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Suing the Abuser: Tort Remedies for Domestic Violence

NCJ Number
Victim Advocate Volume: 4 Issue: 3 Dated: Spring 2004 Pages: 11-14
Brian K. Zoeller; Patrick Schmiedt
Date Published
4 pages
This overview of tort remedies for domestic-violence victims discusses causes of action, barriers to domestic-violence lawsuits, and continuing challenges for domestic-violence victims.
For domestic-violence victims, the range of tort-law options include claims for assault; battery; false imprisonment; intentional and/or reckless infliction of emotional distress; negligent infliction of emotional distress; intentional interference with child custody, visitation, and/or parent-child relationships; third-party negligence; tortious infliction of venereal disease; and wrongful death. The majority of domestic-violence torts involve claims of assault and battery and the infliction of emotional distress. These topics are discussed in separate sections of the article, along with battered woman's syndrome. These sections are followed by an overview of legal and societal barriers to domestic-violence lawsuits. The primary legal defenses in domestic-violence tort cases are interspousal immunity, res judicata, and the statute of limitations. Although interspousal immunity has been repealed by all but two States, the spirit of this doctrine persists when courts require a higher standard of "outrageousness" for spousal abuse than for nonspousal violence. Res judicata and collateral estoppel prevent the relitigation of certain claims or issues that were litigated in a previous matter. This doctrine may be invoked when domestic-violence victims bring a tort action for abuse apart from a previous divorce action. The best solution is to allow permissive joinder in these situations. The most significant bar to recovery in domestic-violence cases is the statute of limitations on assault and battery cases. The New Jersey case of Giovine v. Giovine held that the statute of limitations does not begin to run until the tortious conduct in its entirety ceases. Societal obstacles to bringing domestic-violence tort claims stem from societal conditions that impair women financially and psychologically under abusive conditions, such that they have neither the will nor the financial resources to pursue litigation. 33 notes