Divorce or separation provide escape from tortious abuse but can hardly be equated with a civil right to redress and compensation for personal injuries. Equally arcane and unworthy is the notion that a wronged spouse [or partner], who has been injured at the hands of her or his mate, can and should resort to an arsenal of "private sanctions." Regardless of the ways a person "can get back" at one's spouse, they do not add up to an enforceable civil right of recovery for damages.1
Civil tort actions arising out of domestic violence 2 can offer redress for abused victims. But even though there is an emerging trend among victims to file civil tort actions, the practice has not yet become widespread.3 Victims most often seek legal recourse through the judicial system by obtaining a protective order or by assisting the state to criminally prosecute the abuser.4 Lawyers and advocates representing victims should become aware that traditional civil tort remedies are also available to victims of family violence and should be asserted against abusers. While assault, battery, and intentional infliction of emotional distress are the most common causes of action brought by domestic violence victims, other possible legal claims include wrongful death, false imprisonment, defamation, intentional interference with child custody, and tortious infliction of a venereal disease.5
State appellate courts have a unique role in dealing with civil tort actions that arise out of domestic violence by forming and contouring civil tort law to ensure that a domestic violence victim can successfully pursue a civil tort judgment against her abuser. Yet, appellate courts have had little direction in appropriately and uniformly addressing these cases to maximize victim recovery. Serious impediments to recovery still exist that can discourage a victim from pursuing civil remedies and make prevailing in a civil action difficult.6 The most common barriers to recovery are raised as affirmative defenses and include interspousal immunity, statutes of limitations, and res judicata.7 At times, appellate courts adhere to these common impediments to victim recovery;8 at other times, the courts make progressive moves to make the law more "victimfriendly."9
This Note will first examine the significance of tort law for victims of domestic violence. Next, it will explore the existing barriers to recovery in a civil tort action brought on behalf of a victim of domestic violence against her abuser, as well as consider the ramifications that appellate decisions have on domestic violence. It will then evaluate the role and responsibility of appellate courts in dealing with civil tort actions founded on domestic violence. In particular, this Note will analyze the concept of a new civil tort called battered woman's syndrome (BWS). This analysis will use the example of the New Jersey judicial system, which created this specialized remedy for battered spouses, to demonstrate the potential for reform of tort law affecting domestic violence at the appellate level. Finally, this Note offers appellate courts various recommendations to enhance victim recovery in civil tort actions and to be more responsive to the sensitive issues raised in domestic violence cases.
II. The Significance of Civil Tort Law for Domestic Violence Victims
Seeking a monetary judgment is important for victims who have endured financial abuse during an abusive relationship.10 One of the tactics that batterers may use to control their victims is to secure access to the couple's finances and to make all budgeting decisions.11 Results from one study showed that 51 percent of battered women had no access to credit card accounts, 34 percent lacked access to checking accounts, and 21 percent could not obtain cash in any way.12 When a victim who has no means to support herself finally leaves her abuser she may return to him simply because she is in financial despair. …