Civil Tort Suits and Economic Justice for Battered Women By Barbara J. Hart, Esq., and Erika A. Sussman, Esq.

conomic viability is critical to responsibility to place a domestic the figures are underestimates of the actual the long-term safety of victims survivor’s tort claim(s) within costs. Whatever the amount, the cost to E of . Yet, the the context of overarching, but dynamic, society is immense in both human and majority of legal mechanisms available safety and litigation strategies. economic terms. to battered women fail to address this reality. While protection orders, criminal Costs for Prevention of Recurring Violence law, and family law aid in addressing Battered women employ numerous the immediate physical safety needs of Economic viability is strategies to prevent future violence battered women, they do not adequately critical to the long-term against themselves and their children. provide battered women with the They know that the best way to avert economic relief necessary for self- safety of victims of further violence is to minimize the sufficiency and long-term safety. Civil domestic violence. Yet, perpetrator’s access to them. Therefore, tort suits offer such a tool. survivors of intimate violence incur This article provides tort lawyers the majority of legal preventative costs in an attempt to keep considering representation of domestic mechanisms available themselves safe. violence victims with a foundation to develop their cases in a manner that to battered women fail Costs of Relocation attends to their clients’ particular to address this reality. Battered women often must relocate financial needs, incorporates the context (to another city, state, or region) in order of their clients’ experiences, and results to protect themselves and their children in an award of damages that adequately The Costs of Domestic Violence from future attacks. This may require accounts for the losses and injuries The economic costs of domestic that the domestic violence survivor break resulting from the . First, this violence are staggering. In the United her apartment lease, move furniture, sign article highlights the substantial costs of States, it is estimated that medical a new lease, and transport herself, her domestic violence and the shortcomings expenses caused by domestic violence are dependent children, and her belongings of predominant legal remedies for approximately $61.8 million every year.1 some distance. Often, a battered woman domestic violence survivors. Second, Indirect costs, such as diminished quality must relocate numerous times before the it discusses the nature of domestic of life and pain and suffering, are assessed abuser stops pursuing her to re-establish violence, enumerating the types of to be $65 million annually.2 Lost pay and relationship and control. Thus far, there conduct that characterize the abuse and damaged or stolen property have been are no national studies that document suggesting how the array and patterns of calculated at $89 million per year.3 Battered such costs of relocation. However, service abuse may impact case development. women’s service providers report that the providers report that the cost may be a Next, it identifies potential defendants losses sustained through batterer property minimum of $5,000 per relocation.5 who can be liable and sets forth potential destruction and theft prior to separation Whatever the exact costs, they are tort remedies. The article concludes may average $10,000 per perpetrator.4 All far from negligible and are essential by explaining an attorney’s unique of the research cited above indicates that for safety.

Victim Advocate • Spring 2004 3 Costs of Independent Living violence. Insurance companies, crime victim the abuser, and funeral expenses, few Access to economic resources is the compensation programs, employers, programs compensate for property most likely predictor of whether a human services providers, and state and destruction, clothing replacement, battered woman will permanently federal government agencies also make clean-up of the residential crime scene, separate from her abuser and establish an significant contributions each year. relocation expenses, temporary housing, independent household.6 Three critical Communities pay a stunning toll as well. home security systems, and child ingredients of economic independence Some of the losses for communities are support, among other costs.11 It may for battered women include income economic, but the interruption and take months for a survivor to receive a from a source other than the batterer,7 dislocation in women’s lives compromise compensation award. Crime victim adequate transportation, and sufficient communities even more profoundly. compensation is uniformly too little and childcare arrangements.8 Battered Perpetrators pay virtually nothing.9 too late to undergird the economic women with dependent children carry viability of survivors. an extraordinary financial burden. In Economic Shortcomings of Similarly, the family law system does fact, batterers often use manipulation Prevailing Legal Remedies not provide survivors of spousal abuse and related to child The economic damages sustained by with adequate economic compensation support to maintain control over their domestic violence survivors remain unmet for damages incurred as a result of the partners. Without money to live by criminal, family, and protection order abuse.12 With the advent of no-fault independently from an abusive partner, law and practice. The predominant legal divorce statutes in virtually every state, battered women and their children remedies employed by domestic violence survivors13 of domestic violence are often will not be able to separate and create survivors fail to address the substantial not entitled to compensation for marital effective barriers to abuser access. financial harms they incur as a result of misconduct.14 Furthermore, courts rarely the violence. In cases in which the state account for the destruction of marital pursues criminal prosecution and the property attendant to domestic violence perpetrator is found guilty, sentences when allocating marital property Victims primarily typically do not compensate the victim between the divorcing parties. Nor fully for the medical bills, lost work, do they divide property to compensate bear the burden of destruction of property, and other the victim for other economic losses current and future economic losses imposed by the abuser, e.g., the acquisi- the economic losses resulting from the abuse. Orders for tion of bad debt or credit, loss of tuition suffered from restitution are minimal and are rarely or educational opportunity, and inter- paid promptly or completely. In states ruption of survivor . Courts domestic violence.... where restitution awards cannot be in “equitable distribution” states reduced to civil judgments, abuser frequently do not consider damage Perpetrators pay property may not be attached and sold to marital property caused by domestic to satisfy the restitution. Further, if violence or any resultant reduction in virtually nothing. incarcerated, the batterer no longer has the economic viability of survivors in employment income to pay restitution, weighing the equities for the division fines, and costs. Thus, while the of marital property. The majority of Costs of Other Safety Planning perpetrator may be criminally liable, he “community property” states distribute A battered woman may have to spend may not be held accountable for the property without regard to “marital large sums of money to achieve safety. economic costs of his abuse, and misconduct.”15 Alimony codes, while She may need to get her locks changed survivors of domestic violence are left permitting temporary awards to or invest in a security system for her without the economic resources that rehabilitate a spouse or to improve the home and car. She may have to work they need to become self-sufficient.10 dependent spouse’s earning potential, different hours or change jobs altogether. Without economic security, the safety typically limit the circumstances giving She may have to change her route to of survivors is jeopardized. rise to permanent alimony, notwith- work, taking one that is less direct or Payments from state crime victim standing the infliction of severe domestic which requires more expensive means of compensation programs are available to violence, long-term recovery and living transportation. She may decide to shop victims of domestic violence throughout costs, or reparations for the violence and in stores that are farther from her home. the country. However, the range of coercive controls inflicted by batterers.16 Each of these safety strategies increase compensable recovery is narrow, and the And even where statutes permit alimony the economic burden that is placed on compensation ceiling is low. Although awards, too many courts are reluctant victims of domestic violence. most states pay for medical costs, to make awards sufficient to enable counseling fees, limited attorney fees for survivors to achieve economic security. Who Pays the Price? prosecuting the compensation claim, Beyond these limitations, research Victims primarily bear the burden of the lost wages related to participation as indicates that women in general fare economic losses suffered from domestic a victim-witness in the criminal trial of worse economically, while men fare

4 Victim Advocate • Spring 2004 better, following a divorce.17 This has employ a range of behav- caused some to conclude that the “major iors over time, all of economic result of the divorce law revo- [C]ivil tort attorneys are uniquely which reinforce the lution is the systematic impoverishment abuser’s control over his of divorced women and their children.”18 able and well positioned to aid partner’s physical liberty— Economic relief obtained through a her ability to live her life civil protection order may not compen- battered women in obtaining free of violence.26 Studies sate a victim for her losses and costs. confirm that domestic Some civil protection order statutes the economic means necessary violence is intentional, include provisions intended to relieve instrumental, and strategic, the petitioner of the economic burdens to rebuild their lives. designed to achieve power incurred as a result of the abuse or as and control over the a necessity to prevent future abuse The Nature of Domestic Violence abused and her children.27 The social (ranging from repayment of medical bills Lawyers representing survivors of science literature describes men’s violence to temporary mortgage payment).19 domestic violence need to be familiar against their intimate partners as a vast However, these provisions may be with the types of behavior that array of physical assaults, , narrowly drawn, and enforcement of characterize domestic violence to economic exploitation, psychological protection orders (particularly economic develop litigation strategies that fully degradation, property destruction, provisions) is often a challenge. Though incorporate the reality of battered hostage-taking, terroristic threats, civil contempt proceedings provide women’s lives and that address the , burglary, theft, slander, and petitioners with an avenue to pursue reparations necessary for safe and homicide. 28 Reports from battered enforcement of economic provisions, independent living. To effectively women reveal that most assaults by oftentimes the evidentiary burdens are represent a victim of domestic abuse, batterers are not discrete acts of heightened, making the task particularly an attorney will need to understand how violence.29 Rather, the batterer engages in difficult for women forced to proceed domestic violence operates—the kinds a pattern of abusive conduct—physical, without counsel. Even if a battered of coercive, denigrating, and violent sexual, and emotional—designed to woman manages to prevail on a civil tactics that a batterer employs and the achieve and maintain control over the contempt motion, monetary provisions impact that those tactics may have battered woman and to induce fear of the that are dependent upon the coercive upon a victim. Once aware, an attorney consequences of failure to comply with power of the court (e.g., mortgage will be better equipped to elicit various his demands. payments) are only enforceable for the types of information, to counsel the The abusive climate exists “outside and duration of the protection order. client with a richer understanding of between” physically assaultive acts,30 Moreover, the United States Supreme her life circumstances, and to craft so that the context of the relationship Court struck down the Violence Against case strategies that incorporate the range provides important information about Women Act (VAWA) civil remedy of harms to a client, including the specific abusive acts. The context is an provision in its 2000 term, thereby breadth of her future economic needs. environment in which the interests of the eliminating the only federal private cause abuser are ascendant. Batterer interests are of action for battered women.20 When Coercive Control the ones to which marital resources are the VAWA provision was in effect, The incidence of domestic violence in dedicated. Abusers set rules that allocate plaintiffs often joined VAWA claims the United States is startling. The resources and circumscribe the lives of with tort claims because the requisite National Crime Victimization Survey battered women. While the scope and elements of the tort claim were generally estimates that each year at least one detail of the rules vary, the imposition less demanding than those under million violent crimes are committed of extensive, egregious limitations by the VAWA claim. Some states have against persons by their current or batterers on their partners is certain, as is subsequently enacted similar laws that former spouses or dating partners.22 the belief in the inalienable prerogative of allow victims of gender-related violence Approximately eighty-five percent of batterers to enforce rules. The tactics used to bring civil actions seeking monetary violent crimes committed by intimate to enforce the rules range from isolation damages from their perpetrators.21 partners in 1998 were committed to homicide.31 Batterers urge victim With the damages of domestic against women.23 During that same year, compliance by pointed references to the violence left uncompensated by criminal seventy-two percent (or 1,320) of the past violence and deprivation inflicted sanctions, family law, protection orders, persons murdered by intimates were when victims did not comply with their and VAWA, civil tort attorneys are women.24 Intimate partner homicides rules. Thus, each enforcement action uniquely able and well positioned to comprised approximately thirty-three or incident of violence recalls the past con- aid battered women in obtaining the percent of the murders of women.25 sequences of resistance to abuser dictates. economic means necessary to rebuild Domestic violence is coercive control; Taken together, the systemic use of coercive their lives. a physically abusive batterer is likely to controls amounts to domestic terrorism.32

Victim Advocate • Spring 2004 5 The abusive relationship could not married women living with their Beyond employment and educational exist apart from its institutional husbands.34 Another study found that ruin, economic abuse may take various supports. While battering may be forty percent of a sample of divorced forms. A batterer may engage in identity experienced as a personal violation, it men threatened or used sexual violence theft by taking the personal information is made possible and facilitated by against former spouses following of a victim and fraudulently creating the beliefs, actions, and omissions of separation.35 The commonality of credit accounts in her name, individuals within our communities. this experience has led to the term subsequently incurring substantial Social and institutional supports for “separation assault.” Separation assault charges for which the victim may be battering include a pervasive is defined as jointly or solely liable. If a victim of of its frequency and harm, a lack of domestic violence does have a source recognition of the economic structures an attack on a woman’s body and of income, an abusive partner may steal that render women more vulnerable to volition in which her partner seeks her earnings. He may convert her abuse, a belief that domestic violence is a to prevent her from leaving, retaliate non-marital assets to his exclusive private matter that is unworthy of state for the separation, or force her to possession or use. He may maintain intervention, a tendency to blame return. It aims at overbearing her complete control of bank accounts and women for men’s abuse, and a failure to will as to where and with whom ATM cards, denying her all access to provide battered women with the she will live, and coercing her economic means.39 All of these efforts resources necessary to achieve safety for in order to enforce connection in keep battered partners financially themselves and their families.33 Attitudes a relationship. It is an attempt dependent, thereby exposing them to of police officers, employers, schools, to gain, retain, or regain power greater risk of future violence. landlords, physicians, the courts, and in a relationship, or to punish others condone domestic violence by the woman for ending the Tort Remedies for Battered failing to protect victims from violence, relationship.36 Women actively facilitating the violence, sharing A full exploration of the possible defen- confidential information, exposing Economic Abuse dants and the totality of tort claims that victims’ whereabouts, or discriminating Economic abuse often plays an integral can be brought on behalf of battered against domestic violence survivors (e.g., role in a batterer’s coercive control women is beyond the scope of this in employment, housing, or insurance). tactics. Dire economic straits, in turn, article. However, it is important to As a result, it is more difficult for victims increase a woman’s vulnerability to recognize that tort lawyers can assist to be free of the violence. future violence.37 Batterers frequently domestic violence survivors in collecting control their partners damages for harms that would otherwise by sabotaging their go uncompensated. There are several educational, job training, torts and an array of defendants that Economic abuse often plays and employment oppor- counsel should consider in investigating tunities. For example, litigation to achieve economic justice for an integral role in a batterer’s abusers may assault their battered women. coercive control tactics. partner on the eve of an important job interview; Batterers Dire economic straits, in turn, they may inflict visible The most obvious defendant for a injuries so as to cause domestic violence civil suit is the abusive increase a woman’s vulnerability at the spouse himself.40 Common causes office; they may destroy of action include: assault, battery, inten- to future violence. work clothing or home- tional or reckless infliction of emotional work assignments; or they distress, false imprisonment, and wrong- Separation Assault may stalk their partners at the workplace. ful death. Others suits against batterers Contrary to the beliefs of many judges, All of these acts are intended to, and may may take the form of: intentional inter- court administrators, attorneys, and result in, job loss, thereby limiting ference with custody or visitation, juries, leaving a violent partner does not a survivor’s economic independence, parental kidnapping, defamation, libel ensure the safety of a battered woman. subjecting her to financial harm and pos- and slander, tortuous infliction of a Leaving an abuser does not necessarily sible future violence. As one commentator sexually transmitted disease, marital end the violence. In fact, separation explained, “the woman’s relationship rape, sexual assault, stalking, and often leads to an escalation of violence. with the batterer stands in the way of her invasion of privacy. As discussed above, One study by the National Crime efforts to seek education, training or domestic violence is not limited to Victimization Survey revealed that work, and economic need prevents . It also includes property separated women were assaulted three her from leaving the batterer, who may and economic injuries. Potential times more often than divorced women provide financial or other material economic tort causes of action may and close to twenty-five times more than support for her and her children.” 38 include: tortious interference with

6 Victim Advocate • Spring 2004 contractual relations, fraud, fraudulent transfer or concealment, breach of fiduciary duty, undue influence, and securities fraud.41 Property torts may include: interference with property interest by exclusion, conversion, trespass to chattels, replevin, and destruction of property.42 This is not an exhaustive list. Given that a batterer exerts control through a variety of tactics, the causes of action are as varied as his conduct.

Third-Party Defendants As mentioned earlier, many, if not most, individual acts of domestic violence could not continue with impunity without the support of private and public institutions and the actors within them. Third parties often play some causative or collusive role, either through their acts or their omissions. Employers may jeopardize the safety of battered women by failing to protect them, particularly if the employer is aware of an existing abuse is but “one moment” in a larger enables the plaintiff to seek redress for the protection order or if the abuser works in picture of coercive control, focusing upon entire history of the abuse.51 the same office.43 Landlords who allow any single act alone will fail to convey and Alternatively, where a batterer’s individuals to enter a building based quantify the harm caused. intimidation tactics caused a survivor of solely on a representation that they have abuse to delay in filing suit for fear of the an intimate relationship with the tenant Exploring Tort Options repercussions, counsel may argue for may place battered women in danger and A tort attorney should explore how the tolling the statute of limitations based on may be liable for negligent security.44 batterer dealt with finances vis-a-vis him- duress.52 It is not realistic to expect an Retailers may be liable for negligence for self and the client. Eliciting this type of abused spouse to assert her claims during selling guns to batterers.45 Police officers, information often requires prompting the course of her marriage. Due to police departments, and other state because domestic violence survivors do economic and physical safety concerns, entities may be liable for their failure to not ordinarily conceive of economic abuse married victims may need to secure their protect battered women from domestic as a part of domestic violence. It may even safety and that of their children through violence in a wrongful death or failure to require further investigation into financial divorce proceedings before they file a tort protect suit.46 Information brokers or records to unearth that were action. For all victims of domestic abuse, private investigators may be negligent previously unknown to the client. the risks of increased violence may prevent for disclosing credit information to third women from initiating tort claims within parties who use the information to stalk Tolling the Statute of Limitations the ordinary statute of limitations. victims.47 All of these actions (and others) A “single occurrence” strategy may limit constitute direct harms for which third the types of claims pled or may minimize Utilizing Expert Testimony parties can and should be held responsible. the damages sought. Furthermore, if the Expert testimony will assist judges and injurious incident occurred long ago, the juries in understanding the continuing Practice Strategies claim may be barred by the statute of nature of domestic torts and the many Litigating the Entire Context limitations, despite the fact that “referent reasons that victims may not be able to The recurring nature of domestic language”48 and non-injurious, abusive safely litigate until the violence has violence and the context in which abuse conduct lasted long after that particular stopped and the survivor is protected occurs, as well as its support by institu- incident. Plaintiff’s counsel may over- from recurrent abuse. Experts can be tional actors, are factors that should come the statute of limitations bar by extraordinary teachers, vividly describing inform tort lawyers’ strategizing. Building asserting that domestic violence is a separation assault and the way it has a case around a single incident of violence “continuing tort.”49 Under the “continu- specifically impacted a client’s actions. will not do justice for a client. An attorney ing tort” theory, the abuse is understood Expert testimony may persuade the trier will need to take a contextual approach in as a cumulative injury such that the of fact that the legal elements of the order to obtain full redress for what the statute of limitations begins to run only domestic tort claim are satisfied and that client has suffered. Because each act of when the abuse stops.50 This theory the defenses asserted by the defendant

Victim Advocate • Spring 2004 7 Safety Planning for Economic some approaches in light of anticipated Justice retaliatory behavior. Safety considerations should guide It is important to view tort litigation representation of battered women. While as just one among numerous potential the legal system provides victims of legal strategies employed within a larger domestic violence with potentially powerful safety plan. A survivor’s decision to tools, these tools can trigger retaliatory pursue a tort suit is a decision to pursue violence against battered women and their one strategy among many. It is a tactical children.55 Thus, counsel for battered choice that needs to make sense to her women should recommend that clients in light of all that she knows about undertake safety planning for daily living. the batterer and her own economic A client should consider the various arenas circumstances. By approaching the case in which she leads her life. Then she with short-term and long-term safety should identify the risks the batterer poses strategies in mind, the tort attorney can in each arena, the allies that have inter- assist in holding the batterer accountable vened to protect her in each location, and for the violence, while helping the client the impediments to safety. In reflecting on achieve the economic justice required the risks and protections in each arena, for her safety and freedom. the client may recollect other tortious conduct of the abuser, but, more impor- tantly for her survival, she may recognize Barbara J. Hart, Esq., is the legal director significant risks that she previously had of the Pennsylvania Coalition Against not apprehended. Domestic Violence and an associate director Clients will be well-served by construct- of the Battered Women's Justice Project. ing specific safety strategies for litigation, Her work includes public policy making, considering each encounter with the training, and technical assistance on a abuser, and the potential for retaliatory broad range of issues such as: crafting violence in each phase of the lawsuit. coordinated community intervention Local domestic violence advocates may systems; development and critique of assist her with safety planning. Counsel legislation; development of court procedures should contact their local domestic and standards; consultation on impact violence program in order to collaborate litigation; and designing training curricula. with them in the safety planning process. She was a leader in the national efforts to An important part of safety planning is implement the identifying the resources necessary to Acts of 1994 and 2000. Ms. Hart has effectively implement that plan. A client authored and co-authored many articles on will want to examine the risks to domestic violence, including: State Codes must fail. Without expert elucidation, independence and well-being that flow on Domestic Violence: Analysis, misunderstandings of domestic violence from the lack of economic wherewithal, Commentary and Recommendations; may lead judges and jurors to ask, “Why e.g., risks to essentials such as housing, Model Code on Domestic and Family didn’t she leave?”—perhaps attributing food, child care, healthcare, employment, Violence; Safety and Accountability: the duration of the relationship to and education for the children. In The Underpinnings of a Just Justice psychopathology or even notions of assessing whether a particular course of System; Confronting Domestic masochistic tendencies. action is suitable, a battered woman must Violence: Effective Police Response; Counsel for defendants may translate consider how it will impact both batterer- Seeking Justice: Coordinated Justice lay misconceptions that violence ends generated and life-generated risks, in all System Intervention Against Domestic upon separation (or that battered women of their complexities.56 A “life-generated” Violence; Safety for Women: Monitoring are free to leave) into traditional tort risk is one that exists apart from the abuse, Batterers’ Programs; and Accountability: defenses, such as consent, assumption of but which plays a vital role in a battered Program Standards for Batterer the risk, and contributory or comparative woman’s decision-making. Life-generated Intervention Services. negligence.53 To rebut these defenses, risks may relate to a battered woman’s expert witnesses may aid in explaining economic status, health, or potential Erika A. Sussman, Esq., is senior attorney domestic abuse, as well as the individual, educational opportunities for herself or of the Legal Assistance Providers’ Technical institutional, societal, and economic her children. A client may opt for tort Outreach Project, a national program factors that kept the victim from leaving claims or litigation strategies that reflect of the Pennsylvania Coalition Against the abusive relationship.54 her safety assessment—steering clear of Domestic Violence that provides legal

8 Victim Advocate • Spring 2004 technical assistance to civil attorneys and L. J. 2525 (1994) (advocating a reshaping of the discourse of fault in panies. Almost every state (with the exception of Georgia and marriage to provide affirmative protections for women). But see Burt Louisiana) has recognized that spousal violence, rather than lawsuits, advocates representing domestic violence, v. Burt, 386 N.W.2d 797, 800 (Minn. Ct. App. 1986) (stating that disrupt familial harmony, by partially or fully abrogating spousal “[t]he statutory prohibition against considering marital misconduct immunity. See Fredrica L. Lehrman, Suing: Domestic Violence Cases in sexual assault, and stalking survivors. She does not foreclose a judge from considering the financial needs Civil Court, in VIOLENCE AGAINST WOMEN, 42-6 (Joan Zorza resulting from a chronic health problem that in turn was caused by ed., 2002). is also an adjunct professor at Cornell Law physical abuse during the marriage.”). 41. Fredrica L. Lehrman, Torts, in THE IMPACT OF DOMESTIC School, where she teaches a seminar on 15. See Catherine Mazzeo, Note, Rodriguez v. Rodriguez: Fault as a VIOLENCE ON YOUR LEGAL PRACTICE, THE AMERICAN Determinative Factor in Alimony Awards in Nevada and other BAR ASSOCIATION COMMISSION ON DOMESTIC VIO- Law and Violence Against Women. She was Community Property Jurisdictions, 2 NEV. L. J. 177, 184-185 (2002) LENCE 6-9 to 6-13 (Deborah L. Goelman et al., eds., 1996); FRED- (listing Arizona, California, New Mexico, and Washington as com- ERICA LEHRMAN, DOMESTIC VIOLENCE PRACTICE & PRO- previously a staff attorney and Women’s Law munity property states with no-fault alimony). CEDURE, at Sections 2:0 – 2:126 (1996). and Public Policy Fellow at Georgetown 16. See Peter Nash Swisher, The ALI Principles: A Farewell to Fault, 8 42. See Fredrica L. Lehrman, Torts, in THE IMPACT OF DOMES- DUKE J. GENDER L. & POL’Y 213, 227 (2001) (concluding that TIC VIOLENCE ON YOUR LEGAL PRACTICE, THE AMERI- University Law Center’s Domestic Violence “the current judicial trend in many states . . . [is] to severely limit the CAN BAR ASSOCIATION COMMISSION ON DOMESTIC VIO- . . . effect of fault-based statutory divorce factors except in serious or LENCE 6-9 to 6-13 (Deborah L. Goelman et al., eds., 1996). Clinic, where she provided direct representa- egregious circumstances”). 43. See St. Paul Fire & Marine Insurance Co., v. Seagate Technology, Inc., 17. See LENORE WEITZMAN, THE DIVORCE REVOLU- 570 N.W.2d 503 (Minn. Ct. App. 1997) (holding employer liable for tion and supervised law students represent- TION: THE UNEXPECTED SOCIAL AND ECONOMIC CON- workplace assault, but denying insurance company liability). For a ing survivors of domestic violence. She was SEQUENCES FOR WOMEN AND CHILDREN IN AMERICA, recent, but unsuccessful, example of a tort lawsuit brought by a domes- 339 (1985); see generally Herma Hill Kay, Equality and Difference: tic violence victim against her employer who was shot by her husband formerly a litigation associate at Swidler A Perspective on No-Fault Divorce and Its Aftermath, 56 U. CIN. L. while she was in the break room, see Midgette v. Wal-Mart Stores, Inc., REV. 1 (1987). 2004 U.S. Dist. LEXIS 359 (E.D. Pa. 2004). Survivors may file a suit Berlin Sherreff Friedman, LLP, where she 18. Weitzman, supra n. 17, at xiv. against their employer for wrongful termination. See Apessos v. Mem’l provided pro bono representation to domestic 19. Catherine F. Klein & Leslye E. Orloff, Providing Legal Protection Press Group, 15 Mass. L. Rep. 322 (Mass. Super. Ct. 2002) (employee’s for Battered Women: An Analysis of State Statutes and Caselaw, 21 claim that she was fired after going to court to obtain an extension of violence survivors and co-counseled a race HOFSTRA L. REV. 801, 912-914, 937-940 (1993) (canvassing her temporary abuse prevention order stated a cause of action for state protection order “catch-all,” property-related, and monetary wrongful discharge and for breach of implied covenant of good faith profiling class action suit. She has published provisions); see also Powell v. Powell, 547 A.2d 973 (D.C. 1988) and fair dealing). (ordering respondent to pay monetary relief including child support 44. See generally, Kline v. 1500 Massachusetts Ave. Apt. Corp., 439 F.2d several articles and served as faculty for and mortgage payments under the District of Columbia’s domestic 477 (D.D.C. 1970). various academic and practitioner workshops violence statute’s catch-all provision although there was no explicit 45. See Kitchen v. K-Mart, 697 So. 2d 1200 (Fla. 1997) (holding authorization for the remedies in the statute). retailer liable for selling a gun to an intoxicated batterer, who then used related to violence against women. 20. United States v. Morrison, 529 U.S. 598 (2000). the gun to shoot his ex-girlfriend, rendering her a quadriplegic). 21. CAL. CIV. CODE § 52.4 (2004); ILL. COMP. STAT. 740, §§ 46. See Sorichetti v. City of New York, 482 N.E.2d 70 (1985) (entering a 82/1-82/15 (2004). $2,000,000 judgment in favor of a mother who brought a negligence 22. CALLIE MARIE RENNISON & SARAH WELCHANS, U.S. action against the police for refusing to prevent her husband from vio- DEPT. OF JUSTICE, INTIMATE PARTNER VIOLENCE 1 lently attacking their daughter with a fork, knife, and screwdriver and 1. LAWRENCE A. GREENFIELD, ET AL., U.S. DEPT. OF (2000). trying to saw off her leg because the mother’s protection order and the JUSTICE, VIOLENCE BY INTIMATES: ANALYSIS OF DATA 23. Id. police’s knowledge of the father’s violence created a special relation- ON CRIMES BY CURRENT OR FORMER SPOUSES, 24. Id. at 2. ship). Civil rights lawsuits against the police may present an additional BOYFRIENDS, AND GIRLFRIENDS 21 (1998). 25. Id. means to secure damages for victims of domestic violence. See Gonzales 2. TED R. MILLER ET AL., U.S. DEPT. OF JUSTICE, VICTIM 26. See generally Evan Stark, Re-Presenting Woman Battering: From v. City of Castle Rock, 307 F.3d 1258 (10th Cir. 2002) (reversing district COSTS AND CONSEQUENCES: A NEW LOOK (1996). to Coercive Control, 58 ALB. L. REV. court’s decision that plaintiff had failed to state a claim where a bat- 3. Id. 973 (1995). tered mother brought 42 U.S.C. § 1983 civil rights action against city 4. Barbara J. Hart, Legal Road to Freedom, in BATTERING AND 27. EDWARD GONDOLF, BATTERED WOMEN AS SUR- and police officers on behalf of her three daughters who were murdered FAMILY THERAPY: A FEMINIST PERSPECTIVE 18 (Marsali VIVORS: AN ALTERNATIVE TO TREATING LEARNED by their father while she sought, but could not obtain, police enforce- Hansen et al. eds., 1993). HELPLESSNESS (1988). ment of her retraining order); see also Estate of Macias v. Ihde, 219 F.3d 5. Id. 28. See Patricia Mahoney et al., Violence Against Women by Intimate 1019 (9th Cir. 2000) ($15 million civil rights lawsuit alleging that the 6. Edward Gondolf, BATTERED WOMEN AS SURVIVORS: AN Relationship Partners, in SOURCEBOOK ON VIOLENCE sheriff’s department discriminated against Latina victim of domestic ALTERNATIVE TO TREATING LEARNED HELPLESSNESS AGAINST WOMEN 143 (Claire M. Renzetti et al. eds. 2001). violence whose repeated attempts to secure help from the sheriff’s (1988). 29. Id. department were ignored, resulting in her death). 7. Angela Browne, et al., The Impact of Recent Partner Violence on 30. P.H. Smith & J. Smith, The Measurement Trap: Conceptualizing 47. See Remsburg v. Docusearch, Inc., 816 A.2d 1001 (N.H. 2003) Poor Women’s Capacity to Maintain Work, in VIOLENCE AGAINST Woman Battering. Paper presented at the National Council for (holding that a private investigator or information broker has a duty to WOMEN, Vol 5, No. 4. (Joan Zorza ed., 1999). International Health Annual Conference, Durham, New Hampshire a stalking victim’s estate for selling the victim’s credit information to a 8. Edward Gondolf, Male Batterers, in FAMILY VIOLENCE: PRE- (June 1995). stalker who used the information to find the victim’s location, went to VENTION AND TREATMENT (R. Hampton ed., 1993). 31. Barbara J. Hart, Rule Making and Enforcement/Rule Compliance the location, and killed the victim). 9. Barbara J. Hart, Policy Issues: Tort Recovery (2000) (unpublished and Resistance, in I AM NOT YOUR VICTIM: ANATOMY OF 48. Batterers often allude to prior incidents of violence to further manuscript on file with the Pennsylvania Coalition Against Domestic DOMESTIC VIOLENCE 258-63 (Beth Sipe et al. eds., 1996). intimidate and control their partners on subsequent occasions. Violence). 32. The term “domestic terrorism” analogizes domestic violence 49. FREDRICA LEHRMAN, DOMESTIC VIOLENCE PRACTICE 10. MS. FOUNDATION, SAFETY & JUSTICE FOR ALL: to the strategies used against prisoners of war. “Terrorism relies on & PROCEDURE, § 2:81 (West) (1996). SAFETY PROGRAM: EXAMINING THE RELATIONSHIP well-developed tactics of intimidation and coercion, buttressed by 50. Clare Dalton, Domestic Violence, Domestic Torts and Divorce: BETWEEN THE WOMEN’S ANTI-VIOLENCE MOVEMENT physical violence. Whether it is used to defend privileges or to Constraints and Possibilities, 31 NEW ENG. L. REV. 319, 357 (1997). AND THE CRIMINAL LEGAL SYSTEM (2003). threaten and challenge them, the underlying premise is the destabi- Notes, abusive acts that 11. Barbara J. Hart, Policy Issues: Crime Victim Compensation lization of a civilian population.” Isabel Marcus, Reframing “Domestic are separate and wholly dissimilar create separate causes of action (2000) (unpublished manuscript on file with the Pennsylvania Violence”: Terrorism in the Home, in THE PUBLIC NATURE OF and the statute of limitations begins to run for each action from the Coalition Against Domestic Violence). PRIVATE VIOLENCE (Martha Fineman et al. eds., 1994). time of the wrongful act. It is, therefore, important for the practi- 12. A tort attorney representing a victim of spousal abuse will need 33. See ELIZABETH M. SCHNEIDER, BATTERED WOMEN tioner to distinguish between separate acts of assault, defamation, or to coordinate his or her tort litigation strategy with that of the AND FEMINIST LAWMAKING 21-28 (Yale University Press) battery, and a continuing course of wrongful conduct, often found divorce case. Most states allow separate actions for divorce and (2000); See also SUSAN SCHECHTER, WOMEN AND MALE in actions for intentional infliction of emotional distress actions. personal injuries. However, some states require that divorce and tort VIOLENCE: THE VISIONS AND STRUGGLES OF THE actions be joined, based on the fact that the claims are between the BATTERED WOMEN’S MOVEMENT 26-27 (South End LEHRMAN, note 48(citations omitted). same parties and involve the same transaction. (LEHRMAN, infra n. Press) (1982). 51. See e.g., Curtis v. Firth, 850 P.2d 749 (Idaho Ct. App. 1993) aff’d 41, at § 2:93.) Still other states forbid joinder of tort and divorce 34. RONET BACHMAN & LINDA E. SALTZMAN, U.S. 869 P.2d 229 (Idaho 1994) (adopting the theory of continuing tort in a claims, due to the distinctive goals of the two actions. See, e.g., DEPT. OF JUSTICE, VIOLENCE AGAINST WOMEN: domestic violence tort suit for intentional and/or reckless infliction of Heacock v. Heacock, 520 N.E.2d 151 (1988) (barring joinder). ESTIMATES FROM THE REDESIGNED NATIONAL CRIME emotional distress, thereby permitting a $1,000,000 jury verdict of In states where separate actions are permissible, defendants may VICTIMIZATION SURVEY (1995). which $725,000 was a punitive damage award, to stand). assert res judicata, equitable estoppel, or waiver to bar tort actions 35. TERRY ARENDELL, FATHERS AND DIVORCE (1995). 52. Dalton, supra note 49 at 363. following a divorce. (LEHRMAN, infra n. 41, §§ 2.81-2.92.) 36. Martha Mahoney, Legal Images of Battered Women: Redefining the 53. Fredrica L. Lehrman, Suing: Domestic Violence Cases in Civil Court, Thus, a domestic tort attorney needs to become familiar with the Issue of Separation, 90 MICH. L. REV. 1, 5 (1991). in VIOLENCE AGAINST WOMEN, 42-47 (Joan Zorza ed., 2002). tort/divorce law interface in the state(s) in which the actions are 37. JODY RAPHAEL & RICHARD M. TOLMAN, TAYLOR 54. While doing so, the expert testimony will bolster the need for eco- pending or will be initiated. Where the actions are separate and INSTITUTE, TRAPPED BY POVERTY, TRAPPED BY ABUSE: nomic damages as a mechanism for future violence prevention. the client has different counsel for each, the tort attorney and NEW EVIDENCE DOCUMENTING THE RELATIONSHIP 55. Desmond Ellis and Walter DeKeseredy have shown that “post-sepa- divorce attorney should consult with one another to craft a BETWEEN DOMESTIC VIOLENCE AND WELFARE (1997). ration woman abuse” correlates with women’s assertion of indepen- coordinated strategy. 38. CATHERINE T. KENNEY & KAREN R. BROWN, NOW dence. See Desmond Ellis & Walter S. DeKeseredy, Marital Status and 13. Although all states have accepted some form of no-fault divorce, LEGAL DEFENSE AND EDUCATION FUND, REPORT Woman Abuse: the DAD Model, 19 INT’L J. OF SOCIOLOGY OF fault may play some role in the process, either through property FROM THE FRONT LINES: THE IMPACT OF VIOLENCE THE FAMILY 67-87 (1989). In Ptacek’s study, eighty percent of division or alimony. See HARRY D. KRAUSE, ET AL., FAMILY ON POOR WOMEN (1996). women interviewed indicated that their former partners made threats or LAW: CASES, COMMENTS, AND QUESTIONS 557 (5th ed. 39. See generally THE NATIONAL CONSUMER LAW CENTER, attempts at physically forcing them to return to the relationship. See 2003); see also Ira Mark Ellman, The Place of Fault in a Modern GUIDE TO CONSUMER RIGHTS FOR DOMESTIC JAMES PTACEK, BATTERED WOMEN IN THE COURTROOM: Divorce Law, 28 ARIZ. ST. L. J. 773, 781 (1996) (providing a VIOLENCE SURVIVORS (Chi Chi Wu and Deanne Loonin THE POWER OF JUDICIAL RESPONSES 80-81 (Claire Renzetti, table of existing law on marital fault). eds.)(2003). ed., Northeastern University Press) (1999). 14. See Katherine Bartlett, Feminism and Family Law, 33 FAM. L. 40. This was not always the case. Historically, the “interspousal 56. See JILL DAVIES, NATIONAL RESOURCE CENTER ON Q. 475 (1999); see generally Barbara Bennett Woodhouse, Sex, , immunity” doctrine precluded spouses from suing one another for DOMESTIC VIOLENCE, BUILDING OPPORTUNITIES FOR and Dissipation: The Discourse of Fault in a No-Fault Era, 82 GEO. any type of misconduct in order to serve the policies of marital har- BATTERED WOMEN’S SAFETY AND SELF SUFFICIENCY mony and avoid spousal fraud and collusion against insurance com- (1998).

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