Hastings International and Comparative Law Review Volume 32 Article 4 Number 1 Winter 2009 1-1-2009 Changing the Current Policy towards Spousal Abuse: A Proposal for a New Model Inspired by Jewish Law Yuval Sinai Benjamin Shmueli Follow this and additional works at: https://repository.uchastings.edu/ hastings_international_comparative_law_review Part of the Comparative and Foreign Law Commons, and the International Law Commons Recommended Citation Yuval Sinai and Benjamin Shmueli, Changing the Current Policy towards Spousal Abuse: A Proposal for a New Model Inspired by Jewish Law, 32 Hastings Int'l & Comp. L. Rev. 155 (2009). Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol32/iss1/4 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings International and Comparative Law Review by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Changing the Current Policy Towards Spousal Abuse: A Proposal for a New Model Inspired By Jewish Law ByYUVAL SINAI* & BENJAMIN SHMUELI I. Foreword II. Spousal Abuse in Common Law: USA and Israel A. SpousalAbuse in Common Tort Law 1. Spousal Abuse Tort Claims in TraditionalCommon Law 2. Spousal Abuse Tort Claims in American Law 3. Spousal Abuse Tort Claims in IsraeliLaw 4.Conclusion and Critique B. Spousal A buse in Common CriminalLa w 1. Spousal Abuse Criminal Law Claims in American Law 2. Spousal Abuse CriminalLaw Claims in IsraeliLaw 3. Conclusion and Critique C Common FamilyLa w.Protective Orders 1. Protective Ordersin American Law 2. Protective Orders in IsraeliLaw 3. Conclusionand Critique III. Spousal Abuse in Jewish Law A. GeneralIntroduction Ph.D. 2003, Bar-Ilan University; L.L.B 1999, Bar-Ilan University; Visiting Professor, McGill University, Canada, 2007/8; Senior lecturer of Civil Procedure and Jewish Law and Director of the Center for Applications of Jewish Law (ISMA), Law School, Netanya Academic College, Israel; Adjunct Professor at the Law Faculty in Bar-Ilan University, Israel. " Ph.D. 2005, LL.M. 1999, L.L.B. 1998, Bar Ilan University; Visiting Professor, Duke University School of Law, 2006/7-2007/8; Senior Lecturer and Director of the Center for the Rights of the Child and the Family, Sha'arei Mishpat Law College; Adjunct Professor at the Law Faculty in Tel Aviv University and Bar-Ilan University, Israel. We are grateful for the assistance of the dedicated research assistant Daniel Amato. Hastings Int'l & Comp. L. Rev. [Vol. 32:1 B. Prohibition on Abusing a Spouse - Sources and Foundations 1. The Husband'sDuty to Honorhis Wife 2. The Scope of the Prohibitionof SpousalAbuse 3. Stringency againstHusband who A buses his Wife. C Spousal Abuse in Jewish Tort Law 1. Liabilityin Tort 2. Liability in Tort of a Husband who Abuses his Wife andPunitive Damages D. Spousal Abuse in Jewish Criminal Law and Societal Sanctions 1. PenalSanctions 2. Societal Sanctions . Spousal A buse in Jewish FamilyLaw 1. Separation of the Couple (RestrainingOrder) 2. Abuse as Grounds for Coercinga Get 3. The Preferabilityof Penal and Civil Sanctions over Coercion of a Get F Conclusion IV. The Proposed Model A. An Interim Summary and the Need for a New Model B. A Proposalfor a New Tort of SpousalA buse C A Proposalfor a New Criminal Offense of Spousal Abuse D. Family Law."The Need for a Change in Legislative and JudicialPolicy Towards Protective Orders in Cases of EmotionalAbuse V. Conclusion I. Foreword A woman is entitled to reasonable, tranquil living conditions, that will allow her to live her life and carry on her occupation, whether at home or outside, and to raise her children. It may be that emotional abuse is harsher than physical abuse, depending on the circumstances and the nature of the 'intrusion' into the life of the other. The guiding principles are these: 'she was given [to her husband] to live with, but not to suffer pain,' and 'no one can live with a serpent in the same basket' - the court must therefore 2009] Changing the Current Policy Towards Spousal Abuse consider each case, depending on the circumstances, and decide according to and in light of these principles. Abuse in general and of a spouse in particular, is a scourge that the legal system should uproot. When abuse takes place in the context of an ongoing, intimate relationship, it can embitter the victim's life. Sometimes this is as true for verbal violence and emotional abuse as it is for physical or sexual violence. It is often extremely difficult to detect or prove emotional abuse because, unlike physical abuse, it is invisible and leaves no perceptible marks. But "many words hurt more than swords," and verbally abusive behavior, particularly when ongoing, may be just as painful as physical or sexual assault, or even more so (and sometimes these behaviors occur together). However, the general community, much less the legal community, does not always comprehend that emotional abuse can be severe and should merit appropriate legal treatment and response. However, modern law does not address emotional abuse to the same extent and with the same level of determination with which it attempts (at least in theory) to deal with other types of violence, physical and sexual. Indeed, we will see that these too are not dealt with sufficiently by the modern law. In this paper, we will examine two models that relate differently to the issue of spousal abuse (physical, sexual, and emotional) - modern secular common law and religious Jewish law. The modern secular model will be represented by two legal systems - the American and the Israeli - two common law systems, which share certain characteristics and underlying bases.2 In analyzing those legal systems (in the following chapters I-IlI), the paper examines not only the gap between modem secular American law and religious Jewish law, but also that between the secular law of the modem democratic State of Israel and ancient Jewish law. The two models, secular common law and religious Jewish law, offer similar (although not identical) legal solutions to the problem in certain cases, but their overall approach to the issues are different. American and Israeli law attempt to addresses the various types of abuse, but the approaches taken are inconsistent and insufficient. The Jewish law model tackles the issue of abuse more comprehensively, but it needs to be adapted somewhat to serve as the 1. Justice Menachem Elon in CA 458/79 Nir v. Nir [1980] IsrSC 35(1) 520, 527. 2. Admittedly, American law is comprised of both federal and state law, while this distinction is lacking in Israeli law. Hastings Int'l & Comp. L. Rev. [Vol. 32:1 basis for a proposed model to improve the current situation in modern law. At the end of this essay (chapter IV) we will offer our own model, appropriate for American and Israeli law, which attempts to draw on the advantages of the existing models and improve upon them. Spousal abuse within the family is addressed in the legal framework in three main spheres: civil law, criminal law, and family law. Generally speaking, we may say that, to deal with the myriad forms of domestic violence, the three branches of the law have joined forces and have created various instruments in an attempt to eradicate this terrible phenomenon. Criminal law has contributed modes of punishment, civil law has provided methods of protecting battered family members (protective orders), and family-divorce law has recognized spousal abuse as grounds for divorce. Modern tort law does not include a specific tort of physical, sexual or emotional abuse, whether in the family framework or in general. However, this does not mean that a tort claim by one spouse against the other, as a result of such abuse, may not be entertained. In fact, tort law contributes, particularly when the damage done to the spouse (generally the wife) is non-pecuniary damage (e.g., pain and emotional suffering, fear, shame, social isolation, depression, and damage to self-esteem). While the situation is not encouraging in terms of tort claims for spousal abuse, this path is not completely blocked. In criminal law, however, the situation is even more problematic. The offense of physical, sexual, or emotional abuse against a spouse does not exist in many countries of the world, or even in many states in the United States.3 That being the case, such behavior could lead to the criminal courts only if it can be classed as one of the other offenses recognized under penal law. Whereas physical and sexual abuse had made their way into the existing penal framework, the same can not be said for emotional abuse. The position is similar in family law. Instances of physical violence always serve as a possible basis for protective orders against a spouse (usually in the form of restraining orders). Sexual violence serves as grounds for such orders only in certain American states4 (it does serve as grounds in Israel),' while emotional abuse serves as 3. See infra parts IIA 2 & 3. 4. See infra part IIC1. 5. See infrapart 11C2. 2009l Changing the Current Policy Towards Spousal Abuse grounds for such orders only in a small number of American states,6 and in some of these, the emotional abuse has to be deemed severe. In Israel, emotional abuse is included in current legislation, but the approach is not at the same level as that for physical and sexual abuse.7 All of the above paints a rather grim picture, in which modem law deals with the various forms of abuse only partially, and unsatisfactorily. Here, American law and Israeli law are quite similar.