Wriggins, J B --- "Domestic Violence in the First-year Torts Curriculum" [2006] LegEdDig 6; (2006) 14(3) Legal Education Digest 8

Domestic Violence in the First-year Torts Curriculum

J B Wriggins

[2006] LegEdDig 6; (2006) 14(3) Legal Education Digest 8

54 J Leg Educ 4, 2004, pp 511–526

Domestic violence torts should be included in torts casebooks and courses for at least four reasons. The first is simply that the harm caused by domestic violence is widespread and has broad ramifications. A second reason is that certain cases can be useful in gaining a deeper understanding of doctrinal issues, particularly concerning intentional infliction of emotional distress, and in highlighting the importance of intentional torts, which are often neglected in casebooks. The third reason is that inclusion of domestic violence torts can be a vivid way to illuminate relationships between torts and insurance — an important lesson in any torts course. Fourth, inclusion can lead to thought-provoking, broad discussions about tort policy, focusing on issues such as what harms are recognised, what harms could be recognised, and how one measures harm.

Domestic violence torts is given short shrift for at least two related reasons. First is that the tort system by various mechanisms, in combination with other factors, ensures that there are few published cases to even consider including in a torts casebook or course. Second, the overriding focus of tort law has been a focus on accidental injury. It is difficult to determine exact numbers of reported domestic violence tort cases and even more difficult to determine exact numbers of cases filed and settled. Domestic violence tort cases, in turn, are likely to be a tiny proportion of intentional tort cases filed. Another reason for the lack of attention to domestic violence torts is that relatively little attention has been paid to intentional torts in recent legal scholarship. In significant part, that is because of the predominance of economic theory in torts scholarship.

There are several approaches to including domestic violence torts in first-year torts courses. One approach is to assign several cases involving domestic violence. A second is to ask why there are so few domestic violence tort cases and lead a discussion on that and related questions. These two approaches can be effectively combined.

Some of the most interesting tort cases pertaining to domestic violence are those brought by an ex-spouse after a divorce alleging intentional infliction of emotional distress. The author assigns these domestic violence tort cases together with other casebook materials on intentional infliction of emotional distress, making sure students understand the elements of the tort and its interesting history.

This issue of tort liability for harms from domestic violence can be used as a starting point to discuss insurance and public policy. One way of looking at the public policy issues is to say that the public policy of not insuring for intentional torts contributes to the consequence that few intentional tort victims receive compensation. The discussion may test students’ intuitions about deterrence. It is hard to talk about domestic violence torts without talking about statutes of limitations. Another approach is to tell students how few reported cases there appear to be on domestic violence torts, compared with the incidence of domestic violence, and to ask why there are so few.

Domestic violence injuries occur in a context where claiming rates must be low, in contrast to automobile injuries, where there is an insurance system designed for compensation and differing cultural expectations. This could lead to discussion about criminal prosecution of those intentional torts that are crimes, compared with civil compensation for injuries caused by the same acts. Students may be familiar with the now common civil injunctions that victims of domestic violence may obtain against abusers. Another important difference between criminal and civil matters in this context is that the decision about whether to prosecute criminally rests with the prosecutor, while the decision to pursue a tort claim rests with the victim.

The spectrum of issues that the first-year Torts course can deal with is wonderfully wide. Deciding what to include and what to exclude is a perpetual challenge. The prevalence of domestic violence and its tortious nature present strong arguments for discussing it in first-year Torts. The intentional infliction of emotional distress cases discussed above offer a compelling context for learning both about domestic violence and about the importance and problematic aspects of this tort. Moreover, these cases, by their very rarity, highlight structures that prevent redress of domestic violence through the tort system, except in extremely unusual circumstances. Analysis of these and other domestic violence tort cases grounds the torts curriculum in broad contemporary realities and provides insight into important doctrinal and public policy issues that are central to torts as a field.