Domestic violence has finally become a topic of public discussion in Maine. Statistics from the National Coalition Against Domestic Violence (NCADV) show that domestic violence accounts for 15% of all violent crime. Here in Maine, however, that number is much higher. In 2014, more than half of the twenty-one reported murder were attributable to domestic violence, and 47% of assaults reported to law enforcement involved violence between domestic partners. The number of victims who do not report the abuse is unknown, but the NCADV estimates that only 34% of those injured by their intimate partners receive medical care for their injuries.
Those who have endured violence at the hands of an intimate partner have several legal remedies, each of which serves a different purpose. The first and most obvious remedy is that provided by criminal law. It is a crime to physically assault or injure any person, and penalties can be more severe for those who attack intimate partners, particularly when such conduct occurs on multiple occasions. Criminal proceedings reflect the moral judgment of society that what the perpetrator did was so wrong as to justify taking away his or her freedom; it also serves to protect the victim and others who may potentially be affected by the offender’s violence, and, in many cases, serves to ostensibly rehabilitate the offender by imposing restrictions and conditions, such as mandatory counseling and restrictions on contact with the victim – whose purpose is to facilitate the offender’s rehabilitation and hopefully prevent such conduct from occurring again.
A second legal remedy that is also frequently utilized is the Order for Protection from Abuse, commonly referred to as a PFA or a restraining order. This legal remedy is essential in providing protection to victims of domestic violence because it is relatively easy for victims to obtain such an order without obtaining an attorney. The purpose of a PFA is solely to protect the victim from any future abuse by preventing any contact between the victim and the abuser. It is a crime in and of itself to violate a standing PFA order.
But what about the other effects of domestic violence? Locking an abuser up or prohibiting contact might prohibit future abuse. A criminal conviction may certainly provide the victim with a feeling of validation. But these remedies do nothing to make up for the tangible and intangible effects of past abuse, many of which will follow a victim abuse for many years, if not for the rest of his or her life.
The effects of abuse are physical, but they are also mental, emotional, and in many cases even financial. The NCADV estimates that domestic violence has caused victims to miss a total of 8 million days of paid work each year; it also estimates that anywhere from 21-60% of those who suffer domestic violence lose their jobs for reasons stemming from the abuse.
Many victims are not aware that the law allows them to bring their abuser to court on behalf of themselves. Victims do not need to rely on state prosecutors or government-funded advocates to be their voice. A victim’s power under the law is not limited to simply being allowed to read a statement at sentencing. On the contrary, the law gives a victim the power to bring her own complaint against her assailant and to demand that he be held accountable for repairing the damage his actions have caused.
This remedy is the victim’s ability to bring a lawsuit in civil court. In simple terms, a victim can sue his or her abuser for monetary damages. The law permits a person to recover money damages for medical expenses and lost wages caused by the violence; in addition, however, the law provides for monetary compensation for physical pain and suffering, mental anguish or emotional distress, and, in some cases, can order a defendant to pay punitive damages to the complainant – an amount of money the court orders the defendant to pay as punishment for the defendant’s reprehensible conduct.
Certain wrongful acts that meet certain legal criteria are called torts. If someone commits a tort against you, you are legally entitled to sue them in court for money damages. Some torts overlap with criminal conduct, and some do not. The most important difference between a crime and a tort is that a crime must be proven beyond a reasonable doubt, while a tort need only be proven by “a preponderance of the evidence.” This means that in order to win in a civil lawsuit based on a tort claim, the person making the claim only needs to prove that it is more likely than not that the defendant is at fault for causing the harms described by the victim. See, e.g., Horner v. Flynn, 344 A.2d 194 (Me. 1975).
“Assault” means something different in tort law or civil law, than it does in criminal law. In the criminal realm, assault is defined as an unlawful, offensive, or harmful physical touching. 17-A M.R.S. § 207. In the realm of civil law or tort cases, however, assault simply means placing someone in reasonable fear that such a physical act is about to take place. In tort law, “battery” is used to describe the type of harmful or offensive physical contact similar to that described in the criminal definition of assault. Battery does not include only physical abuse such as hitting, punching, or kicking, but also includes incidents of sexual assault, even when perpetrated between spouses or previous intimate partners. See generally Downer v. Veilleux, 322 A.2d 82 (Me. 1974) (defining “battery” as the intentional unlawful touching of another).
Before 1993, it was questionable whether a wife could sue her husband or former husband for actions that occurred between the two while the couple was married. Early judicial decisions relying on historical British common law had previously held that spousal immunity applied to prevent a wife from suing her husband for damages. See, e.g., Abbott v. Abbott, 67 Me. 304, 306 (1877) (explaining that “it is better to draw the curtain, shut out public gaze, and leave the parties to forgive and forget”). The rationale behind this primitive rule was that the court should not be involved in regulating the relationships between spouses. In the cause of Henriksen v. Cameron, 622 A.2d 1135 (Me. 1993), however, the Maine Supreme Court declared once and for all that interspousal immunity does not apply to prevent a claim for intentional infliction of emotional distress based on a former husband’s tortious conduct toward his then-wife. At issue in that case were the former wife’s claims – which were ultimately accepted by the jury – that the former husband had called her a “lying whoring bitch,” had shattered doors and torn down walls in the couple’s home, had drunkenly swayed over the woman and threatened to “get” her while she was lying in bed, and had pulled the phone out of the wall to prevent her from calling for help during arguments and confrontations between the couple. The court noted that almost all of this conduct had occurred while the defendant was intoxicated.
The Henriksen case established another important precedent for victims of domestic or interspousal violence. In that case, the Maine Supreme Court held that, although claims for physical injuries caused by assault and battery must be brought within two years, evidence of prior abuse may be admissible in order to establish the abuser’s motive, intent, or pattern of behavior. Id. at 1143. In addition, the Court held that, although the statute of limitations for a claim of intentional assault and battery is two years, the claim for infliction of emotional distress, whether negligent or intentional, is six years. Id.
Money cannot erase the traumatic memories of abuse at the hands of a trusted partner; nor can it restore a ruined life to its earlier state. It can, however, compensate for medical expenses, counseling, and lost wages that would not have been incurred but for the abuse. It can also help a victim to move forward in ways that may not have been otherwise possible. It might permit a victim who once felt subordinate to an abuser to seek further education and a better life. It can pay for a home security system that will allow a former victim to sleep soundly at night knowing that she and her children will be safe.