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Commonwealth v. Dobson

Appeals Court of Massachusetts, Suffolk

October 3, 2017

COMMONWEALTH
v.
JANERA W. DOBSON.

          Heard: March 10, 2017.

         Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on May 5, 2014.The case was heard by Catherine K. Byrne, J.

          Peter A. O'Karma for the defendant.

          Kathryn E. Leary, Assistant District Attorney, for the Commonwealth.

          Present: Milkey, Hanlon, & Lemire, JJ.

          HANLON, J.

         On December 16, 2014, following a jury-waived trial in the Dorchester Division of the Boston Municipal Court, the defendant, Janera W. Dobson, was convicted of assault and battery by means of a dangerous weapon; she had been charged with striking her five year old child in the face with a leather belt. See G. L. c. 265, § 15A(b). On appeal, she contends that the Commonwealth failed to prove that her behavior was not privileged as parental discipline. We affirm.

         Background.

         We recite the facts as the judge could have found them. At approximately 5:20 P_.M. on May 2, 2014, Boston Police Officer Brendon Cahill received a radio call to respond to an incident at 45 School Street, in the Dorchester section of Boston. There, he encountered a five year old child and his father standing outside the building. The child had a four-inch-long straight red mark on his leg, and another red mark on his face.[1] After speaking to the father, Cahill entered a second-floor apartment at 45 School Street and spoke with the child's mother, the defendant. She told him that she had struck her child with a belt in an attempt to discipline him, and that she had intended to hit his buttocks, but had missed and hit him in the face. Cahill requested that detectives come to the scene to photograph the child's injuries.

         The defendant was charged with assault and battery by means of a dangerous weapon, a belt. At trial, the Commonwealth's evidence consisted of Cahill's testimony and three black and white photographs of the child with the marks; the defendant offered only her own testimony. She testified that she had "spanked [her son] with a belt" because "in his [kindergarten] classroom there were people who [were] observing his class for that day and he was very aware of who they were and what they were doing and deliberately [her] son had acted out in class and put on a riot for them which is not his usual behavior." On cross-examination, the defendant agreed that the belt was leather. The judge found her guilty.

         Discussion.

         The defendant appeals, arguing that she was entitled to a required finding of not guilty because her behavior was protected by the parental discipline privilege, citing Commonwealth v. Dorvil, 472 Mass. 1 (2015), where the Supreme Judicial Court expressly recognized the existence of that privilege and discussed its elements in depth. Pursuant to the privilege,

"[A] parent or guardian may not be subjected to criminal liability for the use of force against a minor child under the care and supervision of the parent or guardian, provided that (1) the force used against the minor child is reasonable; (2) the force is reasonably related to the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of the minor's misconduct; and (3) the force used neither causes, nor creates a substantial risk of causing, physical harm (beyond fleeting pain or minor, transient marks), gross degradation, or severe mental distress."

Id. at 12. The privilege constitutes an affirmative defense, and, thus, "where the parental privilege defense is properly before the trier of fact, the Commonwealth bears the burden of disproving at least one prong of the defense beyond a reasonable doubt." I_d. at 13. In the defendant's view, the Commonwealth failed to disprove any element of the defense. For present purposes, we ...


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