Document Type

Paper

Publication Date

2010

Abstract

This paper challenges the conventional narrative that domestic violence victims were ignored by both law and society in the early 1900s. It begins by questioning the dominant position a single Supreme Court tort case, Thompson v. Thompson, holds in the domestic violence discourse. Far from being a strong or unified statement in favor of family privacy or against battered women’s legal rights, the case was decided by a four-Justice majority that pointed victims toward two very public alternative remedies: divorces with alimony and criminal prosecutions. The paper then proceeds to evaluate whether these proffered remedies were available and sufficient. It first concludes that divorce with alimony was a real option but suggests that social and legal impediments made divorce an inferior remedy as compared to tort. It then documents that wife beaters were charged and convicted in criminal courts but details perceived inadequacies of the criminal sanctions. It therefore concludes that the Justices must have been aware that their suggested remedies had shortcomings that could have been addressed by providing a third alternative: interspousal tort suits. The final part of this paper therefore addresses the question of why judges, knowing that divorce and criminal suits had shortcomings, nevertheless refused to allow tort suits. It argues that judges refused to allow interspousal torts for personal harms in part because they worried it would lead to tort suits for marital rape. Such an outcome was unacceptable because sex was seen a marital duty at the time and because awarding damages to wives for unwanted sexual intercourse would make marriage look uncomfortably similar to prostitution.

Comments

2010 Law and Humanities Junior Scholar Workshop selection.

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