A Guide to Domestic Torts

Veritas Legal Media – 757-582-1836, veritaslegalmedia@hotmail.com

In May 2011 a lurid story broke on the entertainment website TMZ about an “A-list” celebrity who is being sued for more than $20 million for intentionally transmitting the venereal disease herpes.

“An unnamed plaintiff has sued “an A-list celebrity of substantial fame internationally,” claiming the celeb came on to the plaintiff in Las Vegas and swore he was STD free, the TMZ report stated.

Few details were available of the case and neither party was named. But it sheds light on the little known family law area of domestic torts.

Contracting herpes is a serious matter. Aside from the embarrassment and the physical discomfort, there is no cure for herpes. Even when the symptoms are in remission, it’s likely to affect the ability of the person who contracted the disease, to engage in future sexual relations. Contracting a sexually transmitted disease (STV) from a partner is just one of a raft of domestic torts.

 In some states such as California, the victim may be able to obtain compensation for additional costs as well as the emotional distress caused. In severe cases he or she might be entitled to punitive damages for physical, emotional or psychological and physical injuries suffered over the length of a relationship.

There’s also the question of whether a spouse could receive a spousal support award in the courts if he or she contracted an STD. The problem of proof and the extensive recovery program means few cases of this nature are brought.

“No, it is not likely or commonplace to see a divorce court increase the spousal support award under these circumstances even though the court would have the legal authority to do so,” concluded Robert L. Mues, an attorney and author of Divorce in Ohio.

States including North Carolina recognize tort liability between spouses. A civil action may be brought against a spouse for battery, assault or infliction of emotional distress, the latter known as “heart balm” cases.

Infliction of emotional distress in the absence of physical abuse is limited to few jurisdictions because it can be a difficult and subjective area that calls for the involvement of psychological experts.

States including North Carolina also recognize claims for alienation of affection and criminal conversation.

Notwithstanding its name, criminal conversion is a civil matter. A person who has engaged in sexual intercourse with a married individual, can be liable in an action, even in cases where the married person was separated at the time of the affair.

In practice it’s rare for so called “marriage wreckers” to be sued. The innocent spouse who wants to pursue a lawsuit against a third party, alleging alienation of affections, needs to prove the marriage was viable and based on genuine love and affection, that the love was destroyed and the third party was responsible for the deterioration of the marriage, although the third party does not have to be proved as the only factor responsible for breakdown of the relationship.

Liability under this law could also extend to an in-law who encourages one spouse to leave the other. The innocent spouse could recover damages for a number of factors including emotional distress, anxiety and a loss of financial support.

Although there are wide variations from state to state, the concept of domestic tort is deeply rooted in common law and the principle that when someone harms you be it physically, emotionally or financially, you are entitled to compensation. It could be a stranger or a spouse.

Invasion of privacy is another domestic tort recognized in some states. Actions could include the publication of intimate photos, hacking into an e-mail account, wiretapping, or stalking. Recently in Chicago a woman sued her ex-boyfriend for allegedly posting nude photographs of her on an X-rated website.

As well as the obvious cases such as assault and battery, a spouse may seek damages against an estranged partner for a financial malfeasance if there has been a fraud or a breach of a financial duty.  This could include theft or goods or the transferal of an insurance policy.

Not only may a spouse’s rights be addressed through the tort law, but so are the rights of children.  A child may have a cause of action for assault and battery if he or she was hurt by a parent for any abuse or neglect.

One of the most interesting and evolving areas of domestic torts, which is a corollary of domestic violence, concerns Battered Women’s Syndrome. Can a woman recover damages for the feelings of guilt and fear caused by an abuse relationship?

“The most publicized and envelope-pushing type of domestic torts comes out of domestic violence and involves the Battered Women’s Syndrome,” writes New Jersey family lawyer Elliot H. Gourvitz.

New Jersey courts first recognized the Battered Women’s Syndrome as a defense in a 1984 criminal case.

“The Syndrome itself is such that battered women exhibit common personality traits: low self esteem; traditional beliefs about a woman’s role, family and home; female sexuality, tremendous feelings of guilt that their marriages are failing; and the tendency to accept responsibility for the

batterer’s action. These battered women are paralyzed by the fear of their spouse’s response should they attempt to leave the relationship,” Gourvitz wrote.

 Domestic torts are a rapidly moving area but some commentators point to the difficulties faced by those who want to bring cases. Barriers to compensation were explored in this 2001 article.

David Macaulay



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Filed under Domestic torts, Family law

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