Tort Litigation in the Context of Intra‐Familial Abuse

AuthorJoanne Conaghan
Publication Date01 March 1998
DOIhttp://doi.org/10.1111/1468-2230.00135
Tort Litigation in the Context of Intra-familial Abuse
Joanne Conaghan*
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.
132
*Law School, University of Kent.
My grateful thanks to Hugh Collins and Paddy Ireland for their helpful comments on earlier drafts of this
article.
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
Review 421.
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:
Harvester, 1992).
5 Edwards, n 2 above; S. Grace, Policing Domestic Violence in the 1990s (London: HMSO, 1995).
a virtual revolution in public and legal attitudes towards child abuse particularly of a
sexual nature. Traditional legal reluctance to acknowledge the problem of child
sexual abuse6has been replaced in the post-Cleveland era7by endless speculation
about the role of law and other disciplines in relation to sexual abuse within the
family.8
Unsurprisingly, much of the recent focus of law and legal theory has been on the
role of criminal law in dealing with intra-family abuse.9However, increasingly,
survivors10 of abuse are also seeking civil law remedies. This has led to dramatic
changes (both legislative and judicial) in the legal rules governing the availability
of injunctive relief.11 Less well-documented is the growing trend towards damages
as a means of redress, more clearly identifiable in American jurisdictions, but also
detectable in the UK. The purpose of this article is to explore the possibilities and
pitfalls of civil litigation in this context and to identify and evaluate the practical
and legal problems which plaintiffs are likely to encounter, in order to provide
some strategic guidance as to the feasibility and/or desirability of suits in particular
instances. Such an exploration also provides an opportunity to further excavate the
concept of harm upon which tort law rests and, in particular, its gendered content.12
Accordingly, before embarking on a full consideration of the tangled webs which
tort has weaved in the context of intra-family abuse, I will briefly consider the
concept of ‘gendered harm’ and its applicability (or otherwise) to problems of
family violence/abuse.
6 Incest was not made a criminal offence in English law until the Punishment of Incest Act 1908.
However, until feminists (and others) began to draw attention to its prevalence in the 1970s and
1980s it was generally viewed as a rare and deviant act where the wrongfulness lay in the
‘unnaturalness’ of the coupling rather than the presence of exploitation or abuse. Arguably, such a
conception still informs the current legislative proscription of incest under ss 10 and 11 of the Sexual
Offences Act 1956: S. Duncan, ‘Disrupting the Surface and Order of Innocence: Towards a Theory
of Sexuality and Law’ (1994) 2 Feminist Legal Studies 3, 11–22; V. Bell, Interrogating Incest:
Feminism, Foucault and the Law (London: Routledge, 1993) ch 5.
7 The diagnosis and handling of a number of allegations of child abuse in Cleveland attracted national
attention in 1987, resulting in a public inquiry in 1988 (Lord Justice Butler-Sloss, Report of the
Inquiry into Child Sexual Abuse in Cleveland 1987, Cm 410 (London: HMSO, 1988). See also B.
Campbell, Unofficial Secrets: Child Sexual Abuse — The Cleveland Case (London: Virago, 1988).
8 In addition to law, there is a vast amount of literature (including specialist journals eg Child Abuse
and Neglect ) in the fields of psychology, medicine and social work/social policy: Renvoize, n 1
above.
9 Evidentiary problems associated with the testimony of abused children is of particular interest — see
eg J. Spencer and R. Flin, The Evidence of Children: the Law and the Psychology (London:
Blackstone Press, 2nd ed, 1993). Likewise, spouse killing, by either partner, is the subject of
extensive commentary: S. Lees, ‘Naggers, Whores and Libbers: Provoking Men to Kill’ in J.
Radford and D. Russell, Femicide: the Politics of Woman-Killing (Milton Keynes: Open University
Press, 1992) 267; A. McColgan, ‘In Defence of Battered Women Who Kill’ (1993) 13 OJLS 508.
10 The term ‘survivor’ rather than ‘victim’ is often deployed in feminist literature to emphasise the
possibility and actuality of resistance to abuse: L. Kelly, Surviving Sexual Violence (Cambridge:
Polity, 1988).
11 Although injunctive relief is of crucial importance to victims of family violence, it is not the focus of
this article. The current statutory provisions can be found in the Family Law Act 1996 Part IV while
the court’s inherent jurisdiction to grant injunctive relief in the context of harassment or abuse has
recently been extended by the Court of Appeal: see Khorasandjian vBush [1993] 3 All ER 669 and
Burris vAzadani [1995] 4 All ER 802, discussed in J. Conaghan, ‘Harassment and the Law of Torts:
Khorasandjian vBush’ (1993) 1 Feminist Legal Studies 189 and ‘Equity Rushes in Where Tort Law
Fears to Tread: The Court of Appeal Decision in Burris vAzadani’ (1996) 4 Feminist Legal Studies
221. However, see also Hunter vCanary Wharf Ltd [1997] 2 All ER 426, restricting the scope of
Khorasandjian in so far as it relies on nuisance.
12 This builds upon earlier work including J. Conaghan, ‘Gendered Harm and the Law of Tort:
Remedying (Sexual) Harassment’ (1996) 16 OJLS 407 and ‘Tort Law and the Feminist Critique of
Reason’ in A. Bottomley (ed), Feminist Perspectives on the Foundational Subjects of Law (London:
Cavendish, 1966) 47.
March 1998] Tort Litigation in Intra-familial Abuse
ßThe Modern Law Review Limited 1998 133

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