Indianapolis Mother Claims RFRA Defense In Child Abuse Case

[GodFearinGunTotin]

Suppose stawmen.

If you make cake and I want to buy a cake and can pay for the cake, sell me a cake. There is no difference in a "gay" cake and a "straight" cake. There is no extra time, labor, ingredients, etc. The act of the baking of either cake is the same...baking a cake. Cake is on the menu. Providing that product is what the business is about.

If you make cakes and I want to buy a baseball bat and can pay for a baseball bat, send me elsewhere.

No it's not a straw man, it's an analogy. If I don't make homosexual wedding cakes then why should I be forced to if you're not going to make others perform and create things they don't ordinarily make/create/perform? Let's reset a moment. We like to boil things done to easy, bright lines, I know. But in all of the cases that I read that made the news, all of them, every single one of them, made pizzas, baked cakes, did photographs, hosted parties, etc. for everyone that entered their places of business. It's when the customers asked them to provide a service that wasn't on their menus, is when the stuff hit the fans. It's no different than going to a car dealer and demanding they sell you a car with a Diesel engine in it when it's not something they do. It's no different than ask Penn Gillette to give a bible study.

The current campaign all about force and compliance.

 

[BehindBlueI's]

I'd honestly have a lot more respect for an argument that the harm is minimal and thus the impact on the business owner is greater then the spins to say there is no harm.

Has someone refused to sell someone a cake, just a cake, not a custom made one for the specific purpose of celebrating a "wedding"?

If I don't make homosexual wedding cakes then why should I be forced to if you're not going to make others perform and create things they don't ordinarily make/create/perform?

If you make wedding cakes, what's the difference between a "gay" cake and a "straight" cake?

Remember the tow truck driver who refused to tow the woman's car due to the political bumper sticker she had?
Remember the gun store that said "No Muslims" ?

Same thing. I'll not bother to further argue against the strawmen and red herrings repeatedly put forth.

 

[Libertarian01]

The problem with the ORIGINAL issue in this thread is one of degrees. What if you paddle your child? How hard are you allowed to hit?

Say a child about nine (9) years old is throwing a tantrum in a store and the parent gives them a smack on the rear. Is that OK? What about the back of the legs? What about the cheek?

In each event the parent is hitting the child with the exact same force but on a different part of the body. Each one of us witnessing the event may or may not take issue with either of two (2) factors: The force of the "smack" and/or the location of the smack.

Now what if a child acts up and is "reasonably" paddled but one strike leaves a small, unintentional bruise? Is that worthy of being abuse or just a singular anomalous event?

Consider in the previous example of the child throwing a tantrum in the store if the parent responded not with a smack but rather with these words, "You whiny, worthless little brat. We never should have had you. You're never going to amount to anything. Nobody wants you around because you act like that. You are worthless."

Not a single physical strike was performed on the child, yet would you consider that abusive? Even if it is bad parenting should bad parenting be criminalized? Who decides - Bernie supporters or Trump supporters?

As I have often heard from older clients mom and dad made them go get a switch to use on them when they misbehaved. If they didn't get a good enough switch then the parent would have to go get one and it would be worse. I am certain that some(many?) of those switch hits left welts. Is it then fair to say that everyone punished by a switch that left a welt was abused?

I always try to be extremely cautious when attempting to "judge" a rather subjective situation. What is "too far" for me may not be too far for you, or vice versa. As juries are comprised of the community and thus imposing to some degree the standards of the community those who are older may not appreciate that the standards they were raised with are no longer acceptable. That doesn't make them right or wrong, but the difference may lead to them being legal or illegal and that lack of consistency troubles me greatly.

Regards,

Doug

 

[HoughMade]

Well, this is the toughest question in this arena. There is no bright line for the simple reason that there is no bright line between abuse and proper discipline.

We can go through individual scenarios all day long, but there are a whole line of people of people who have to decide what that line is, starting with the parent. It goes like this:

1. Parent exercises what he or she believes is proper discipline.
2. Medical, neighbor, stranger, whoever decides that it crosses the line to abuse, and bring in law enforcement (and/or FSSA).
3. Law enforcement looks at the evidence and decides whether or not it looks like a crime, if not, it still may go down the FSSA route, if so...
4. Law enforcement presents the evidence to the prosecutor and they decide whether this looks like something that is a crime that should be prosecuted, if so
5. There will be motions, pretrial, before the court and the court will decide whether there is sufficient evidence of a crime to go before a jury, if so
6. the jury has to decide whether this is proper discipline or whether it crossed the line to abuse.

So- a lot of eyes have to see this and agree it's abuse before a parent is convicted of abuse. That doesn't mean all those eyes are right, but the number of steps has a tendency to weed out cases of proper discipline well before a trial. The law, upholds a parent's right to discipline, but acknowledges that the "line" is not easy to find and that it is a fact-intense analysis:

A parent has a fundamental liberty interest in maintaining a familial relationship with his or her child.... This fundamental interest includes the right of parents “to direct the upbringing and education of children,”... including the use of reasonable or moderate physical force to control behavior... However, the potential for child abuse cannot be taken lightly. Consequently, the State has a powerful interest in preventing and deterring the mistreatment of children... The difficult task of prosecutors and the courts is to determine when parental use of physical force in disciplining children turns an otherwise law-abiding citizen into a criminal.

A parental privilege to use moderate or reasonable physical force, without criminal liability, was recognized at common law. For example, Blackstone observed, “attery is, in some cases, justifiable or lawful; as where one who hath authority, a parent or master, gives moderate correction to his child, his scholar, or his apprentice.” William Blackstone, 3 Blackstone's Commentaries on the Laws of England 120 (Oxford reprint 1992). A similar view has been expressed in this state's jurisprudence. See e.g., Hinkle v. State, 127 Ind. 490, 26 N.E. 777, 778 (1891) (“[F]ather has the right to administer proper and reasonable chastisement to his child without being guilty of an assault and battery, but he has no right to administer unreasonable chastisement, or to be guilty of cruel and inhuman treatment of his child....”*); Hornbeck v. State, 16 Ind.App. 484, 45 N.E. 620, 620 (1896) (“*The law is well settled that a parent has the right to administer proper and reasonable chastisement to his child without being guilty of an assault and battery....” )...


...[T]he Restatement provides, “A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education.”Restatement of the Law (Second) Torts, 147(1) (1965). We adopt the Restatement view. Not only is it entirely consistent with the law in this jurisdiction, but also it provides guidance on the factors that may be considered in determining the reasonableness of punishment. It reads:


In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:

(a) whether the actor is a parent;

(b) the age, sex, and physical and mental condition of the child;

(c) the nature of his offense and his apparent motive;

(d) the influence of his example upon other children of the same family or group;

(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;

(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm.

Restatement, supra, § 150. We hasten to add that this list is not exhaustive. There may be other factors unique to a particular case that should be taken into consideration. And obviously, not all of the listed factors may be relevant or applicable in every case. But in either event they should be balanced against each other, giving appropriate weight as the circumstances dictate, in determining whether the force is reasonable.

The defense of parental privilege, like self-defense, is a complete defense. That is to say a valid claim of parental privilege is a legal justification for an otherwise criminal act. I.C. § 35–41–3–1. In order to negate a claim of parental privilege, the State must disprove at least one element of the defense beyond a reasonable doubt.

Willis v. State, 888 N.E.2d 177 (Ind. 2008).

Ultimately, as (almost) always, it comes down to "what is reasonable" and, ultimately, that may depend on what 12 strangers think​ is reasonable. At least when the parental privilege to discipline is at issue, the burden of proof is on the State to prove, beyond a reasonable doubt, that the discipline was not reasonable.

 

[GodFearinGunTotin]

I'd honestly have a lot more respect for an argument that the harm is minimal and thus the impact on the business owner is greater then the spins to say there is no harm.




If you make wedding cakes, what's the difference between a "gay" cake and a "straight" cake?

It's not on my product list. Why would you want to force me to make something I offer to no one else? I do not discriminate. I do not mak homosexual wedding cakes for anybody, no matter if you're homosexual or heterosexual, white or black, Christian or non-Christian. Why must you force me to do something I do not want to do? Would you perform a service that you do not wish to perform? Again, let's not kid ourselves. This is all about forced acceptance and punishment if you don't get your mind right.

Remember the tow truck driver who refused to tow the woman's car due to the political bumper sticker she had?
Remember the gun store that said "No Muslims" ?

Their shop/business their rules. Why would you want somebody that hated Muslims waiting on you? Why would you give them your business?

.

 

[Libertarian01]

Well, this is the toughest question in this arena. There is no bright line for the simple reason that there is no bright line between abuse and proper discipline.

We can go through individual scenarios all day long, but there are a whole line of people of people who have to decide what that line is, starting with the parent. It goes like this:

1. Parent exercises what he or she believes is proper discipline.
2. Medical, neighbor, stranger, whoever decides that it crosses the line to abuse, and bring in law enforcement (and/or FSSA).
3. Law enforcement looks at the evidence and decides whether or not it looks like a crime, if not, it still may go down the FSSA route, if so...
4. Law enforcement presents the evidence to the prosecutor and they decide whether this looks like something that is a crime that should be prosecuted, if so
5. There will be motions, pretrial, before the court and the court will decide whether there is sufficient evidence of a crime to go before a jury, if so
6. the jury has to decide whether this is proper discipline or whether it crossed the line to abuse.

So- a lot of eyes have to see this and agree it's abuse before a parent is convicted of abuse. That doesn't mean all those eyes are right, but the number of steps has a tendency to weed out cases of proper discipline well before a trial. The law, upholds a parent's right to discipline, but acknowledges that the "line" is not easy to find and that it is a fact-intense analysis:




Willis v. State, 888 N.E.2d 177 (Ind. 2008).

Ultimately, as (almost) always, it comes down to "what is reasonable" and, ultimately, that may depend on what 12 strangers think​ is reasonable. At least when the parental privilege to discipline is at issue, the burden of proof is on the State to prove, beyond a reasonable doubt, that the discipline was not reasonable.

While I understand the basic premises of what you are saying, I do believe it operates somewhat skewed in the real world.

A person who becomes a social worker and goes to work for FSSA, DCS or any number of organizations like this goes in with the noble and laudable goal of protecting children. Good for them. However, I believe this may does lead in a good percentage of cases to a skewed view anytime an issue is brought before them. They have a goal of protecting children and may well see "reasonable" behavior in a very different light than I would. They may not even believe in corporal punishment, and even though they may know that it is allowed by law they may well set an extremely low bar for their definition of "reasonable." If they are called to testify they will automatically be an expert, albeit skewed, witness for the prosecution. And as Detective George Bruche says in rebuttal to Professor James Duane, once a person is sitting next to a defense attorney that is strike one for the jury. When the professional witness in the form of the LEO/FSSA testifies that is strike two. So by the time they even get in front of a jury they are damn near guilty on the mere accusation.

As a personal story my goddaughter once heard a story at school when she was about six (6) years old. Another girl told my goddaughter of how her grandpa touch her down between her legs. My goddaughter repeated this story IN THE FIRST PERSON to a teacher. Needless to say my buddy Jack got a phone call from the school to come down and meet with someone from FSSA(?). As soon as he hung up with them he called his attorneys office and he and his wife showed up with two (2) attorneys. They were able to quickly explain that one of her grandfathers was deceased and the other was living down in Texas and hadn't been up to visit for several years.

He was absolutely certain that the "investigator" was very polite and restrained due to the attorneys on the other side of the desk. He could tell by her body language, voice tone, and facial expressions that she felt very much on a leash and would have been much more aggressive had the attorneys not been present. Not too many people can bring a couple of attorneys to an initial meeting with investigators like he did. What happens to them? I won't say railroaded but certainly brought toward the train station, maybe...?

The worst part is even IF they are innocent and prove they are innocent in todays world of modern media everyone just knows they are guilty and only got away with it due to their slick attorneys. Do they keep their jobs? Can they go out to eat without being harassed? Will other parents let their children come over to play? Will all the other parents and children leave the park if they take their kids out? I'm certain it is not as bad as I am making it out her for all accused but certain for some they may suffer through this as an innocent person wrongly accused by a nanny state society.

Regards,

Doug

 

[HoughMade]

You are correct. I can't disagree at all. Yet, I see no better, more reasonable alternative that can be practically implements.

"Reasonable" is, ultimately, a matter for a jury, and I don't know who else should, or could answer that question.

 

[Libertarian01]

You are correct. I can't disagree at all. Yet, I see no better, more reasonable alternative that can be practically implements.

"Reasonable" is, ultimately, a matter for a jury, and I don't know who else should, or could answer that question.

I understand completely, just voicing a concern.

However, I would be 100% OK with a law that says sending your children to the park alone is NOT child abuse or neglect. I hate the crap like that.

Doug

 

[david890]

Has someone refused to sell someone a cake, just a cake, not a custom made one for the specific purpose of celebrating a "wedding"?

If a bakery customizes a cake for one customer, it's not a burden to customize it for another. Just as supplying a cake to a gay couple is not a burden to a bakery who supplies one to a straight couple.

 

[GodFearinGunTotin]

If a bakery customizes a cake for one customer, it's not a burden to customize it for another. Just as supplying a cake to a gay couple is not a burden to a bakery who supplies one to a straight couple.

Says who? You? You think you know best how other people ought to run their businesses?

 

[Libertarian01]

Says who? You? You think you know best how other people ought to run their businesses?

I don't think the issue is one of telling people how to run their businesses, it is simply the State saying that IF you want to do business within our borders THEN you must offer your service to everyone within the public without discriminating against any group based upon certain irrelevant criteria such as race or sex.

Obviously if a gay couple wanted a twelve (12) tier cake done by tomorrow it would be stupendously easy for most bakeries to argue that they could not meet the burden because it is due to its very onerous and impossible task for them to serve. However, if a bakery known for doing easily up to four (4) tier cakes in as little as two (2) weeks is asked to do a two (2) tier cake in 30 days it would be very hard to argue that they could not meet that burden. Not impossible, mind you, just very hard.

The State can pass zoning rules so that undue traffic burdens are not placed upon residential neighborhoods, and few argue this as onerous on a business.

The State can pass simple rules such as all doors must swing out in case of a fire, and few argue this as onerous on a business owner.

There are many regulations in place that are barely noticeable, such as the direction a door swings. There are others that appear tremendously stupid and over-complicated, and some of them really are.

But I don't think it is entirely unreasonable to say that IF you are going to offer a product or service to the public THEN you must offer it to the entire public, ceteris paribus.

On some philosophical level I don't agree with the governments interference in the free market, however, neither am I inclined to rail and bemoan on this issue. We had the same argument against blacks, and Jews, and women, and others "not in the group." We have survived their integration and I see this being no different.

Regards,

Doug

 

[GodFearinGunTotin]

I don't think the issue is one of telling people how to run their businesses, it is simply the State saying that IF you want to do business within our borders THEN you must offer your service to everyone within the public without discriminating against any group based upon certain irrelevant criteria such as race or sex.

Obviously if a gay couple wanted a twelve (12) tier cake done by tomorrow it would be stupendously easy for most bakeries to argue that they could not meet the burden because it is due to its very onerous and impossible task for them to serve. However, if a bakery known for doing easily up to four (4) tier cakes in as little as two (2) weeks is asked to do a two (2) tier cake in 30 days it would be very hard to argue that they could not meet that burden. Not impossible, mind you, just very hard.

The State can pass zoning rules so that undue traffic burdens are not placed upon residential neighborhoods, and few argue this as onerous on a business.

The State can pass simple rules such as all doors must swing out in case of a fire, and few argue this as onerous on a business owner.

There are many regulations in place that are barely noticeable, such as the direction a door swings. There are others that appear tremendously stupid and over-complicated, and some of them really are.

But I don't think it is entirely unreasonable to say that IF you are going to offer a product or service to the public THEN you must offer it to the entire public, ceteris paribus.

On some philosophical level I don't agree with the governments interference in the free market, however, neither am I inclined to rail and bemoan on this issue. We had the same argument against blacks, and Jews, and women, and others "not in the group." We have survived their integration and I see this being no different.

Regards,

Doug

Let us reset once again. None of the cases of which I'm familiar did any one of the defendants refuse to provide services to EVERYONE that entered their places of business. They all stated and their plaintiffs even stated in most, if not every case, that they had done business with the businesses on numerous occasions before. They baked the cup cakes for homosexuals just like they did everyone else. They did not refuse service for products they offered for sale. They were asked...no demanded to offer services and products they did not offer to anybody else. Nobody went hungry. Nobody was refused medical services. Nobody was refused shelter. This is only about one thing. And one thing only.

 

[Libertarian01]

Let us reset once again. None of the cases of which I'm familiar did any one of the defendants refuse to provide services to EVERYONE that entered their places of business. They all stated and their plaintiffs even stated in most, if not every case, that they had done business with the businesses on numerous occasions before. They baked the cup cakes for homosexuals just like they did everyone else. They did not refuse service for products they offered for sale. They were asked...no demanded to offer services and products they did not offer to anybody else. Nobody went hungry. Nobody was refused medical services. Nobody was refused shelter. This is only about one thing. And one thing only.

I will entirely agree 100% with this idea IF a business is truly being asked to provide a product and/or service that they do not otherwise provide.

However, I am unfamiliar with any such examples. My ignorance is showing through if there is an example such as this.

The only stories I have seen hit the media are regarding merchants who refused to provide the same service to a gay couple as they would otherwise provide to a heterosexual couple. Who cares if you put two (2) guys on top of the cake instead of a guy and a girl??? That would add zero (0) burden to a baker (except perhaps to then find a lesbian couple to do the cake for and balance their wedding cake figures in stock.)

We may(?) well be talking about different examples.

Regards,

Doug

 

[GodFearinGunTotin]

I will entirely agree 100% with this idea IF a business is truly being asked to provide a product and/or service that they do not otherwise provide.

However, I am unfamiliar with any such examples. My ignorance is showing through if there is an example such as this.

The only stories I have seen hit the media are regarding merchants who refused to provide the same service to a gay couple as they would otherwise provide to a heterosexual couple. Who cares if you put two (2) guys on top of the cake instead of a guy and a girl??? That would add zero (0) burden to a baker (except perhaps to then find a lesbian couple to do the cake for and balance their wedding cake figures in stock.)

We may(?) well be talking about different examples.

Regards,

Doug

No, you're sympathizing with a group of people based solely on whom they desire to have sex with. Which is your right. You're diminishing the conscience of those that you don't sympathize with. Again, that is your right. But you do not, or at least you shouldn't have the right to force people to comply with your preferences and sympathies. It's no different than a lawyer that specializes in tax law refusing to do family law. It's no different than a commercial real estate agent that refuses to help you buy a residence. They don't bake wedding cakes with homosexual themes. They may not bake cakes with hunting themes or occult themes etc and they shouldn't be. They sell everybody cup cakes and birthday cakes. No one is going hungry. They're just not getting one particular product from one particular business.

This is about advancing one agenda and relegating people of good conscience to the class of criminal.

 

[HoughMade]

If a bakery customizes a cake for one customer, it's not a burden to customize it for another. Just as supplying a cake to a gay couple is not a burden to a bakery who supplies one to a straight couple.

Burden? Who cares? It's choice.

 

[Timjoebillybob]

If a bakery customizes a cake for one customer, it's not a burden to customize it for another. Just as supplying a cake to a gay couple is not a burden to a bakery who supplies one to a straight couple.

In the other thread I gave some examples when you asked how I could find any discrimination acceptable. And I asked your opinion of them, which you never responded to. I'll paraphrase a couple of them here. Would it be a burden for a gay baker who customizes cakes for one customer to make one for the westboro "baptist church" that says "god hates fags", how about a Jewish baker making one for a neo-nazi group that says "all jews must die" or "Hitler had the right idea", a black baker making one for the kkk/white supremacists that says "******s are monkeys and should be chained"? Should those bakers be required by law to make those specific cakes, or should they be able to refuse?

 

[Fargo]

If a bakery customizes a cake for one customer, it's not a burden to customize it for another. Just as supplying a cake to a gay couple is not a burden to a bakery who supplies one to a straight couple.

So, would it burden you to custom frost a cake with a swastika for the local Klan chapter? Or how about one with some catchy slogans for the Westboro baptists? Remember, their free speech is constitutionally protected...

 

[Stickfight]

They sell everybody cup cakes and birthday cakes.

That isn't true, at least in the case of the Dieseltec guy and Memories Pizza. Both refused to provide their standard services, not gay'd up in any way, to gay people because they were gay.

I'm fine with it being their choice but don't pretend it is anything other than what it is.

 

[longbarrel]

We have no one to thank, or blame but our fine Indiana legislature who have a super majority in the house and senate. And our wonderfully futile Governor. What did they think was going to happen? Do I mind that it happened? Not as much as I mind that my tax dollars are going to have to go towards her prosecution. I think it is bad to do something like that to any human (especially your own blood) As far as custom frosting cakes with swastikas, or catchy slogans, no, the idea of business is to make money. But also to be your own boss.

 

[LPMan59]

That isn't true, at least in the case of the Dieseltec guy and Memories Pizza. Both refused to provide their standard services, not gay'd up in any way, to gay people because they were gay.

I'm fine with it being their choice but don't pretend it is anything other than what it is.

thats not exactly what happened with the pizza place. They were asked if they would cater a gay wedding. They said no or probably not or whatever. They also added that they had never catered any wedding nor was it ever requested or a normal service.