complicated areas of modern law in the United

States. As legal rights for women, especially married

women, have began to be more fully recognized, interspousal

immunity has waned and no-fault has replaced

fault-based divorce, while a separate area of law creating

Barbara Bennett Woodhouse with Comments by Katharine

L. Evans, The Wash. & Lee Alumni Association Student

& Lee L. Rev. 465 (2009). Residual effects of interspousal

immunity, procedural impediments to applying existing

legal constructs, and socio-legal attitudes about spousal

abuse have resulted in uneven and insufficient results in

these tort actions.

If there is, for the sake of argument, general agreement

that at least the same rights of recovery in tort

should be available to spouses as are available against

strangers, challenging issues still arise as to how this can

be accomplished under contemporary law. For a discussion

Md. L. Rev. 1268 (1996).

This article will briefly examine the obstacles to

meaningful recovery and will contrast and compare

such obstacles. The existing model exemplified

A. 2d 109 (N.J. Super. Ct. App. Div. 1995), attempts

to fashion a new tort which is, at least to some degree,

based upon existing common law concepts.

The second theoretical model advances the idea of

creation of a positive legal duty between spouses

as opposed to the simple abolition of interspousal

immunity.

In the last quarter century, courts and commentators

have begun to deal with torts committed

by spouses against each other. The reality is that

spousal torts are, with rare exception, torts against

women and the right of recovery is inextricably intertwined

with the legal rights and status of women.

& Comp. L. Rev. 155 (2009).

Additionally, substantial procedural impediments

concerns, coupled with vestigial biases in

favor of immunity from suit within marriage, have

impaired recovery especially when actions include

2d 407 (2009).

In an effort to overcome these obstacles, the

New Jersey Supreme Court fashioned a tort of

spousal abuse based upon the expert medical testimony

of Battered Woman’s Syndrome (BWS) in

jurisdictions where BWS have been as clearly recognized

as a basis for essentially a new tort, a few

primarily a federal action based upon the federal

Violence Against Women Act, 42 U.S.C. §13981

(VAWA), pendant state actions were also involved;

the federal district court reserved ruling on issues

concerning whether the tort of domestic violence

exists in Washington State and if so, the applicable

statute of limitations. The court reserved ruling

due to the plaintiff ’s Motion for Certification to the

Washington State Supreme Court filed March 26,

1998, which apparently was not determined.

A tort action for spousal abuse seemed as if it

would be certain when Congress, citing an “epidemic”

of domestic violence, enacted VAWA, which

included a specific federal tort action for spouse

hearings leading up to the VAWA revealed,

inter alia, that in the United States, every 15 seconds

a woman is beaten by a husband or boyfriend

and every six minutes a woman is raped; Surgeon

General Koop is quoted as estimating that domestic

violence is the number-one health problem for

women; and State Attorney Generals in supporting

federal action on gender-motivated violence stated

in a letter dated July 22, 1993, that “the current

system of dealing with violence against women is

inadequate.” Congress subsequently enacted the

VAWA of 1994, as part of the Violent Crime Control

and Law Enforcement Act of 1994. Subtitle

C was the “Civil Rights Remedies for Gender-Motivated

Violence Act” which created a civil rights

action based upon gender-motivated violence.

Recognition of a federal civil cause of action

was short-lived when the U.S. Supreme Court

The nature and extent of recovery for spousal

abuse still varies to date from state to state, although

generally actions for assault and battery have been

more successful (if able to overcome procedural impediments

to recovery) than claims for other than

physical injuries such as intentional infliction of

emotional distress (IIED) and negligent infliction

of emotional distress (NIED). However, to date,

no appellate jurisdiction other than New Jersey has

substantially developed a new theory of recovery

for abuse. Evans, supra, at 493.

Recently, two separate law review articles appeared

which discuss creation of a new spousal

legal duty as the basis for tort recovery for spousal

abuse. Michelle L. Evans set forth a theory of

action based upon creation of a spousal duty of

trust, the breach of which would “authorize compensation

for physical, emotional, and economic

497-98. Evans examines a number of alternatives

and gives recognition to the action based upon this

breach of spousal trust to the earlier (1994) writings

of Professor Barbara Bennett Woodhouse. Woodhouse

and Bartlett, supra, at 266-67. At the same

time, Professors Sinai and Shmueli, with great detail

and exhaustive research on Jewish law, outline

a “new model inspired by Jewish law,” and similarly

conceptualize a new tort of spousal abuse for the

“breach of trust and intimacy between them” that

would afford recovery for all injuries incurred. Sinai

and Shmueli, supra.

fashioning a new cause of action for spousal abuse

under tort law begins — and possibly ends — with

appeal from the New Jersey Chancery Division,

some of the procedural difficulties involved.

Divorce is usually an action in equity, not law, and

thus does not afford the right to a jury trial. Thus,

arise in a court of law where jury trial is guaranteed

and also where the trial judge is fully conversant

the chancery court had struck all intentional

tort claims contained in the divorce complaint of

the wife as barred by the statute of limitations. The

court additionally denied plaintiff ’s request for jury

trial on all claims.

Under traditional analysis that each and every

intentional assault and battery or act of infliction

of emotional distress is a separate and discrete act

for which the statute would run from the date of

that act, all tort claims arising more than two years

prior to the date of the complaint were barred.

On appeal, the appellate court reversed the

chancery court and held that expert testimony presented

by Dr. Lenore E. Walker based upon her

medical theory of Battered Woman’s Syndrome

(BWS) could provide a basis for establishing plaintiff

’s “temporary insanity” resulting in her failure or

inability to timely bring the action and tolling the

statute of limitations with regard to all of the acts

until the last tortuous act. As the court explained in

from two or more physical or psychological

acts occurring at different times. It is interesting to

note that the trend is for courts to recognize the defense

of BWS in criminal cases and approximately

half do so. Since the burden of proof is much

higher in a criminal case and the circumstances are

more serious, it would appear reasonable to extend

the argument that if BWS is recognized as a valid

medical defense to criminal acts of aggression or

even homicide, then BWS should be recognized as

a valid medical condition allowing extension of the

statute of limitations and/or cause of action in a

civil matter.

This strained but effective analysis established

the continuing tort of BWS so as to permit a recovery

in New Jersey. The appellate court upheld

denial of jury trial on the matrimonial equitable

property distribution claims but reversed the denial

on claims based upon BWS can be tolled due

to temporary insanity caused by defendant’s tortuous

conduct; and when marital and tort claims are

expert testimony to this effect is adduced.

Like most states, New Jersey had abolished

interspousal immunity for injuries caused to one

spouse due to the tort of the other. While the extent

and exact contours of abolition of interspousal immunity

vary from state to state, in New Jersey abolition

of the immunity is complete except for limited

conduct involving marital or nuptial privileges,

consensual acts, and simple, common domestic

negligence. These narrow exceptions to abolition

basis but no immunity exists in New Jersey for

intentional or excessive acts.

It was also probably helpful that New Jersey

had already recognized BWS as a defense to criminal

homicide and that New Jersey had already enacted

478 A.2d 364 (N.J. 1984); New Jersey Prevention of

Domestic Violence Act, N.J. Stat. Ann. §§2C: 25 –

17 to 2C: 25 – 33.

New Jersey mandates procedurally the joinder

of divorce and domestic tort claims under the “single

controversy” doctrine. This is a key procedural

issue that will vary from jurisdiction to jurisdiction

and impacts whether suit is properly brought or

can be brought at all.

It is clear that, in New Jersey, there must be expert

medical testimony of BWS in order to toll the

statute of limitations; otherwise, an action for tort

injury will be permitted but the statute will not be

tolled and each separate act of abuse during the

marriage will likely be considered a separate and

distinct cause of action in tort. Other jurisdictions

that have attempted to fashion successful remedies

for spousal abuse by modifying and applying existing

legal doctrines include the following.

on an action for recovery resulting from BWS or

by application of the continuing tort analysis under

alleged common law marriage of 10 years’ duration

from which had arisen the personal injury

action for abuse. The court upheld a broad right

to recover for battery and IIED, permitting recovery

for both compensatory and punitive damages.

Coincidentally, defendant Curtis did succeed on a

counterclaim for action on a promissory note. In

this author’s opinion, Curtis may represent the best

example of a court’s proper and consistent application

of existing legal constructs to permit the spousal

abuse claim.

Another and more recent case from the West,

basis for the spousal abuse action. The Wyoming

Supreme Court unanimously acknowledged that

Wyoming had previously abrogated interspousal

the tort of intentional infliction of emotional

took the next step of recognizing this tort within

decided that the tort action had been improperly

joined with the divorce action, determined that the

tort action should have been separated from the divorce

action and held that the tort action should

be submitted to a jury. Procedurally the opposite

court ruled that the separation of the claims was

mandatory.

criteria for the tort and may have rendered

a decision on joinder that contradicted the Court’s

own rules of civil procedure. They, nonetheless,

came down clearly on the side of acknowledging

the domestic abuse action. It is worthy to note

that just as the New Jersey court had to engage in

a somewhat strained analysis of “temporary insanity”

in order to toll the statute of limitations in

order to afford recovery, the Wyoming court may

have engaged in a strained analysis of its procedural

rules concerning joinder in order to afford

recovery.

A Washington state trial case, apparently never

vindicated by any appellate law on the subject,

In this action, plaintiff sued for battery, assault,

intentional infliction of emotional distress, and a

new tort denoted as domestic violence (DV). In denying

the defendant-husband’s motion to dismiss

the DVclaim, the court explicitly recognized a new

and separate tort of DV affording potential for a

victim’s full recovery and affording application of

the continuing tort doctrine in Washington to toll

the statute of limitations until cessation of the tortuous

conduct of domestic abuse.

and Bartlett engaged in an interactive symposium

on divorce and feminist legal theory that included

the first conceptualization by contemporary

commentators of a spousal duty of trust. Recognizing

the limits of current law, Professor Woodhouse

opined:

“I am not entirely persuaded that it makes sense

to construct a system around analytical boundaries

similar to those that theoretically separate alimony,

property, and child support. But assuming

that divorce law is clarified by allocating only support

to property theory, I would propose recognizing

a third type of claim — a claim for marital tort

or breach of spousal trust. However characterized,

emotional, and economic injuries flowing from

a spouse’s misconduct. Such a claim would have

the virtue of speaking unequivocally — as the

law of sexual harassment does in the employment

context — about a person’s right to be free from

egregious conduct related to sex and gender and to

abuse of power in the home. If joined with the divorce

proceeding, a judgment could operate either

as a set-off against the wrongdoer’s share of property,

or as a surcharge on the alimony award, or as

an in personam judgment against the wrongdoer.

Whether such claims should be part of the divorce

proceeding or brought separately would depend

upon a variety of legal and policy judgments about

judicial economy, finality, the dynamics of family

violence, and the right to a jury. Any articulation of

principles of family dissolution should not banish

fault from consideration, but should instead embrace

and integrate fault into the broader equitable

scheme.”

Woodhouse and Bartlett, supra. Professor Woodhouse’s

theory was acknowledged and discussed in

2009 by Michelle L. Evans in her examination of

various recommendations for vindication of legal

Evans notes that the American Law Institute’s

recommendation that aggrieved spouses seek compensation

in independent tort actions is likely to

leave injured parties without any remedy; hence the

procedural and substantive law reforms including

utilization of alternative dispute resolution (arbitration)

in the divorce proceeding; a limited sphere

of marital misconduct in divorce proceedings as

advanced by Professor Craig W. Dalton and creation

of a new cause of action based upon breach

497-500. With respect to the latter approach, she

observes and gives credit to Professor Woodhouse:

“Another potential solution is tort reform by devising

a new cause of action to deal with the misconduct

not currently addressed, or inadequately addressed,

in other areas of the law. This approach

was adopted to some extent in New Jersey, where

‘battered-woman’s syndrome’ is distinctly recognized

in tort. The new tort not only recognizes the

unique parameters of the marital context, but it

present, specifically the danger of the statute

of limitations running prior to divorce. Professor

Barbara Bennett Woodhouse suggested a variation

of this approach, recommending the development

of a new tort for ‘breach of spousal trust.’ This

cause of action would ‘authorize compensation for

physical, emotional, and economic injuries flowing

from a spouse’s misconduct.’”

Professors Sinai and Shmueli contemporaneously

provided the most comprehensive and

exhaustive policy analysis of the basis for a new

model for the tort of spousal abuse. The gravamen

of the action is that a tort should apply to the ongoing

marital relationship, obviating the statute of

limitations impediment common to these types of

actions. The theory of the action points to the fact

that abuse is perpetuated in the home shared by

abuser and victim, breaching the relationship of

trust and intimacy between them. Sinai and Shmueli

vigorously assert that a:

“woman is entitled to reasonable, tranquil living

conditions, that will allow her to live her life and carry

on her occupation, whether at home or outside,

and to raise her children. It may be that emotional

abuse is harsher than physical abuse, depending on

the circumstances and the nature of the ‘intrusion’

into the life of the other. The guiding principles [in

Jewish religious law] are these: ‘she was given [to

her husband] to live with, but not to suffer pain,’

and ‘no one can live with a serpent in the same

basket’ — the court must therefore consider each

case, depending on the circumstances, and decide

according to and in light of these principles.”

Sinai and Shmueli, supra, at 156-57.

The authors observe the seriousness of abuse

within the marital context and the inadequacy of

modern law in dealing with this violence. They are

unequivocal in strongly urging acknowledgement

of the seriousness of emotional abuse and decrying

the reluctance of courts to recognize its seriousness

in the marital context:

“Abuse in general and of a spouse in particular, is a

scourge that the legal system should uproot. When

abuse takes place in the context of an ongoing,

intimate relationship, it can embitter the victim’s

life. Sometimes this is as true for verbal violence

violence. It is often extremely difficult to detect

or prove emotional abuse because, unlike physical

abuse, it is invisible and leaves no perceptible

marks. But ‘many words hurt more than swords,’

and verbally abusive behavior, particularly when

ongoing, may be just as painful as physical or sexual

assault, or even more so (and sometimes these

behaviors occur together). However, the general

community, much less the legal community, does

not always comprehend that emotional abuse can

be severe and should merit appropriate legal treatment

and response. However, modern law does not

address emotional abuse to the same extent and

with the same level of determination with which it

attempts (at least in theory) to deal with other types

of violence, physical and sexual. Indeed, we will see

that these too are not dealt with sufficiently by the

modern law.”

Sinai and Shmueli express their opinion that

this “paints a rather grim picture, in which modern

law deals with the various forms of abuse only

partially, and unsatisfactorily.” In fact, they observe

that current American law and Israeli law are quite

similar in not recognizing a specific offense or tort

of spousal abuse and also that modern law differentiates

(at least theoretically) between physical and

sexual abuse on the one hand, and emotional abuse

on the other, favoring the former.

In direct contrast, Jewish law not only afforded

full respect to the spouse but also placed equal emphasis

on physical and emotional abuse. Jewish law

proclaimed the obligation of spouses to treat each

other with respect; the obligation to treat a spouse

in modern law in which lack of respect for a

spouse is not expressly forbidden. Second, the Jewish

sages took a grave view of acts of spousal abuse,

and held that such acts justify an aggressive legal

policy, fundamentally different from that applicable

in ordinary instances of non-spousal abuse.

This recognized the special relationship between

husband and wife, and the intensity of the damage

when we consider the wife of the abuser, “who

lives with him in peace and her tears are near.” The

central rationale is that spouses whose relationship

involves abuse cannot continue to live together, and

thus the law needs to intervene. The authors advise

that most of the Jewish law sources address the case

of physical abuse, and then they derive, by analogy,

similar rules in regard to emotional abuse. This

is also particularly so regarding civil tort law and

abuse as grounds for divorce. Jewish law made use,

quite successfully, of the social-criminal sanctions

of excommunication and ostracism against a husband

who beat his wife or emotionally abused her.

This penalty was imposed on the abuser along with

a series of additional sanctions, such as monetary

fines, imprisonment, corporal punishment, and

others, completely unlike any treatment of abusers

159-60.

Sinai and Shmueli advance the argument that

Jewish law is likely to provide a better model for

dealing with a tort of spousal abuse or domestic

violence, subject to revision to accord with modern

law and with emphasis on Jewish secular law. They

argue for greater attention being afforded to emotional

abuse, treating it on the same level as physical

specific arrangements for the offense and

tort of spousal abuse, as necessary steps. They assert

that Jewish law, which equates emotional abuse

to physical abuse, is the most complete. They urge

multi-faceted legislative intervention: the establishment

of a particular offense of spousal abuse

abuse (with consideration for the possibility of

awarding aggravated or punitive damages for such

a tort, due to its nature), along with relaxing the

tests for awarding protection orders for emotional

abuse under civil-family law.

seriousness of gender-motivated violence

in the United States and the legislative efforts of

Congress regarding VAWA. While federal government

efforts to create civil tort remedies for spousal

abuse, BWS, DV, and gender-motivated violence

are limited by Constitutional constraints, state efforts

are not so limited.

In providing a rational basis for protection from

spousal abuse, Sinai and Shmueli cite extensive authority,

including the Talmud, and explain that Jewish

law recognizes a number of relationships based

on the duty of honoring with a general attitude of

honoring women and a specific duty of a husband

to honor his wife “more than his own self ” and to

of husband to wife are also expressed in Halakhic

law considered part of authoritative Jewish law.

Quoting Prof. Menachem Elon as to the superior

duty to honor a wife more than his own body, he

finds this to be “ an expression with overwhelming

halakhic-legal implications, for which I have found

no parallel in any of other philosophical and legal

system, be it those of ancient times, and even those

duty towards his wife figures prominently in the

sages’ attitude to the subject of a husband’s abuse

of his wife as well. They also assert that striking

a person “other than in the framework of punishment

by a court is biblically proscribed” and “the

sages took a particularly harsh view of even raising

a hand against someone without actually hitting

him, which is especially true in the domestic context

of a husband abusing his wife. Not only bodily

damage is prohibited, leading to civil and criminal

sanctions; emotional abuse that causes the woman

at 201.

In sum and substance, Jewish law over the ages

treats spousal abuse more satisfactorily than either

current U.S. or Israeli law, especially in considering

abuse in the intimate marital relationship as more,

not less, serious that similar injury to a stranger. And,

as the authors document, consistently through history,

Jewish law never accepted the idea of spousal

immunity, in dramatic contrast to English and U.S.

common law. Although Jewish authorities were indeed

sensitive to the importance of family harmony

and tranquility, that importance was never used

as justification to ignore interfamily violence, hurt,

and humiliation. Neither was the unity of the marital

unit used to justify a husband’s immunity from

responsibility for violence or abuse against a wife.

affording a much better concept that Sinai

and Shmueli use as their source of inspiration for

their proposed model. As the authors explain:

“Legal historians generally identify three periods

in the development of spousal relations law: (a)

the period when the wife was regarded as her husband’s

property; (b) the period in which the woman

merited independent, albeit unequal status and the

husband was viewed as quasi-guardian of his wife;

and (c) the modern period in which both husband

and wife have equal rights and value. Indisputably,

and in a fundamental sense, Jewish law is firmly

within the third, modern period.”

effects still felt today: “In Christian-Moslem

society of the medieval period, the husband was

entitled to hit his wife and to force her to accept his

authority. In fact, wife beating by their husbands in

medieval society was an accepted social norm, and

usually the legal systems didn’t intervene to change

Significantly, not only did Jewish law never accept

did establish the idea of mutual respect

between spouses, viewing spousal abuse — whether

physical, sexual or emotional — as a serious religious

transgression. Jewish law consequently developed

a broad spectrum of methods for dealing with

such abuse in various legal frameworks (tort, criminal,

and family law) so as to provide maximum protection

to the spouse. “Such protection is unique,

not only in ancient legal systems, but even in modern

ones. The Jewish sages never accepted that the

life of a spouse could be constantly accompanied

by abuse, and they did not hesitate to intervene in

the family’s affairs and impose severe sanctions,

even with when this could affect the wholeness of

the family. That being said they were well aware of

the problematic nature of intervention in a spousal

relationship, and only did so when necessary and

It is the idea of spousal respect that at its core differentiates

Jewish law from medieval, English, and

U.S. common law: the full personhood of women

and wives that necessarily requires full respect of

their legal and human rights. Such conceptualization

ought to provide a more satisfactory basis for

current U.S. law than the outmoded historical roots

with modern values and policies which

recognize full autonomy and personhood of all individuals

regardless of sex. Additionally, examples

such as legislation prohibiting sex discrimination

and harassment in the workplace, as well as the

VAWA, demonstrate that the U.S. legal system is

capable of handling gender equality with appropriate

and necessary legislative intervention.

The potential success of the principles espoused

by Sinai and Shmueli relies to a large extent

on what has always been accepted in Jewish law:

that spousal abuse is fundamentally different from

abuse of any other person; that Jewish law adopted

a stringent, consistent policy toward all instances

of spousal abuse, without distinguishing between

physical, sexual or emotional abuse; and that under

Jewish law emotional abuse received its due place.

The authors write that there was not one Jewish

scholar who disputed the husband’s responsibility

for damage, even unintentional damage, done to

his wife and that once the husband’s responsibility

for physical or emotional damage to the wife was

established, he was obligated to pay her compensation.

By comparison, common law, hampered by

lingering effects of spousal immunity and a system

not structured to positively vindicate a woman’s

spousal rights, is the opposite. It is the authors’

opinion that it may be time for a new model that

more accurately reflects modern societal values.

Sinai and Shmueli describe the exact contours

of a new and specific tort of spousal abuse based

upon Jewish law and “accompanied by an obligation

to treat the spouse with respect, in the spirit

of the principle of human dignity.” They state that

while on the surface such an obligation is merely

clauses, which constitute the basis for the

tort, are important. The obligation which would

create a legal duty is defined as follows:

“Spousal abuse: (a) A person is required to treat

their spouse with respect, and avoid humiliating

or degrading him/her. (b) A person who commits

an act of physical, emotional or sexual behavior

that is ongoing, degrading, harassing, upsetting or

humiliating, which interferes with the normal conduct

of the spouse’s life, shall have committed an

act of spousal abuse. (c) The court shall be entitled

to award, in respect of this tort, aggravated damages,

even absent proof of damage. In this clause,

the term ‘spouse’ shall include the person’s former

spouse and reputed spouse.

Sinai and Shmueli expressly seek to demonstrate

the “importance of a separate, specific legal attitude

to spousal abuse, because of its importance.” They

draw upon an ancient but enlightened ancient religious

legal system to provide a satisfactory modern

model. Its adoption would require legislative action

and its acceptance might require a societal paradigm

shift. This new tort of spousal abuse is premised

not upon the attempt to remove traditional

impediments to a general tort recovery but rather

upon creation of a different and higher legal standard

of conduct consistent with the evolving status

of women from that of property to subordinate to

ultimately full legal stature before the law.

spousal abuse are limited to application of existing

legal concepts as discussed herein. By contrast,

Jewish religious, and especially secular, law affords

a specific spousal duty of intimacy, trust,

and respect, the breach of which permits civil tort

recovery for significant abusive conduct causing

physical, emotional, and economic harm. The

analysis should be considered appropriate within

the general Judeo-Christian context of English

and U.S. common law. And, while short-lived, the

previous creation of a federal tort action under

VAWA for spousal abuse demonstrates that legislative

action is desirable and possible. Nevertheless,

to date no state legislature has enacted an express

statutory tort claim for spousal abuse, DV or BWS.

Such legislation would be essentially in derogation

of the existing common law restrictions upon recovery.

Legislative action would appear to be necessary

in order to fully vindicate this right. While

common law impediments to recovery for spousal

abuse have been somewhat eroded, the full effects

of past common law have not been eliminated. In

addition, decisional law has not been sufficiently

effective in handling procedural impediments hindering

and residual biases against recovery for

spousal abuse, linger in a common law tradition

that is severely challenged in dealing with the issue.

Without legislative action to remedy these limitations,

it is likely that even those courts striving to

afford a satisfactory remedy will continue to struggle

to do so, affording us only “old wine in a new

flask.” By comparison, Woodhouse, Evans, Sinai

a positive model as an affirmative basis for

the tort of breach of spousal trust, intimacy, and

respect. While some in society may be concerned

that affording these rights will increase undesired

litigation and increase family disharmony, others

hold to the view that society’s full recognition of a

spouse’s legal rights because of the intimate marital

relation may actually improve family harmony,

increase spousal respect and, in the end, improve

society in the process.