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Breaking down legal system's next steps in Peterson child injury case

Minnesota Vikings star running back Adrian Peterson has been indicted by a Texas grand jury for beating his four-year-old son with a tree branch, also known as a “switch.” The incident occurred in Spring, Texas (Montgomery County) in May following an argument between Peterson’s son and another child of Peterson over a video game. According to a police report obtained by CBS Houston, Peterson admitted to police officers that he “whooped” his son but expressed surprise the police were interested in the matter. Peterson regarded the incident as consistent with his parenting style and as an appropriate means of teaching his children right from wrong.

Interest from law enforcement stemmed from the extensive injuries suffered by Peterson’s son, who received visible cuts and bruises to his back, buttocks, legs, hands and even scrotum. Peterson also reportedly texted his son’s mother about the “whooping,” revealing that the switch “got him in [the] nuts.” Equally troubling to law enforcement were accusations by Peterson’s son. He accused his father of hitting him in the face and forcing him to bite on tree leaves while being “whooped” with his pants down. The son also asserted that Peterson threatened to hurt him further if he told the police about what happened.

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​A grand jury met earlier this summer but declined to charge Peterson, the NFL’s Most Valuable Player in 2012. Prosecutors then convened a second grand jury and it charged Peterson with injury to a child. Peterson’s attorney, Rusty Hardin, released a statement Friday night saying that Peterson is “a loving father” who lawfully exercised his parental discretion. Hardin stressed that Peterson employed the same parenting techniques that Peterson had “experienced as a child growing up in east Texas.”

Peterson’s future in the NFL is uncertain. The Vikings announced on Friday evening that Peterson will not play in Sunday’s game against the New England Patriots.

Peterson’s criminal charge: injury to a child

The indictment for Peterson has not yet been released by law enforcement, but Hardin acknowledged that Peterson faces a charge for injury to a child. Absent a plea deal in which Peterson pleads guilty to a lesser offense, Peterson would be able to go to trial within 180 days or by March, 2015. Peterson’s attorneys, however, could delay the start of a trial through a variety of legal maneuvers, including by filing pretrial motions.

If convicted of reckless injury to a child, Peterson would face a sentence ranging from 2-10 years in prison. If convicted of negligent injury to a child, Peterson would face a much lighter penalty: 180 days to two years in prison. The main difference between “reckless” and “negligent” degrees of offense relates to Peterson’s state of mind while hitting his son. A finding of recklessness would mean that Peterson possessed substantial certainty that his parenting technique posed a substantial and grossly unreasonable risk of harm, whereas a finding of negligence would mean that Peterson should have been aware that this technique posed a substantial and unreasonable risk of harm.

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​​If a jury returns a conviction, Peterson would face sentencing by either the judge or a jury depending upon a crucial choice he made prior to trial. The Texas criminal justice system is unusual in that a defendant in a non-death penalty case can elect prior to trial that the jury, rather than the judge, would sentence him in the event he is convicted. In contrast, most states prohibit "jury sentencing" and only allow for the judge to decide a sentence. In determining a sentence for Peterson, the judge or jury would weigh such factors as Peterson’s criminal history, the sincerity of his contrition and whether his conduct was particularly cruel under the circumstances.

Peterson’s defense: his conduct was reasonable

Hardin’s statement signals the style of defense Peterson will raise. Hardin, who has litigated on behalf of such star athletes as Roger Clemens and Scottie Pippen, acknowledged that Peterson “deeply regrets the unintentional injury,” a statement that mixes an apology about injuries to a young child with a defense of Peterson’s intentions.

In cases involving parents charged with excessive beatings of their children, parents typically argue that their style of discipline was reasonable under the circumstances. They also emphasize that their methods reflected not anger or short temper, but a strategic desire to properly train their children. Peterson’s text messages arguably signal a desire to educate a misbehaving child rather than to sadistically inflict physical harm. Peterson, for instance, texted “[A]ll my kids will know, hey daddy has the biggie heart but don’t play no games when it comes to acting right.”

Peterson is also advantaged by a relatively permissive attitude in Texas toward spanking, paddling and other forms of parental discipline that involve physical force. So long as excessive force is not applied, Texas law permits parents to spank and paddle their children. These attitudes extend outside the home. When compared to parents in other states, Texas parents are relatively permissive of teachers and educators disciplining their children by “reasonably applied” physical force. According to data compiled by the The Huffington Post in 2013, Texas is ranked first among the 50 states in number of children getting hit in school and ninth for highest percentage of children getting hit in school.

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​These attitudes may help explain why the first grand jury that scrutinized Peterson’s “whooping” declined to indict him. This is significant, given that grand jury proceedings are decidedly stacked in favor of the prosecution. In a grand jury proceeding, the prosecution decides which evidence is seen and grand jurors only need to find a reasonable belief — rather than certainty beyond a reasonable doubt — that a crime occurred. Even with this low bar, Peterson was not indicted.

Other legal factors, however, cut against Peterson. For starters, he was indicted by the second grand jury, which indicates that at least one group of Texas citizens was sufficiently troubled by his parenting style. Second, the young age of Peterson’s son has legal significance. Courts are generally more tolerant of parents using corporal punishment when their children are at least seven- or eight-years-old and physically capable of withstanding physical contact. Courts are also skeptical of punishing very young children given that they are not yet able to understand the consequences of their choices and behavior. Peterson’s son suffered substantial injuries, which suggests he was unable to withstand the “whooping,” and there are reasons to question whether he — a four-year old — understood that an argument with a sibling over a video game would lead to being repeatedly paddled by a tree branch. Photo evidence of extensive injuries to Peterson’s son, the son’s accusations against his father and Peterson’s arguably self-incriminating text messages should also worry Hardin.

NFL punishment

At first glance, Peterson’s indictment would seem to present a clear opportunity for NFL commissioner Roger Goodell to use the league’s new domestic violence policy for the first time. The policy calls for a six-game suspension for a first-time offense and potential lifetime ban for a second offense.

Upon closer inspection, however, Peterson’s situation is not necessarily the perfect fit.  

First, Goodell has not clarified the meaning of “offense,” either in his letter outlining the policy to owners or in subsequent comments. This is meaningful for Peterson because while he has been indicted, he has not yet been convicted.  It would be awkward for Goodell to suspend Peterson now but for Peterson to be found not guilty later. Goodell, it should be noted, has thus far declined to suspend San Francisco 49ers defensive lineman Ray McDonald, despite McDonald’s arrest for felony suspicion of domestic violence. Goodell’s reticence on McDonald could signal that he plans to wait until a conviction or guilty plea before punishing a player under the domestic violence policy.

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​Second, the domestic violence policy does not expressly apply to violence against children. In fact, in illustrating “the circumstances that would merit” sanction under the policy, Goodell stated, “a prior incident before joining the NFL, or violence involving a weapon, choking, repeated striking, or when the act is committed against a pregnant woman or in the presence of a child.” Notice that Goodell’s reference to children is committing an act in the presence of a child, not hitting a child. While Peterson hit his son in the presence of a child, Hardin could contend the policy only contemplates NFL players hitting their spouses or partners, not their children.

Third, the domestic violence policy is vulnerable to an antitrust challenge, which would require the NFL to show the policy advances competition more than it hurts competition. The domestic violence policy was not collectively bargained with the National Football League Players’ Association. Rather, it was invented in a memo authored by Goodell to owners. This is legally important, because league rules that impact players’ hours, wages or other working conditions can be challenged under antitrust law if they were not created through collective bargaining. A policy that authorizes a suspension of a player if certain conditions materialize — namely, the player committing a domestic violence “offense,” as defined by Goodell — clearly impacts a suspended player’s hours, wages and other working conditions.  Before you argue the league’s domestic violence policy is simply an extension of the league’s personal conduct policy (which was collectively bargained), know that any extension of a collectively bargained policy must also be collectively bargained in order to obtain antitrust immunity.

Goodell, of course, could decline to punish Peterson under the domestic violence policy but punish him under the personal conduct policy. Goodell has essentially unlimited discretion under it, and Goodell would hear any appeal. Plus, Goodell has not always waited for a criminal conviction under the personal conduct policy before punishing players. The most notable example of Goodell issuing a punishment before a court occurred in 2010, when he suspended Pittsburgh Steelers quarterback Ben Roethlisberger for six games for sexual assault accusations despite the fact that Roethlisberger was not charged with a crime, let alone convicted of one.

Goodell could catch a break if the Vikings cut Peterson and no other team signs him. In that scenario, the marketplace of NFL teams would deny Peterson an opportunity to play in the league, which would have the same practical effect as a suspension. There is no indication at this point, however, that the Vikings will cut Peterson, and even if they do, it's very possible that another team would sign him. ​

The x-factor in all of this: the impact the Ray Rice saga has on Goodell, whose league could be sued over Goodell’s conduct.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.