Parental Discipline and the Line Into Assault Under Michigan Law

Michigan law permits a parent to discipline a child with reasonable force. The child abuse statute, MCL 750.136b, says it "does not prohibit a parent or guardian, or other person permitted by law or authorized by the parent or guardian, from taking steps to reasonably discipline a child, including the use of reasonable force."^[1] The line is drawn by one word, reasonable, and when the question reaches a jury the prosecutor must prove beyond a reasonable doubt that the force was not reasonable as discipline.^[3]

This page explains what that provision covers, how it is presented to a jury, what the statute treats as abuse, and an open question about assault charges that the sources reviewed for this guide do not answer.

What the statute says

The discipline provision is subsection (9) of the child abuse statute. It has three parts worth separating.^[1]

• Who. A parent or guardian, or another person permitted by law or authorized by the parent or guardian.^[1]
• What. Taking steps to reasonably discipline a child.^[1]
• How much. Reasonable force is included.^[1]

A "child" for this statute is a person under 18 who is not emancipated by operation of law.^[5] The statute does not define "reasonable," and it does not list approved or prohibited methods. The model jury instruction does not list factors either; it says only that the law permits such force as is reasonable.^[2]

How the jury is instructed

The model instruction on parental discipline, M Crim JI 17.24, is short: "It is not a crime to discipline a child. A parent [or guardian, or any person otherwise allowed by law or authorized by the parent or guardian] may use force to discipline a child. But this does not mean that any amount of force may be used. The law permits only such force as is reasonable."^[2]

The second paragraph assigns the burden: "The defendant is not required to prove that the acts alleged here were reasonable. The prosecutor must prove beyond a reasonable doubt that the force used was not reasonable as discipline."^[3]

The instruction is to be given only when the defense of parental discipline is raised.^[2] In other words, the issue has to be put before the court by the evidence; once it is, the prosecutor carries the burden.

What the statute treats as child abuse

The discipline provision is an exception to a statute with four degrees of child abuse. Reading them shows what the Legislature placed on the other side of the line.

Degree	Conduct (examples from the statute)	Maximum for a first offense
First	Knowingly or intentionally causing serious physical harm or serious mental harm to a child	Felony; imprisonment for life or any term of years[6]
Second	Knowingly or intentionally committing an act likely to cause serious physical or mental harm, or an act that is cruel to a child, whether or not harm results	Felony; not more than 10 years[6]
Third	Knowingly or intentionally causing physical harm to a child	Felony; not more than 2 years[5]
Fourth	An omission or reckless act that causes physical harm, or knowingly or intentionally committing an act that poses an unreasonable risk of harm or injury, whether or not harm results	Misdemeanor; not more than 1 year[5]

Three definitions give those degrees their meaning.

• "Physical harm" means any injury to a child's physical condition.^[5]
• "Serious physical harm" means a physical injury that seriously impairs the child's health or physical well-being, including brain damage, a skull or bone fracture, subdural hemorrhage or hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe cut.^[6]
• "Cruel" means brutal, inhuman, sadistic, or that which torments.^[6]

Because "physical harm" covers any injury, a case in which a child was hurt during discipline can turn on whether the force was reasonable.^[5][1]

Who may rely on the provision

The child abuse statute applies to a broad group. A "person" who can commit child abuse is a child's parent or guardian or any other person who cares for, has custody of, or has authority over a child, regardless of how long.^[5] The discipline provision is narrower. It protects a parent or guardian, and beyond that only a person "permitted by law or authorized by the parent or guardian."^[1]

That gap matters in blended households. A parent's partner, a stepparent, a grandparent or a sitter may be someone who "cares for" the child and so can be charged, but can invoke the discipline provision only if permitted by law or authorized by the parent or guardian.^[5][1] Whether authorization existed is a factual question.

Schools are treated differently

Michigan's Revised School Code prohibits a person employed by, or engaged as a volunteer or contractor by, a school board or public school academy from inflicting corporal punishment on a pupil under any circumstances. The same section allows reasonable physical force as necessary to maintain order and control in a school setting.^[4] The assault statute, MCL 750.81, expressly does not apply to an individual using necessary reasonable physical force in compliance with that section.^[4]

The open question: discipline and a domestic assault charge

The wording of more than one statute can reach force used on a child. Domestic assault under MCL 750.81(2) covers an assault on, among others, "a resident or former resident of the individual's household," which can describe a child living in the home.^[7]

Here the sources are incomplete, and this page says so plainly.

• The reasonable-discipline provision says "this section does not prohibit" reasonable discipline. By its words it limits the child abuse statute.^[1]
• MCL 750.81 contains one reasonable-force exemption, for school personnel. It contains no provision on discipline by a parent or guardian.^[4]
• The parental discipline jury instruction lists only the child abuse statute as its source, and the instructions that direct courts to give it are the child abuse instructions.^[2]
• The instruction's opening sentence is nonetheless general: "It is not a crime to discipline a child."^[2]

No statute, model instruction or benchbook passage reviewed for this guide states whether reasonable parental discipline may be raised against a charge under MCL 750.81, and Michigan appellate decisions were not searched on the point.^[2][4] This page therefore does not say that parental discipline is, or is not, a defense to an assault charge, and it should not be relied on for either answer. A person facing an assault charge that arises from discipline of a child should ask a lawyer to research it.

What can be said is how the ordinary assault elements apply. A battery is a forceful, violent or offensive touching that was intended and against the other person's will, and the prosecutor must prove it beyond a reasonable doubt.^[8][9] No injury is required.^[10] The relationships that make an assault "domestic" are covered in Who is covered: the domestic relationship.

When the conduct was a response to domestic violence

The child abuse statute has a second, separate defense. It is an affirmative defense that the defendant's conduct involving the child was a reasonable response to an act of domestic violence in light of all the facts and circumstances known to the defendant at the time. Unlike the discipline provision, the defendant must prove this defense by a preponderance of the evidence.^[11] Using force to protect a child from someone else is covered in Defending someone else or your property.

Consequences beyond the criminal charge

A discipline incident can produce more than one proceeding.

• Child Protective Services. How a child protective investigation relates to a criminal case is covered in CPS and domestic violence.
• Privileges. The spousal privilege does not apply in a prosecution for a crime committed against a child of either or both spouses.^[12] In child protective proceedings, every legally recognized privilege except attorney-client and clergy confession is abrogated.^[13]
• Bond conditions. A court may make it a condition of pretrial release that the defendant comply with limits on contact with any named person.^[14] When the named person is the defendant's child, see No-contact orders and your children.
• Record and licenses. For Michigan's set-aside law, a violation of the child abuse statute is an "assaultive crime."^[15] A fourth-degree child abuse conviction within the previous 8 years, or a pending charge, blocks a concealed pistol license.^[16]
• Family court. See Domestic violence and child custody and Domestic violence and parenting time.
• When the person charged is a minor. A teenager accused of assaulting a parent is handled differently; see Juveniles and domestic violence charges.

What people get wrong

• "Parents have an absolute right to discipline." The statute protects only reasonable discipline and reasonable force.^[1]
• "Any physical discipline is child abuse." The statute expressly does not prohibit reasonable discipline, including reasonable force.^[1]
• "I have to prove it was reasonable." When the defense is raised, the prosecutor must prove beyond a reasonable doubt that the force was not reasonable as discipline.^[3]
• "My partner can discipline my child the same way I can." Only if permitted by law or authorized by the parent or guardian.^[1]