Parents, Children, and the Law of Assault

Dalhousie Law Journal, Vol. 32, p. 1, 2009

34 Pages Posted: 4 Feb 2010

See all articles by Hamish Stewart

Hamish Stewart

University of Toronto - Faculty of Law

Date Written: January 1, 2009

Abstract

The debate concerning the constitutionality and the possible repeal of s. 43 of the Criminal Code, the so-called “spanking” provision, has raised an important issue: when a parent touches a child without the child’s consent, under what conditions is the parent’s conduct an assault? Supporters of the repeal of s. 43 have suggested that parents are protected from inappropriate prosecutions by the exercise of prosecutorial discretion and by the common law defences of de minimis non curat lex and necessity. But prosecutorial discretion is not a suitable substitute for a proper definition of the scope of criminal liability, and the defences of de minimis and necessity do not cover many typical situations in which parents apply non-consensual force to children for proper purposes. Further development of the common law defence of “deemed consent” would be more promising. This defence is available as a defence when a parent, a teacher, or another caregiver uses proportionate force in touching a child for a proper purpose. Because of certain problems in the common law definition and application of this defence, Parliament should enact a defence of “parental care,” clearly restating the legal standard governing the touching of a child for a proper purpose.

Suggested Citation

Stewart, Hamish, Parents, Children, and the Law of Assault (January 1, 2009). Dalhousie Law Journal, Vol. 32, p. 1, 2009. Available at SSRN: https://ssrn.com/abstract=1547490

Hamish Stewart (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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