Michael T. Bigos, trial lawyer and partner at Berman & Simmons

Domestic Torts: Money for Spousal Abuse?

It should never hurt to be a spouse, child, sibling, or partner. The simple truth is, “there is no excuse for domestic violence.”

Domestic or spousal abuse claims are one of the most challenging areas of tort law. Typical hurdles to pursuing these claims include factual disputes over an incident of physical violence, “she hit me first” accusations of being a co-batterer, lack of insurance coverage under homeowner’s policies, finding non-exempt assets to satisfy a judgment, and causation—particularly for emotional distress damages.

Frequently, domestic violence victims’ damages do not arise from a single physical incident. Rather, they accumulate over several years or more, and escalate from verbal abuse and control. Abuse leads to physical and emotional isolation, and often results in physical contact that ranges from subtle contact to beatings, mutilation, and death.

Maine abrogated spousal immunity in Henriksen v. Cameron, 622 A.2d 1135, 1143 (Me. 1993). Spouses are now able to bring tort claims against their abusers, and most importantly, can admit evidence of prior abuse beyond the statute of limitations. The Law Court stated that “it is sometimes appropriate to admit evidence of conduct occurring beyond the six-year statute of limitations for the purposes of establishing the defendant’s intent or motivation as well as on the issue of whether or not [the plaintiff] reasonably believed any threats that may have been made by [the defendant].” 622 A.2d at 1143.

Allowing such evidence is important because it helps distinguish an isolated event from a pattern of events or contacts from years of abuse. In a recent case, I argued that years of abuse tended to show how fragile the client was when an incident appeared to cause acute emotional damages, psychiatric hospitalization, and a long term psychiatric disorder, in addition to her broken bones. Otherwise, the crude “value” of an isolated beating would be far less than the value when considered in light of a decade of fear, intimidation, remorse, shame, and other emotional imprints on a victim.

Proving emotional distress damages is nearly impossible without a retained forensic psychiatric expert witness or qualified licensed clinical social worker. When significant assets are at risk, and both parties have lawyers, dueling experts should be expected. The victim will typically claim Post-Traumatic Stress Disorder (PTSD), anxiety, or other diagnoses. The defense will typically accuse the victim of being a co-batterer, hostile and aggressive, and having other forms of mental illness, such as Borderline Personality Disorder, to help support its defense. The victim should also expect to be accused of trying to gain an advantage in a divorce proceeding if one is pending. Typically, the tort case will need to be resolved before the divorce case is concluded. Most family lawyers will insist on a settlement of all claims including domestic torts in any worthy settlement agreement.

Educating the jury on domestic violence issues begins at case intake. The expert witness should be selected and asked to investigate the circumstances of the attack and the related damages well before filing suit. When party and expert depositions occur, the modern science of domestic violence behavior should be part of the client’s discovery outline and trial strategy.

Domestic violence is a pattern of coercive behavior used by one person in a relationship to gain and maintain power and control over the other person. Lenore Walker’s groundbreaking DV research on what has become known throughout the world as “Battered Person Syndrome” (ICD-9 code 995.81) gained acceptance in the behavioral health professional community in the 1980’s. The cycle of violence consists of four elements that repeat each other until and unless intervention is successful: tension; release of tension through physical or emotional abuse while blaming the victim for causing the violence; contrition; and failure to break the cycle or obtain intervention. Typically, the cycles of violence repeat over periods which can range from weeks and months to years.

Acute releases of tension may occur around birthdays, anniversaries, and holidays. Contrition often takes the form of written apology letters, interactions with witnesses in the religious community, offering gifts or money, and apologies to close family members.

Victims of abuse frequently lie about what has happened to them when seeking medical attention or when dealing with the police. To remedy these, the client must be ready to admit their past misrepresentations. Witness credibility is automatically an issue in such cases.

After violence occurs, victims may also contact friends or law enforcement to get help, but not want to press charges because doing so threatens the economic stability of the victim. For example, if an abusive single-wage earner is put in jail, the victim risks not only dealing with the abuse, but losing housing for their children and themselves, and the ability to have basic clothes, food, and heat.

Domestic tort claims, like any other, promote safety in our society. Speaking out helps break the silence of victims. It also can help stop myths such as the stereotypical alcoholic abuser beating his wife in a poor family. Rather, domestic abuse transcends all economic and professional strata ranging from doctors and lawyers to blue collar and the self-employed. Domestic violence transcends all age groups, religions, and does not discriminate toward sexual orientation.

Again, these are of the most difficult types of tort cases. Selection must be done carefully, and the victims must be desensitized from the legal process so they are not harmed again, but rather empowered to do something about the harm. By holding abusers accountable, our community will be safer for all those with whom we work, live, and love.

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Berman & Simmons is the leading personal injury and medical malpractice law firm in Maine. For more than 100 years, our trial attorneys have represented those who have been injured or harmed by the actions of others. These personal injury cases range from car and truck accidents to the most complex litigation involving defective products and malpractice by healthcare providers. We are known as the firm that will stand up and fight for injured Mainers in disputes against big corporations and powerful interests.