Domestic Violence: Tort Law And Personal Injury

Domestic violence, which can take the form of spousal, partner, or family member abuse, is a serious issue that can have legal consequences. It may result in civil or criminal charges, or both, depending on the specific circumstances and jurisdiction. In the legal context, domestic violence cases can involve various causes of action, including tort claims. A tort is a civil wrong that results in legal liability for the wrongdoer, and in the context of domestic violence, tort claims can provide a legal remedy for victims seeking compensation or justice. These tort claims can include intentional torts such as assault, battery, and intentional infliction of emotional distress, which can lead to monetary damages being awarded to the victim. However, there are challenges in pursuing tort claims in domestic violence cases, including financial constraints, the need for expert witnesses, and societal obstacles that may deter victims from coming forward. Understanding the legal options available to victims of domestic violence is crucial for seeking justice and holding abusers accountable.

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Domestic violence tort claims

Domestic violence, whether spousal, partner, or familial abuse, occurs when a family member, partner, ex-partner, co-inhabitant, unmarried intimate partner, or third party perpetrates any number of offenses, which may or may not constitute criminal offenses depending on the jurisdiction. It is cross-cultural, ignores economic status, and can be perpetrated by either gender. At its core, domestic violence is about control of the victim.

To successfully pursue a domestic violence tort claim, the plaintiff must typically demonstrate harmful or offensive, unpermitted contact that either resulted from an act intended to cause the plaintiff to suffer such contact or foreseeability of such contact. In addition, the plaintiff must show that the conduct was outrageous and extreme, going beyond all possible bounds of decency.

One example of a successful domestic violence tort claim is the Texas case in which a woman was awarded $5.56 million on a tort claim she filed against her husband. However, there are also significant barriers to recovery in domestic violence cases, including the statute of limitations on assault and battery cases and societal conditions that impair victims financially and psychologically, making it difficult for them to come forward.

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Assault and battery

Assault

Assault is defined as an intentional attempt to cause injury or harm to another person through violence or force. It is a second-degree misdemeanour, carrying a fine of up to $500 and up to 60 days in jail. However, no physical contact is necessary for an assault charge; the penalty for assault can be higher if there are aggravating circumstances, such as domestic violence. The threat of violence must create a reasonable fear in the victim that harm is imminent.

Battery

Battery is often what people refer to as "assault". It can occur in two ways: first, when an individual intentionally touches or strikes another person against their will, and second, when an individual intentionally causes bodily harm to another person. A first battery offence is a first-degree misdemeanour, carrying a fine of up to $1,000 and up to a year in jail. Battery becomes aggravated battery when the offender intends to cause great bodily harm, such as by intentionally shooting someone.

Domestic Assault and Battery

Domestic assault and battery are legally defined in the same way as assault and battery, but with one key difference: the assault or battery occurs between two people with a familial or romantic relationship. This includes current and former spouses, relatives, and those who live together or have lived together. A domestic assault and battery charge carries a maximum sentence of 1 year in jail, compared to 90 days for a general assault and battery charge. Domestic assault and battery is a predicate offence, meaning that the punishment is more lenient the first time the offence is committed, but more severe if the offender is convicted a second time.

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Emotional distress damages

Domestic violence, including spousal abuse, domestic partner abuse, and domestic abuse, can constitute a civil or criminal offence, depending on the jurisdiction. Survivors of domestic abuse may be able to sue the perpetrator in civil court, seeking compensation for physical injuries and other losses. This is known as a personal injury tort claim.

In the context of domestic violence, emotional distress damages can be claimed under intentional infliction of emotional distress (IIED) or negligent infliction of emotional distress. The Restatement of Torts 2d defines this tort as conduct that is "so outrageous in character and so extreme in degree as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable".

To successfully claim damages for IIED, plaintiffs must demonstrate "extreme and outrageous conduct". This high burden of proof means that IIED claims are often brought by plaintiffs who have experienced or been threatened with physical violence. However, IIED claims do not always involve physical contact, and the emotional pain and suffering of a domestic abuse survivor can be significant even when the physical harm is limited. The damages awarded can be based on the cumulative effect of long-term abuse.

In North Carolina, for example, domestic violence laws make it illegal to place a spouse or family member in fear of imminent serious bodily injury or continued harassment that inflicts substantial emotional distress. Emotional abuse can take many forms, including insulting, threatening, mocking, or publicly humiliating a spouse or intimate partner. It can also include actions such as harassing or stalking that rise to the level of inflicting emotional distress.

The biggest issue with claiming emotional distress damages in domestic violence cases is the lack of accessibility. Most survivors of domestic violence do not have the financial resources to pay for a lawyer, and the possibility of recovery may be too low for an attorney to take on the case.

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Spousal abuse

In the legal context, spousal abuse falls under the category of tort law, specifically personal injury torts for domestic violence. Survivors of spousal abuse can seek monetary damages through civil tort claims against their spouse or partner for physical abuse. This is especially effective in jurisdictions where courts do not consider fault when dividing marital property, as long as there are resources against which a judgment can be exercised. However, there may be obstacles to bringing tort claims for spousal abuse, such as the statute of limitations on assault and battery cases, and societal conditions that impair victims financially and psychologically.

To successfully pursue a tort claim for spousal abuse, the plaintiff must typically demonstrate harmful or offensive, unpermitted contact that either resulted from an intentional act or foreseeably caused the plaintiff to suffer such contact. Additionally, intentional infliction of emotional distress (IIED) claims require the plaintiff to show "extreme and outrageous conduct" by the defendant. While IIED claims can be challenging due to their high burden of proof, they have been successfully used by plaintiffs who experienced or were threatened with physical violence in the context of coercive and controlling relationships.

In summary, spousal abuse is a serious issue that can take many forms and have long-lasting impacts on the victim. Survivors have legal avenues for recourse through tort law, but there may be barriers to accessing justice, such as financial constraints and the requirement to demonstrate "outrageousness" in spousal abuse claims.

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Criminalising coercive control

In November 2022, the NSW Parliament passed the Crimes Legislation Amendment (Coercive Control) Act 2022, which makes coercive control in current and former intimate partner relationships a criminal offence. Coercive control refers to a pattern of behaviour intended to hurt, scare, or isolate a person to control them. It is the most common risk factor leading up to an intimate partner homicide.

While some family violence prevention advocates oppose criminalising coercive control, arguing that victims are often reluctant to involve the police and that such offences are challenging to prove, domestic violence victims overwhelmingly support the criminalisation of coercive control. A national survey conducted in mid-2021 found that 87% of victim-survivors supported criminalisation or were unsure, and 72% of that group believed it would improve their safety.

In addition to criminalisation, there are other approaches to address coercive control, such as providing civil remedies like restraining orders. Some argue that increasing civil remedies may be more effective, as criminalising coercive control could cause backlash against survivors and disproportionately affect marginalised communities.

In terms of tort law, domestic violence can fall under personal injury torts, with assault and battery by a marital partner or spouse being common claims. However, there are challenges in pursuing tort claims for domestic violence due to financial and psychological barriers, as well as the higher standard of "outrageousness" often required for spousal abuse cases.

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