State v. Varner, 252 N.C. App. 226 (2017)

Reversed and Remanded
  • Facts: Defendant disciplined his 10 year old son’s refusal to eat dinner by counting down from three and then striking his son’s thigh three times with a paddle. The next day the son’s thigh (from his knee to his waist) was bruised, and for several days the son was in pain, walked with a slight limp, and was unable to participate in gym class at school. The father was charged with felony child abuse and was convicted of misdemeanor child abuse.
  • Appellate issue relates to the jury instruction regarding a parent’s right to inflict “moderate punishment” to correct his child. The instruction did not define “moderate punishment” as there was disagreement over whether it should be defined as causing “lasting injury.”
  • NC Supreme Court precedent referred to by the opinion
    • As a general rule, a parent (or person acting in loco parentis) is not criminally liable for inflicting physical injury on a child in the course of lawfully administering corporal punishment.  State v. Pendergrass, 19 N.C. 365 (1837); State v. Alford, 68 N.C. 322 (1873)
    • An exception includes when a parent administers punishment “which may seriously endanger life, limb or health, or shall disfigure the child, or cause any other permanent injury.” State v. Alford, 68 N.C. 322, 323 (1873)
    • Another exception is when “the parent does not administer the punishment ‘honestly’ but rather ‘to gratify his own evil passions’ irrespective of the degree of physical injury inflicted. State v. Thorton, 136 N.C. 610, 615 (1904); State v. Pendergrass, 19 N.C. 365 (1837)
  • The jury instruction did not inform the jury that a parent is not criminally liable for injuring his child when administering corporal punishment unless the jury could infer from the evidence that the correction produced or was calculated to produce lasting injury or was done with the purpose of gratifying malice. Without defining moderate punishment, the jury could have convicted based on its determination that the punishment was excessive, which is not the standard set forth by the NC Supreme Court. There was some evidence (cursing and yelling) for the jury to consider to determine whether the defendant acted with malice.


    • Author’s Note:  the opinion states that the NC Supreme Court has not disavowed its previous holdings requiring a parent act with malice or cause permanent injury for criminal liability. However, the holding also refers to G.S. 7B-101(1)(c) and the General Assembly’s limitation on a parent’s authority to discipline his/her child in the juvenile proceeding context by defining “abuse” as the use of “cruel or grossly inappropriate” procedures or devices to discipline a child. 


Criminal Cases with Application to Child Welfare
Misdemeanor Child Abuse
Corporal Punishment
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