That's the question Hamilton County Municipal Judge Russell Mock must decide as he presides over a domestic violence case against former Cincinnati City Councilman Sam Malone.
Malone was arrested May 14 on the misdemeanor charge after his 14-year-old son came into Jewish Hospital the night before with belt-inflicted red welts covering his body.
Malone has never disputed that he beat his son after the teenager missed a checkpoint during a school field trip at Paramount's Kings Island and disrespected his teacher.
During opening statements at Malone's trial Monday, Assistant Columbus Prosecutor Anne Murray said that while it might have started as discipline, it went too far.
"It went beyond reasonable discipline," said Murray, who is handling the case at the request of the Cincinnati Prosecutor's Office, which recused itself because of conflict of interest.
But Malone's lawyer, Hal Arenstein, said it's not that simple: The Ohio Constitution allows for corporal punishment of a child.
"The law is very clear in the state of Ohio. The Ohio Constitution recognizes the right for a parent to discipline a child in a reasonable and prudent fashion," Arenstein said. "Physical harm is not enough" to charge a parent with domestic violence.
There are three exceptions. To prove domestic violence, prosecutors must show death could have resulted, that there was substantial pain or there was serious physical harm.
None of those three exceptions applies to this case, Arenstein said. "We won't deny Mr. Malone disciplined his child," he said.
"The only thing (Malone) is guilty of is tough love," Arenstein said.
After opening statements, Malone's 14-year-old son testified.
As the former councilman looked on, the teenager recounted what happened in their Walnut Hills home.
In the year before Malone's arrest, the teen said he and his father had had a rocky relationship because he was failing eighth grade. Then the boy missed the checkpoint, prompting his teacher to call Malone.
Malone's son testified that Malone was angry and told him to go upstairs and take his clothes off.
"He started whipping me with a belt, he had it wrapped double on his hand," the teenager said. "He kept on hitting me, and I fell over, and he kept on hitting me."
Asked by Murray to demonstrate how he tried to defend against the blows, the teen crossed his arms against his chest and tucked his head down.
"I was in pain, crying," the teenager said. "He hit me all over, on my back, arms, side, stomach, chest and my legs."
Malone, 35, was arrested after another boy living in his house in Walnut Hills called 911 and said the 14-year-old didn't feel safe there. Malone's son then got on the phone, crying and repeatedly asking the police dispatcher if he'd have to return to the house.
A family member took the teenager to the hospital. The teen said one welt from the belt's buckle disappeared just last month. He has not had contact with his father since the incident and is living with a relative.
Malone waived his right to a jury trial, so Mock will decide the case. Tuesday, Murray will continue presenting her case. Officers who responded to the 911 call are expected to testify.
From WCPO.COM, May 14, 2005:|
...Arnold Dillard, of Walnut Hills, says he lived next door to Malone before the councilman moved a few months ago to 852 Lincoln Avenue.
He says the arrest doesn't surprise him.
"This window right here in the middle -- you could actually hear screaming from there, and telling him, 'Stop Dad, stop'," said Dillard...
From WKRC.COM news report, May 16, 2005:
Shows child's injuries and plays portion of child's 911 call.