Tort Litigation in the Context of Intra-familial Abuse
The terrible fact is that family life is the source of our greatest warmth and support, yet is, at
the same time, the most violence-prone setting in our society.1
In the last two decades we have accumulated a vast amount of information about
the nature and extent of physical, sexual and psychological abuse taking place
within the family. Study after study has revealed spousal abuse (predominantly of
women by their male partners)2to be a pervasive and pernicious social practice
engendering crime, family breakdown and homelessness.3Similarly, the traditional
perception of child abuse as exceptional, the province of the ‘pervert’ in the shabby
raincoat, has been challenged by the growing mountain of data charting its
occurrence within the family and related social circles.4Far from being a haven, a
sanctuary into which we can safely escape, the family has been exposed as a
primary site of violence, a point of peril rather than a place of safety.
This wealth of evidence has produced a gradual shift in the public perception of the
harm involved. There has, for example, been a significant change in police practice
and attitudes towards domestic violence complaints5and a growing social
recognition that it constitutes serious criminal behaviour. Similarly, there has been
ßThe Modern Law Review Limited 1998 (MLR 61:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
*Law School, University of Kent.
My grateful thanks to Hugh Collins and Paddy Ireland for their helpful comments on earlier drafts of this
1 D. Edgar, First Report Upon the Inquiry into Strategies to Deal with the Issue of Community
Violence (1988) for Parliament of Victoria, Australia, Social Development Committee, cited in J.
Renvoize, Innocence Destroyed: A Study of Child Sexual Abuse (London: Routledge, 1993).
2 The most significant studies include R. Dobash and R. Dobash, Violence Against Wives: A Case
Against Patriarchy (Free Press: New York, 1979); K. Yllo and M. Bograd (eds), Feminist
Perspectives on Wife Abuse (London: Sage, 1988); S. Edwards, Policing Domestic Violence:
Women, Law and the State (London: Sage, 1989) especially ch 4. On male violence against women
generally, see J. Hanmer and M. Maynard (eds), Women, Violence and Social Control (London:
MacMillan, 1987); M. Hester, L. Kelly and J. Radford, Women, Violence and Male Power
(Buckingham Open University Press, 1996).
3 According to some estimates, up to one in three marriages ending in divorce involves domestic
violence: M. Borkowski et al,Marital Violence: The Community Response (London: Tavistock,
1983). There is also evidence linking domestic violence with child abuse: L. Bowker et al, ‘On the
Relationship Between Wife-Beating and Child Abuse’ in Yllo and Bograd, n 2 above, 158; A,
Mullender and B. Morley, (eds) Children Living With Domestic Violence (London: New Clarion
Press, 1993). Likewise, the relationship between domestic violence and homelessness is well
recognised: J. Zorza, ‘Woman Battering: A Major Cause of Homelessness’ (1991) 25 Clearinghouse
4 Some estimates suggest that up to one in three girls experience some kind of sexual abuse in
childhood and anywhere between 20–40 per cent of boys: Renvoize, n 1 above, 65–71. The general
literature is extensive. See, in particular, L. Armstrong, Kiss Daddy Goodnight: A Speakout on Incest
(New York: Hawthorn Books, 1978); D. Russell, The Secret Trauma: Incest in the Lives of Girls and
Women (New York: Basic Books, 1984); E. Driver and A. Droisen, Child Sexual Abuse: Feminist
Perspectives (London: MacMillan, 1989); M. Wilson, Crossing the Boundary: Black Women and
Sexual Abuse (London: Virago, 1993). For claims that the pervasiveness of child sexual abuse has
been exaggerated, see D. Howitt, Child Abuse Errors: When Good Intentions Go Wrong (London:
5 Edwards, n 2 above; S. Grace, Policing Domestic Violence in the 1990s (London: HMSO, 1995).