dissenting:
In my opinion the trial court properly applied the standard of “reasonableness” to determine the defendant’s criminal liability for battery. In holding otherwise, the majority grants teachers more power in disciplining school children than possessed by their parents. To the degree that the majority bases this result on the statutory right of teachers to maintain discipline in the relation of parents and guardians to the pupils, I believe that the majority opinion constitutes improper judicial legislation.
The facts show that the defendant, a 54 year old, 170 pound teacher, beat a 68 pound, 11 year old student with a wooden paddle. Nothing in the record indicates that the boy had ever been beaten before entering the defendant’s sixth grade class. The defendant had beaten the complaining witness four or five times before this incident. The record indicates that about a week before this incident, defendant beat the boy without determining who was guilty of an offense of ‘hollering out” in class.
Just before the beating in question, the student did “jumping jacks” while facing the wrong direction, then left a bench where defendant had directed him to sit. He left the bench to talk to a friend. While this behavior is mischievous, it is not mean. The punishment was grossly disproportionate to the nature of the offense. The doctor from the hospital emergency room testified that this was the most severe paddling he had observed in 25 years. The boy’s parents testified that they found blood on the boy’s underpants and that there was a red and oozing fluid that appeared to be a mixture of blood and water emanating from the injured area. Pictures introduced into evidence graphically illustrated the severity of the beating, and both doctors testified that the photographs did not show the full extent of the discoloration. The bruises did not clear up for several weeks. In my opinion, this beating was “without legal justification” within the meaning of the battery statute (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3), whether justification is determined by either a “reasonableness” or a “malice” standard.
More important than the facts of this case is the question of which standard to apply in determining whether a teacher’s corporal punishment of a student constitutes battery. Two divergent standards have been applied in this country, which I shall refer to as the “reasonableness” and the “malice” tests.
The reasonableness test is clearly the rule in the majority of American courts. Its philosophical basis is that the right or privilege of a parent or teacher to discredit the child is grounded not in the adult’s liberty of action, but in the child’s welfare. Therefore, this discipline must not exceed what is reasonable and moderate under the circumstances, considering the age, sex, physical and mental condition of the child, the nature of his offense and his apparent motive, and whether the punishment is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm. If the punishment is unreasonable the adult is criminally liable.
The minority “malice” rule is that a parent or teacher in punishing a child acts in a judicial or quasi-judicial capacity and is not criminally liable for an assault because of an error in judgment or because the punishment was disproportionate to the offense, but is liable only if the punishment either results in permanent injury or was inflicted with malice, either express or implied. This view is grounded more in a desire to protect the adult from liability for otherwise criminal actions than in a desire to protect children from excessive punishment and in my opinion is so concerned with the adult’s “right” to punish that it overlooks the reason for the “right”, which is the welfare of the child. This outmoded concept was criticized by the Supreme Court of Indiana in Cooper v. McJunkin, 4 Ind. 290, as long ago as 1853:
“The public seem to cling to the despotism in the government of schools which has been discarded everywhere else. * * * The husband can no longer moderately chastise his wife; nor * * * the master his servant or apprentice. Even the degrading cruelties of the naval service have been arrested. Why the person of the schoolboy * * * should be less sacred in the eye of the law than that of the apprentice or the sailor, is not easily explained.” 4 Ind. at 291-293.
The rationale underlying both tests was discussed extensively in the scholarly opinion of People v. Curtiss, 300 P. 801. The court there stated that under the malice test, the teacher is the sole arbiter of the right to punish as well as the degree of punishment to be administered, subject only to the limitation as to punishment maliciously inflicted or punishment which results in disfigurement or permanent injury. The court rejected the malice test, saying at page 803:
“The second group of cases, and the one which, to our mind, expresses the more enlightened view — a view more consonant with modem ideas relating to the relationship between parents or those standing in their place and children — refuses to make the teacher the sole arbiter. The courts deciding these cases hold that both the reasonableness of, and the necessity for, the punishment is to be determined by a jury, under the circumstances of each case. This rule is expressed in Clasen v. Pruhs, 69 Neb. 278, 95 N.W. 640, 642, 5 Ann. Cas. 112, in the following language: ‘A parent, teacher, or master is not liable, either civilly or criminally, for moderately correcting a child, pupil, or apprentice, but it is otherwise if the correction is immoderate and unreasonable. 1 Clark & Marshall, Law of Crimes, 133; 1 McClain’s Crim. Law, § 242; 3 Greenleaf on Evidence, § 83; Wharton’s Crim. Law (10th Ed.) § 631. In fact, this rule seems to be universally recognized by the courts of this country. If the authority to punish be limited by reason and moderation, who, then, on sound principles, should determine whether such authority has been used in excess of its proper limits — the parents administering the punishment, or the triers of fact in a court where complaint has been made? * *
Fortunately, most modem decisions (except the present one) have turned away from the “malice” test. According to Annot, “Criminal Liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis,” 89 A.L.R.2d 396, only two American cases since 1905 have applied the “malice” test to teachers. Furthermore, even among the older cases applying the “malice” test almost all allow malice to be inferred, usually from excessive punishment. (See, e.g., State v. Pendergrass (1837), 19 N.C. 365; Danenhoffer v. State (1879), 69 Ind. 295; Heritage v. Dodge (1887), 64 N.H. 297; Boyd v. State (1889), 88 Ala. 169, 7 So. 268). This is also the rule in Illinois. The majority opinion apparently overlooked the second sentence of their • quotation from City of Macomb v. Gould (1969), 104 Ill.App.2d 361, 244 N.E.2d 634, wherein it says that a teacher
“» # » may not wantonly or maliciously inflict corporal punishment and may be guilty of battery if he does so. Whether he has done so may be inferred from the unreasonableness of the method adopted or the force employed under the circumstances.” 104 Ill.App.2d 362.
Although the majority opinion sees “no reasons to abandon the established Illinois rule,” analysis shows that the rule — if indeed it is the rule —has a very weak foundation. Its origin is Fox v. People, 84 Ill.App. 270, an 1899 case where the court quoted without comment from the 1883 American and English Encyclopaedia of Law, Vol. 21, p. 769, a formulation of the malice test and held it to be the applicable law. However, that page of that encyclopedia clearly showed that the malice test was a minority rule and the reasonableness test was the majority rule. While there is nothing inherently improper or wrong in following a minority rule, it seems incumbent to explain the reasons for doing so. In my opinion, the court in Fox arbitrarily chose to follow a minority rule without discussion or explanation. The only criminal case to cite Fox was City of Macomb v. Gould, supra, which I interpret as engrafting the reasonableness test onto “malice” terminology. The foundation of the majority opinion is very weak and in my opinion cannot withstand scrutiny. In light of this, it would appear incumbent upon tire majority opinion to justify their retention of the malice rule. I would clarify any ambiguity left by the language of Gould by expressly adopting the better-reasoned reasonableness test.
The majority opinion infers that the defendant was legally justified in inflicting punishment which would otherwise be a battery upon a provision of the School Code of 1961 which provides in part:
“Teachers * * * shall maintain discipline in the schools. In all matters relating to the discipline in and conduct of the schools and the school children, they stand in the relation of parents and guardians to the pupils.” Ill. Rev. Stat. 1971, ch. 122, par. 24 — 24.
However, the majority opinion apparently overlooks the fact that under Illinois law not even a parent may punish a child unreasonably. A parent, a step-parent, one standing in loco parentis or a school teacher are all held to the same standard of reasonableness (People v. Parris (5th Dist. 1971), 130 Ill.App.2d 933, 267 N.E.2d 39). As the court stated in affirming an aggravated battery conviction of one standing in loco parentis in People v. Machroli (1968), 100 Ill.App.2d 227 at 232, 241 N.E.2d 609 at 611-12:
“Even if the defendant stood in loco parentis to Sharie Bianca the force he used in reprimanding the child was far beyond the acceptable standards of parental conduct. The beating applied to Sharie went far beyond reasonable force allowed under Illinois law.”
Because the punishment in the present case was unreasonable, I feel that it constituted the criminal offense of battery. Had the punishment been reasonable it might have been legal, but I would still question its wisdom. Although beyond the scope of this opinion, the following sources cast light on the problem. In Aron and Katz, “Corporal Punishment in the Public Schools,” 6 Harvard Civil Rights — Civil Liberties Lato Review 583 (1971), the authors conclude at 584-585:
“Corporal punishment in the public schools is ineffective and harmful. If mildly and irregularly applied, it is useless in controlling behavior. In order to prevent the recurrence of unwanted behavior, corporal punishment must either be applied continually, or its exemplary application must have a ‘terrifying and traumatic effect. Not surprisingly, the National Education Association has concluded that corporal punishment is ineffective in reducing behavioral problems. Furthermore, and [sic] English study found that a deterioration of behavior and an increase in delinquency accompany increased use of corporal punishment.
Corporal punishment has further deleterious effects on children. Insofar as it relies on fear, it disrupts the learning process by repressing the natural tendency of children to explore. This fear may be channeled into aggression against the teacher, against the school, or against society. At the extreme, juvenile delinquency may result. Finally, and perhaps most seriously, the use of corporal punishment may inhibit the development of self-criticism and self-direction in the child. Corporal punishment may drive students to concentrate their energies on conflict with the teacher instead of encouraging them to adjust to their classroom situation.
While theoretically corporal punishment need not be brutal, there is no assurance that it will be inflicted moderately or responsibly. In the heat of anger, especially if provoked by personal abuse, some teachers are likely to exceed legal bounds. Moreover, if limited corporal punishment were permited, controls would be unlikely to prevent the really unmistakable kind of satisfaction which some teachers feel in applying the rattan.’ A total ban of this punishment would provide far more effective control.
Finally, corporal punishment undermines human dignity. Students are placed at the mercy of teachers who have the power to beat them without explanation or justification. In an institution which purports to inculcate the value of reason in human affairs and the worth of each individual in society, it is antithetical to educate by brutality and unreason.”
See also Nash, “Corporal Punishment in an Age of Violence,” 13 Educational Theory 296 (1963); Boston Legal Assistance Project, Negative Aspects of Corporal Punishment (1970); and Silverman, “Discipline: Its Psychological and Educational Aspects,” 42 Mental Hygiene 277 (1958).
I would affirm the judgment of the trial court.