Disclaimer: This post is for informational purposes only. Much of the information presented can be credited to the National Institutes of Justice Economic Distress and Intimate Partner Violence and AARDVARC.org. Although this research is a bit dated (circa 2003), I argue the underlying conclusions still hold water.
Why Are Domestic Violence Monetary Damages For Emotional Distress Rarely Pursued?
Research Conclusion: “Violent offenders rarely have adequate assets and are thus infrequently sued for damages. Serious errors can occur if policy analysts ignore the intangibles when allocating resources. Monetary valuation of intangible losses may also be the cost item with the highest degree of uncertainty.”
This means that there is often a cap on the monetary value assigned in each state and states/jurisdictions recognize that it is difficult to monetize emotional distress. Even if victims win their cases, their abusers have few to no assets, wherein a payment will not be seen until many years later.
In layman’s terms, I define the following:
- Punitive Damages- punishing the abuser for intentional and malicious acts. Intentional, reckless infliction of emotional distress occurs when a perpetrator, by extreme and outrageous conduct, intentionally or recklessly causes someone emotional distress. For example, threatening, hurting or killing a pet, threatening to hurt a friend, child or family member of the victim.
- Intentional tort- perpetrator of an intentional tort intends to bring about a specific result or consequence that cause injury (but does not need to cause physical injury, it can cause reputation injury or emotional distress).
- Monetary value- the assigned dollar value the law allows for damages.
- Remedy- the court enforces a right and deems the retribution for breaking the law (i.e. court fees, lawyer fees, fines, community service, court-appointed remediation classes, jail time, etc.).
It’s rare when victims of domestic violence civilly sue their abusers for emotional distress damages in the form of “intentional torts.” This is mostly due to four main reasons (which are my opinion based on the research):
1.) the burden of proof can be overwhelming, requiring the victim to “relive the abuse” by filing petitions, providing affidavits, testimony and serving witness subpenas. This in itself, can cause a victim extreme emotional distress.
2.) acquiring an attorney willing to take the case can be quite expensive. There are some advocacy-based organizations that do pro-bono for some civil cases or on contingency (a portion of the awarded damages goes to the lawyer).
3.) the abuser has limited assets to fulfill any monetary award, so even if the victim wins, they may not see a penny for a very long time or not at all.
4.) damages for emotional distress are often hard to prove because many are “speculative,” i.e. what the victim may reasonably expect to incur in the future due to the emotional distress: therapist fees, finding new employment because of lost wages, new housing due to eviction, etc.
Here are two considerations on intentional tort law I found interesting:
1.) Intentional infliction of emotional distress: In the domestic violence context, most successful IIED claims have been brought by plaintiffs who were threatened with or subjected to physical abuse. These cases have generally involved intolerable or atrocious conduct that was intended to cause severe emotional harm to the plaintiff. IIED claims and negligent infliction of emotional distress claims recognize stand-alone emotional harm in which the plaintiff can recover for emotional harm without needing to prove physical injury. Other possible intentional tort claims in the domestic violence context include: invasion of privacy, defamation, and harassment (http://law.ku.edu/sites/law.drupal.ku.edu/files/docs/law_review/v62/3-3%20Carey_Website.pdf).
2.) Intentional interference with property: In tort law, moveable property such as clothes, jewellery, bikes, and furniture are known as a chattel. If people intentionally and directly interfere with someone’s chattel, they have committed a trespass. In criminal law, if someone takes your property with the intention of depriving you of it, even temporarily, it is considered theft.
My Conclusion: My ex committed the two acts stated above. In hindsight, I could have sued him (and probably won both) since I had an eye witness to the second interference and a 911 call to substantiate the first interference. Emotions run high during a domestic violence situation, so it takes time for a victim to feel mentally ready to peruse this type of legal recourse. Many times, as I did, they want it all to end, even if it means the abuser receives less than the victim desired.
I agree with Camille Carey, who authored a great paper on Domestic Violence Torts: Righting a Civil Wrong. She aptly states that “it is time to bring tort law to the fore of domestic violence advocacy.” I strongly believe that monetary damages can be a deterrent to domestic violence re-abuse. Dipping into the coffers of an abuser’s lifestyle can restrict the means abusers operate- especially those who have psychopathic tendencies of coercion, control, and power dynamics and need money to continue operating in a harassing manner (i.e. they need a mode of transportation to physically stalk, need a cell phone to keep in contact with the victim, etc.).
There are others who would disagree, saying that this type of tort may cause re-abuse by inflaming an already tense situation. I don’t believe that is a strong enough defense. With or without tort law, abusers ALWAYS have the potential to re-abuse. In fact, I would argue that doing little to nothing leaves the door wide open for re-abuse. But that’s my personal opinion and experience.
Knowledge is power. Victims serve themselves when they know and understand all the options available.
For those still in an abusive situation, I hope this post empowers you, if only, to think about your options.