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William goldman


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*203 need to return the situation to the status quo ante.10 Monetary compensation can enable the victim to improve his situation by funding physical or psychological therapy in line with the type of harm suffered. In addition to resuming the status quo, monetary compensation also has a psychological, symbolic, and educational effect, as reimbursement to the victim forces the tortfeasor to assist in the recovery and rehabilitative process and signifies the unacceptability of the tort. For example, a dependent woman who is harmed by her husband (e.g., verbally or physically abused) can liberate herself from dependence on her husband by means of monetary compensation.11

b. Corrective Justice

The goal of corrective justice is to repair damage done in the past, focusing on the tortfeasor and the victim and ignoring any matter or factor external to the incident.12 The tortfeasor himself must rectify the injustice that he has caused to the victim, to the extent of the damage caused.

Corrective justice is different from the goal of compensation because underlying corrective justice is the principle of fault and retribution against the tortfeasor. Corrective justice holds that it is specifically the tortfeasor who must pay for the damages he caused to the victim. On the contrary, a compensation-based regime may not be fault-based and may require a third party to pay, even if that third party is not at fault, as long as the victim receives compensation for *204 his injury. In the family context, however, corrective justice and compensation may often overlap, because it is likely either that the tortfeasor is not insured or that any insurance would not cover the event. Thus, although corrective justice and compensation are conceptually different, because third-party insurance is unlikely to play a role in familial torts, under these two goals of tort law the tortfeasor will almost always pay the victim for the damages.

The corrective justice principles of fault and retribution are closely intertwined with the individualistic approach, as they both emphasize rectifying violations of individual rights. Corrective justice supports the realization of individual rights as it forces the tortfeasor, who is the person responsible for the breach of trust, to bear the burden for the breach. The individual approach falls in line with corrective justice in holding that instead of society bearing the cost of compensation and treatment for the victim,13 violators of individual rights should compensate the victims regardless of the negative externalities such compensation places on the family.14

Corrective justice is of significant relevance in tort litigation against a spouse, because compensation serves as a public declaration that the action within the family was indeed tortious and wrong and should be rectified by the tortfeasor, who should bear responsibility for his actions.15 Under corrective justice, the focus remains solely on the two parties to the tort, even though the conduct of the proceedings or the remedy awarded may have a negative effect on both the plaintiff’s and the defendant’s family (just as there may be a negative effect on each individual family in a case between two strangers). Many argue that conducting such a case in the name of corrective justice may impair the harmony of the family; however, the very act of filing a suit against a spouse indicates that family harmony no longer exists. In general, spouses do not hasten to destroy family *205 harmony,16 and if a spouse files a tort claim it is indicative that the relationship has already significantly deteriorated.17 Furthermore, the filing of a tort claim under the perspective of corrective justice may serve as leverage in an attempt to rebuild the family. A successful tort suit compels the tortfeasor to cease his tortious behavior and take responsibility for his actions. Moreover, restricting access to the courts for familial torts would be inconsistent with the goals of corrective justice. Sanctioning non-compensation of the victim would allow the tortfeasor to avoid responsibility, would not settle the injustice suffered by the victim, and would allow the victim to become a burden on society, obliging society to compensate the victim.

Under the traditional perspective, family members are perceived as a single economic unit, making it impossible for one family member to sue another; such a suit would be the akin to someone taking money from his left pocket and putting it into his right.18 In line with the goal of corrective justice, however, the traditional perspective is irrelevant; corrective justice is only concerned with two individuals, one of whom harmed the other. Hence, when courts adjudicate familial torts, they must consider whether there is room to rectify the damage and whether any remedy is warranted--that and nothing more. This view of corrective justice is fully consistent with the individualistic approach because the existence of a common family purse would be insufficient to prevent the realization of a lawful right. Corrective justice views individuals as unique and is not concerned with negative externalities or the impact on the collective unit.

In addition, the perception of the family as a single economic unit is perhaps outdated because modern families are more complex from an economic point of view. In contemporary family settings, many couples hold separate accounts or sign pre-nuptial agreements, live apart and are married only “on paper,” or are temporarily or permanently separated. Thus, the perception of the family as a single economic unit should not result in a refusal to adjudicate the lawsuit. If a tort has been committed, the damage must be corrected and compensation must be awarded. Under the corrective justice perspective, judges should not concern themselves with whether the victim chooses to continue to participate in the common household with the *206 tortfeasor, effectively rendering the court’s judgment meaningless. Instead, judges must ensure that a suit be adjudicated in principle, even if the victim does not collect the compensation in practice.

Corrective justice also favors tortious adjudication when a tort claim is brought subsequent to the dissolution of a relationship, even if the tort was caused accidentally at a time when the couple was happily together. In such a situation, the fundamental right to rectify a previous injustice still exists, even though the victim chose not to sue for damages when the tort occurred. Since the right to sue exists upon occurrence of the tort rather than the time of the dispute, it has the potential to make couples excessively suspicious or petty. Thus, the courts may need to consider the application of general principles, such as a good faith doctrine, to bar claims that are raised because the relationship is in disarray--e.g., a spouse suing for a forgotten tort that was actually forgiven at the time.19

c. Distributive Justice

Distributive justice connects all potential parties--not just the tortfeasor and victim, as in the goal of corrective justice--to the distribution of wealth, resources, and benefits in society in order to advance societal goals.20 The standpoint is sectoral, but of course this societal goal affects the status of single tortfeasors and victims, after their classification to sectors. In this context, distributive justice considers various sectors of the population, such as rich vs. poor, weak vs. strong, the simple man vs. the large organization, women vs. men, and children vs. adults. Considering several different segments of the population may certainly be relevant in tort litigation between spouses, especially if the tortfeasor and the victim belong to different groups, e.g., the strong and weak groups. In many cases, the spouse who suffered injury at the hands of the other spouse is in a clearly inferior position from the perspective of sectoral belonging. For example, consider the situation of battered women, where the husband holds physical or economic power over the wife. An individualistic approach implements the plaintiff-victim’s human right to file a suit to allow the victim to attain a position of power against the aggressor *207 family member.21 Increased consideration of the weaker sector is thus consistent with distributive justice. Even if one accepts the principle of the family unit having certain autonomy, the stronger members within the family--traditionally the husband or the parents--must be made aware that there are limits to the tortious actions that they may inflict on the weaker family members. Adjudicating a tort claim and awarding compensation in appropriate cases may balance the gap that exists between those sectors.

On the surface, tort litigation between spouses involves no interaction between tort law and family law.22 Tort claims against a spouse are often submitted for non-monetary damages. Family law, on the other hand, deals primarily with monetary aspects, such as maintenance payments and division of property. Family law rarely deals with the inequalities that are the result of a tort involving non-monetary harm. Here, tort law (particularly the goal of distributive *208 justice) fills the gap. Tort law can complete the picture in those instances where family law provides no response. One should not accept the perspective that, since the tort lawsuit is only a part of the overall dispute, its solution should be left to the realm of family law. This last point does not apply only to distributive justice or to cases of clear power differences between the parties; nonetheless, the point is particularly significant in instances where such differences are an element of the overall dispute between the couple.

d. Deterrence

In-principle recognition of a tort claim by one spouse for harm caused by the other spouse is also consistent with the desire to deter the commission of torts within the family unit. Permitting litigation and compensation, in appropriate cases, will serve as a deterrent both for the specific spouse being sued and for other potential tortfeasors.23 Blocking these claims is thus contrary to the goal of deterrence.

Legal recognition of such claims sends the message that even if a tort is committed within the intimate framework of the family unit, the law will intervene, liability will be imposed, and the tortfeasors will bear the cost of their behavior.24 Tort law sends the message--both to the specific tortfeasor and to potential tortfeasors--that there are certain values that society is not willing to compromise. Imposing liability warns the tortfeasor that if the behavior exhibited within the boundaries of the intimate family unit is not consistent with societal values, there will be appropriate legal sanctions.

The deterrence provided by tort law is particularly important in the context of family disputes as family law moves to a no-fault model. Family law, especially in the framework of financial disputes, makes an effort to divide the couple’s assets fairly and equally based on clear, fixed criteria. It often divides the assets without reference *209 to who is to blame for the disolution of the family unit (e.g., through the infidelity of one of the parties)--that is, without considering deterrence. In familial disputes, as family law strays away from considerations of deterrence, tort law’s deterrence gains significance as it fills the gap and promotes behavior that does not cause physical and mental harm to the spouse. Deterrence is important for torts within the family framework because familial torts constitute a breach of the spouse’s trust and respect that stands in opposition to natural law. Hence, based on the goal of deterrence, as a matter of policy it would be appropriate not to block family tort claims.

A tort, particularly an ongoing one, within the four walls of the family home has been symbolically compared to a kind of false imprisonment that severely infringes the victim’s liberty and makes his life unbearable in the place that is considered to be his castle. In certain instances, since the tortfeasor and the victim still live under the same roof (even if they no longer share a common purse and in effect are no longer living as a couple), such torts become so extensive and ongoing that there is an urgent need to rectify them. If the couple is living under the same roof and sharing a common purse, moving money from one pocket to another does not have much significance from an economic perspective. In those instances it may be necessary to identify some other remedy, apart from monetary compensation, or to lean toward extrajudicial solutions (something that will be expanded upon below). If, however, the parties maintain separate accounts, compensation may still have value.

Permitting a tort claim between spouses is consistent with the economic approach to torts, even though the economic argument is interested more in the question who should win the case, rather than why to hear it from the outset. According to the economic theory of torts, the party who is best able to avoid the harm should be held liable. This permits optimal deterrence. In most cases, the tortfeasor is himself the cheapest and most efficient avoider of harm, if not the only avoider.25 Were it not for his actions, no harm would have been done. In many cases, avoiding harm has no cost--avoiding violence, avoiding emotional abuse, etc.--and so the precautions are significantly less costly than the expectancy of bodily or emotional harm. According to the economic theory of torts, therefore, the tortfeasor should be held liable.26

*210 If intrafamilial tort claims are blocked, tortfeasors will not be held liable for their actions and the system will not maintain the optimal level of deterrence. This will have negative externalities on society, which might be forced to fund physical or psychological treatment for the victims, as well as on the victims themselves.

One general criticism of the economic approach to torts is that insurance distorts individuals’ motivations and is not always consistent with the goal of deterrence. This criticism is not as relevant in intrafamilial tort suits, because insurance will not likely be available to compensate the victim. Insurance usually applies to unintentional torts; often it is not possible to insure against intentional torts such as assault and battery, abuse, or intentional destruction of property.27 An insurance contract that did purport to insure such events may be void as against public policy. Moreover, one of the true remedies often sought in tort claims against a family member-- revenge--is of course much more relevant when there is no intermediate party, such as an employee or insurer, paying instead of the tortfeasor.

3. Additional Support for the Individualistic Approach

There are additional policy arguments that support the individualistic approach. For example, if spousal tort claims were not granted access to the courts, it would effectively make this area of law nonjusticiable. According to the proponents of the individualistic approach, creating an area without legal intervention would encourage the tortious activity, which would perpetuate the power gap between the victim and the tortfeasor.28 Frances Olsen notes that, at times, judicial non-intervention in the existing situation--for example, not legislating family laws beyond those that already exist--creates internal contradiction and disharmony. The contradiction exists because, although the state refuses to recognize intrafamilial tort claims and effectively establishes immunity against such claims, the *211 state nonetheless intervenes in family disputes for some of the very same acts and responds to would-be tortious conduct through the enforcement of criminal law.29 The state would act more consistently if it rendered all claims justiciable, even (or perhaps especially) within the family unit and not only in criminal proceedings.

Legal recognition intrafamilial torts will neither flood the court with such suits nor create an incentive for the increased submission of tort claims.30 Spouses are not often eager to sue each other in court over torts. On the contrary, spouses will initially seek alternative ways of resolving their dispute. In sum, there are weighty arguments in favor of recognizing suits brought by one spouse against the other.

C. The Family Approach: Considerations Against In-Principle Recognition

1. The Family Approach: Introduction

According to the family approach, when one spouse sues the other in tort, more is at stake than merely the right of the individual to sue. An appraisal of the merit of familial tort litigation, under the approach, should incorporate what is best for the family unit as a whole. Taken to its extreme, the family approach supports blanket exclusion of familial torts--or at the least a serious restriction of such litigation--and supports immunity for the spouse being sued.

In traditional common law, the doctrine of parental immunity against intrafamilial suits governed both suits by children against a parent (particularly in the United States) and suits between two spouses (in both the United States and England). To understand the rationale behind the family approach, it is important to understand the evolution of the family unit--from Biblical times onward--and its transformation through the evolution of the common law.

The rationale for immunity from intrafamilial torts in common law stems from the perception that the husband and wife are a single entity, or one person, and a person cannot carry out a tort against himself. The source of this view is the Biblical verse, “Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh,”31 which was interpreted as one person in law. The view that a married couple was only one person under the law in effect entitled the husband to the wife’s services, property, and *212 earnings, in return for the obligation to provide for her and to pay her debts (even those incurred prior to the marriage). Under this traditional view, the wife lacked the right to sue (or be sued) independently during the marriage; this right was merged with that of the husband such that neither of them could sue the other.32 In 1962, however, England abolished such immunity, and the law began to treat spouses like two unmarried persons rather than a single legal entity. This development may be ascribed to the increasing influence of the individualistic approach, as it is derived from personal and human rights principles, feminism, promotion of women’s status in society, and the development of the right to sue in tort. Still, the rationale behind forbidding intrafamilial torts has been preserved to a certain extent. English legislators permitted the courts, in a somewhat paternalistic step, to issue a stay of proceedings in certain cases between spouses out of a desire to preserve the wholeness of the family unit.33

In American law, spousal immunity derived initially from a similar reasoning that considered the husband and wife a single unit.34 Full immunity was gradually abolished in most American states in the beginning of the 20th century, particularly following the enactment of Married Women’s Property Acts and the Emancipation Acts in the 1940s. These Acts granted women property rights as well as the ability to sue in tort for infringement of those rights (e.g., economic remuneration for damage to property or trespass). These Acts removed the initial justification for immunity based on a marriage creating a joint person and led to the independence of the wife.35 *213 However, when the Acts were enacted, suits for negligence, intentional torts, and personal injury torts (such as assault and battery, intentional infliction of emotional distress, and other torts not directed at property) were not yet recognized between spouses.36

Intrafamilial suits based on negligent and even intentional torts were barred in the United States during the 19th century based on the fundamental belief that domestic harmony, tranquility and harmony should be preserved at any cost.37 Courts believed that tort litigation could hasten divorce, separation, and the dissolution of the family unit, whether such litigation derived from negligent or intentional behavior.38

For proponents of family harmony, the happiness of the couple, their children, and the family as a whole was of public importance.39 This belief provided the impetus for blocking familial torts in the case
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