday, August 3, 2009, 9:08 PM > > > > Because a few seriously abused children become murderers, society needs to > prohibit spanking? > > > In a message dated 8/3/09 9:05:21 PM, hamilto...@aol.com writes: > > > > Paul is correct here. If you want to evidence of the causal connection > between the home situation and criminal behavior, read the files of the > individuals who are on death row. Not infrequently, it is hard to figure > out who acted more heinously -- the parents of the death row inmate or the > death row inmate himself. I'm not saying that home circumstances should > be an adequate defense to murder. Rather, as a society it is foolish not to > make every effort to stem harm to children. > > > > > > > ************** > A Good Credit Score is 700 or Above. See yours in just 2 easy steps! ( > http://pr.atwola.com/promoclk/100126575x1222846709x1201493018/aol?redir=http://www.freecreditreport.com/pm/default.aspx?sc=668072&hmpgID=115&bcd=JulystepsfooterNO115 > ) > > > > -----Inline Attachment Follows----- > > _______________________________________________ > > To post, send message to > Religionlaw@lists.ucla.edu<http://mc/compose?to=religion...@lists.ucla.edu> > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > > > > > -- > Vance R. Koven > Boston, MA USA > vrko...@world.std.com > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Vance R. Koven Boston, MA USA vrko...@world.std.com
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
