Access to Meaningful Remedy: Doctrinal Obstacles in Tort Litigation Against Domestic Violence Offenders
Sarah M. Buel
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Oregon Law Review, Vol. 83, No. 945, 2004
Domestic violence victims may currently file tort actions against their abusers, couched as assault and battery, stalking, intentional infliction of emotional distress, and fraud,among others. Despite the fact that such remedies are desirable under legal and compensation frameworks, battered women have not generally used these options. Domestic violence victims have dramatically underutilized tort law, with at least three doctrinal obstacles thwarting its use: the courts’ reluctance to interfere in marriages, the assumption that existing laws adequately regulate divorce, and the primacy of statutes of limitation. Legal doctrine must be reformed to diminish the dangerous and unfair results experienced by too many abuse survivors who turn to the courts for help. After reviewing cultural norms and discussing the doctrinal obstacles, I argue for recognition of a new tort of domestic violence to afford abuse victims increased access to the panoply of remedies to which they are entitled. As an administratively feasible option, the tort of domestic violence reflects the same call for specialization as for medical malpractice, toxic torts, products liability, and mass torts. Recognizing a tort of domestic violence also provides a normative basis for reforming the doctrinal obstacles that needlessly interfere with the right of battered women to seek redress for their harms.
Number of Pages in PDF File: 90
Keywords: domestic violence, torts, remedy
Date posted: July 24, 2010
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