Domestic Violence, Domestic Torts and Divorce: Constraints and Possibilities^*

Clare Dalton^**

  Introduction

Reading from the latest editions of most torts casebooks would lead you to believe that interspousal immunity is now a dead letter, leaving spouses free to sue one another in tort almost as if they were strangers.⁽¹⁾ It would be a mistake to assume, however, that this makes a tort suit by an abused spouse against an abuser a straightforward affair. Far from it. This Article explores the remaining formidable obstacles to such suits, and what might be done to overcome or dismantle those obstacles, at the level of daily practice or through further legal reform.

A significant problem confronting any plaintiff who is considering a tort claim arising out of domestic violence is her batterer, and the potential danger involved in challenging his abusive behavior.⁽²⁾ My suggestions strive to be consistently attentive to this reality, but proceed from the premise that further problems inhere first in the tort system itself, and then in the juncture between tort law and the law of divorce, as that interface is currently managed by the legal system.⁽³⁾ They also proceed from the premise that there is a world of difference between simply removing the overt discrimination against such plaintiffs embodied in the interspousal tort immunity, and making the tort system genuinely hospitable to them. Achieving this latter goal involves significant redesign of a system not developed with such claims in mind. It involves committing the system to assist plaintiffs who have been victims of a partner's violence as they pursue a somewhat particularized set of goals within the particular limitations imposed by their situations.⁽⁴⁾ And to the extent that it involves compromising other goals or values usually promoted or accommodated by the system, it necessitates some hard choices.⁽⁵⁾ Finally, the suggestions are directed as much toward practitioners as they are toward judges or legislatures. This is an area in which the legal profession can no longer expect to escape responsibility for failing to identify victims of domestic abuse, but rather must exploit existing opportunities for redress, and push for the creation of new ones.⁽⁶⁾

The structure of this Article is as follows. I look first at the tort system; exploring the treatment of domestic violence claims historically,⁽⁷⁾ the ways in which abuse-related injuries fit or do not fit into traditional tort categories,⁽⁸⁾ and issues of process that make it difficult for victims of domestic violence to pursue traditional claims.⁽⁹⁾ I also suggest some substantive and procedural "fixes" for these difficulties.⁽¹⁰⁾ Part III addresses the ways in which it is likely that a tort claim by a victim of domestic abuse will be both triggered by, and complicated by, a concurrent, or recently concluded, divorce proceeding.⁽¹¹⁾ In Part III I suggest ways in which the relationship between these two proceedings can be conceptualized, from a theoretical point of view, and managed, from a practical point of view, in a way that properly protects the interests of the abused partner, without injustice to her abuser.⁽¹²⁾

  The Tort Context

A.  Domestic Torts in Historical Perspective

From the perspective of many modern commentators, interspousal tort immunity has long seemed an anachronism. This has perhaps obscured from modern audiences just how durable the immunity has proved to be in many states, and how very recent its demise. Georgia and Louisiana are still hanging on stubbornly to their immunities.⁽¹³⁾ Florida's Supreme Court capitulated, finally, to the demand for its total abolition only in 1993.⁽¹⁴⁾ In the same year Delaware abolished the immunity for negligence cases, with the implication that cases involving intentional torts would be treated similarly,⁽¹⁵⁾ and Hawaii passed legislation generally abolishing the immunity.⁽¹⁶⁾ Missouri made the move only in 1986, in a case discussed in more detail below.⁽¹⁷⁾ Other states could be added to this list of late and reluctant abolitionists,⁽¹⁸⁾ while still others, like Massachusetts, have taken confusingly piecemeal steps toward reform, with the first steps coming early, but the last coming late.⁽¹⁹⁾ When you add to this the crucial fact that not many domestic tort suits are brought,⁽²⁰⁾ for some obvious and some not-so-obvious reasons, it becomes apparent that there has been relatively little opportunity for state courts to "develop" their domestic tort law to fit current understandings and needs, or to tinker creatively with the fit between domestic tort litigation and divorce proceedings, even if inclined to do so.

It is also important to reflect on the ideologies that have supported interspousal immunity at different times, and those that have provided the arguments for its demise. Back in the nineteenth century the immunity was understood to flow from the even earlier idea that a woman was merged with her husband in marriage, so that as an indivisible marital unit, neither partner could sue the other on any cause of action, tortious or otherwise.⁽²¹⁾ The husband, of course, was the legal representative of this marital unit, and the only partner endowed with legal capacity to pursue its goals or protect its interests in court.⁽²²⁾ This highly legalized explanation served to distance the legal profession from another enduring ideology--that as the head of the household, the husband, father and master was in fact privileged to discipline those under his sovereignty, whether wife, children or servants, which privilege extended to the use of reasonable physical "chastisement."⁽²³⁾

By the end of the nineteenth century, however, the Married Women's Property Acts and Earnings Acts, supported by an energetic women's movement, had made significant inroads on the "marital unity" ideology, endowing women with legal personality and capacity, and thereby recognizing their individuality.⁽²⁴⁾ It would have been a conceptually easy matter at this point to allow spouses to sue one another in tort, as well as in contract, or with respect to property rights. And yet most states resisted that interpretation of their new laws. Missouri provides a magnificent example of this reluctance, detailed by the State's Supreme Court in Townsend v. Townsend, the 1986 case that finally recognized the right of one spouse to sue another for intentionally inflicted injury.⁽²⁵⁾ In a lower court Mrs. Townsend was able to recover for the damage to her clothing when her husband aimed a shotgun at her back and fired, but not for the damage to her person--under the prevailing rules that allowed her the property claim, but not the personal injury claim.⁽²⁶⁾

While it was possible to hang on to interspousal tort immunity simply through obdurately restrictive interpretations of Married Women's Property Acts or related legislation, reformulated policy arguments were usually brought in to provide a second line of defense. The two most crucial arguments, often used in tandem, were the "domestic harmony" argument and the "privacy" argument. Domestic harmony, the argument goes, requires that a state committed to the institution of marriage--as all states are--should encourage the maintenance of marital relationships, and not provide discontented partners with opportunities for blowing their domestic grievances out of all proportion, exacting revenge for minor slights and injuries, rather than kissing and making up.⁽²⁷⁾ Family life, the privacy argument goes, is an essential feature of society, but at the same time fragile, requiring protection from the incursions of the state. To some extent, both arguments propose, we are better off tolerating abuses within that private sphere than we would be trying to micromanage family relationships.⁽²⁸⁾

Both domestic harmony and privacy arguments have proved vulnerable, over time, to the feminist critique that they privilege men over women in relationships in which privacy can too easily become a license for abuse, and in which the illusion of "harmony" is too frequently maintained by male dominance and female subservience.⁽²⁹⁾ In the often extreme cases in which state Supreme Courts have done away with interspousal tort immunity, it would have been preposterous to argue that there was any "harmony" left to preserve, and recognizing the "privacy" argument would have made a mockery of the state's power to protect its citizens against private predation.⁽³⁰⁾ Nonetheless, these arguments, unlike the older "marital unity" argument, still exert residual influence on the legal system, just as they do on popular thinking, complicating the impetus for reform.

Because reforming zeal has until very recently remained focused on the outmoded patriarchal values and assumptions underlying interspousal tort immunity, the emphasis has necessarily been on the threshold issue of access to the tort system, rather than the deficiencies of that system as applied to domestic claimants. Their somewhat specialized experiences of injury or violation were previously excluded from the courts: remaining unheard and unconsidered by the judges who built modern tort law, necessarily, out of the cases that came before them. A parallel could be drawn here with women's experiences in the workplace. The first goal of reformers was to overcome the discrimination that kept women out of so many work environments. The second phase of reform has been to work for changes in those environments to make them practically, rather than merely theoretically, accessible to women. In both cases the first step must, of necessity, precede the second, and has enormous symbolic importance. But in both cases, the second step may turn out to be the harder struggle, requiring a level of change that stirs up resistance, and offers resisters many fronts on which to fight.⁽³¹⁾

B.  The Dynamics of Abuse

1.  A Cautionary Note

What does it mean to suggest, as I have, that plaintiffs whose claims arise out of abusive relationships are likely to share somewhat specialized experiences of injury or violation, or that they may have particular goals, or particular limitations in their capacity to utilize the legal system? Let me first issue a disclaimer. I do not mean to suggest that all such claimants will be similarly situated. Some will have been in long-term abusive relationships, while others will have left soon after the violence started. Some will have experienced physical violence as a regular--daily, weekly or monthly--part of their relationship, while others will have suffered only occasional or even rare incidents of violence in a relationship otherwise more emotionally than physically abusive. Some will have children, which complicates their ongoing relationship with their abusers, while others will not. Some will feel that their abusers have already accepted that the relationship is over, while others will still be persecuted by abusers unwilling to give them up. Some will feel that the relationship, while unhealthy and injurious, was never life-threatening, while others may still expect to die at the hands of their abusers. My more limited proposition is that many abusive relationships have enough in common with one another that we can make useful generalizations about patterns of injury, as well as about what claimants may need from the legal system, and what handicaps they may experience in utilizing it, as long as those generalizations do not harden into stereotypes.

The other caveat is that while these plaintiffs are "special," they are not unique in their relationship to the tort system. Tort law is replete with adaptations urged by advocates and adopted by judges, or more rarely, legislatures, accommodating the experiences of particular classes of plaintiffs. Strict products liability was a response to the inadequacies of the negligence regime, as experienced by consumers injured by mass-produced products.⁽³²⁾ Market-share liability theories respond to the plight of victims who cannot identify the particular producer of an injurious drug.⁽³³⁾ The rules of causation have been adapted to accommodate the victims of environmental torts.⁽³⁴⁾ The discovery rule, softening the rigors of statutes of limitation, was developed to assist those who suffer from injuries that manifest themselves only after the passage of considerable time--whether those individuals are victims of medical malpractice or of environmental toxins.⁽³⁵⁾ More recently, the tort system has been struggling with the issues raised by victims of childhood sexual abuse and of sexual abuse by mental health practitioners. These victims may not recover their memories of the abuse, or understand its harmful nature, until the relevant statute of limitations has run.⁽³⁶⁾ Finally, the tort of intentional infliction of emotional distress has been undergoing significant development as a tool for those victimized by discrimination.⁽³⁷⁾ When change happens, it is because courts have been moved by a desire to recognize the plaintiffs' injuries, or a desire to hold the defendant class accountable, or both. Victims of domestic violence, who urge recognition of their injuries, an accommodation of their needs, and the accountability of their abusers are participants in the grand tradition of tort reform.

2.  How Abusive Relationships Work⁽³⁸⁾

Because it has been the strategy of battered women's advocates to stress the extreme physical violence that is involved in all too many abusive relationships, and because it is the physical violence that has been criminalized, it is easy to equate "abusive" relationships with "violent" relationships. But in fact, abusive relationships are about coercion and control, and while physical violence is certainly one way of asserting control over another human being, it is by no means the only way. Thus, even the most physically abusive batterer is likely to employ a range of controlling behaviors. Some will use physical violence quite rarely, relying for the most part on those other behaviors, with an occasional threat, or beating, thrown in for good measure.⁽³⁹⁾

a.  Patterns of Abuse

What are some of the other strategies of control? One is the systematic undermining of a partner's sense of herself as an intelligent, attractive and competent person, a good parent, and caring spouse. Put downs, ridicule, constant criticism and complaints, delivered sometimes only in private, but sometimes in public too, are standard fare. She is fat, ugly, stupid, clumsy, dirty, a bad cook, a neglectful parent, a slut. She could never hold down a job, or hold up her end of a conversation. Her failure to respond to the sex he forces on her proves that she is frigid. She lies. If she told someone about the abuse that she suffers, no one would believe her.

Another strategy is isolation. Batterers often systematically undermine their partners' relationships with others. An abusive mate may forbid his partner outright from visiting with or calling family or friends; may routinely become verbally abusive and threatening if she seeks company outside the relationship, or may make scenes in the presence of others so embarrassing that she will forgo the relationships rather than suffer the consequences of trying to maintain them. He may refuse to share house or car keys. He may "check" frequently in the course of the day to ensure that his partner is in place, and then may become irrationally suspicious and angry if she is not at home or if the phone line is busy.

Some isolating strategies are also ways of ensuring economic dependence. Batterers often mount fierce campaigns to keep their partners from attending school or taking a job. Many women have had their professional wardrobes destroyed by an abusive mate. A black eye may be enough to keep her at home. Embarrassing surveillance or intrusion into her workplace or classroom may be enough. Simply failing to show up to mind the children, as promised, can sabotage an important test or compromise a job.

Much terrorizing behavior falls short of physical abuse. A great deal can be accomplished without an abuser actually laying hands on his partner. Batterers often rely on slashed tires, torn photos and broken furniture; cruelty toward family pets; threats levelled at the children or behavior that puts them at risk; threats levelled at family members or friends; stalking; monitoring phone calls; and threats of violence toward a partner who acts in forbidden ways, fails to act in prescribed ways, or ever suggests she might leave.

For many battered women sexual abuse is a routine aspect of their relationship. They are required to have sex on demand, and to engage in whatever sexual practices please their partners, no matter how painful or degrading. They may not themselves conceive of this forced sex as rape or sexual assault--so relatively novel in our culture is the idea that nonconsensual sex, within a marriage, can be rape.

Children play a special part in the drama of domestic violence. First, there is significant overlap between partner abuse and child abuse, so that in any family in which a partner is being abused the chances are great that the minor children in the household are also suffering physical or sexual abuse.⁽⁴⁰⁾ The evidence increasingly shows that merely living in a household in which one parent is abusing the other, and witnessing that abuse, causes significant emotional harm to the children. This emotional harm produces the symptoms of post-traumatic-stress disorder, affects children's capacity to problem-solve without resorting to violence, limits their capacity to build trusting relationships, and increases the chances that they will be abusive or abused in their own adult relationships.⁽⁴¹⁾ Sometimes children become the inadvertent victims of violence intended for a parent, especially when they seek to intervene. And sometimes they suffer the anguish and disruption of being withheld from one parent by the other, as part of a strategy of control or intimidation.⁽⁴²⁾

b.  Why Doesn't She Leave?⁽⁴³⁾

For those with relatively little experience or understanding of the dynamics of abusive relationships, confronted with a situation involving prolonged and serious abuse, the first question is often "Why doesn't she leave?" Indeed, expert testimony on battered woman syndrome in self-defense cases was in large measure designed to answer this question--to explain how a woman who reasonably feared for her life could still be living in an intimate relationship with her batterer.⁽⁴⁴⁾ The explanations preferred today still draw from that earlier testimony, but in the years since, our understanding both of battered woman syndrome, and of the many other aspects of women's situations that keep them in battering relationships has become more sophisticated and more complicated.

First, women do not fall in love with batterers, but with individuals who often treat them with an almost exaggerated respect and attention, and can be extraordinarily appealing. Often, by the time the abuse begins, the woman has already made a strong emotional commitment to the relationship, which is not easy to abandon.⁽⁴⁵⁾ It is commonplace for women to decide that the first acts of violence are aberrational, and that the batterers' contrition and vows that the violence will not be repeated are sincere. It is also sometimes easier for women to take responsibility for "provoking" the violence, because then they can imagine that they can control it by making changes in their own behavior, rather than demanding change from their partners. This is all the easier because the batterer, although remorseful, may also be telling her that she caused his outburst.

By the time a woman acknowledges to herself that she cannot control the violence, and that it is not an aberration, but a permanent aspect of her relationship with her partner, she may be in too deep to make an easy escape. She may have made efforts to seek help, and found little response, whether from police, the courts, her doctor, her priest, pastor or rabbi, or even other members of her family. Those efforts may have elicited threats from her partner about what he will do if she discloses his violence to others, or seeks to leave him--threats that are perfectly credible given his past behavior. She may have children by now, locking her in to a co-parenting relationship from which she fears, with justification, that the legal system will not allow her to withdraw unless she abandons her children to her abuser. Her batterer is likely to reinforce those fears, telling her that if she tries to leave she will lose her children. She may be daunted by the economic realities of escape--how to find shelter, food, a job, or child care--when she has no separate funds, and cannot even use a check or credit card without revealing her whereabouts to her batterer. She may also, if the abuse has been prolonged and severe, be in a state of psychological depletion and paralysis that makes it almost impossible for her to take charge of her life in such new and risky ways. In this situation, she may marshall all the resources at her disposal to control the violence as best she can from within the relationship, and keep herself and her children safe from day to day, without triggering the explosive rage she knows from experience is associated with any attempt on her part to challenge her partner's control, or set limits with him.

If, despite all these obstacles, she does seek to leave her relationship with her batterer, the risks to her and her children are not a figment of her disordered imagination, as some judicial interpretations of battered woman syndrome have appeared to suggest. Rather, it is a stark reality that taking steps to leave an abusive relationship, or to confront the abuser and end the violence, is likely in the short term to increase the woman's danger.⁽⁴⁶⁾ In one study, 75% of reported domestic incidents involved women who were already separated from their abusers.⁽⁴⁷⁾ Which is to say that one answer to the question "Why didn't she leave?" is another question: "What makes you think that would have made her safer?" In this context, any legal intervention must be assessed for the risks it poses to women's safety.

c.  The Role of Shame⁽⁴⁸⁾

In the sometimes perverse logic of human emotions, when a shameful thing is done to us, we are more likely to be ashamed than the perpetrator. If we were just better people: stronger, smarter, wiser, better with words, more patient, harder working, better looking--this would not have happened to us. Because it did happen to us, we also deem ourselves inadequate in not being able to take care of the problem by ourselves--in needing to reach out for help. For many women, therefore, to disclose abuse is to disclose inadequacy, and vulnerability--it can take extraordinary strength, or extraordinary desperation, to overcome that barrier and tell the story. Whether that story is elicited with empathy; whether the listener signals that he or she is ready to hear it without judging the teller, and indeed believes that the shame belongs with the perpetrator and not his victim, can determine whether the disclosure is made. And the listener's silence--a mere failure to ask the initiating question--is readily interpreted as a signal that the story is unwelcome and should not be told, lest the teller be judged harshly by an unwilling listener.

C.  Stating the Claim

1.  Using Existing Causes of Action⁽⁴⁹⁾

From the preceding account it becomes clear that while broken bones, black eyes, burns, and lacerations may be evidence of battery,⁽⁵⁰⁾ and threats levelled directly at a partner may constitute assault,⁽⁵¹⁾ this just begins the list of abuse-related injuries. In many cases a more potent cause of action may be intentional infliction of emotional distress, especially when the emotional toll the abuse has taken is measurable in the symptomatology of post-traumatic-stress disorder.⁽⁵²⁾ The isolating strategies may be extreme enough to constitute false imprisonment.⁽⁵³⁾ When an abuser verbally humiliates his partner in public, making false accusations of infidelity, or substance abuse, or tries to poison his partner's professional relationship with a school or an employer by blackening her reputation, she may have an action in defamation.⁽⁵⁴⁾ Illegal wiretapping may be civilly actionable.⁽⁵⁵⁾

If children are themselves abused or threatened, physically or sexually, they have their own assault and battery claims. If they witness a parent's violence, the psychological consequences for them may provide a basis for a claim of negligent, reckless, or intentional infliction of emotional distress.⁽⁵⁶⁾ If their access to one parent is manipulated by the other as part of his campaign to control his partner, there may be claims, called by various names in different jurisdictions, such as child snatching, obstruction of visitation rights, or interference with custody.⁽⁵⁷⁾ A child hurt accidentally by violence aimed at his or her parent can pursue a straightforward negligence action.

Could a direct victim of domestic violence argue negligence rather than battery? Why might she want to? Chiefly because negligence claims may find a deeper pocket than the batterer's own--if injuries negligently inflicted are covered by a household or an automobile insurance policy, as they usually are, while intentionally inflicted injuries are not, as is also common. Is it then worth a woman's while to argue that when her husband backed the car down the driveway, pinning her to the garage door, he was driving negligently, while the insurance company argues that his violence was deliberate, and therefore beyond the terms of the policy? I have to confess that my own enthusiasm for tort recovery for victims of battering falters when recovery depends on their participation in a "cover-up." "Covering-up," after all, is what most victims of domestic violence have done for too long before they are able to take action to challenge their abusers. In addition, all too often their abusers have tried to persuade them, after the fact, that they were hurt by accident, rather than deliberately. There is a good deal unsavory about a legal process that mimics this same distortion of reality. Nonetheless, if compensation is the priority, this may be a strategy to consider in some cases.

While it is important to be creative in considering potential tort claims, the ones most commonly employed in the domestic abuse context are certainly assault and battery on the one hand, and intentional infliction of emotional distress on the other.⁽⁵⁸⁾ There is more to be said about the choice between these two. But it is worth pausing for a moment to note that the intentional infliction of emotional distress claim, so promising in many respects, has one vulnerability. It depends on a judge or jury finding that the defendant's behavior is "extreme and outrageous," or "beyond all possible bounds of decency," or "utterly intolerable in a civilized community."⁽⁵⁹⁾ This community-based standard provides a good test of how far America has come today in condemning cruel and abusive behavior between intimate partners.

On the one hand, the Idaho Supreme Court, in 1993, in Curtis v. Firth,⁽⁶⁰⁾ upheld a million dollar verdict, which included a $225,000 sum for intentional infliction of emotional distress and $725,000 in punitive damages, for behavior ranging from forcing the plaintiff to participate in sexual activity that she found "repugnant," to anal rape, to mental abuse:

[O]n numerous occasions Curtis would publicly and loudly scream at Firth if she displeased him. On some occasions she could identify the conduct which displeased him, such as Curtis not liking her cooking; but frequently she had no idea what made him angry or when he might start using profanities toward her. She also identified incidents where Curtis physically shook her so hard she feared she would fall off a boat dock, placed his foot in her back and kicked her out of bed, slapped her on the buttocks hard enough to leave a hand print, and pulled her hair as he threw her against the sink.⁽⁶¹⁾

On the other hand, the New Mexico Supreme Court, in 1991, in Hakkila v. Hakkila, reversed a damage award entered on behalf of a wife who claimed intentional infliction of emotional distress.⁽⁶²⁾ The husband's behavior, as summarized by the court in its findings, included assaulting and battering his wife; insulting his wife in the presence of guests, friends, relatives and foreign dignitaries; screaming at his wife at home and in the presence of others; on one occasion locking his wife out of the residence over night in the dead of winter, while she had nothing on but a robe; making repeated demeaning remarks about his wife's sexuality; continuously stating to his wife that she was crazy, insane and incompetent, and refusing to allow his wife to pursue schooling and hobbies.⁽⁶³⁾ The incidents of assault and battery included a time when the wife was putting groceries in their camper, and the husband slammed part of the camper shell down on her head and the trunk lid on her hands; throwing her face down across a room, twisting her wrist severely, and using excessive force during sex.⁽⁶⁴⁾

For the court, the decision was straightforward. "The merits of the wife's claim can be disposed of summarily. Husband's insults and outbursts fail to meet the legal standard of outrageousness."⁽⁶⁵⁾ The court reasoned that:

Conduct intentionally or recklessly causing emotional distress to one's spouse is prevalent in our society. This is unfortunate but perhaps not surprising, given the length and intensity of the marital relationship. Yet even when the conduct of feuding spouses is not particularly unusual, high emotions can readily cause an offended spouse to view the other's misconduct as "extreme and outrageous." Thus, if the tort of outrage is construed loosely or broadly, claims of outrage may be tacked on in typical marital disputes, taxing judicial resources.⁽⁶⁶⁾

Decisions such as the one in Hakkila indicate the extent to which judges require further education in the dynamics of abuse, if they are to appreciate the difference between "feuding spouses" and a relationship in which one partner is systematically subverting the autonomy, and even the identity of the other, through cruel and terrorizing behavior designed to establish his dominance and her subordination, with measurable physical, as well as psychological consequences.⁽⁶⁷⁾

2.  A New Cause of Action?

Although the injuries of abuse can be captured quite successfully through existing causes of action, especially if lawyers themselves have a good understanding of the dynamics of abuse, and use both lay and expert witnesses to good effect, an argument can be made for creating a new tort of "partner abuse," which would allow the entire history of combined physical and emotional abuse to be presented to the court in support of a single claim.⁽⁶⁸⁾ Recognition of this cause of action, which would in turn support the presentation of cases not as a collection of unfortunate incidents, but as a coherent narrative of domestic abuse, might advance the goal of improving understanding of domestic violence among both lawyers and judges. New Jersey courts have taken this step, recognizing "battered-woman's syndrome as an affirmative cause of action under the laws of New Jersey."⁽⁶⁹⁾ In the first such case, the court explicitly held that "[b]ecause the battered-woman's syndrome is the result of a continuing pattern of abuse and violent behavior that causes continuing damage, it must be treated in the same way as a continuing tort."⁽⁷⁰⁾ Elsewhere the concept of a unique cause of action has been treated with suspicion, suggesting that increased understanding of abusive relationships may need to precede any such change, rather than being a consequence of it.⁽⁷¹⁾

There is one additional danger associated with this strategy, which is that the elements of the new cause of action might be somewhat inflexibly conceived, creating a stereotype of the abusive relationship of which not all victims could take advantage. The unfortunate result of this might be to discredit the claims of some injured by abuse, leaving them in a worse position than they currently enjoy under the present "piecemeal" approach. This problem has hounded the efforts of battered women's advocates to make "battered woman syndrome" relevant to women's claims of self-defense, only to find their clients measured against an inflexible stereotype, and denied the status of "battered woman," with the new legal protection it affords, if they do not fit the stereotype.⁽⁷²⁾ If the tort of partner abuse were recognized, would a woman who could not meet the elements of that claim, but sued her former partner instead for battery and intentional infliction of emotional distress, be met with the argument that she was merely trying to manipulate the system into providing relief for partner abuse under circumstances in which she did not qualify for that relief?

Ultimately, the strongest argument in favor of a new cause of action is that if partner abuse were understood as a continuing tort, victims of abuse would be free of the artificial constraints imposed by existing statutes of limitation. These issues of timing are treated in a later section.⁽⁷³⁾

3.  Issues of Process

In the preceding pages I have been "fitting" the experience of abuse into the substantive categories of tort, as they presently exist, or as we might modify them. But long before a judge or jury decides on the substance of a claim, plaintiffs can be derailed by the procedural demands of the system. In this section I explore the procedural obstacles most commonly experienced by domestic violence plaintiffs, or the lawyers who would pursue their claims.

a.  Identifying the Claim

Before a plaintiff can bring an action in tort he or she has to understand that what is happening to him or her is a tort, or at least can be plausibly argued to be a tort. For many plaintiffs in many tort cases this is unproblematic, so unproblematic that we do not even focus on the process by which the plaintiff reaches this conclusion. There are some cases, however, in which aspects of the process become visible as they become problematic.

A plaintiff exposed to an environmental toxin does not realize at the moment of exposure that he has been injured. Even when disease is detected, the plaintiff may have no way of identifying the causal agent--of pinning the blame on a particular defendant. Then that particular linkage becomes scientifically established, and is publicized, and suddenly the plaintiff appreciates that an injury was or may have been, actually done to him by another party who may be legally, as well as factually responsible if a defective product was involved or the defendant was negligent. The discovery rule, modifying traditional applications of statutes of limitation, demonstrates the legal system's capacity to respond to situations in which the plaintiff comes late to the information necessary to bring suit. This modification serves the interests of promoting the accountability of defendants, and compensating those they injure.⁽⁷⁴⁾

Sexual abuse by a therapist provides another somewhat different example. Here, the patient (the potential plaintiff) is all too likely to feel that something is wrong either immediately, or within a relatively short period of time. Clinical depression may well be the clue. But it is quite likely that the patient will not blame the therapist. She may not understand the connection between her depression and the sexual relationship, just as the environmental plaintiff did not understand the connection between his cancer and the carcinogen. Or she may understand that it is the relationship that is producing her emotional pain, but blame herself rather than the therapist for her situation.⁽⁷⁵⁾ Her vulnerability, and the power the therapist has to define the terms of the relationship, assist this confusion.⁽⁷⁶⁾ Often, it will be only after she has terminated the abusive relationship (and if she seeks help from another professional who is able to help her reinterpret it) that she will understand that she has suffered an injury at the hands of an individual who may be legally responsible for his actions.⁽⁷⁷⁾ If instead she simply breaks off the abusive relationship and seeks no further help, out of distrust, or shame, her injury may never surface within the legal system. But if she does make it to court, the tort system in some jurisdictions will make an accommodation for her, appreciating the injustice of allowing this professional misconduct to go unpunished, even if her suit is untimely according to traditional measures.⁽⁷⁸⁾

Victims of childhood sexual abuse are another class given special assistance by the legal system in making their claims. First, of course, their incapacity to sue as minors means that relevant statutes of limitation start to run, in general, only as they reach their majority.⁽⁷⁹⁾ But lack of legal capacity is not the only barrier to suit. Like the clients of abusive therapists, children can be confused about the extent to which they, rather than their abusers, are responsible for their abuse. This is one of the factors that prevents children from disclosing abuse: the fear of being blamed, or of not being believed, and therefore blamed for making a false allegation. In addition, they are often threatened with dire consequences if they disclose their abuse, and these threats may reverberate unconsciously even in adulthood, when the threat is no longer real. If the abusive adult is also a family member, the child is also likely to feel loyalty and affection, along with the fear, anger, and distress.⁽⁸⁰⁾ In these circumstances, children may deal with the unbearable and lonely reality of abuse by denying or minimizing it, or even by suppressing the memory of it so that for periods of years they experience the emotional aftermath of abuse without identifying its source.⁽⁸¹⁾ Again, in many cases it is only the child's later relationship, often as an adult, with a trained mental-health provider that provides the crucial memories and/or insights, giving the individual a framework to understand his or her injuries as inflicted by someone who may be legally responsible.⁽⁸²⁾ The legal system does not fully accommodate these late-surfacing claims, but many states have taken important steps in that direction.⁽⁸³⁾

For the victims of domestic abuse, the road from injury to suit is also a long one, with many potential detours and dead ends. A victim of emotional abuse may recognize that her abuser's constant put downs are painful, but may experience her pain--or depression--as associated with her own inadequacies, rather than his behavior.⁽⁸⁴⁾ When the physical violence begins, she may feel that she has provoked it, and be more inclined to blame herself than him.⁽⁸⁵⁾ In this sense, the batterer employs his own power in the relationship to disguise his responsibility, just as the abusive therapist does. In extreme cases, victims of domestic abuse can entirely lose their capacity to assess their own reality, and take on the perspective offered by their abusers, just as prisoners of war can come to identify with their captors.⁽⁸⁶⁾ In many other cases, of course, women do appreciate, or come to appreciate, that their partners are abusive, and that the abuse is undeserved and wrong. But a woman may still feel committed to her partner, or her sense of herself as someone who can make a relationship work, and have some confidence that she can end the violence without ending the relationship.⁽⁸⁷⁾ Or she may be too intimidated or psychologically depleted to take action against the abuse--whether practically or legally.⁽⁸⁸⁾

For the victim of domestic abuse who does ultimately bring her case to court, the question will be whether she can persuade a court to accommodate her situation, especially by allowing her some leeway in terms of the timing of her suit. But first, like the victim of therapist abuse or childhood sexual abuse, she has to get to the point of telling her story to someone who can help her frame it as a story of abuse for which someone is accountable. Disclosure, however, is problematic. Some women deny or minimize the violence even to themselves as a way of keeping their fear or shame under control.⁽⁸⁹⁾ Many hide it from others, for a variety of reasons. What cannot be admitted to themselves surely cannot be admitted to others. But even if they are clear in their own minds about the abuse, shame or fear may stand in the way of sharing it with others. If the motivation is fear, it may or may not be a fear triggered by specific threats. Even without those threats, a woman may be hesitant to disturb the status quo or to initiate an intervention over which she may not have control, and which may backfire to her further injury. For some women, this fear will be based on prior experiences of seeking help, and finding that their situations worsen rather than improve.⁽⁹⁰⁾

It would be a mistake to conclude this discussion without acknowledging that while some of the pressures against disclosure are either internal to the woman, or to the relationship, others are external. There are injuries that are difficult to acknowledge--it is painful to think about children being sexually abused by adults in whom they trust, or adults being victimized by their partners. Society as a whole has a tendency to deny or minimize these injuries, and to mobilize to suppress the disclosures that would erode that denial, or undercut the minimization.⁽⁹¹⁾ Disclosures can undermine our faith in humanity, or the institution of family.⁽⁹²⁾ Sometimes they will reverberate with our own experience, stirring up emotions that we have done our best to repress.⁽⁹³⁾ Other people's stories can make us experience vicariously their pain, their vulnerability, and their powerlessness.⁽⁹⁴⁾ They can also challenge us to become involved in situations in which involvement might put us personally or professionally at risk.⁽⁹⁵⁾ A victim who is, quite independently, reluctant to disclose will be sensitive to cues that a listener is equally reluctant to hear.

All these factors decrease the likelihood that a woman will come forward to sue her abuser. But despite all the constraints, there are many women who do seek assistance in freeing themselves from violence, and among those, many who turn to the legal system. For those who seek protective orders, or invoke the criminal justice system, the abuse is the sine qua non of intervention, and will be exposed from the beginning. But if instead a woman chooses to initiate divorce proceedings to separate herself from her abuser, in a no-fault divorce system there is no requirement that the abuse be identified. It becomes critically important in this context that family lawyers stand ready, first to identify abuse, and then to assist their clients in deciding what responses are desirable. This issue will be discussed again in Part III.⁽⁹⁶⁾

b.  Problems of Proof

The woman who reaches the point of bringing a civil suit will have to prove her injuries to support her action, and her damage claim. But this may not be easy. First, the same disclosure difficulties that stand in the way of her seeking legal assistance may make it difficult for her to document the abuse she has suffered. Have family members, neighbors or friends ever witnessed her partner's abuse, or its consequences? Has she confided in them? Have police ever been called to her home, and are there police reports documenting physical injuries or damaged property? Has she ever applied for a protective order, with a written affidavit documenting the abuse or the fear that qualifies her for the protection? Has her abuser ever been arrested or charged on a domestic violence offense, and if so has she confirmed his abuse, or rather sought to deny it, or share responsibility for the violence, so that the charges will be dropped?⁽⁹⁷⁾ Have co-workers, or her children's teachers, ever noticed cuts or bruises?⁽⁹⁸⁾ Have her physical injuries ever taken her to the doctor, or to an emergency room, or has she forgone medical attention out of shame, or because her partner forbad her to go, or because she was afraid of getting him into trouble? If she did seek medical attention, did she admit that her injuries were abuse related, and does that appear in her record, or did she attribute them to accidents--saying that she had fallen, burned herself while cooking, walked into a corner of the kitchen cabinet, or got her black eye playing baseball with her son in the yard?⁽⁹⁹⁾ Has her batterer previously denied his abuse, and is he likely to make an effective witness in the future?⁽¹⁰⁰⁾

To the extent her injuries are emotional, there are further complications. While her batterer may have been less cautious about hiding some aspects of his emotional abuse, so that there are more witnesses, it may be harder to demonstrate the accumulation of emotionally abusive incidents that make his conduct "outrageous."⁽¹⁰¹⁾ The plaintiff will also have to prove the causal linkage between his abuse, and the symptoms of emotional distress she is manifesting. Courts may ask whether her symptoms are not the consequence simply of marital discord or the stress of separation.⁽¹⁰²⁾ Alternatively, if she has also been the victim of physical or sexual abuse in the past, whether as a child or an adult, her abuser may argue that her symptoms are the residue of that experience, and that her characterization of his behavior is distorted by that earlier history.⁽¹⁰³⁾

To the extent her claims derive from sexual aggression on the part of her abuser--rape or sexual assault--she may be handicapped not only by the unwitnessed nature of these violations, but by the fact that she very quickly learned not to resist him strenuously, but instead tried to minimize her injuries by acquiescing in his demands. In this as in so many other contexts, courts may have trouble distinguishing between consensual and nonconsensual sexual activity.⁽¹⁰⁴⁾

While some of these problems of proof may be relatively intractable, there are steps that can be taken to help women build the record of abuse that may later support their efforts to hold the abuser accountable. First, whenever a woman is being interviewed, whether by police or by a service provider, in the context of abuse or suspected abuse, she should be interviewed separately from her abuser.⁽¹⁰⁵⁾ She should be asked specific questions about abuse.⁽¹⁰⁶⁾ All records of injuries sustained should be specific and detailed, and if possible accompanied by photographs taken while those injuries are still fresh.⁽¹⁰⁷⁾ Second, even if the woman denies the abuse, and attributes her injuries to a different source, the reporter should have room within the report to note that in his or her opinion the woman's explanation is inconsistent with the physical evidence or symptoms.⁽¹⁰⁸⁾ At the same time, care must be taken that the documentation of abuse-related injuries does not put the woman at greater risk of subsequent abuse by an angry partner; and that the confidentiality of her medical records are scrupulously maintained, so that she controls any subsequent access to them, or utilization of them.

At the time the woman is seeking to take action against her abuser, careful interviewing of both her and others may uncover more witnesses than she initially identifies. If, for a period of time, she was denying the fact of her abuse or minimizing it, she may have convinced herself that others were unaware, and those others may have acted as if they were indeed oblivious to what was going on, when in fact they saw and heard enough to corroborate her testimony of abuse. While using children as witnesses is always something to be approached with considerable care, children are almost always aware of abuse in their homes.⁽¹⁰⁹⁾ Parents may need and want to think that their children are asleep, or out of earshot, but sympathetic questioning will usually dispel that illusion. Finally, a thorough psychological assessment will be invaluable in documenting the emotional consequences of abuse, and allowing their measurement on scales that should serve to distinguish these injuries from the less severe emotional wear and tear associated with marital conflict or separation.⁽¹¹⁰⁾

c.  Statutes of Limitation

Traditionally, statutes of limitation require that actions for battery or assault be brought within two, or at most three years after the incident on which they are based.⁽¹¹¹⁾ The corresponding limitation periods for intentional infliction of emotional distress are sometimes a little more generous--ranging between one and six years.⁽¹¹²⁾ Based on what was said earlier about the nature of abusive relationships and the time it may take for an abused partner to take action, if these limitation periods are imposed without modification, she is likely to be able to sue for only a small portion of her total injury.

The most successful litigation strategy to date has been to argue that partner abuse should be understood as a continuing tort, and a cumulative injury, so that statutes of limitation begin to run only when the abuse stops, which will be when the partners separate, unless the abuser continues to terrorize his partner, either to punish her, or in the hopes of bringing her back into the relationship.⁽¹¹³⁾ But, and this is an important qualification, the argument appears to have been successful, at least at the appellate level, only for claims of intentional infliction of emotional distress, not for claims based on physical injury.⁽¹¹⁴⁾ With respect to these more concrete incidents of physical abuse, courts have tended to adhere to the shorter limitation periods associated with battery and assault, and to insist on viewing each incident separately.⁽¹¹⁵⁾

The consequence of this approach is that the physical and emotional components of the relationship become artificially separated, whereas in truth the threat or reality of physical abuse is one potent source of the cumulative emotional impact of abuse. Do judges expect juries to distinguish, and exclude, emotional injuries associated with incidents of physical violence, while awarding damages based on other emotional injuries? If instead the theory is that all emotional injuries can be included, as part of the cumulative impact of the abuse, it seems illogical to exclude more tangible injuries flowing from the very same incidents. It may be that jury discretion is in practice, what rescues this system from its own illogic. It may also be that judges view this position as a compromise that does rough justice by "splitting the difference" between the justice of plaintiffs' claims, and defendants' arguments that they deserve the traditional protection provided by statutes of limitation against fading memories, lost witnesses, and missing documentation. If it were the goal instead to bring judicial application of statutes of limitation into line with the reality of abusive relationships, some other possibilities might be worth exploring.

The first would be to push a little harder for the recognition of the cumulative and intimately connected impact of both the physical and emotional or psychological dimensions of abuse, so that both, in the particular context of an abusive relationship, could be considered continuing torts. From a conceptual point of view it might seem best to make this point by creating a new tort of partner abuse, which would be characterized precisely by its cumulative or "continuing" character.⁽¹¹⁶⁾ This has been the strategy followed by the New Jersey courts in recognizing "battered woman's syndrome" as creating an independent cause of action. In the Giovine case, the court dealt specifically with the impact of this new cause of action on existing statutes of limitation, holding that those statutes would be tolled, and the plaintiff "entitled to sue her husband for damages attributable to his continuous tortious conduct resulting in her present psychological condition," provided she could introduce expert testimony to prove that she did indeed suffer from the syndrome, as the court defined it, and could show that she had taken no previous action to remedy her situation.⁽¹¹⁷⁾ However, the potential rigidity introduced by these conditions,⁽¹¹⁸⁾ as well as the failure of other courts to adopt the New Jersey approach, suggest the wisdom of a diversified strategy.

Another alternative is to accept the "continuing-tort" fix for emotional injuries, but make some additional arguments, applicable to both physical and emotional injuries, for tolling otherwise applicable statutes of limitation in the context of abuse. One such argument would be that to the extent victims remain in abusive relationships out of the desire to make them work--seeking to end the violence without ending the relationship--they are expressing the very values that supported the old interspousal tort immunity. In essence, they are seeking to restore marital harmony to a relationship disrupted by violence.⁽¹¹⁹⁾ The immunity was flawed in imposing that value on marital partners, whether or not they shared it. But to the extent an abused partner embraces that value as her own, we should not penalize her by jeopardizing her ability to recover for her injuries if her efforts are sabotaged by further abuse. Rather, the legal system should recognize her efforts by preserving her right to sue.

If instead her failure to take action sooner is the result of intimidation, then her argument for tolling applicable statutes of limitation is an argument based on duress. Even if her abuser does not say in so many words: "Sue me and you are dead," or "Sue me and you'll be sorry," the underlying theory is the same. She fears, with reason, that any action taken to separate herself from her abuser, or confront him with his abuse, will result in serious injury or death to her, and for the time being chooses what appears to be the lesser of two evils.⁽¹²⁰⁾ In Giovine, the New Jersey court linked its recognition of abuse as a continuing tort to earlier cases tolling statutes of limitation in the context of duress, when the duress "is either an element of or inherent in the underlying cause of action."⁽¹²¹⁾ The court stated that "within certain limits, a prospective defendant's coercive acts and threats may rise to such a level of duress as to deprive the plaintiff of his freedom of will and thereby toll the statute of limitations."⁽¹²²⁾ Other states have similarly held that duress can be an appropriate ground for tolling, although not in the specific context of abuse.⁽¹²³⁾

A third argument is that the abuser's power over his partner prevents her from being able to frame her abuse as a wrong for which he is responsible, and seek to hold him accountable. Like the sexual abuse victim of a therapist, she needs distance from this inherently unequal relationship to see the exploitation for what it is and to summon the independence to challenge it. In the context of therapist abuse, courts place great weight on the professional "tools" that make the patient vulnerable to exploitation,⁽¹²⁴⁾ but the equally effective "tools" of the batterer give his victim's claim just as much force.⁽¹²⁵⁾

In Giovine, in addition to the duress analogy discussed earlier,⁽¹²⁶⁾ the court analogized the plaintiff's situation to others in which "insanity," induced by the defendant's conduct, had been held to toll a statute of limitation.⁽¹²⁷⁾ Insanity, according to the court, meant "'such a condition of mental derangement as actually prevents the sufferer from understanding his [or her] legal rights or instituting legal action'"⁽¹²⁸⁾ and was a concept broad enough to encompass "the status of a victim of repeated violence within the marital setting, who may 'sink into a state of psychological paralysis and become unable to take any action at all to improve or alter the situation.'"⁽¹²⁹⁾ While this may be an argument applicable to the situation of some women, it should not be used to the exclusion of duress, which recognizes constraint without attaching a potentially pejorative label to its victim, or to the exclusion of a theory that emphasizes the emotional grip of the batterer, and his abuse of power, rather than his partner's impairment.

It would be possible to litigate these arguments separately, as seemed most appropriate in each individual case. It might be more effective, however, to urge that every abusive relationship of any duration will fit into one or more category, and that litigation would be streamlined, and justice better served, by creating a tolling provision universally applicable in partner-abuse cases, whereby any applicable statute of limitation would begin to run only when the abuse ended, whether that occurred at the time of separation, or subsequently. This might be more likely to come from a legislature than from the judiciary. To adopt such a provision would be to recognize that merely abolishing the interspousal tort immunity does not in fact equip spouses to redress their grievances against one another, when those grievances arise out of abuse. The tolling provision recognizes that intimate relationships continue to require somewhat special treatment within the legal system: room for partners with positive aspirations for their relationships to seek to work out their differences, without compromising their claims, and room for partners whose independence has been compromised in their relationship to recover sufficient autonomy to assert their rights as individuals.

  The Divorce Context

The reason the juxtaposition of domestic torts and divorce is so potent is that in so many cases the first time the victim of domestic violence will be able even to contemplate a tort action is when she decides to initiate a divorce action. At this stage, something has now happened to tip the balance, to make separation from her abuser feel either safe, or in any event less dangerous, physically and emotionally, than trying to maintain the relationship. Perhaps the level of violence has become life-threatening. Perhaps it is spilling over onto the children. Perhaps the police have come to the house, and through a restraining order or criminal process the woman has made contact with a victim-witness advocate who has expanded her sense of the options available to her. Perhaps a friend's patient insistence that she does not deserve to be treated this way has eroded her partner's hold on her. For whatever reason, she has shifted from efforts to minimize the abuse and contain it "at home," to invoking the legal system to help her put it behind her. If she has, in addition, retained the services of a family lawyer, she also has access to new information, not only about the dissolution of her marriage, but also about her rights and options with respect to a tort claim.

On the other hand, the barriers to suit we have already identified are still there. And a new set of questions about the relationship between the divorce proceedings and any cause of action in tort will have to be answered. Thus far, courts around the country have responded in a bewildering variety of ways to the question of whether, and under what circumstances, the civil cause of action can be pursued simultaneously with, or subsequent to, the divorce.⁽¹³⁰⁾ And even when it can, the lawyer and her client will have to decide whether it provides a useful supplemental or alternative mechanism for sorting out her financial claims--measured against the financial settlement that will accompany the divorce.

In the sections that follow I first return to the questions of process already identified--asking how the context of divorce, and the relationship between a woman and her family lawyer, affects the identification of the tort claim, problems of proof, and the impact of statutes of limitation.⁽¹³¹⁾ Then I turn to the new question of how different states have regulated the relationship between the divorce proceedings and the tort claim, and the somewhat different question of what an optimal relationship might be.⁽¹³²⁾

A. Issues of Process Revisited

1.  Identifying the Claim: The Crucial Role of the Family Lawyer

The fact that a woman is seeking a divorce because of physical and/or emotional abuse in her marital relationship does not mean that she will spontaneously share that information with her lawyer. Shame may still be a powerful inhibitor. Further, the very boldness of the step she is considering taking may exacerbate her fears about her partner's potential for future abuse. She may want to minimize her present danger by minimizing the extent to which the divorce exposes his abuse. She may hope that by appeasing him, to the extent that is possible consistent with pursuing the divorce, she will be better positioned to achieve her goals, first among which are likely to be an end to the abuse, and custody of her children. Ultimately the decision about whether to disclose the abuse, first to her lawyer, and then to the court, must rest with the client. Nonetheless, there is plenty of room for the family lawyer to improve the chances that her client will at least take the first step of sharing the information with her, and plenty of reasons why working towards that initial disclosure can be crucial both to her client's safety, and to effective representation.

Are there reasons why a family lawyer may be reluctant to ask about abuse, above and beyond the issues we all struggle with, and which have already been described? An additional factor, in this context, may be that the family law system has traditionally organized itself without reference to partner violence. Even in the most recent editions of family law casebooks partner violence scarcely appears as a topic, and as a consequence many family law courses still ignore it.⁽¹³³⁾ Neither practitioners nor judges, that is to say, have traditionally learned about domestic violence in the course of their law school training.

Even more significant may be the prevailing ideology of family courts, which emphasizes the mediated resolution of conflict,⁽¹³⁴⁾ the desirability of minor children continuing to have significant relationships with both parents, and the development of stable post-divorce relationships between parents in the interests of children.⁽¹³⁵⁾ In this context, the partner who seeks to avoid mediation on the grounds that her relationship with an abusive spouse precludes bargaining on a level playing field, and puts her at risk; or the parent who seeks to oppose shared custody or supervised visitation, on the grounds that it endangers her or her children, upsets the smooth functioning of the system, and is readily cast as a pariah. Such women are often suspected of manipulating the system for their own advantage, distorting the truth, or turning their children against their former partners out of vindictiveness. In this context it sometimes seems that the increased public attention and sympathy given to domestic violence victims nationally has produced a backlash, generating more intense suspicion and fear that "alleged" victims will play on public sympathy to gain unfair advantage.⁽¹³⁶⁾ Anecdotal evidence abounds, although there are no reputable empirical studies to support either the proposition that women routinely fabricate stories of abuse themselves, or the proposition that they successfully "plant" such stories in their children.⁽¹³⁷⁾

Thus, while many family judges and lawyers steadfastly support the exposure of domestic violence, and the legal system's careful response to victims' rights and needs, the atmosphere in family court and within the family bar can still be hostile to claims of violence. It would not be surprising, then, if some lawyers, given a choice, would prefer not to represent victims of violence, when it means risking the ire of some of their colleagues, perhaps facing hostility from the bench, probably working harder than usual to obtain the necessary relief for a client whose needs the system is still not fully adapted to meet, and on occasion failing to obtain necessary relief in circumstances where that failure may be not just disappointing, but actually dangerous.⁽¹³⁸⁾ If that is a situation to be avoided, then one way to avoid it, a strategy perhaps more unconscious than conscious, may be to avoid the questions that will reveal the abusive nature of the relationship that the client is seeking to end.

Despite all the reasons why a client may be reluctant to talk, and a lawyer reluctant to hear, the bottom line is that if a client is in fact seeking to escape from an abusive relationship, then her lawyer needs to know in order to organize the divorce process and the litigation strategy, around that understanding. Without that information, the lawyer may find the client's reluctance to take certain steps, or make certain arguments, baffling, and may urge the client, against her better judgment, toward a strategy that puts her at risk.⁽¹³⁹⁾ She may also misinterpret the client's insistence on certain issues--especially relating to limiting the father's access to the children--as punitive, and work toward bringing her client in line with what she thinks judicial standards of reasonable parental behavior will be, not understanding how high the stakes are.⁽¹⁴⁰⁾ The undisclosed information then becomes a wedge between the lawyer and client, undermining the lawyer's confidence in the client, but more importantly eroding the client's trust in the lawyer. The client may begin to feel almost as powerless in this new relationship as she does in her relationship with her partner, to the point where she experiences the divorce process as revictimization.⁽¹⁴¹⁾ A different but equally plausible scenario involves the client who has summoned the courage to seek a divorce only by disguising from herself how violently her partner may respond to her new determination to leave him. This denial, helpful at the level of enabling her to seek help, may be dangerous if it allows her to be blindsided by her abusive partner's response. If she has not shared the abuse with her lawyer, there is no second independent judgment available to generate hard questions about safety, and strategize with her about reducing her danger.⁽¹⁴²⁾

It should go without saying that the fully informed lawyer will be in the best position to generate the best possible outcome for her client, understanding that some goals may have to be compromised in order to accomplish others of higher priority. However, this will only be true if two further conditions are met. The first is that the lawyer not merely hear her client's story, but be educated enough about the dynamics of abusive relationships to give the facts their proper weight and significance. The second is that the lawyer respect her client's autonomy, and not use the information with which she is trusted without her client's full agreement. The vulnerability her client feels about disclosing her abuse makes it critical that the lawyer provide reassurance that the disclosure will have no consequences unless and until the client and lawyer together determine that it should.⁽¹⁴³⁾

If the lawyer hopes to learn about abuse, she has to ask the questions that will encourage disclosure, signalling her capacity to listen, no matter how painful the story, and her empathy with the teller. She may want to start out with the reassurance that the client will stay in charge of her own story, even if she shares it: "I am going to ask you all kinds of questions about your partner, and your relationship, just to be sure I have the full picture. Then we can decide together how best to go forward."

The questions have to avoid generalities and labels that may be offputting. Asking "Has he battered you or the children," may elicit a negative answer because the woman does not accept the label "battered woman" as a description of herself or her situation, and would never admit that her children have been "battered."⁽¹⁴⁴⁾ If the questions are more specific, they are more likely to generate useful answers: "Have you ever been afraid of him?" would be an example, or "Has he ever done anything to hurt you or your children, or to make you afraid that he would?" More useful information might be gleaned from questions like: "What makes your partner angry with you? When he is angry, what kinds of things does he do or say?" Immediately relevant will be questions like "How does your partner feel about your separating from him? Is that something you have ever talked about with him? Has he ever threatened to do anything to you, or the children, or himself, if you leave him?"

It is also important to ask questions across the range of emotionally as well as physically abusive behaviors; asking questions only about physical violence may produce scant results, and the abusive context of the relationship may remain buried. It may also be easier for a woman to talk about the emotional abuse, and if she establishes a rapport with her lawyer in that context, she may then feel safe to talk about the physical or sexual abuse as well.

There will always be some questions that a lawyer finds hard to ask. For many lawyers, questions about sexual abuse fall into that category. But remembering that the lawyer's embarrassment may be read as a reluctance to hear, and provoke a reluctance to tell, the lawyer must at least try to prevent this barrier from arising. She might start out by saying: "I'd like to ask you some questions about your sexual relationship with your partner. I know these aren't easy questions to answer, in fact I even have a hard time asking them. But I'd really like to try to understand this part of your relationship, if you can manage to share it with me." Again, it is crucial in asking these questions not to rely on labels, such as "rape" or "assault" that a woman may not ever think of applying to her own situation.⁽¹⁴⁵⁾

Some information elicited from the client may be so arresting that the lawyer feels unable to respond. But silence by the lawyer may be taken as disapproval, and in turn silence the client. It is probably better under these circumstances to be honest about what is happening, and then to offer the client support for her strength in being able to tell her story: "I'm finding what you are telling me almost overwhelming. And then I think about what it means for you to have lived it, and still be able to relive it in telling me about it. I think that must take a lot of courage."

If it becomes clear that the client is being physically abused, or has been threatened by violence, then it will be very important for the lawyer to signal that she is aware of the risks involved, and will be attentive to her client's safety. She might just want to say: "This sounds like a dangerous situation for you. I think we need to stay very focussed on your safety as we plan how to go forward." Once the whole story has been told, this promise should be immediately fulfilled. The development of a safety plan should become the first item of business, whether the lawyer feels able to do that personally, or asks her client for permission to include another more experienced service provider in the planning process.⁽¹⁴⁶⁾ This should be a priority regardless of how the client finally resolves the question of whether to go forward with a divorce or a tort action, but obviously her safety needs may be different depending on the course she chooses.

Thus far the emphasis here has been on the lawyer's need for information about the abuse in order to adequately represent her client in the divorce proceedings. But in addition, my argument is that the lawyer must elicit sufficient information to be able to advise her client about the possibility of an action in tort, the potential value of such a suit, and how it would relate to the divorce proceedings. The extent to which the family lawyer would remain involved with the tort action, rather than referring her client to another attorney, would depend in part on her own expertise and choice, the timing of the two proceedings, and the extent to which the particular jurisdiction demanded coordination of the two.

Both the demand that the family lawyer develop the competence to deal with issues of violence--not just as they impact her client's case, but also as they impact her client's safety--and the demand that she develop some competence in the area of domestic torts and their interaction with divorce proceedings, go beyond older understandings of the family lawyer's role, and areas of expertise. But as society's awareness of the prevalence of domestic violence increases, lawyers' responsibilities to determine whether their clients are victims of abuse, and to meet their needs if they are, inevitably increase. Many family lawyers are already incorporating this new awareness, and the new practices that flow from it, into their daily routines; others must follow in their footsteps.⁽¹⁴⁷⁾ The profession as a whole has a role to play in promoting these changes. Some professional organizations have, and others could, for example, offer training in domestic violence and safety planning for lawyers in general, or family lawyers in particular.⁽¹⁴⁸⁾ Some professional organizations and journals have, and others could, solicit articles and reports describing innovative practice in these areas, for others to emulate.⁽¹⁴⁹⁾ The Bar could also promote new models of cooperative relationships between personal injury and family law practitioners, or establish referral mechanisms to facilitate the necessary contact between family lawyers, domestic violence advocates and personal injury lawyers with an expertise in domestic tort litigation. Individually and collectively, lawyers should encourage the development of a new "standard of care" in cases involving violence, knowing that their practice will be improved and their clients better served.

2.  Problems of Proof and Statutes of Limitation

Again, the question here is how the family lawyer can help her client address the problems of proving abuse, and building a strong civil claim despite the barriers imposed by statutes of limitation. With respect to problems of proof there are two different contributions the lawyer may be able to make. The first, already suggested earlier, is to unearth, through careful questioning, sources of corroboration that the woman herself may initially overlook, for abuse that may have occurred over a lengthy period of time, in private, and never been officially documented.⁽¹⁵⁰⁾ The second is to assist her client in planning to document any ongoing abuse. Because the woman's steps toward ending the relationship will put such pressure on her abuser to reassert control over her, the period during which the lawyer will be working with her will be a volatile one, and it is to be expected that the abuser will threaten her in various ways.⁽¹⁵¹⁾ He may show up at her home, her workplace, or at the children's school, and make scenes. He may threaten harm to her property, to her, to their children, to other family members or friends, or to himself. He may act upon those threats. At one level the purpose of safety planning is to minimize the chances that he will make good on any of those threats. But to the extent his threats, and any acts in pursuance of them, can be recorded, it will be that much easier to establish the abusive nature of the relationship. And the history of abuse will become more credible, even if the supporting evidence is thin, if it seems consistent with contemporary abuse.

With respect to applicable statutes of limitation, the lawyer may also have some role to play. If the fear or expectation is that periods of limitation will be strictly construed, then the most important goal will be to document thoroughly any contemporary abuse, and any abuse within the qualified period. To the extent that there may be judicial flexibility, then it will be important to build the case for tolling the limitation periods under whatever theories have already been successful in the jurisdiction, or seem to fit the case most comfortably. Certainly the lawyer should help her client develop a narrative that stresses the continuing and cumulative nature of the abuse and its associated injuries, whether physical or emotional.⁽¹⁵²⁾

B. The Divorce/Tort Interface

Suppose now that the family lawyer has identified the abuse, and has determined that sufficient proof can be gathered to support a substantial claim likely to survive, at least in significant part, a statute of limitations challenge. Should that claim be brought? Must it be combined with the divorce proceedings or can it be pursued separately? If it can be brought separately, should it be brought contemporaneously with, or after the divorce proceeding? This is a problem that presents itself differently in different states--the one commonality seems to be that it puts stress on a system not designed for this combination of claims.⁽¹⁵³⁾ As the lawyer assesses the available options her top priorities must be how best to preserve her client's physical and emotional safety, while trying to ensure that the ultimate financial settlement properly reflects the abuser's responsibility for the injuries he has inflicted.

1.  Together or Apart?

New Jersey provides an example of a state that insists on divorce and tort claims being joined, on the grounds that "all claims between the same parties arising out of or relating to the same transactional circumstances [should] be joined in a single action."⁽¹⁵⁴⁾ In New Jersey, it seems that an intentional tort committed by one spouse against the other is considered a "constituent element" of the divorce action, even when the divorce is not fault-based.⁽¹⁵⁵⁾ New Jersey's position, which subsequent caselaw has revealed to be less than absolute,⁽¹⁵⁶⁾ is surely influenced by the fact that under state law, wrongful marital conduct can be considered in a divorce case, and an award made for that conduct.⁽¹⁵⁷⁾ New Jersey courts have also been careful to preserve a claimant's right to jury trial when her tort claims are sufficiently divisible from the other claims in the divorce proceeding.⁽¹⁵⁸⁾ Nonetheless, the courts' reasoning seems insufficiently attentive to the reality of divorce proceedings in the context of abusive relationships, as the remainder of this discussion will clarify.

A number of states, among them Arizona, Colorado, New Hampshire, Illinois, Utah and Vermont, forbid joining a tort claim with a divorce action.⁽¹⁵⁹⁾ These states see tort actions and divorce proceedings as fundamentally distinct.⁽¹⁶⁰⁾ Some emphasize that divorce statutes do not provide courts with the authority to award a spouse a money judgment for an intentional tort committed by the other.⁽¹⁶¹⁾ Divorce is about terminating the relationship, and allocating resources, generally on a no-fault basis. Torts are about compensation for an identified wrong.⁽¹⁶²⁾ Moreover, divorce proceedings are equitable and tort claims legal; either a tort claimant forced into family court might lose her right to jury trial, or the very equitable nature of the divorce proceedings might be compromised by the inclusion of "matters of law."⁽¹⁶³⁾ Yet other states, including Alaska, Arkansas, Idaho, Texas and Wisconsin, take the view that the tort claim may be combined with the divorce, but need not be.⁽¹⁶⁴⁾ The same reasons articulated by courts that have forbidden joinder appear to guide those courts that permit but do not require it.⁽¹⁶⁵⁾

2.  Simultaneous or Subsequent?

Typically, the issue of joinder arises when an abused partner seeks to bring a tort action after the divorce, and the defendant seeks to have the action dismissed, on the grounds that the divorce settlement has already provided a full and final disposition of all claims between the former partners. If joinder is required, as in New Jersey, the later tort claim will almost inevitably be dismissed.⁽¹⁶⁶⁾ The most crucial consequence of allowing the claims to be brought separately, therefore, is that it opens the way for a subsequently filed tort claim. But not all such claims will be permitted to go forward. Courts have variously used doctrines of res judicata, equitable estoppel, and waiver to bar certain tort actions when brought by one divorced partner against the other.

If joinder is forbidden, it is hardly possible for the defendant in the tort action to argue res judicata. As the Connecticut Supreme Court recently explained in this context:

[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.⁽¹⁶⁷⁾

How can a claim that cannot be made in the context of the divorce proceeding be resolved by it? But arguments still may be advanced that the plaintiff is equitably estopped from pursuing the claim, or that the divorce judgment or settlement contained an express or implied waiver of the claim. Both these topics are developed further below. In those states that neither mandate nor prohibit joinder as a blanket rule, on the other hand, courts will inevitably be asked to determine whether principles of res judicata preclude some number of tort actions brought subsequent to divorce proceedings in which a partner's abuse was arguably already addressed. Issues of waiver or equitable estoppel will be relevant in this context as well.

a.  Res Judicata

There are a number of decisions in which res judicata has been used to bar plaintiffs from bringing tort actions after their divorces on the grounds that the issue of their partners' abuse was fully addressed in the context of the divorce. The crucial question here is how ready a court will be to reach that conclusion. In the 1987 Tennessee case of Kemp v. Kemp,⁽¹⁶⁸⁾ for example, a Court of Appeals applied res judicata to bar an abused wife's tort claim, because the divorce court had ordered the husband to pay the past and future medical bills associated with his abuse. The court admitted that the two causes of action were not the same, but concluded that because of this award she had "in effect . . . prevailed on a tort claim."⁽¹⁶⁹⁾ While the court stopped short of saying that all tort actions must be joined to divorce actions when the injuries occur during marriage, it nonetheless espoused a broad application of res judicata, suggesting that "principles of res judicata apply not only to issues actually raised and finally adjudicated in prior litigation, but to `all claims and issues which were relevant and which could reasonably have been litigated in a prior action.'"⁽¹⁷⁰⁾ Similarly, in an Alabama case in 1988, an abused wife was precluded from bringing a tort suit subsequent to the divorce, on the grounds that the issues of continuing health insurance and payment of her medical bills had been central to the divorce settlement negotiations.⁽¹⁷¹⁾ The divorce court had approved the settlement, and was aware of the wife's claims that her husband's abuse had resulted in a ruptured disc for which she required surgery.⁽¹⁷²⁾

On the other hand, the Eleventh Circuit, applying Alabama law in a 1989 case, found that a subsequent tort suit for battery, intentional infliction of emotional distress and outrage was not barred when the husband's abuse was not the basis of the no-fault divorce, even though the injunctive terms of an earlier protective order obtained by the wife were merged with the divorce decree.⁽¹⁷³⁾ In 1988, a Michigan Court of Appeals refused to bar a later-filed assault and battery and intentional infliction of emotional distress claim, even though the divorce court had divided marital property according to the parties' fault.⁽¹⁷⁴⁾ Also in 1988, the Idaho Supreme Court allowed a subsequent tort action, concluding that even though Idaho trial courts have the jurisdiction to address and resolve issues of intentional wrongful conduct occurring in the course of a marriage in the context of dissolution proceedings, an exception to the court's traditional interpretation of res judicata should be recognized in cases involving abuse.⁽¹⁷⁵⁾ And in the same year the Massachusetts Supreme Court declined to apply res judicata in a tort action in which evidence of the husband's abuse and the wife's resultant injuries were introduced during the earlier divorce proceedings, when the divorce was granted based on irretrievable breakdown of the marriage. The probate judge did not specify what factors had influenced his award of alimony and his division of marital property.⁽¹⁷⁶⁾

b.  Equitable Estoppel

Massachusetts, while roundly rejecting a mandatory joinder approach, and appearing sympathetic to arguments against the application of res judicata to subsequently filed tort suits, has nonetheless used the doctrine of equitable estoppel to create strong incentives for lawyers to bring divorce and tort suits simultaneously. This is the practical result of two defining decisions. In the first, Heacock I, the Supreme Court rejected the defendant's argument that his former wife's tort claim was precluded by their earlier divorce.⁽¹⁷⁷⁾ On remand, however, the trial court found that the abusive husband had been disadvantaged by not knowing, at the time of his divorce, that his wife was planning the later tort claim. The claim was therefore disallowed, on the grounds of equitable estoppel, and this ruling was upheld on appeal in a case known as Heacock II.⁽¹⁷⁸⁾

Members of the Massachusetts Family Bar have sensibly determined that the best advice they can give their clients in the aftermath of these two decisions is to file the claims at the same time, although the Heacock decision depended heavily on the particular facts of the case, so that its reach cannot be determined without further testing in the courts.⁽¹⁷⁹⁾ It is notable that Mrs. Heacock did not allege that her delay in prosecuting the tort action was caused by fear of Mr. Heacock, and what he might do in response. Rather, her lawyer asserted that he wanted "to work up more potent evidence that Carla's epileptic seizures had been brought on by Gregg's battery."⁽¹⁸⁰⁾ The appellate court was unconvinced, and repeatedly used language expressing its conviction that Mrs. Heacock's lawyer had been attempting to gain an unfair tactical advantage, by seeking evidence "on the sly," and keeping both the defendant and the probate court "in the dark."⁽¹⁸¹⁾

Mr. Heacock argued that after the divorce judgment became final he destroyed evidence that might have helped him defend against the tort action. Further, his lawyer was able to suggest a variety of ways in which Mr. Heacock's interests could have been better protected had the tort claim been disclosed. He would have moved, he asserted, to consolidate the two actions, or to stay the divorce action until the tort suit was adjudicated. He would at a minimum have filed a notice of appeal from the probate court judgment in order to obtain findings from the judge who presided over the divorce, which findings might have had an issue preclusion effect on some of the factual matters involved in the tort action. He would also have "attempted to obtain an independent evaluation of Carla's medical condition and would have taken `steps to locate and preserve the testimony of all those persons who could corroborate Mr. Heacock's version of [the alleged violence].'"⁽¹⁸²⁾

It did not help Mrs. Heacock's case that her tort action had actually been filed before the trial in the divorce action, in order to meet the three-year statute of limitations, but that no notification was given to the Probate Court, while the defendant husband did not learn of the suit until he was served, almost a year later. Mrs. Heacock's lawyer further offended the Court of Appeals when he suggested, as a further justification for the delay, that prompt service would "`improperly affect the probate proceedings,' i.e., that the divorce case would be more justly disposed of if the defendant and the Probate Court judge were kept in the dark."⁽¹⁸³⁾ The court called this an "astonishing proposition" insofar as it "suggests that the discretion and judgment of the Probate Court would be distorted by knowledge of the facts."⁽¹⁸⁴⁾

A dramatic contrast to Heacock II is provided by a 1987 Wisconsin case, Stuart v. Stuart, in which an abused wife brought a tort suit for assault, battery, and intentional infliction of emotional distress three months following the conclusion of a no-fault divorce proceeding.⁽¹⁸⁵⁾ The divorce and the division of the marital estate were based on a stipulation that there had been "a full disclosure of all assets, debts, and other ramifications of the marriage."⁽¹⁸⁶⁾ As in Heacock II, the husband argued that the wife's failure to mention her potential tort claims in the context of the divorce proceeding should preclude the suit on the basis of res judicata, waiver, and equitable estoppel. The trial court agreed, concluding that it was "`absolutely unconscionable' that she would negotiate . . . her divorce and advise the court that it was based upon full disclosure when she knew a civil lawsuit would be filed immediately after the divorce was granted."⁽¹⁸⁷⁾ So strong was the trial court's reaction that it described the tort suit as "an abuse of the judicial system," and agreed with the husband that it was "brought in bad faith and solely for the purposes of harassment and malicious injury."⁽¹⁸⁸⁾ On the basis that the claim was frivolous, the court awarded the husband $10,000 for his legal expenses in responding to it.

The appeals court saw the case entirely differently. It saw no basis for the application of res judicata. The issues litigated in the divorce proceedings were: "the termination of the marriage and the equitable division of the marital estate," without regard to the fault of the parties.⁽¹⁸⁹⁾ "Consequently, in making the financial allocation between the parties, the court could not consider one spouse's tortious conduct or, based upon that conduct, award the injured spouse punitive damages or compensatory damages for past pain, suffering, and emotional distress."⁽¹⁹⁰⁾ Since "divorce and tort actions do not easily fit within the framework of a single trial," the objectives of res judicata, which the court identified as "judicial economy and the conservation of those resources parties would expend in repeated and needless litigation," would not be met by demanding a single trial in these circumstances.⁽¹⁹¹⁾ In addition, the appeals court believed that it would be fundamentally unfair to the wife to apply res judicata, because the divorce proceeding "did not provide an opportunity for a full and fair determination of [her] tort claim."⁽¹⁹²⁾

The appeals court was equally unimpressed with the equitable estoppel argument. "Failing to disclose a potential tort claim," it concluded, "cannot be interpreted as a representation that no such claim exists."⁽¹⁹³⁾ Nor was there any evidence that the husband relied to his detriment on any such representation "in achieving the divorce stipulation and the division of the marital estate,"⁽¹⁹⁴⁾ because those were "achieved according to the dictates of state law."⁽¹⁹⁵⁾ The Supreme Court of Wisconsin affirmed the appeals court, adopting its reasoning wholesale.⁽¹⁹⁶⁾

c.  Waiver

The appeals court in Stuart was also clear that neither the wife's decision to pursue divorce proceedings, nor her failure to mention her tort claim in those proceedings, could be construed as a waiver--a voluntary and intentional relinquishment--of her right to pursue the tort action subsequent to her divorce.⁽¹⁹⁷⁾ There was no evidence of any such intent on the part of the wife, the court concluded, and the law of Wisconsin "will not force one party to a marriage to choose between commencing an action to terminate a marriage or one to recover compensation for injuries sustained as a result of spousal abuse."⁽¹⁹⁸⁾ Nor could her stipulation that she had disclosed all "assets, debts and other ramifications of the marriage"⁽¹⁹⁹⁾ be interpreted as a waiver of the tort claim, even though the court believed that the claim was indeed an asset that should have been disclosed.⁽²⁰⁰⁾

While the requirement that waiver be both intentional and voluntary argues strongly against any findings of implied waiver in this context, a more difficult question is whether to interpret release clauses, which are routinely included in settlement agreements, and subsequently incorporated into divorce decrees, as explicit waivers of later tort claims. Many courts have so found, but the language of these releases is not uniform, and decisions about their scope must be made on a case-by-case basis.⁽²⁰¹⁾

In a federal district court case in Kentucky in 1990, a tort claim brought after a divorce was barred on the strength of a release claim which provided that "[e]ach party hereby releases and discharges the other from all obligations of support, and from all other claims, rights, and duties arising or growing out of said marital relationship."⁽²⁰²⁾ In South Dakota in 1995, on the other hand, the Supreme Court decided that a similarly worded release did not bar a claim based on abuse that occurred after the divorce. The court was clear that the goal of a release in the context of a divorce is to extinguish other claims, rights and responsibilities existing prior to the signing of the agreement, not those that arise subsequently.⁽²⁰³⁾

The language of other release clauses is even broader. A striking example is the clause at issue in Cerniglia v. Cerniglia, a 1995 decision by a Florida court of appeals.⁽²⁰⁴⁾ The settlement agreement provided that it was "a full and complete settlement . . . of claims of any nature whatsoever that each party may have against the other," that all parties "mutually forever renounce and relinquish all claims of whatever nature each may have," and that the agreement "shall constitute a complete, general, and mutual release of all claims whatsoever."⁽²⁰⁵⁾ The court barred a later tort suit by the wife against her former husband. An earlier decision by an Alabama court of appeals in 1984 found that a "boilerplate" clause in an agreement, providing that the agreement was a "full, final and complete settlement of all property matters and other matters between the parties" operated to bar a later tort claim.⁽²⁰⁶⁾ Similarly, the Alabama Supreme Court, in 1990, found that a clause providing for a "mutual release" of "all claims and demands" barred a subsequent tort suit.⁽²⁰⁷⁾ The court suggested that the wife should have expressly preserved her tort claim in the settlement agreement, or alleged the claim in a separate counterclaim for damages in the divorce proceedings, which would have been possible under Alabama law.⁽²⁰⁸⁾

Notably, none of these decisions come from jurisdictions in which joinder of tort claims with divorce actions is barred.⁽²⁰⁹⁾ Courts in those states might be more hesitant to decide that a tort claim was a claim arising or growing out of a marital relationship, because they view the marriage, and issues surrounding its termination, as fundamentally distinct from any tort claim either partner might have against the other.⁽²¹⁰⁾ It might be harder to resist the interpretation that a release as broadly framed as the one in Cerniglia does indeed preclude a later tort action. There is no reason, on the other hand, to follow the Alabama Supreme Court's reasoning, and presume that a release clause precludes a subsequent tort action unless one of the partners expressly preserves the right to bring one. Given the very compelling safety reasons why an abused partner may want to preserve that right without drawing attention to it until the divorce proceedings are concluded, the burden should be placed squarely on the partner who has reason to fear being sued to protect his interests by seeking an appropriately specific release.⁽²¹¹⁾

The lesson here for lawyers representing clients in divorce proceedings is that much may ride on the language of release provisions. Those representing marital partners who have been abused must be cautious not to give away too much; those representing partners who may have been abusive have every incentive to make the release as all-inclusive as possible. There is an inherent tension between an abused partner's desire not to signal her intention to bring a later tort suit, and her need to protect that possibility by refusing to accede to language, or insisting on language, that may give her intentions away. The courts will eventually be faced with the question of whether a release that precludes a subsequent suit should be invalidated as "involuntary," when the abused partner's fear of further violence is what prevented her from objecting to its inclusion in the settlement.

d.  Later is Better

An increasing number of jurisdictions are allowing former marital partners to bring tort claims after divorce proceedings are concluded, resisting the application of any of the restrictive doctrines discussed above. In recent years the Supreme Courts of both Maine and Connecticut have written strong and thoughtful opinions in support of this position. In the 1993 case of Henricksen v. Cameron,⁽²¹²⁾ the Supreme Court of Maine allowed a later-filed tort claim to go forward, even though the parties' divorce was based on the husband's cruel and abusive treatment of his wife.⁽²¹³⁾ The court noted that: "Maine courts are prohibited from considering fault in dividing marital property . . . or in awarding alimony,⁽²¹⁴⁾ and stressed that raising tort claims in a divorce action "would undermine the policy premises of no-fault divorce."⁽²¹⁵⁾ In addition the court worried that "requiring joinder of tort claims in a divorce action could unduly lengthen the period of time before a spouse could obtain a divorce, resulting in such adverse consequences as delayed child custody and support determinations."⁽²¹⁶⁾

The 1996 Connecticut case, Delahunty v. Massachusetts Mutual Life Insurance Co.,⁽²¹⁷⁾ involved fraud on the part of the husband, rather than abuse. Nonetheless, the court rendered an opinion that summarizes the many arguments advanced by other courts in the context of abuse. In particular, the court emphasized the danger of giving marital partners an incentive

to raise and litigate [in their divorce proceedings] every marital grievance that might later form the basis of a possible tort action, for fear of forfeiting the ability to do so later in the form of a tort action. . . . This in turn would tend to make contested dissolution actions even lengthier and more acrimonious and expensive than they already are . . . contrary to our established policy to foster amicable marital dissolutions whenever possible.⁽²¹⁸⁾

The most crucial argument in favor of allowing a woman to wait until her divorce is resolved before she brings a tort action against her abuser is that unless the legal system preserves this option, a tort remedy will be foreclosed altogether for any woman who feels that pursuing a claim is simply too dangerous, until such time as her separation from her abuser has been successfully accomplished, and a structure has been put in place that sets limits to his interactions with her and her children. If she is forced to pursue the tort claim together with the divorce, or even to notify the probate court that she is bringing it, or plans to bring it in another court, she may well forfeit the claim to buy her safety.⁽²¹⁹⁾ But if the legal system encourages or facilitates this choice, it rewards her abuser by reinforcing his belief that violence, or the threat of violence, is an effective strategy to secure his interests. As the court in Delahunty concluded: "'The doctrines of preclusion . . . should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies.'"⁽²²⁰⁾ The values furthered by allowing the abused partner to recover for her injuries, and holding the abuser accountable for his abuse, must weigh heavily in the balance.

Courts have not always acknowledged the unique constraints faced by a victim of abuse as she embarks upon the difficult and dangerous task of challenging her abuser's control, and breaking free of the coercive relationship in which she is trapped. Many courts have noted that separating tort claims from dissolution proceedings will reduce the level of acrimony attending the divorce, consistent with the goals of a no-fault system.⁽²²¹⁾ Fewer have paused to consider what that may mean in the context of an abusive relationship. In the Stuart case, however, the Wisconsin appeals court, in a portion of its opinion specifically endorsed by the Supreme Court, did pay attention to this reality:

If an abused spouse cannot commence a tort action subsequent to a divorce, the spouse will be forced to elect between three equally unacceptable alternatives: (1) Commence a tort action during the marriage and possibly endure additional abuse; (2) join a tort claim in a divorce action and waive the right to a jury trial on the tort claim; or (3) commence an action to terminate the marriage, forego the tort claim, and surrender the right to recover damages arising from spousal abuse. To enforce such an election would require an abused spouse to surrender both the constitutional right to a jury trial and valuable property rights to preserve his or her well-being. This the law will not do.⁽²²²⁾

Similarly, in the Nash case, the Idaho Supreme Court reasoned that a divorce proceeding should not serve as a catalyst for additional abuse,⁽²²³⁾ and the Connecticut Supreme Court in Delahunty approvingly cited both.⁽²²⁴⁾

3.  Managing the Money

As courts have repeatedly emphasized, a divorce proceeding is usually not a suitable forum in which to present detailed accounts of abuse, with specific price-tags attached.⁽²²⁵⁾ Further, while the distribution of marital assets may be governed by a set of criteria broad enough to respond to past abuse,⁽²²⁶⁾ and support obligations may also be structured to account for continuing needs and disabilities, both physical and emotional, that are the consequence of abuse,⁽²²⁷⁾ both distribution and support decisions may legitimately be made on the basis of such an array of "factors," that the abuser never fully pays the bill associated with his abuse.⁽²²⁸⁾ This is problematic from both the perspective of justice, and the perspective of accountability. Furthermore, with respect to support, an award may be subsequently modified for reasons that have nothing to do with one partner's wrongdoing toward the other, or her legitimate claim for redress--seriously undercutting the message that he is responsible because of his past conduct, and the injuries he has inflicted.⁽²²⁹⁾ There is the further danger, in the context of a divorce proceeding, that an abuser will use the leverage of access to the children to make his partner scale down her financial claims.⁽²³⁰⁾ This is, of course, a charge against the family law system not limited to those interested in the issue of domestic violence--but it has particular poignancy in a context in which a woman may be very legitimately concerned for the physical safety of her children.

For all these reasons, the tort system may offer a more satisfactory process for collecting compensation. Here the only issues are the perpetrator's wrongdoing, and the injuries, physical and emotional, he has inflicted. The award can recognize pain and suffering, as well as the tangible elements, such as medical expenses and lost earnings; punitive damages are also a possibility. However, some difficult questions remain about the precise relationship between the financial settlement, or judgment, that comes out of the divorce proceeding, and a tort recovery. Courts that have insisted that the claims be joined, or at least brought simultaneously, have sometimes suggested that the divorce proceeding, which would normally be concluded before the tort action, should be stayed, so that any tort recovery by the abused partner can be taken into account in distributing the marital estate and awarding support. The defendant in Heacock II claimed that his former wife's failure to disclose the tort action until the divorce was final disadvantaged him precisely because it left him unable to employ this strategy.⁽²³¹⁾ An appellate court in a New York case in 1991, allowing joinder of a tort claim for the transmission of genital herpes with equitable distribution and support claims, said that the divorce court must wait to determine the divorce issues until a jury had rendered a verdict on the tort claim. The court believed that success on the part of the injured spouse would significantly affect the parties' future financial situations, which would in turn affect the maintenance and distribution decisions.⁽²³²⁾

One problem with this approach is the delay it imposes with respect to the divorce. Quite apart from the psychological importance of closure, which may provide some peace of mind for the abused partner, and an important message to the abuser that his claim on his victim has been finally and firmly annulled, there is a practical need to settle both the financial issues and issues about the custody of minor children. Courts that have forbidden joinder have frequently argued that this need for closure militates against tying the two claims together, and having the divorce be hostage to the timing of the tort claim.⁽²³³⁾

An even more serious problem with this approach is the possibility that the abuser will be "rescued" from full responsibility for his abuse, if a court, looking at the issue of distribution subsequent to the tort award, when he is relatively poorer and his partner relatively richer, divides the marital estate in a fashion that favors him. This was recognized by another New York court in 1993. The court there insisted that the parties' assets be distributed prior to any award for personal injuries, so that the wife's damages, if any, would be paid from his separated assets, and not from the marital estate.⁽²³⁴⁾ The Wisconsin appeals court in Stuart took the same position, arguing that any "damages Ronald Stuart would be obligated to pay as a result of the alleged tort are to be satisfied from his individual property or from his interest in the marital property."⁽²³⁵⁾

If the tort action is brought simultaneously with, but concluded after, the divorce proceedings, the question will be how the probate court should address any potential overlap between the two judgments. One way in which that question is posed is whether the divorce court should try to factor the pending claim into the distribution, as an "asset" belonging to the abused partner, even though its value is uncertain. Some courts have opted for that strategy, while others have declined, on the theory that the value of an unliquidated claim is simply too speculative to warrant inclusion in the calculations.⁽²³⁶⁾ Again, the argument could be couched in terms of justice--why should the distribution favor the abuser, when his potential liability for the injuries he has caused are designed either to compensate his partner (not to make her richer, but only to make her whole) or in the case of punitive damages, to punish him for egregious behavior. The impact of those damages is surely cushioned in a troubling way if he is given more, by way of the distribution, to pay for them.

If the jurisdiction is one in which marital misconduct can be taken into account in the distribution, the probate judge who knows a tort claim is pending might choose nonetheless not to use fault as one of the factors guiding his allocation. Or he might want to use fault as one among the many relevant criteria, but indicate what influence it had on his decision, allowing the court in which the tort claim is tried to reduce its award to the abused partner by that amount, to prevent double recovery.

If the probate court does not know that a tort claim will be filed, because the abused partner has chosen to say nothing until after the divorce is concluded, the judge's options are somewhat different. The abuse may or may not be apparent. If the abused partner has chosen to disclose the abuse, and the jurisdiction allows the judge to use that conduct in calculating the distribution, then it would be safer for the judgment to specify how the abuse had influenced that calculation, on the theory that a suit might be brought subsequently. If the abuse is not disclosed, then it cannot influence the distribution, and the problem disappears from the probate court's view. It may resurface in the later tort action, if the abusive partner claims that a need-based distribution was in fact responsive to needs created by his abuse, and was to that extent, compensatory. The best answer to this problem may be that it is the responsibility of the partner who knows, or should know that he may be vulnerable to a later tort claim to seek clarification from the probate court about the basis of the property allocation, if he wishes to preserve the possibility of reducing the tort award on a double-recovery theory.

The support obligation raises no double recovery concern, because it can be modified in the face of any material change in circumstance.⁽²³⁷⁾ This enables an abusive partner to go back into probate court seeking a downward modification of his support obligation in the event that his former mate later receives a substantial tort award. Thus, if the woman's claim in the divorce proceedings is that she is unable to support herself financially because of a temporary or permanent disability caused by her partner's abuse, her support award should reflect that current need.⁽²³⁸⁾ If the tort award then provides her with compensation for that same disability, her former partner can seek to have his support obligations reduced or eliminated. It is clearly preferable to modify the support obligation in light of the tort award, rather than to reduce that award to reflect current support payments, which can be changed for a variety of reasons having nothing to do with her need.⁽²³⁹⁾ It is also clearly preferable to leave the support order in place until the tort award is safely in the bank, because support payments are often substantially easier to collect.⁽²⁴⁰⁾

As long as we have safeguards in place to deal with the limited kinds of "double recovery" issues that might arise there is little to support the idea that the Mr. Heacocks of the world are prejudiced by not anticipating a later tort action when they finalize their divorces. Could we not move to view the situation as one in which an abusive partner should be aware of that possibility as a matter of course, especially if his partner has not agreed, in the context of the divorce proceedings, to waive any other rights she may have against him? Given the prevalence of abuse, should not every divorcing partner be counseled to disclose any potential allegations of abuse against him, so that his lawyer can attend to the potential consequences of those allegations? Hopefully more and more courts will follow the lead of those who have already declared the legitimacy of the "divorce first, tort last" strategy, and those that have "managed the money" so that the abused partner can be fully compensated for the injuries she has suffered, while her partner is held fully accountable for his abuse.

  Conclusion

What more can the legal system do to facilitate tort actions by victims of domestic abuse who might choose to make their abusers accountable, and recover for their injuries, both physical and emotional?

I have suggested, first, that the legal profession needs to do all it can to create a climate in which women entering the legal system in search of any kind of legal assistance are encouraged to disclose, and feel secure enough to disclose, a history of abuse. This goal is particularly relevant to family lawyers who may not immediately recognize their divorce clients as victims of abuse.

I have suggested, second, that attention be paid both to telling women's stories of abuse in ways that make creative use of existing causes of action, and to developing descriptions of the underlying structure of abusive relationships that will encourage judicial or legislative recognition of partner abuse as a continuing tort characterized by cumulative physical and emotional injury.

I have suggested, third, that other issues of process require attention, from individual lawyers, and then also from judges and legislatures. It is the task of lawyers to assist their clients in pulling together the sometimes elusive proof needed to support their claims. It is also the task of individual lawyers to urge judges in individual cases that justice requires the tolling of conventional statutes of limitation. But it may be the larger task of the profession to urge a more generic recognition of the injustice of strict adherence to those periods of limitation in cases involving abuse, and to advocate change.

Finally, I have suggested that women are still, in many jurisdictions, foreclosed from suing their abusers civilly, because they are not permitted first to secure their safety and the safety of their children through divorce proceedings. Those states that have permitted such suits offer the model for others to follow, although each state provides a somewhat different framework in which the model must be adapted to fit.

My proposals fall far short of providing a detailed blueprint, not least because of the many variations in state law--both substantive and procedural--with respect to both family law and actions in tort. My hope, rather, is to suggest some directions for future efforts, and provoke further critical consideration of existing constraints and possibilities.

* This Article is based on a presentation made at the Anna E. Hirsch Lecture Series, held at New England School of Law on October 8, 1996.

** Professor of Law and Executive Director of the Domestic Violence Institute at Northeastern University School of Law. My thanks to a number of students who have provided valuable assistance along the way: Peggy Bucklew, Lori Curtis-Krusell, Brenda Davis, Laura Hermer and Rami Vanegas of Northeastern University School of Law. My thanks also to my colleagues Mary O'Connell, who provided encouragement at an early stage, and Rose Zoltek-Jick, who guided me through the latest traumatic stress literature.

1. In the 1996 edition of Marc A. Franklin & Robert L. Rabin, Tort Law and Alternatives: Cases and Materials (6th ed. 1996), for example, the entire subject of "spousal suits" is treated in two paragraphs. Franklin and Rabin note that after the "Married Women's Acts" of the nineteenth century, "state courts slowly began eliminating the immunity from tort liability that spouses had enjoyed against being sued by one another." Id. at 188. The discussion ends with the declaration that "[v]irtually all remnants of spousal immunity have disappeared as to both intentional and negligent harms." Id.

2. A word of explanation is in order with respect to my choice of pronouns. The question of how much violence is perpetrated by men, and how much by women, is a contested one. An incontrovertible statistic is that more than 90% of heterosexual partner violence reported to law-enforcement authorities is perpetrated by men. See, e.g., Demie Kurz, Physical Assaults by Husbands: A Major Social Problem, in Current Controversies on Family Violence 89-90 (Richard J. Gelles & Donileen R. Loseke eds., 1993). But any statistic that depends on reporting is likely to reflect only the most serious levels of violence or threat, and will also underrepresent any victim constituency reluctant to seek official intervention. In a society that stresses male self-reliance, a man is likely to think long and hard before calling the police to report that his partner is abusing him. See Murray A. Straus, Physical Assaults by Wives: A Major Social Problem, in Current Controversies on Family Violence, supra, at 71-73 [hereinafter Straus, Physical Assaults by Wives].

Other frequently cited statistics suggest a much more equal distribution of violence. See generally Murray A. Straus et al., Behind Closed Doors: Violence in the American Family (1980); see also Murray A. Straus & Richard J. Gelles, Societal Change and Change in Family Violence 1975-1985, as Revealed by Two National Surveys, 48 J. of Marriage and the Fam. 465-79 (1986) [hereinafter Straus, Societal Change]. These studies have been criticized for not distinguishing between violence that is serious enough to produce injury, and violence that is not, and for not distinguishing between unprovoked violence, and violence used in self defense. See, e.g., Daniel G. Saunders, Wife Abuse, Husband Abuse, or Mutual Combat? A Feminist Perspective on Empirical Findings, in Feminist Perspectives on Wife Abuse 95-96 (Kersti Yllo & Michele Bograd eds., 1990). See Straus, Physical Assault by Wives, supra, at 69-70, for an analysis of injury-producing violence by gender.

More helpful is the recognition that violence in the context of an abusive or battering relationship is different from other kinds of violence. This violence, used as one aspect of a broader coercive strategy to subdue or control a partner, appears to be largely a male phenomenon, although there are surely some women who control men in the same way, as well as women who abuse women, and men who abuse men, in lesbian and gay relationships. See Desmond Ellis & Noreen Stuckless, Mediating and Negotiating Marital Conflicts 34-46 (1996) for a helpful topology of violence in intimate relationships, and confirmation of the disproportionate number of men who resort to "controlling" violence.

The use of the male pronoun for the perpetrator of violence, and the female pronoun for the partner who is violated, therefore reflects the focus of this Article on violence in the context of abusive marital relationships, in which it is indeed much more likely that the abusive partner will be male.

3. To the extent that this Article deals with the problems inherent in using the tort system to challenge abuse, it is as relevant to unmarried partners as to married ones, and as relevant to lesbian and gay partnerships as to heterosexual ones. My primary focus, however, throughout this Article is on the marital partnership. That focus is reflected in the language I use.

</