NCJ Number
78910
Journal
JOHN MARSHALL JOURNAL OF PRACTICE AND PROCEDURE Volume: 11 Issue: 3 Dated: (Spring 1978) Pages: 549-577
Date Published
1978
Length
29 pages
Annotation
Wife abuse remedies which the legal system is either proffering or neglecting are discussed, and the feasibility and desirability of divorce, criminal prosecution, and tort actions as remedies for wife beating are examined, followed by suggestions for effective legal responses.
Abstract
Divorce is frequently an unacceptable remedy for wife abuse, because grounds for divorce are often ill-defined and unpredictable. Even if granted, a divorce is hardly a positive solution for the parties, the children, and society. As a remedy for violence, it contravenes the public policy of upholding the marital relation by offering the most immediate, though perhaps not permanent, escape from violence. Perhaps a compromise between divorce and enduring irreconcilable differences is the use of separate maintenance and support. In the criminal court system, strengthening the referral and counseling resources of the family courts may be a workable alternative for those couples willing and able to cooperate; but for others, the diversionary process is unsatisfactory. The official avoidance of arrest minimizes the character of the act, rather than recognizing the violent and criminal character of the husband. Although of limited utility for lower-income women, tort compensation, where available, can provide redress to a woman who has been injured, without differentiation because of her legal relationship with the offender. With regard to formulating effective legal remedies, the abrogation of interspousal immunity would provide the needed compensation to women when deciding what action to take against an abusive husband. The most urgent action needed is a curtailment of the diversionary process. One means to compel enforcement of existing laws is to recognize suits for nonfeasance against State officials. Although less effective if enacted without an accompanying wife beating statute, legislation could emphasize, as in New York, that criminal jurisdiction is available for cases initially filed in domestic relations court. Overall, what is needed is a statutory scheme that specifies a battery of alternatives for legal and social help for abused women, such as exists in Minnesota's comprehensive statute. A total of 158 notes are provided.