Fri 02 Dec, 2022 Criminal Defense

Is it a Crime to Spank Your Child in New York?

Although spanking and other forms of corporal punishment used to discipline children are less common than they used to be, some parents still choose corporal punishment for their children. Parents may wonder whether they can legally spank their children or other otherwise use corporal punishment to discipline their children. On its face, spanking appears to squarely fall within the New York crimes of assault and aggravated harassment. However, New York law still provides a specific exception that allows parents to use physical force in some circumstances when disciplining children. Depending on the specifics of the corporal punishment used to discipline a child, a parent or caretaker may very well be legally protected when they spank a child. 

I’m going to first discuss the justification defense that allows parents to use physical force on children in some situations. Then I will discuss specific crimes that people may face after spanking their children. As I discuss these crimes, I’ll go over some scenarios where the justification defense could apply so that you could beat the charges. 

As you’ll see, the short answer to the question “is it a crime to spank your child in New York” is that if you choose to spank your child, it should be very restricted and not inflict any serious pain or injury to your child.

Call (212) 627-3184 to speak to NYC criminal attorney Cody Warner to get help with your criminal charges. Let Cody help you navigate the criminal justice system to get the best results for your case.

When is Spanking a Child Not a Crime?

Section 35.10(1) of the New York State Penal Law provides a justification defense for parents who subject their children to physical force. Under that subsection, a parent, guardian, or other person entrusted with the care and supervision of a person under the age of 21 may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

Possible Criminal Charges for Spanking a Child

When a parent spanks a child, he or she may face criminal charges, including assault, harassment, and child abuse charges. For some of these charges, the justification defense of Penal Law 35.10(1) may apply. It’s important to note that although the justification defense may apply to any given situation, it is a defense that can be raised by a criminal defense attorney. In other words, even if the justification defense applies in your situation, you could still be arrested by the police and charged with a crime. In that event, you would have to fight your case by raising the justification defense to the judge and jury.

Aggravated Harassment

You can be charged with the crime of Aggravated Harassment in the Second Degree if, with the intent to harass, annoy, threaten or alarm another person, you strike, shove, kick or otherwise subject another person to physical contact thereby causing physical injury to such person, and such person is part of the same household.

For example, if you subject your child to physical contact, say in the form of slapping or spanking, causing physical injury, even if your intention was merely to threaten or alarm them, you would be guilty of Aggravated Harassment in the Second Degree.

However, if you were charged with Aggravated Harassment in the Second Degree, you may be able to successfully assert a justification defense by claiming that the physical injury that you caused to your child was reasonably necessary to maintain discipline or promote the welfare of your child.  Whether any injury you caused was reasonably necessary to maintain discipline or promote the welfare of your child is ultimately a question that the jury would have to consider after assessing the facts of your case.


Generally speaking, a person commits misdemeanor assault when they cause physical injury to another person and they intended to cause such injury. If you intend to cause physical injury to your child and you in fact do cause physical injury, you can be charged in New York for Assault in the Third Degree, which is a class A misdemeanor.

However, the justification defense can apply for a misdemeanor assault charge if the injury you caused was reasonably necessary to maintain discipline or promote the welfare of your child. Again, whether your conduct was reasonably necessary for discipline or the welfare of your child will be considered by the jury after they hear all the facts of your case. If the force used against your child was excessive and appears to be cruel, a jury could find that the justification defense doesn’t apply because it believes you were not reasonable to think that the force used was necessary to discipline the child. 

For instance, if you spank your child so hard or with so much repetition that your child needs to go to the hospital due to lacerations, it’s very possible that a jury will find that your conduct was not reasonably necessary to maintain discipline. The analysis of whether the justification defense will be successful in any given case is completely dependent on the unique facts of the case. 

The safest course of action is for parents to make sure that any punishments given to their children are measured and reasonable. Any punishments given should not appear to be cruel, vindictive, or sadistic. Any slapping or spanking should be limited in severity and duration. If the corporeal punishment ends up requiring medical attention, that should be a red flag. If a person’s child needs medical attention, there is a very real chance that criminal charges will follow.

Need Help?

If you’ve been charged with a crime after you used corporeal punishment on your child, you may have a successful justification defense. Give me a call for a free consultation. I can analyze your case to determine whether you have a successful justification defense or instead we should work out the best possible deal for your case. Either way, if you have been charged with a crime, you will have options, and I’ll help you determine the best path forward. Contact me today.