Acquittal of father in abuse case criticized Children's advocates say judge's ruling sets dangerous example

November 24, 1995|By Sheridan Lyons | Sheridan Lyons,SUN STAFF

A 14-year-old boy, caught cheating on a Latin quiz, is beaten with a stick on the buttocks, struck and cut over his cheekbone by his father -- a dentist who then used five stitches to close the boy's wound himself.

Child abuse? Battery?

Not according to Baltimore County Circuit Judge Thomas J. Bollinger, who acquitted the father of those charges -- and legal experts say Maryland law supports his verdict.

Groups against corporal punishment and child abuse denounced the acquittal.

"The level of aggression [in this case] is not what most people think of -- a slap on the hand or bottom," said Deborah A. Daro, research director of the National Committee to Prevent Child Abuse Inc. "It's barbaric behavior.

"It's discouraging. That someone in a position of public trust, public policy, a trend-setter -- which a judge is -- to give this kind of behavior public sanction is dangerous."

But Maryland law allows conduct under the "exercise of domestic authority" that would be criminal at the hands of a stranger -- as long as the intent is only to discipline the child and the force used is "moderate and reasonable," according to the appellate courts.

Judge Bollinger thus found that the father -- a dentist skilled in facial surgery -- had no criminal intent.

"And he's probably correct," said Byron L. Warnken, professor of criminal law at the University of Baltimore School of Law.

"There's a built-in defense of child rearing," Mr. Warnken said. "As a former child and a current parent, I cringe when I hear the facts -- particularly when I hear the stitching up. Were I the fact-finder, I would find differently, but I'm not here to criticize but to explain."

Judge Bollinger, who was widely criticized for giving sympathy and a light sentence to a rapist in a 1993 case, issued a statement saying he was "not convinced beyond a reasonable doubt and to a moral certainty as to the criminal intent of the defendant."

He also noted that judicial ethics hold that "a judge should be unswayed by partisan interests, public clamor or fear of criticism."

When the case came before Judge Bollinger in September, the defense and prosecution asked him to decide it based upon a recitation of facts rather than a trial.

According to a transcript of the proceedings and the court file, the boy received a letter from his private school dated May 19, suspending him for one day because he had "behaved dishonorably several times" -- leaving class, knocking over trash cans, not participating in a concert and having a crib sheet.

He went to school with a black eye May 23 and said he had been hit by a hockey puck, but a school counselor notified the county Department of Social Services, which found he had a 2-inch bruise on his arm June 2.

The youth then said his father had punched him in the face May 20 for lying about having studied, then struck him with a wooden mop handle on the buttocks seven or eight times.

He suffered a black eye and a cut over his cheekbone, which his father sutured with five stitches. The boy also had bruises on his buttocks and left forearm, according to the police report.

The father told a social worker he thought he had only backhanded the boy and had been aiming for his chest. He said he was not sure that he had hit his son in the face, but saw a cut and stitched it. He said he believed he only hit his son three or four times on the buttocks with a stick.

He gave a similar statement to a detective, saying the youth fell off a chair and struck his face on a table. He said he used a stick from a tree to strike his son three or four times on the buttocks, making the youth take down his pants to embarrass him.

Without hearing legal arguments, Judge Bollinger found the dentist not guilty -- and recalled from the bench, as "the seventh child of 15," a little family history:

"My father lived to be 74 years of age and every time I walked by him, and my nine brothers, we did give him the utmost respect -- we ducked. He raised 15 kids; not one ended up in jail. Many got a beating when they were younger for transgressing the intention of those good Jesuit fathers who educated us."

Prosecutor Timothy M. Gunning would not comment on the case. "The transcript speaks for itself," he said, and referred questions to John P. Cox, who heads the county state's attorney's child abuse and sex offense division.

Mr. Cox explained: "A parent is legally allowed to batter a child, in effect, if it is reasonable and moderate corporal punishment. We had to show that it's cruel, inhumane or malicious. Clearly, there's a difference of opinion."

Peggy Mainor, who prosecuted physical child abuse cases in Baltimore for seven years and now directs the Baltimore Child Abuse Center, said she believed the facts presented to Judge Bollinger proved abuse had occurred.

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