Taking abusers to court: civil remedies for domestic violence victims.

The most dangerous place for a woman in the United States has become her own home. For at least the last four years, domestic violence has posed the single largest threat of injury to women in this country - surpassing injury from heart attacks, cancer, strokes, car crashes, muggings, and rapes combined.(1)

The following is a list of startling statistics:(2)

* Every day, an average of four to five women die in the United States due to domestic violence.

* Nearly 1,400 women were killed in 1993 by their male partners.

* An estimated 2 million wives are beaten by their husbands each year, an average of 1 every 16 seconds.

* A March of Dimes study cites battering during the prenatal period as the leading cause of birth defects and infant mortality.

* Battery is listed as a contributing factor in a fourth of afl suicide attempts by women and in half of afl attempts by African American women.

* At least half of homeless women and children are in flight from domestic violence.

* In 1992, the U.S. Surgeon General ranked abuse by husbands and partners as the leading cause of injury or death to women and classified domestic violence as having reached epidemic proportions in the nation.

Domestic violence is violence committed against one person by another in the same household. The most common form is physical abuse by a spouse. Domestic violence includes pushing, shoving, pulling hair, slapping, punching, confining, abusing psychologically, and molesting sexually.

In the past, much domestic violence went unpunished or uncompensated due to interspousal immunity derived from common law. Interspousal immunity, among other things, banned actions between spouses that resulted from personal injuries inflicted by one spouse on the other.

The erosion of this rule began with the Married Women's Property Act in the middle of the 19th century.(3) The act gave wives their own legal identity, separate ownership and control of their property, and the capacity to sue and be sued without joining their husbands as a party. However, the act was not originally interpreted to allow a wife an action against her husband in tort.(4)

Eventually, many states began to carve exceptions to the interspousal immunity rule. Today, only Hawaii still recognizes the rule without exceptions. At least 39 states have abolished the rule, and partial abrogation in the other 10 states has opened the door for victims of spousal abuse to seek redress.(5)

Causes of Action

Tort law in the area of domestic violence continues to evolve. Claims may include

* assault

* battery

* defamation

* false imprisonment 

* intentional and/or reckless infliction of emotional distress (most states require physical injury as an underlying tort)

* negligent infliction of emotional distress 

* intentional interference with child custody, visitation, and/or a parent-child relationship

* third-party negligence

* tortious infliction of a venereal disease 

* wrongful death 

This article will focus on assault and battery, infliction of emotional distress, and tortious infliction of a venereal disease. The first two claims are discussed because they make up the majority of domestic violence torts. Tortious infliction of a venereal disease is discussed because in the age of AIDS, the potential damages recoverable for this tort are significant.

Assault and battery. An assault is defined as an "act by one person that creates a reasonable fear of imminent peril in the mind of another person when the actor has the apparent ability to cause bodily injury to the other person."(6) A battery is any intentional, offensive, nonconsensual touching ranging from a brutal beating to a shove or a tap in a rude, insolent, or angry manner.(7)

Most attorneys approached with a tort case involving domestic violence with be dealing, with an assault or battery. A note of caution: Many victims never prosecute or follow through with a tort action. Attorneys should ask potential clients in these cases tough questions to ensure as much as possible that the victims will follow through and will not be swayed by any remaining feelings they may have for their abusers.

For example, counsel should ask the client whether she sympathizes with the abuser or makes excuses for his behavior.(8) A client who does this may well waver in her resolve to sue. If the couple has children, the attorney should also ask about the client's view of the family's stability without the abuser. Again, the client may waver if she thinks she may not be able to provide for the family without the abuser. Attorneys who fail to ask tough questions like these may end up wasting their time or the client's money.

Assault and battery case law includes situations ranging from relatively minor incidents to the near killing of the victim. In DeLeon v. Hernandez, for example, a Texas appellate court reversed a trial court's summary judgment against a woman who sued for assault and battery after her husband punched her in the face and body.(9) In Waite v. Waite, a much more serious battery was at issue. A Florida appellate court reversed summary judgment for the husband after he had severely injured his wife with a machete.(10)

Deleon typifies assault and battery suits. As unfortunate as that scenario is, however, cases like Waite illustrate the unthinkable brutality that is involved much too often.(11)

Infliction of emotional distress. Although the most common domestic violence tort is assault and battery, the tort most litigated at the appellate and supreme court levels is infliction of emotional distress. In an assault and battery case, the court must decide only whether the act occurred and whether spousal immunity has been abolished in the jurisdiction. But infliction of emotional distress involves difficult public policy and legal issues that the courts have not decided uniformly.

This tort usually accompanies a claim of bodily injury that is so traumatic for the victim that it results in emotional and psychological damages needing treatment. In cases of negligent infliction of emotional distress, many jurisdictions require physical manifestations of the emotional distress as a safeguard against frivolous Suits.(12) Most jurisdictions do not require physical manifestations in cases alleging reckless or intentional infliction of emotional distress.

Courts across the country, in varying degrees, require the abuser's conduct to be "extreme and outrageous." Courts use this criterion, like the physical manifestation requirement, to deter lawsuits without merit. For example, a woman might bring suit for infliction of emotional distress against her husband of five years who hit her once while they argued - clearly a battery and a terrible act, but not sufficiently outrageous to cause severe emotional distress.

Hakkila v. Hakkila offers a good example of the high threshold for outrageous conduct that many courts require. In this New Mexico case, the husband's conduct toward his wife included assault and battery, demeaning remarks, screaming, refusal to have sex, and other actions. At the time of trial, the wife was described as being temporarily emotionally disabled. The court, however, expressing concerns about "opening the door too wide" to these types of claims, ruled that the husband's actions were not sufficiently outrageous to warrant damages for emotional distress.(13)

However, in Henriksen v. Cameron, the court found the husband's physical and verbal abuse - which included assaulting and raping his wife and accusing her of sleeping with his brother - sufficiently outrageous to state a claim.(14) In Twyman v. Twyman, the court upheld a lower court award of damages for emotional distress resulting from the husband's attempt to engage his wife in "deviate sexual acts."(15)

Because courts in different jurisdictions have set different standards for this tort, attorneys considering filing these suits should carefully analyze the case law in their jurisdictions.

Tortious infliction of a venereal disease. Although most reported cases in this category involve transmitted herpes, in this age, AIDS may soon become the most significant domestic tort. Afl states recognize that one sexual partner may be liable to the other for transmitting a venereal disease.

Liability is based on theories of battery, tortious fraud, and negligence. Under the battery theory, even though the spouse consented to intercourse, the consent was based on a mistaken belief. The plaintiff would not have consented if he or she had known the partner had the disease, so the act amounted to a nonconsensual touching.(16)

In cases involving the theory of tortious fraud, the plaintiff alleges that the marriage relationship imposes a duty to inform the other spouse about the disease. The failure to disclose is itself the basis for claims of constructive fraud or misrepresentation.(17)

Cases involving negligence theories also focus on a duty to warn. Courts have held that a person with a dangerous contagious disease has a duty to warn another of a risk of infection.(18) However, most courts require the infected person to have actual or constructive knowledge of the disease. The knowledge requirement is the key issue when pursuing a case of tortious infliction of a venereal disease.

For example, in Meany v. Meany, the wife had recovered a judgment from the trial court against the husband for the negligent infliction of a venereal disease. The appellate court reversed, stating that the husband did not have actual or constructive knowledge that he was carrying the disease.(19)

The court noted that there was no evidence the husband had ever been infected with a venereal disease. He had been treated for a "drippage," but the record did not indicate that this was a symptom of genital herpes. Nor did the record reflect anything that would prove the husband had actual or constructive knowledge of a venereal disease.

The state supreme court overruled this decision, finding sufficient evidence for the jury to conclude that the husband was negligent. The court said a drippage, coupled with the fact that the husband had had sexual relations with five different women, was sufficient for the jury to impute knowledge of the disease to the husband.(20)

Both courts agreed that constructive knowledge could include the onset of the symptoms of a venereal disease, such as warts, even if the person did not know that the warts were an actual symptom of the disease.

Actual or constructive knowledge is not difficult to prove if the infected person has sought treatment for the disease. Problems arise when the infected person's disease has not manifested itself at the time of sexual contact with the person bringing the suit.

Some jurisdictions impose greater burdens on plaintiffs for proving constructive knowledge than others, so it is important to look at local case law whenever there is no evidence of actual knowledge. When bringing a suit, the attorney must make certain that evidence can be presented that the alleged perpetrator had actual or constructive knowledge that he or she was carrying a venereal disease.

Third-Party Claims

Victims of domestic violence can also bring federal equal protection claims against third parties like police departments based on 42 U.S.C. [sections] 1983. These cases allege that domestic violence victim are not granted the same protection that other crime victims are afforded.

The Third, Ninth, and Tenth circuits have upheld the validity of these claims.(21) Previously, these actions were barred by governmental immunity.

In an equal protection claim, if a city's police department treats domestic disputes or complaints less seriously or differently than it does other disputes or complaints, the attorney can argue that the plaintiffs constitutional right to equal protection of the laws was violated. The "color of law" requirement of [sections] 1983 is met if the plaintiff proves the government exercised a "policy or custom" of treating domestic disputes less seriously than other complaints.(22)

It is helpful to determine whether aggravated conduct existed. One example would be the failure of police to respond adequately after the victim made repeated cause to report an injury. During trial, it is important to impress on the jury that the public relies on law enforcement officials for protection from violence, whether it is perpetrated by family members or strangers.

Gender Bias Claims

The crime bill enacted last year creates a federal civil rights action for gender-motivated violence that is serious enough to be a felony. It does not require that the defendant first be charged with a crime.(23)

The law appears to cover rapes and attempted rapes, including marital and date rapes. It also applies to nonsexual physical abuse, sexual abuse of children, stalking, sexual assaults and battery by boyfriends, gay-bashing attacks, violence to a woman's home or property, and transmission of sexual diseases.

A plaintiff must prove that the defendant's violence was motivated by gender. It may be helpful to show that the defendant had a history of physically or verbally abusing other women.

Claims After Divorce

Many domestic tort cases arise in conjunction with a divorce or after a divorce. If a victim makes a claim after the marriage has been dissolved, the alleged abuser is likely to raise the doctrines of res judicata, collateral estoppel, or waiver as a defense. It is important to determine whether these doctrines with bar a tort action between former spouses after a divorce proceeding.

Res judicata and collateral estoppel preclude the relitigation of matters that were actually litigated in a previous action. Waiver involves the surrender of a legal right. Generally, courts that have addressed the issue have rejected the argument that these doctrines bar a subsequent claim against a prior spouse.(24) Some reasons for allowing a post-dissolution suit include the following:

* A tort claim is not based on the same underlying issues or claims involved in the dissolution action.(25)

* Current permissive and noncompulsory joinder rules allow a party to choose when to file a claim.

* Evidence and procedure rules to prove a tort are different from those in a dissolution proceeding.

* A plaintiffs right to a trial by jury is preserved.

* Divorce actions would become too complex with the addition of tort claims. As a result, divorces would take too long, delaying the resolution of custody and support issues.(26)

An attorney pursuing a post-dissolution tort in a jurisdiction that has not considered this issue - or even in a jurisdiction that bars post-dissolution suits - should probably agree to take the case. The modern trend is to allow post-dissolution tort suits, and arguments in favor of allowing them are persuasive.

The attorney should take care in drafting findings of fact in a divorce that would inadvertently release one spouse from any future claims that the other spouse may have Also, if a potential subsequent tort action exists, counsel should avoid language where one spouse agrees to hold harmless the other from future claims or liabilities.

A note of caution regarding the collectability of damages should be issued to anyone pursuing a domestic tort action. Most insurance policies do not cover intentional torts, so a victim of an abuser who does not have sufficient resources to satisfy a judgment may go unrecompensed.

In some circumstances, however, the injured party is more concerned with having her day in court and being vindicated than she is with securing monetary damages. Having the justice system condemn a person for their heinous acts can help some injury victims put their lives back together. If this is the case, the attorney may want to proceed with the case as long as the client has been told about the problems with collecting on any damages awarded.

No Cure-All

The O.J. Simpson case and the incredible number of other domestic violence cases have brought this problem to the forefront of our national consciousness. With awareness, there may come progress in finding solutions to this epidemic. However, the court system cannot provide the solution to every societal problem, and domestic violence seems to be one area where the courts have been especially ineffective for a number of reasons.

First, domestic violence victims often do not wish to prosecute their abusers or bring civil actions against them because of feelings they may have for the abusers or because of the effect legal action might have on their children. Second, courts must take special care in dealing with the family and privacy issues inherent in domestic tort cases. Third, there is no consensus as to what conduct is sufficient to state a cause of action - a problem illustrated by the different standards for "outrageous" conduct in emotional distress cases.

Therefore, while the legal system is making progress in this area, attorneys who pursue domestic tort suits should not expect miracle cures for the problem of domestic violence. That is not to say that the courts and law enforcement bodies are to blame. It is the nature of the crime that makes progress difficult. For now, it appears that the court system is better equipped to compensate victims of abuse than it is to prevent the abuse from occurring in the first place.

Notes

(1) See Antonia C. Novello, From the Surgeon General, U.S. Public Health Service, 267 JAMA 3132 (1992). (2) These statistics were combined from information from the following sources: Id. See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, UNIFOPM CRIME REPORTS FOR THE UNITED STATES, 1991 (1991); Harris Meyer, The Billion-Dollar Epidemic, AM. MED. NEWS, Jan. 6, 1992, at 7; see also Nancy Kathleen Sugg & Thomas Inui, Primary Care Physicians Response to Domestic Violence: Opening Pandora's Box, 267 JAMA 3157 (1992). (3) LEONARD KARP & CHERYL L. KARP, DOMESTIC TORTS: FAMILY VIOLENCE, CONFLICT AND SEXUAL ABUSE (1989). (4) See William E. McCurdy, Torts Between Persons in Domestic Relation, 43 HARV. L. REV. 1030, 1035-36 (1930). (5) Interspousal immunity is fully abrogated in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. (6) Indiana Pattern Jury Instruction No. 3101 (1989). Many other states use similar language. (7) McGlone v. Hauger, 104 N.E. 116 (Ind. App. Ct. 1914). (8) We refer to the victims in this article as "she" and "her" because well over 90 percent of domestic violence victims are women. (9) 814 S.W.2d 531 (Tex. Ct. App. 1991). (10) 593 So. 2d 222 (Fla. Dist. Ct. App. 1991); aff'd, 618 So. 2d 1360 (Fla. 1993). (11) See also Simmons v. Simmons, 773 P.2d 602 (Colo. Ct. App. 1988); Catlett v. Catlett, 388 S.E.2d 14 (Ga. Ct. App. 1989), cert. denied, 193 Ga. App. 399 (1989); Heacock v. Heacock, 520 N.E.2d 151 (Mass. 1988), later proceeding, 568 N.E.2d 621 (Mass. App. Ct.), review denied, 573 N.E.2d 984 (Mass. 1991); McCoy v. Cooke, 419 N.W.2d 44 (Mich. Ct. App.), appeal denied, 430 Mich. 897 (1988); Burns v. Burns, 518 So. 2d 1205 (Miss. 1988); Aubert v. Aubert, 529 A.2d 909 (N.H. 1987). (12) See, e.g., Twigg v. Hosp. Dist., 731 F. Supp. 469 (M.D. Fla. 1990). (13) 812 P.2d 1320, 1327 (N.M. Ct. App. 1991). (14) 622 A.2d 1135 (Me. 1993). (15) 855 S.W.2d 619 (Tex. 1993). (16) See Barbara A. v. John G., 193 Cal. Rptr. 422 (Ct. App. 1983). (17) R.A.P. v. B.J.P., 428 N.W.2d 103, 106 (Minn. Ct. App. 1988); G.L. v. M.L., 550 A.2d 525, 528 (N.J. Super. Ct. Ch. Div. 1988); Maharam v. Maharam, 510 N.Y.S.2d 104 (App. Div. 1986), later proceeding, 575 N.Y.S.2d 846 (App. Div. 1991). (18) Kathleen K v. Robert B., 198 Cal. Rptr. 273 (Ct. App. 1984). (19) 631 So. 2d 14 (La. Ct. App. 1993), cert. granted, 635 So. 2d 238 La. 1994), and rev'd, 639 So. 2d 229 (La. 1994). (20) 639 So. 2d 229 (La. 1994). (21) Hynson v. City of Chester Legal Dep't, 864 F.2d 1026 (3d Cir. 1988); Balistreri v. Pacifica Police Dep't, 855 F.2d 1421 (9th Cir. 1988); Watson, v. Kansas City, 857 F.2d 690 (10th Cir. 1988). (22) Id. (23) 42 U.S.C.S. [sections] 1988 (1994). (24) States allowing post-dissolution tort suits are Alaska, Arizona, Idaho, Indiana, Massachusetts, Michigan, New, Hampshire, New, Jersey, Washington, and Wisconsin. States barring these suits are Alabama, Arkansas, and Tennessee. (25) Heacock, 520 N.E.2d 151. (26) Stuart v. Stuart, 421 N.W.2d 505, 508 (Wis. 1988) (citation omitted).

Linda K. Meier is a partner in the law firm of Sargent & Meier in Greenwood, Indiana. Brian K. Zoeller is a third-year student at the Indiana University School of Law in Indianpolis.