¶ 17. concurring. According to the majority decision, any parent who recklessly causes physical pain to their child can be found guilty of domestic assault under the statute, 13 V.S.A. § 1042. That is, any mom that slaps her son’s hand when he insists on trying to touch the burners on the stove or any dad that smacks his daughter’s bottom to stop her from biting her brother meets the statutory definition of domestic assault.
¶ 18.1 agree that the trial court erred in finding that the Legislature impliedly repealed the definitions of “bodily injury” contained in the domestic assault statutes with respect to child victims and replaced it with the definition of “abuse” contained in the abuse prevention act, 15 V.S.A § 1101(1)(C). As the majority notes, an earlier statute cannot repeal a later statute by implication.
¶ 19.1 also agree that the domestic assault statute deals with criminal liability, not civil restraining orders and that the plain language appears to mean exactly what it says. However, I find illogical the idea that one can be criminally responsible in circumstances where no civil restraining order could issue. But, I cannot find the result so absurd as to permit a different interpretation of statutory intent.
¶ 20. The majority suggests that, if the Legislature had intended to treat parent and child relationships differently under § 1042, it would have done just that. The Legislature did recognize the special relationship between a parent and child when it included a more detailed and restrictive definition of child abuse in the civil abuse statutes, a relationship that includes reasonable discipline, be it verbal or corporal, as part of the upbringing that is reserved to the parent.
¶ 21. The abuse prevention statute broadly defines “abuse” between family or household members as the act of “attempting to cause or causing physical harm.” 15 V.S.A § 1101(1)(A). However, § 1101(1)(C) applies specifically to “abuse to children” and adopts the narrower definition of abuse provided in 33 V.S.A § 4912:
(2) An “abused or neglected child” means a child whose physical health, psychological growth and development or welfare is harmed or is at substantial risk of harm by the acts or omissions of his or her parent...
(3) “Harm” can occur by:
(A) Physical injury or emotional maltreatment;...
*321(6) “Physical injury” means death, or permanent or temporary disfigurement or impairment of any bodily organ or function by other than accidental means.
33 V.S.A. § 4912(2), (3), (6).
¶ 22. In Wood v. Eddy, 2003 VT 67, ¶ 2, 175 Vt. 608, 833 A.2d 1243 (mem.), a mother seeking a relief-from-abuse order on behalf of her daughter argued that the statutory scheme should make abuse of a minor as easy if not easier to substantiate than abuse between adults. We disagreed, noting that the Legislature had to weigh the interest in abuse prevention of a child against two additional factors. First, the Legislature needed to preserve some degree of natural parents’ “fundamental liberty interest” in custody and management of their children. Id. at ¶ 12; see also Santosky v. Kramer, 455 U.S. 745, 753 (1982). And, second, the Legislature acknowledged the impracticality of substituting the judgment of a court for that of a parent who observes his children on a regular basis and better knows their particular disciplinary needs. The Court wrote: “[t]he balancing of these two factors against the responsibility of abuse prevention yielded the larger degree of physical harm required to prove child abuse under § 1101(1)(C), as compared with domestic abuse between adults as defined by § 1101(1)(A).” Wood, 2003 VT 67, at ¶ 12.
¶ 23. If the Legislature honored the right of a parent to reasonable disciplinary decisions in Title 15, how can we presume it intended to ignore the same natural rights when it crafted the domestic assault statute? Before the state stepped between a parent and child in matters of discipline, I suspect that significant and heated debate about the role of the government in parental decision making would have occurred. I respectfully suggest that the Legislature would not have criminalized parental corporal punishment without signaling their intent to do so.
¶ 24. However, I must concur that this is what they did. Inadvertently, perhaps, but legally and literally, by the plain language used, they made spanking a crime.