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Domestic Violence
University of California, Hastings School of Law
Weisberg, D. Kelly

Weisberg Domestic Violence Spring 2014



Social & Historical Perspective:

Coverture Defined

• Married woman’s legal disabilities

• Status of a married woman – Under protection of husband – “covert = covered”

• Merging of wife’s legal identity with husband’s

– “The husband and the wife are one, and the husband is that one.” Blackstone

Married Woman’s Legal Disabilities

• She can’t enter in to contracts

• She can’t sue in tort

• She can’t sue or be sued without her husband

• Husband is responsible for her debts & torts

• Spouses can’t give evidence against each other

• She can’t execute a deed

• She can’t execute a will

• She is excused from some felonies (but not murder/treason)

Married Women’s Property Acts

• Married women gained legal rights throughout 1800’s

· Mississippi first state 1839

· New York statute 1848 gains widespread acceptance

Case Law and Rule of Thumb

State v. Rhodes (1868)

· Found husband innocent because he had a right to “whip his wife with a switch no larger than his thumb”

State v. Oliver (1874)

· Judge cites the “old doctrine, that a husband had a right to whip his wife, provided he used a switch no longer than his thumb” but continues by saying: this was “not law in North Carolina. Indeed, the Courts have advanced from that barbarism….”

Evolution: 19th to 20th century

• Defining wife-beating as a social problem, not merely a phenomenon of particularly violent individuals or relationships, was one of the great achievements of 20th century feminism.

Women’s Rights Movement

• Women’s rights movement in late 1960s led to battered women’s movement

• Different branches of modern feminists (socialist feminists & radical feminists) focused on issue of violence against women

Other Modern Social Movements

• Civil rights movement

• Anti-war movement

• Black liberation movement

20th century social movements:

• Created era of protest & demand for equality

• Taught new conceptualization of domestic violence as a social, rather than individual, problem

• Sought legal solutions to social problems

Public-Private Dichotomy

• Feminists challenged “public-private dichotomy” in the 1960s

· Subordination of women in the private sphere of the home is the result of gender discrimination and inequality in society.

Model for Battered Women’s Movement: Anti-Rape Movement

• View of rape changes (1960s and 1970s)

• Old view: “rape is a crime about sex, carried out by pathological men who are unable to control their sexual desires”

• New view:

· Rape is a form of violence and social control over women

· Rape is crime of power dynamics based on the way that society defines traditional gender roles

· Victim-oriented view: victims need crisis centers & consciousness-raising groups to provide support

Importance of Anti-Rape Movement

• Taught women to conceptualize the problem • Taught women to organize

• Taught women to lobby for reform

• Taught women to see reform as a legal solution

· Slogans began to form, such as “the personal is political”

o Slogan of women’s liberation

o Personal/individual issues are political issues

o Consciousness-raising became a form of political action to elicit discussion about such topics as women’s relationships, their roles in marriage, etc.

o Led to legal advocacy about “personal” issues

Common Law Duty of Support

McGuire v. McGuire

· Husband had the duty to provide support for his wife.

· Wife had a correlative duty to render domestic services

Doctrine of Necessaries

· Husband had duty to support wife

· Gender-based doctrine imposed liability on husband to a merchant who supplied necessary goods to a wife.

· ‘‘Necessaries’’ include food, clothing, shelter, and medical care, but case law sometimes extends the term.

· Today, often called “family expense statutes” and are gender neutral.

Doctrine of Non-intervention

· The state rarely will adjudicate spousal responsibilities in an ongoing marriage. That is, marital support obligations are enforceable only after separation or divorce.

· Stems from judicial reluctance to disrupt marital harmony & family privacy by interference with husband’s authority.

Interspousal Immunity Doctrine

· Thompson v. Thompson

· May a wife bring an action to recover damages for an assault and battery by her husband?

· Jessie Thompson charges husband Charles with 7 counts of assault

o Different days

o Once while she was pregnant

o Seeks damages of $70,000

· Statute authorized married women to sue to enforce their rights in property and tort without having to ask thei

22, 2012)

· Requires TDV protocols in school safety plans  Mandates training of staff

· “Ensure that the school has staff that are informed about the dynamics of dating abuse and are prepared to prevent, recognize, intervene, and respond appropriately to dating abuse.”

· Not a mandate for curricular reform

· Passed the Education Committee; moved on to the Appropriations Committee on 3/28/12.

VAWA 2013 authorizes grants for TDV prevention

· SMART Prevention Act (Saving Money and Reducing Tragedies through Prevention Act

Program should include:

· Age and developmentally appropriate education on domestic violence, dating violence, sexual assault, stalking, and sexual coercion, as well as healthy relationship skills, in school, in the community, or in health care settings;

· Community-based collaboration and training for those with influence on youth, such as parents, teachers, coaches, health- care providers, faith-leaders, older teens, and mentors;

· Education and outreach to change environmental factors contributing to domestic violence, dating violence, sexual assault, and stalking; and

· Policy development targeted to prevention, including school-based policies and protocols.

What is the statute does not include a person based on age?

Neilson ex rel. Crump v. Blanchette

· Plain Meaning Rule

· The “meaning is to be derived from the plain language of the statute alone.” (p. 72)

· She is not “16 years or older,” so she is not eligible for PO

How Can A Parent Tell?

Signs of Teen Dating Violence:

· Extreme jealousy;

· Controlling behavior;

· Rapid involvement in the relationship; • unpredictable mood swings;

· Alcohol and drug use;

· Threats of violence or use of force during arguments; • attempts at isolation from friends and family;

· Hypersensitivity;

· Belief in rigid sex roles;

· Blame others for problems or feelings; and • cruelty to animals or children.