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2016 Property Damage in the Domestic Context D. Kelly Weisberg UC Hastings College of the Law, [email protected]

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Recommended Citation D. Kelly Weisberg, Property Damage in the Domestic Violence Context, 22 Domestic Violence Rept. 17 (2016). Available at: https://repository.uchastings.edu/faculty_scholarship/1543

This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. OMESTIC IOLENCE EPORT™ DLAW Ć PREVENTION Ć PROTECTION V Ć ENFORCEMENT Ć TREATMENTR Ć HEALTH Vol. 22, No. 2 ISSN 1086-1270 Pages 17 – 32 December/January 2017

Property Financial Intimate Partner Damage in Violence: When Assets and Transactions Become Weapons the Domestic Jo Carrillo Violence By the time Gloria found out that as a weapon against the other partner. Context her husband Henry had forged her “Weaponized assets” can be tangible name to deeds and loan documents it or intangible. According to the law of by D. Kelly Weisberg was too late. The equity in the family property, if an intangible asset or debt home was gone. Worse yet, a dissolu- merges with paper, that paper can be Property damage is a common tion-related trip through the legal sys- sold or traded. To inspire confi dence form of intimate partner vio- tem confi rmed that Gloria was liable in markets the law protects good faith lence.1 Despite the prevalence of for her absconding ex-husband’s debt. buyers and creditors. Indeed third- this form of abuse, the literature Nowhere in the record does it sug- party protections are what obligated has largely ignored this topic. 2 gest that Gloria’s lawyer thought of her Gloria to a lifetime of repaying the One reason for the neglect is as the target of domestic violence. No same debts to her ex-husband’s credi- the assumption that other forms protective order was mentioned in the tors that he fraudulently contracted of aggression (such as physi- record even though Gloria’s case arose during marriage to harm her. cal abuse and sexual ) in a state with a comprehensive domes- It is helpful to conceptualize the are more serious and exact a tic violence prevention act. The law- issue of unjustly benefi ting from one’s greater toll on victims. Yet acts yer’s analysis seems to have gone only wrongdoing as follows: If a person of property destruction consti- this far: no gun, no physical violence, buys a gun with an intimate partner’s tute a form of power and control no assault, so no domestic abuse. credit card, then uses that gun to that infl icts deep, long-lasting This article addresses fi nancial inter- injure the other partner, should the emotional scars. This article will personal violence, which occurs when injured partner be liable to pay for explore the nature of this form an asset (like money) or a transaction the gun? of abuse and the legal remedies (like a loan, a sale, or a bank with- that address it. drawal) is used by an intimate partner See FINANCIAL IPV, next page The abuser’s motivation in damaging and destroying prop- erty is to “terrorize, threaten, and exert control over a victim of domestic violence.”3 Acts of prop- About This Issue . . . erty damage or destruction occur We are pleased to present this special issue devoted to Property Issues most frequently in the midst of in the Context of Domestic Violence. These issues include: property dam- violent episodes and also at the age and destruction as a form of abuse, the role of domestic violence in end of the relationship when a property division at divorce, the interrelationship between bankruptcy and victim threatens to (or does) leave domestic violence, and the tax implications of intimate partner violence. the abusive relationship. During violent episodes, property dam- D. Kelly Weisberg, Editor, Domestic Violence Report age enhances the physical abuse. The acts of damage are intended to instill fear and to convey a not-so-subtle message that the offender is capable of wreaking ALSO IN THIS ISSUE similar violence on the victim. At the end of the relationship, the Tax Relief for Domestic Violence Survivors ...... 19 A Brief Introduction to the Intersections Between Domestic See PROPERTY DAMAGE, page 28 Violence Law and Bankruptcy Law...... 21

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PROPERTY DAMAGE, from page 17 and threw numerous items into the may target property of their victims’ bay behind his house.6 new partners. When damaging such infl iction of property damage stems Abusers also target partners’ cars.7 property, abusers aim to frighten from the abuser’s desire for retalia- Frequently, abusers break car win- those persons who constitute the vic- tion. This conduct bears a calculated dows and dent car doors. 8 Or, abusers tim’s support system. In one famous and cruel quality. Property destruction may repeatedly ram their partner’s case, an ex-boyfriend-stalker defaced at this time serves as punishment for vehicle. 9 Property damage to the and vandalized the property of his ex- the victim’s departure. vehicle may be quite extensive. In the girlfriend’s mother by spray painting midst of one divorce proceeding, for his ex-girlfriend’s name and calling Types of Property Damage example, an estranged husband drove her “a whore” on her mother’s garage Property damage and destruction his wife’s 1990 red Corvette into the door. Then he traveled to another take different forms. They can affect river. 10 Vehicular damage carries spe- state where he set fi re to her new boy- real and . Homes cial meaning. Vehicles are often the friend’s house.17 and cars are frequent targets. Prop- most expensive property that a victim Sometimes, the abuser targets erty crimes in the home often accom- owns. Vehicles also serve as a method property that has unique personal pany other criminal acts of trespass of escape and a way for the victim to value to the victim. An abuser may and . access a support network. Without a destroy family heirlooms, photo- Especially common acts of prop- car, the victim may not be able to see graphs, Christmas ornaments, jewelry, erty damage in the home include: friends, go to work, or take children the partner’s clothing, and pets.18 punching holes in walls, kicking in to childcare or school. Abusers are aware of the importance that the victim attributes to these spe- cifi c items of property. The loss of Abusers target partners’ cars, often the most expensive these items has a profound impact on the victim. By damaging property property that a victim owns, and one that serves as a that has such personal value to the vic- tim, abusers know that the victim will method of escape, a way to access a support network, never be able to replace the items and will long mourn their loss. The abuser go to work, or take the children to childcare or school. intends that the victim will suffer. Acts of property damage thereby serve to confi rm the abuser’s power and the doors, breaking windows, smashing Abusers also damage specifi c victim’s powerlessness. Such acts carry furniture and television sets, pull- property that the partner needs for an implicit threat that negative conse- ing telephone cords out of walls, and employment. Abusers’ goal in damag- quences will arise for the victim in the throwing objects. In one incident, ing work-related property is to jeopar- event of future noncompliance with shortly after a wife fi led a petition dize the partner’s livelihood. In one the abuser’s demands. for dissolution, the estranged hus- case, an estranged husband infl icted band “entered her home and dam- serious damage on the property of Legal Remedies and Their aged a water bed, two television sets, his ex-wife who was a medical sales- Shortcomings video recorder, refrigerator, clock, person. He stole her computer, broke Various legal remedies are avail- and microwave. He punched holes in into her locked drug cabinet and took able to redress property abuse. Laws the walls and stained the carpet. He some of her medical supplies.11 that criminalize property damage or admitted he did it out of anger.” 4 In Abusers also resort to extreme acts destruction exist in every state. In the midst of a domestic dispute in of property destruction. They some- addition, malicious property damage another case, a defendant broke a times commit and burn items may evoke the issuance of civil protec- mirror, television, microwave, slashed of property or even homes of the vic- tion orders. the kitchen linoleum, killed the fam- tims.12 One husband admitted that he Domestic violence-related property ily cockatiel, destroyed the cockatiel’s burned his ex-wife’s home to prevent crimes are most commonly called cage, pushed the garage door off its her from living there with another “criminal mischief” or “malicious mis- rollers, smashed the door leading man.13 Some abusers burn the vic- chief.” Other labels for these crimes from the garage into the house and tim’s vehicle.14 Firebombing is another exist as well: unlawful mischief; crimi- broke the door frame and lock.5 weapon of abusers. One former boy- nal damage; ; malicious Abusers often target property at friend was convicted of fi rebombing injury to property; malicious destruc- the home’s exterior because of its when he threw a Molotov cocktail into tion; willful and wanton injury to prop- easy accessibility. In one destructive his ex-girlfriend’s home after he discov- erty; malicious injury or destruction rampage, an estranged wife fl ew to ered she was there with another man. 15 of property; damage to property; and the home of her ex-boyfriend and Abusers also damage property property destruction and defacement. his new intimate partner in another belonging to friends and family mem- Criminal mischief laws can be state, removed items from outside his bers of the victim. In one incident, either or . The house, sprayed herbicide in his gar- an abuser broke the windows of his den, ripped out plants, killed his fi sh, mother-in-law’s vehicle.16 Abusers See PROPERTY DAMAGE, next page

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PROPERTY DAMAGE, from page 28 agencies prepare and fi le domestic generally must rely on the victim’s state- violence incident reports. ment because there are generally no In Colorado, domestic violence witnesses. By the time of trial, the victim specifi c characterization depends on functions as a sentence enhancer that frequently has recanted. the jurisdiction, the value of the prop- can be attached to nearly any other In contrast, a criminal mischief claim erty destroyed, and the mental state crime, including malicious mischief. “presents tangible details of destroyed of the actor. 19 The common elements The crime must be committed against property for police to witness, voucher, of these laws include: (1) the destruc- a person with whom the perpetrator and preserve.”26 of broken tion of property (2) belonging to is (or was) involved in an intimate furniture, ripped phone lines, “does another (3) of a particular minimum relationship. Property crimes carry not become unavailable because of value and (4) some culpable mental domestic violence enhancers if pros- threats of retaliation.”27 Moreover, bat- state. In terms of mental states, some ecutors prove that the suspect com- terers are more willing to admit that statutes require that the damage to mitted the crime for one of several they have intentionally damaged prop- property be done “recklessly.” Other designed purposes—“as a method erty than that they have struck their statutes require that it be done “inten- of , control, punishment, partner.28 Such admissions constitute tionally.” Some require a combination , or revenge” against the important evidence at trial. of mental states (“willfully and mali- ciously”). In some states, if the dam- age to property is reckless, the crime is a , whereas if the dam- In the past two decades there has been a trend to age is intentional, then the crime can tailor malicious mischief laws to the domestic violence be a either misdemeanor or depending on the value. context, with longer jail sentences and larger fines, A trend that is evident in the past two decades is to tailor malicious mis- depending on the value of the property. chief laws to the domestic violence context. Thus, for example, Washing- ton State has two criminal mischief partner or former partner. Convicted Property damage and destruc- crimes. The crime of “malicious mis- defendants have to complete domes- tion have a signifi cant impact on vic- chief” is defi ned as “knowingly and tic violence treatment and are subject tims who suffer emotionally as well maliciously causing physical damage to enhanced penalties.23 as fi nancially. It is important for the to the property of another person.” 20 Many state malicious mischief laws law to recognize this form of abuse in The seriousness depends on the value require that the defendant damage order to address the complexity of vic- of the property. However, if the perpe- the property of “another.” Tradition- tims’ experiences of intimate partner trator has a current or past domestic ally, abusers could not be criminally violence. relationship with the property owner, liable for property damage to jointly- then charges of “malicious mischief- owned property (such as marital prop- End Notes domestic violence” may be fi led. erty, community property, or joint The domestic violence enhancement tenancy property) because they had 1. See Klein, Catherine F. & Orloff, Leslye E. Providing Legal Protection for Battered Women: results in longer jail sentences and a possessory interest in such property. An Analysis of State Statutes and Case Law , 21 larger fi nes depending on the value However, cases from appellate courts 21 Hofstra L. Rev. 801, 873 n.438 (1993) (cit- of the property. Malicious mischief- in several states hold that a defendant ing research reporting that “[a]pproximately domestic violence in the fi rst and can still be criminally liable even if he 80% of batterers engage in violent behavior second degrees constitute felonies. destroys property that he co-owns with towards other targets, such as harming pets In addition, the domestic violence the victim.24 “The clear trend and bet- and destroying objects”). designation can result in criminal no- ter view is to criminalize the destruc- 2. For rare articles in the legal literature, see contact orders and the loss of the per- tion of jointly owned property.”25 Leventhal, John M., Spousal Rights or Spou- petrator’s gun rights. sal Crimes: Where and When Are the Lines to be In New York, the state legislature Conclusion Drawn? 2006 Utah L. Rev. 351 (2006); Lutz, enacted legislation in 2007 to crimi- States increasingly are recogniz- Victoria L. & Bonomolo, Cara M. My Husband nalize malicious mischief as a crime ing property damage as a form of Just Trashed Our Home; What Do You Mean That’s of domestic violence (as a “family intimate partner violence. Given the Not a Crime? 48 S.C.L. Rev. 641 (1997). In the offense”).22 The offense there is called prevalence of this form of abuse, pros- social science literature, property damage is “criminal mischief.” Crimes of crimi- ecutors should make greater use of generally mentioned only briefl y as a form of psychological abuse. See, e.g., O’Leary, Daniel nal mischief are subject to concur- criminal mischief laws. The applica- K., Psychological Abuse: A Variable Deserv- rent jurisdiction in the family law and tion of criminal mischief laws has a sig- ing Critical Attention in Domestic Violence, criminal procedure codes, more com- nifi cant advantage over the use of laws 14 Violence & Victims 3, 13 (1999). prehensive criminal court orders of punishing injury to the person. Crimi- 3. Klein & Orloff, supra note 1, at 873. protection, mandatory arrest protec- nal mischief statutes lessen problems tions and primary aggressor determi- of proof. To charge domestic violence nations, and requirements that police crimes against the person, prosecutors See PROPERTY DAMAGE, next page

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PROPERTY DAMAGE, from page 29 DePalma v. Bates County Mutual Insurance Com- may be labeled as a domestic violence- relat- pany , 24 S.W.3d 766 (Mo. Ct. App. 2000)). ed case if it is committed by a family or house- 13. State v. Goodman , 30 P.3d 516, 519 (Wash. hold member against another or between 4. State v. Zein , 505 N.W.2d 498, 498 (Iowa 1993). Ct. App. 2001). people in a dating relationship. See Wash. 5. State v. Coria , 48 P.3d 980, 981 (Wash. 2002). Rev. Code Ann. § 10.99.020 for a defi nition 14. People v. Brown , No. C039684, 2003 WL of “family or household member” and Wash. 6. In re Marriage of Cauley , 41 Cal. Rptr. 3d 902 788058 at 1* (Cal. Ct. App. 2003). (Ct. App. 2006). Rev. Code Ann. § 26.50.010 for a defi nition of 15. U.S. v. Barnette , 644 F.3d 192, 197 (4th Cir. “dating relationship.” 7. See, e.g., State v. Powels , 73 P.3d 256, 257 2011). (N.M. Ct. App. 2003). 22. N.Y. Penal Law § 145. Family offenses are 16. See, e.g., McComas v. Kim , 105 P.3d 1130, found in Family Court Act Article 8, § 812. 8. State v. Adams , 89 So.3d 435, 438 (La. Ct. 1131 (Alaska 2005). App. 2012). 23. Colo Rev. Stat. § 18-6-800.3(1). 17. Remington, Kaylee, Woman Speaks about 24. Leventhal, supra note 2, at 362; Lutz & 9. Otte v. State , 967 N.E.2d 540 (Ind. 2012); Sister’s Stalker, Killing to Lorain Community Bonomolo, supra note 2, at 651. State v. Mersinger , 122 Wash. App. 1013, 1013 Leaders, Morning J., Jan. 17, 2015, Available (Wash. Ct. App. 2004). at http://www.morningjournal.com/article/MJ/ 25. Leventhal, supra note 2, at 367. Case law 10. Stamm, Dan & Chang, David, Owner 20150117/NEWS/150119682. has held that a defendant can be criminally liable for intentionally damaging his marital of Dunked Corvette Says Husband Warned 18. See, e.g., State v. Day , 149 Wash. App. 1037, residence even if the title is in his name. See, Her He Would Put Car in River, NBC Phila- 1039 (Wash. Ct. App. 2009). See also Klein & e.g., People v. Carter , 43 Misc. 3d 494 (N.Y. Just. delphia News, Nov. 12, 2014, http://www.nb- Orloff, supra note 1, at 873 n. 478 (citing re- Ct., Westchester Cnty. 2014). cphiladelphia.com/news/local/Wifes-Red-Corvette- search reporting that 59% of batterers dam- Delaware-River-282306891.htm. age sentimental and personal property). 26. Lutz & Bonomolo, supra note 2, at 655. 11. Feltmeier v. Feltmeier , 798 N.E.2d 75 (Ill. 2003) 19. Lutz & Bonomolo, supra note 1, at 644. 27. Id. 12. State v. Pockert , 768 P.2d 504, 505-506 20. The seriousness depends on the value of 28. Id. (Wash. 1989). See also Ronald S. Ribaud, the property. See, e.g., Wash. Rev. Code Ann. Note: Burning Down the House: Does Limit- §§ 9A.48.070 (more than $5,000), § 9A.48.080 D. Kelly Weisberg is Professor of Law, Hastings Col- ing the Innocent Spouse’s Right to Recover Make (more than $750), § 9A.48.090 (under $750). lege of the Law, and Editor of Domestic Violence Sense? 67 Mo. L. Rev. 77 (2002) (discussing In Washington State, any criminal charge Report . Q

TAX RELIEF, from page 27 economic hardship does not weigh community property states, overpay- against relief. ments of tax and refunds are consid- IRS and the courts determine ered joint property. Tax refunds may be whether the taxpayer is eligible for Injured Spouse Relief applied to the past due obligations of relief based on the facts and circum- Finally, joint and several liability either spouse. In community property stances of the case. 43 The kinds of fac- poses one more threat. Congress has states the process and rules for allocat- tors considered include marital status, authorized the IRS to withhold a taxpay- ing refunds for to the obligations of knowledge or reason to know of the er’s tax refund and use it to pay certain each spouse vary from state to state.48 defi ciency or that the taxes would not outstanding obligations of the taxpayer be paid, benefi ts to the parties from or her spouse or former spouse.44 The Where to Find Help understatement or underpayment, refund may be used to offset a variety There are a number of services legal obligation of the taxpayer to of outstanding debts, including child available to help domestic violence pay the tax liability, signifi cant benefi t support, alimony, student loans, over- survivors with these tax issues. Low from the unpaid liability or under- payments of state unemployment com- Income Taxpayer Clinics represent statement, general compliance with pensation, and state and federal tax qualifying taxpayers when the IRS has income tax laws, mental and physi- defi ciencies from prior years. When indicated that there is a defi ciency cal health, economic hardship, and a couple fi les a joint tax return, each (more taxes are owed than indicated the presence of abuse. No one factor spouse has a separate interest in the on the tax return) or if the taxpayer or a majority of factors controls the jointly reported income and in the has failed to pay any portion of the determination of whether a taxpayer refund they would receive from any taxes that she owes to the govern- is entitled to relief. However, the IRS overpayment.45 A taxpayer may seek to ment.49 In addition, the Taxpayer gives greater weight and deference to protect her refund from being used to Advocate Service is an independent the presence of abuse because it is rel- offset her husband’s debts by claiming organization within the IRS that acts evant to the analysis of other factors “injured spouse relief.” This requires on behalf of taxpayers in each state. 50 and can negate some of the factors. the IRS and the courts to determine They may intervene when the tax For example, questions of knowledge what portion of a tax overpayment and assessment, administration or dispute and whether the taxpayer enjoyed sig- refund must be refunded to the tax- processes are unfair and when taxpay- nifi cant benefi ts are modifi ed and dis- payer and what portion may be used to ers are facing unreasonable delays and counted by the presence of domestic offset for the liable spouse’s debt.46 To economic harm.51 A number of ser- violence. Minimum standards based claim injured spouse relief, a taxpayer vices can help domestic violence sur- on income, expenses, and assets are should fi le Form 8379.47 The taxpayer vivors with these tax issues, including set forth to determine economic may also seek a refund for taxes with- hardship. However, a fi nding of no held in prior years. For taxpayers in See TAX RELIEF, next page

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