Two States Give Battered Women Tort Option

Sadly, Nicole Brown Simpson singlehandedly raised the American public's consciousness on domestic violence.

But jurors in O.J. Simpson's murder trial made it clear that they did not try Nicole's ex-husband for his previous abusive treatment toward her. Throughout the trial, legal hindsighters questioned why she did not take more decisive steps against him while she was alive.

And now two states have added a new weapon in a battered women's arsenal against abusive partners. New Jersey recently allowed abused women to sue for a new tort - the tort of causing "battered woman syndrome."

"Battered woman syndrome" is a medically diagnosed condition, the result of a continuing pattern of physical and psychological abuse and violent behavior that causes continuing damage. It has been considered a form of post-traumatic stress disorder, a term typically applied to war veterans in relation to the impact of combat on their demeanor and interaction with people.

Once considered the purview of family law practitioners, tort litigators are finding they, instead, may be the proper attorneys to handle such physical and emotional abuse, although, ultimately, a finding in favor of the battered woman may increase the settlement potential in a divorce.

The New Jersey Appellate Court's recent decision in Giovine v. Giovine, 284 N.J.Super. 3, 663 A.2d 109 (1995), allowed an abused plaintiff to allege the "battered woman syndrome" and thereby avoid a stricter statute of limitations when suing for battery or emotional distress.

Idaho was the first state to recognize this tort in 1993 and found that a battered woman's claim may exist with or without touching. Curtis v. Firth, 850 P.2d 749. The court, in essence, adopted a "continuing tort" exception to the statute of limitations for the tort of intentional infliction of emotional distress.

When the "battered woman" tort is cast as a "continuing tort," it differs from other types of actions in that the woman is not limited to recovering for the specific incidents of abuse that occur within the limitations period. The concept of a "continuing tort" has been used in other contexts, generally in the way of a continuing infringement of someone's property rights as in continuing nuisance or trespass claims.

In regard to the battered woman tort, damages accrue during the entire course of the marriage. The defendant, therefore, is not allowed to use the statute of limitations as a shield.

In the New Jersey case, the plaintiff showed by medical, psychiatric and psychological evidence that she suffered from battered woman's syndrome "which caused an inability to take any action to improve or alter the circumstances in her marriage unilaterally."

There, the plaintiff complained that her husband, a state judge, went drinking on Friday nights and about twice a month would come home drunk and abused her by calling her names, slapping her, pulling her hair, forcing sexual intercourse and throwing things.

Illinois cases dealing with the battered woman syndrome typically consider the issue in a criminal context - often where a battered partner kills the perpetrator. All 50 states have allowed in criminal trials expert testimony in some form on battering as to the reasonableness of the battered woman's conduct, but no state permits the use of the battered women's syndrome as a criminal defense when the battered strike out in retaliation.

And with each case domestic violence is no longer considered an isolated problem found only in unusually disturbed couples. An estimated 4 million American women are battered each year by their husbands or partners, according to the National Clearinghouse for the Defense of Battered Women. Domestic violence is considered the single largest cause of injury to women in the United States - more significant than automobile accidents, rapes and muggings combined.

This new tort is an outgrowth of the legal reforms that have taken hold in the last 25 years aimed at ending domestic violence and creating a broad array of legal remedies to help the victims rather than protect the perpetrators.

Prior to the 1970s, little legal recourse was available for female victims of such violence. Police and prosecutors generally approached the assaults with skepticism, feeling if the violence were real, the woman would have left; if she stayed, it must not be true. In actuality, divorce often was financially or socially not feasible.

Gradually, all 50 states and the District of Columbia made civil protection orders available to victims of family violence. And now the new tort is emerging as a force with which to reckon.

Battered women and children must be assured that they can successfully turn to the courts for effective protection. Just how many Nicole Brown Simpsons will it take before the seriousness of this syndrome is recognized?

In 1988, the Married Women Act in Illinois was amended to allow one spouse to sue the other for any tort committed during the marriage. 750 ILCS 65/11 (1995). If Illinois is to remain in the vanguard on this issue, the courts or Legislature should examine the realities of the infliction of emotional distress on a spouse and consider the application of the "battered woman" tort.