Domestic Violence Injury: Legal Options


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Aside from immediate protection like restraining orders, arrests and eventual criminal prosecution of the abusive spouse or family member, an abused spouse or other family member also has the option to sue for money damages. This article discusses some of the legal options a domestic abuse victim might have in trying to recover civil remedies (i.e. money) for a domestic violence injury.

A Civil Lawsuit is Not for Protection

There are a variety of procedures and agencies in every state that a victim of domestic abuse can use to get immediate protection from his or her abuser. These remedies -- a restraining order, for example -- are obtained through the criminal justice system.

While the civil system does have procedures and remedies similar to restraining orders, those are typically not designed for situations involving immediate threats of violence. The first people to contact during or after a domestic violence incident are the police. If the abuse survivor is reluctant to approach the police, he or she can also contact a local agency set up to help victims. A civil suit should wait until the situation has been made safe for the victim and for other family members.

A Divorce or Divorce Proceedings are Probably Necessary

During a marriage, the spouses’ money and property are typically treated as jointly owned. This means that neither spouse is entitled to it in favor of the other spouse. Therefore, it could be difficult for a court to enforce a jury verdict if there is no way to “take” the money from one spouse and “give” it to another. Therefore, a divorce is likely necessary to enforce any kind of damage award for domestic violence between spouses.

A final divorce is not necessary before a personal injury lawsuit is filed. If the abused spouse wins a jury verdict and damages for his or her injuries while a divorce proceeding is under way, the damages owed will be applied to the divorce settlement. For example, suppose a couple has $100,000 that state law says must be divided 50/50 in a divorce. Suppose the wife wins a $25,000 damages award against the husband in a civil trial for domestic abuse. When the divorce is finalized, the wife will get $75,000 (her half of the original $100,000 plus another $25,000) and the husband will get $25,000 (his half of the original $100,000 minus the $25,000 domestic abuse verdict). Keep in mind that some states may also have rules regarding domestic violence that are built into the divorce procedures as well.

Types of Civil Claims

A victim of domestic abuse (the plaintiff) will have three principal types of claims against the abuser (the defendant): assault, battery and intentional infliction of emotional distress.

If the physical harm caused by the abuse is severe, then physical pain and suffering damages under a civil battery theory could be high. Assault and intentional infliction of emotional distress are theories that, by their nature, do not involve physical contact. However, the emotional pain and suffering a domestic abuse survivor goes through can be significant even when the physical harm is “limited” to bruises, for example. Adding to this is the fact that many cases of domestic violence will involve abuse that went on for months or years. A plaintiff’s lawsuit does not need to be limited to one act of abuse, and the damages awarded can be based on the cumulative effect, both emotional and physical, of long-term abuse.

While the emotional pain and suffering of the plaintiff may seem intuitive or obvious, enlisting the aid of an expert witness will almost always be helpful, and in some cases necessary. Expert witnesses are allowed to testify when the members of a jury may not have the knowledge or experience necessary to make a decision, for example whether a plaintiff was harmed and to what extent. The testimony of a psychiatrist, psychologist, marital counselor or other mental health professional could be a powerful way to bring home to the jury just how much harm domestic abuse can cause a plaintiff. If the plaintiff is claiming to suffer a particular type of mental health issue, for example post traumatic stress disorder, the court will require that the plaintiff submit proof by way of expert diagnosis and testimony.

Suing Public Officials Who Knowingly Fail to Protect the Plaintiff

A few states have in place laws that allow a plaintiff to sue police officers when the officers know the plaintiff needs protection from domestic violence, but they fail to provide that help. While the laws in each state vary, they generally remove the “immunity” that normally would protect a police officer from being sued.

In Washington, for example, a police officer or police agency can be sued when the officer does not make an arrest even though:

  • the abuser committed a felony assault, or

  • the victim is injured; or

  • the abuser caused the victim to fear imminent bodily injury or death.

If any of these factors are present when the officer arrives on the scene, the officer must arrest the alleged abuser. If he or she does not make an arrest under those circumstances, the victim can sue the police for the consequences of allowing the abuser to remain free.

 

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