Is hitting your child a crime?

Hitting your kids – is it a crime in Wisconsin?

You grew up in a world where your parents could hit you as punishment (at least you were under the impression they could).  And while hitting your kids certainly may have been a crime then, parents frequently didn’t see prosecution.  Does that mean you can hit your kids?  The answer is not a definite yes or no.  Instead, it focuses on a very fact-specific area of law.  In this blog post, our child abuse defense attorneys address whether hitting your kids is a crime in Wisconsin.

If you face charges for any kind of criminal offense, contact Van Severen Law Office immediately.  Our child abuse defense attorneys regularly represent individuals facing serious legal problems.  If you’re the subject of any criminal investigation, hiring a lawyer should be your next step.  The criminal defense attorneys at Van Severen Law Office are available 24/7 to help fight your case.  Contact us at (414) 270-0202.  We regularly defend individuals facing serious crimes involving children, including child abuse charges.

Parental privilege in Wisconsin and avoiding criminal liability

If criminal cases focused only on whether the defendant committed the crime or not, criminal defense attorneys wouldn’t be very important.  Fortunately (for us and for you) that’s not the case.  Sometimes a defendant commits a crime but still should not be found guilty .  Criminal cases involving privilege are one example of how that occurs.  A privilege is a defense to criminal liability.  Depending on the circumstances, that privilege can be extremely powerful.

In the case of corporal punishment, or hitting your kids, the privilege is a complete defense.  A complete defense is as powerful as it gets.  If you prove that complete defense, you cannot be found guilty of the underlying crime.  For example, if you’re charged with misdemeanor battery, but you successfully prove you acted under the parental privilege, you cannot be found guilty of the offense.

The law: section 939.05(5)(b) and what it says about hitting your kids

Section 939.05(5)(b) of the Wisconsin Statutes provides the parental privilege.  The law says:

The fact that the actor’s conduct is privileged, although otherwise criminal, is a defense to prosecution for any crime based on that conduct.  The defense of privilege can be claimed under any of the following circumstances: …

When the actor’s conduct is reasonable discipline of a child by a person responsible for the child’s welfare. Reasonable discipline may involve only such force as a reasonable person believes is necessary. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or creates an unreasonable risk of great bodily harm or death.

This looks pretty clear, but let’s take a look at the jury instruction.  Jury instructions are exactly that – instructions for the jury.  The average person doesn’t understand the law, so this language breaks difficult concepts down into more understandable terms.  These instructions translate the law into common language.  If you have a jury trial, you would heard the judge read this instruction to the jury:

Parental privilege jury instruction

Wisconsin Criminal Jury Instruction 950 (2014) describes the defense in plain language:

The State must prove by evidence which satisfies you beyond a reasonable doubt that the defendant did not act reasonably in the discipline of a child.


The law allows a person responsible for the child’s welfare to use reasonable force to discipline that child.  Reasonable force is that force which a reasonable person would believe is necessary.


Whether a reasonable person would have believed that the amount of force used was necessary and not excessive must be determined from the standpoint of the defendant at the time of the defendant’s acts. The standard is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at the time of the alleged offense.


In determining whether the discipline was or was not reasonable, you should consider the age, physical and mental condition and disposition of the child, the conduct of the child, the nature of the discipline, and all the surrounding circumstances. It is never reasonable discipline to use force which is intended to cause great bodily harm or death or which creates an unreasonable risk of great bodily harm or death.


If you are satisfied beyond a reasonable doubt that all the elements of this offense have been proved and that the defendant did not act reasonably in the discipline of (name child) , you should find the defendant guilty. If you are not so satisfied, you must find the defendant not guilty.

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So, what is the parental privilege?

Off the bat, one thing is clear: the parental privilege doesn’t apply to cases involving intent to cause great bodily harm or death, or which create a risk of either.  This eliminates the privilege in cases involving charges like homicide.

The jury first determines whether the amount of force used was necessary and not excessive.  The jury must answer this decision from the standpoint of the defendant at the time, but they must do so from the point of view of a reasonable person.  Importantly, the jury is to also consider certain factors regarding the child – his age, physical and mental condition, the problematic conduct of the child, the nature of the discipline, and the surrounding circumstances.

For example, let’s assume that the defendant beats his child because that child is crying because she is hungry.  The child is 5 years old and has not eaten all day long.  The defendant in this situation will have a difficult time proving the privilege applies.  A five year old reacting to being hungry by crying is arguably normal.  This is not the kind of action this privilege protects.

In another example, let’s assume the defendant spanks his 12 year old child for stealing from the corner store.  The defendant spanks the child in the privacy of his home and conducts the spanking over the clothes of the child.  The spanking leaves no marks.  This specific 12 year old has a history of stealing, and prior to the spanking became physically confrontational with the defendant.  Arguably the privilege applies in this situation.

Charged for hitting your kids?  Contact our child abuse defense attorneys today

Contact Van Severen Law Office and speak with a top criminal defense attorney.

At your initial consultation it’s important to begin talking about defenses.  Whether this is a privilege depends on the case, but beginning to set that groundwork is certainly important.  All of the criminal defense lawyers at Van Severen Law Office are familiar with privileges as a defense.  But even if a privilege doesn’t apply, you’re absolutely still in good hands.  Our criminal defense lawyers have built reputations throughout the legal communities as staunch advocates for our clients.  We’ve built reputations based on winning cases. We aren’t afraid to defend you at jury trial.  And while that might sound scary to you, fighting at jury trial sometimes achieves the very best results.

We believe it’s smart to start fighting your case as early as possible.  Because of that, our law firm takes phone calls 24/7.  No matter the time of night or the day of the week, we’ll receive your phone call.  Contact us immediately at (414) 270-0202.

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