Appeals Court, October 27, 2015

Commonwealth v. Dorvil, which created the affirmative defense of parental discipline, can be applied to a person acting in loco parentis. 472 Mass. 1 (2015).

The defendant was convicted of assault and battery of her fourteen year-old stepdaughter.  The victim’s father was also charged.  There was a joint trial, during which both parties requested a jury instruction on the affirmative defense of parental discipline.  The judge gave the instruction with regards to the father, but not with regards to the defendant because the trial judge found the defendant had not sufficiently demonstrated that she was acting in loco parentis.  The father was acquitted.

The Court found that Dorvil can be applied to a person acting in loco parentis.   While the Appeals Court refused to hold that stepparents always act in loco parentis with regard to their spouses’ children, stepparents are not precluded from playing an in loco parentis role just because the legal parent also resides in the same household.  The Court found there was a sufficient basis on which the jury could have concluded that the defendant was acting in loco parentis.  Further, the judge’s differential treatment of two similarly situated co-defendants independently constituted error.  The Court reversed the judgment for prejudicial error.  

The dissent suggests that the majority misapprehended the law of affirmative defense in the area of parental discipline, and that a defendant seeking to invoke the defense of parental discipline has a burden to offer some evidence warranting the instruction.