I.

UNDERSTANDING THE DYNAMICS OF ABUSIVE RELATIONSHIPS - DV AND THE LAW (38-71 AND 77-84)

 Factors to look into to understand psychodynamics of abusive relationships

o Subjective experience of battering or being battered, we are unlikely to create laws, or
implement them, in ways that serve our clients.
o Our understanding of the problem is at odds with our clients’ understandings, it will be
hard to represent them effectively, even within the existing legal system.
o Encounter misunderstandings among the social service providers, the law enforcement
personnel and the lawyers, judges and jurors who will have power over our clients’ lives,
and must be able to advocate for our clients in non-legal as well as legal settings.
 Angela Browne (pg. 42)
o First Impressions
 Men were most romantic and attentive lovers in the first weeks and months they
knew them
 Characteristics
 Constant concern with woman’s whereabouts and activities
 Desire to be with them all the time
 Wanting to do everything together
 Often alone
 Major changes in the men’s life-styles
 Particular concern with what they were thinking and feeling
 Watching them closely and responding strongly to any perceived shifts
 Men’s need for early commitment and their expressed fears of being hurt.
o Early Warnings
 In 72-77% violence occurs only after a couple has become seriously involved, is
engaged or is living together.
o Intrusion
 Desire to know whereabouts turned into requirements
 Suspicion and distrust
o Isolation
 Constant knowledge of the woman’s whereabouts, combined with a preference
for not letting the woman interact w/ people other than themselves, led in most
cases to severe restrictions of woman’s activities.
 Men cut off partners from friends and family, refused to let them work outside the
home, and treated activities the woman wanted to pursue without them as a
personal affront.
o Possession
 Forceful possession without regard for woman’s well-being.
o Jealousy
 Men’s tendencies toward extremes of jealousy were often masked by an initial
emphasis on the positive dimensions of being alone, or were only implicit in their
constant inquiries about the women’s activities and thoughts.
o Prone to Anger
 Men easily angered
 Early outbursts of violence were frequently directed at objects or against pets.
 Displayed in driving behavior as well.
o Unknown Pasts
 Women didn’t know much about their men’s pasts.

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 o Women’s Responses to Early Assaults
 Shock and disbelief.
 Withdrawals into silence and confusion
 Notes and questions
o Reasons people stay
 Love, hope, commitment
o Violence in relationships
 Women want to end violence in relationships, not the actual relationship
 Karla Fischer, Neil Vidmar and Rene Ellis
o Advocaes for battered women have noted that financial abuse and property abuse or
forms of emotional abuse inflicted upon women.
o Abusers restrict women’s access to money and destroy their personal property.
o Emotional and sexual abuse.
 Humiliation
 Insults
 Degradation
 Ridicule
 Explicit threats to harm or kill.
 Extends threats of harm to victim’s extended family and her children
o Sexual assault
 33%-60%
o The systematic pattern of control and domination
 The context of rule-making
 The ruler and the ruled
o Abusers are extremely controlling of the everyday activities of the
family.
o One abuser formalized the rules that his wife and kids had to
follow to ensure that the family would not be victims of violence
o Violence does not need to be a constant presence for the victims to
feel threatened that it could erupt at any point.
o Violence need only symbolize the threat of future abuse in order to
keep the victim in fear and control her behavior.
 The internalization of rules over time: the process of self-censorship
o Specific rules and their attached consequences make the
environment that the abuser has the control and does less and less
to structure his family’s behavior.
 Enforcements of rules by punishment
o Batterers may simply respond with abuse when a rule is broken, or
they may make it clear that the abuse is punishment for violations
 Cementing the connection through fear, emotional abuse, and social
isolation
o Fear of future violence.
o Difficult to leave abuser when they do not have access to money
 Rebellion and resistance
 Types of rebellion
o Refuses to do what he ordered
o Seek help from the abuser
 Separation abuse: heightened risk for abuse following separation

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  Most dangerous time for a battered woman is when she separates from her
partner.
 Many attacks are precipitated in retaliation for her leaving.
 Women who leave their partners may commit the ultimate act of rebellion,
which triggers the fatal control/domination response from the abuser, the
final episode of violence.
 Hiding, Denying, and Minimizing the Abuse
 Shame and embarrassment battered women feel, they remain in their
homes until their bruises and injuries fade away.
 Lenore Walker
o Cycle of violence
 Tension-building phase
 Minor battering incidents occur
 Slaps
 pinches
 Controlled verbal abuse
 psychological warfare
 Acute battering incident
 Violence has escalated to a point of rampage, injury, brutality and
sometimes death.
 Woman has no control
 Women do not seek help
 Tranquil, loving phase
 Tension and violence are gone
o Both members of the couple experience as a profound relief.
 Batterer may exhibit warm, nurturing, loving behavior toward his spouse.
 Many battered women believe that they are the sole support of the
batterer’s emotional stability and sanity, the one link their men have to the
normal.
o Power and Control Wheel (Located on page 58)
 Notes and questions
o Michael Johnson
 Mutual violent control
 Which couples engaged in mutual violence to resolve conflicts
 Situational couple violence
 Period episodes triggered by an event
 Violent resistance
 A pattern where one partner uses violence as a way to control a partner
 Intimate terrorism
 A pattern of abusive and controlling behaviors
 Sarah M. Buel (pg. 59)
o Fifty Obstacles to leaving (59-62)
 Advocate
 Believes Threat
 Children’s Best interest
 Denial
 Excuses
 Fear of retaliation
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  Financial abuse
 Gratitude
 Guilt
 Hope for violence to cease
 Keeping the family together
 Love
 Medical problems
 No place to go
 No job skills
 No knowledge of options
 Promises of change
 Rural victims
 Substance abuse or alcohol
 Undocumented victims
 Notes and Questions
o Separation Assaults
 Woman is 75% more likely to be murdered when she tries to flee or has fled the
relationship.
 Many women stay in relationships because they believe it’s the safest option.
 Separation assault is the attack on the woman’s body and volition in which her
partner seeks to prevent her from leaving, retaliate from the separation, or force
her to return.
 NO ONE SHOULD COUNSEL A VICTIM TO LEAVE WITHOUT FIRST
ENSURING THAT A TRAINED ADVOCATE HAS WORKED TO CONDUCT
AN EXTENSIVE SAFETY PLAN FOR HER.
o Psychological Profiles
 Women who have experienced sexual or physical abuse as a child, or other
trauma, may be more susceptible to violence.
 Stay b/c they have been socialized into a caretaking role
 Stay b/c of ideal to hold connections together, to heal and care for another, no
matter what the personal cost.
o Definition of Learned Helplessness
 Loss of their belief that they can reliably predict that a particular response will
bring about their safety.
 They react in a way that has the highest predictability of creating successful
outcomes.
 PTSD:
 Triggered by a traumatic event and can cause a variety of symptoms
including anxiety, depression, memory and cognitive distortions, including
difficulty to think and reason, intrusive memories, irritability and even
angry responses to interventions.
 Cognitive distortions
 Difficulty in concentration and confused thinking
 Memory distortions
 Intrusive memories of the trauma that frightens the woman and magnify
her terror
 Partial psychogenic amnesia that cause her to forget much of the painful
experiences.
 Intrusive memories
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  Occur spontaneously, without an conscious thoughts about the abusive
incidents
 High avoidance, depression and other flight symptoms make up the
second set of BWS symptoms that measure avoidance responses and
numbing feelings.
 High arousal, anxiety based symptoms and other fight symptoms make up
the third set of symptoms that often develops in women trying to protect
themselves form further abuse.
 Sleeping problems
 Irritability and angry responses
 Edward Gondolf with Ellen Fisher
o Learned helplessness (give up) v. Survivor hypothesis
o Survivor hypothesis
 Women respond to abuse with help-seeking efforts that are largely unmet.
 Have tried to escape but to not avail.
o Explanations of battered Women
 Brainwashing
 Tolerate abuse b/c of persistent and intermittent reinforcement from the batterer
 Notes and questions
o Women as abusers (pg. 69-70)
o Domestic Homicides
 Number of males killed by their female intimate partners has declined from 71%
from 1976 to 2002, while the number of females killed by their intimate partners
remained relatively steady for 2 decades.
o Measuring violence
 85% of heterosexual partner violence reported to and recorded by law-
enforcement agencies is perpetrated by men
 Notes and Questions-77
o Additional risk factors
 Domestic violence and unemployment
 Unemployment was the most predictive factor in whether a woman would
be killed by her intimate partner.
 Presence of another man’s child in the home increases risk of sexual
jealousy.
 Policy implications
 Three types of batterers
o A low offender
o Moderate offender
o High-risk offender
 Evolutionary Perspectives
 Whether DV is triggered by sexual jealousy.
o Paternity assurance is the process by which the male of a species
guarantees that he is not devoting valuable resources to supporting
juveniles who are not genetically his own offspring.
 Manifestation of sexual jealousy
o Man’s resentment and poor treatment of children from a partner’s
former marriage.

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 
Violence against one’s intimate partner, at its core, is a strategy to ensure
faithfulness and ultimately ensure that any offspring belong to one’s self.
 Race, Ethnicity and Class
 Individual Factors
 Early childhood, boys develop abusive personality
 Brutal fathers and mothers who are not emotionally available to their sons
because they are also suffering from abuse may, in turn, create boys who
grow up to abuse their own partners.
 Men who have had strong and positive male relationships are less likely to
be abusive.
 Military and Law enforcement
 Military families experience as much as five times the rate of DV as
civilian families.
 Police officers are more likely to assault their intimate partners than those
who work outside law enforcement.
 Lundy Bancroft
o Eminim - performers shape social attitudes

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II. INTRODUCTION: HISTORY OF DOMESTIC VIOLENCE LAW AND THEORY – DV AND THE LAW (4-16; 23-24;
28-37; HARRIS V. STATE, 71 MISS. 462 (984) AND FULGHAM V. STATE, 46 ALA. 143 (1871) )

 Pervasiveness of Domestic Violence

o Planned Parenthood v. Casey
 Required a pregnant woman to notify her husband before undergoing an abortion
 Organizations argued that enforcement of this provision would mean that women
who lived with violent partners would be unable freely to exercise their
reproductive choice because they could not tell their partners that they were
pregnant or that they wanted an abortion, without fear of reprisal.
o 12 month period of this country, approximately two million women are victims of severe
assaults by their male partners
o 1 in 4 women will experience DV in their lifetime.
o Young women, 16-24 years old, experience the highest rates of domestic violence.
o The number one killer of black women ages 15 to 34 is homicide at the hands of a current
or former intimate partner.
 Notes and Questions
o Sources of information
 Many of those who experience DV do not report, out of fear or b/c they do not
want to set criminal justice machinery in motion.
 Domestic Violence: A historical perspective (13)
o Three aspects of the ideal of family that contributed to societal reluctance to intervene in
violent families:
 Family is private
 Gives the husband conjugal rights over the wife
 Intended to endure for life.
 Bradley v. State
o Issue
 Whether a husband can commit an assault and battery upon the body of his wife.
o Old law
 Husband might give his wife moderate correction, because he is answerable for
his misbehaviour
o Notes and questions
 Meaning of Bradley
 Stands for the proposition that husbands have the right to use moderate
chastisement against their wives.
 Bradley overruled
 Harris v. State (1894)
 Current Controversies (23-24)
o Understand battering
 Function of social structure and political organization or an individualized
psychological problem.
o Question of whether and to what extent the existence of domestic violence requires state
intervention in the lives of victim’s, even against their will.
o Issue of state involvement to reduce and remedy domestic violence
 Planned Parenthood v. Casey (29)
o Constitutional to require a woman to notify husband of abortion?
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  Overruled
 United States v. Morrison (30)
o Violence Against Women Act
 Allowed victims of gender motivated violence to sue their attackers in federal
court.
 Congress had exceeded authority in passing Section 13981.
 Town of Castle Rock, Colorado v. Gonzales (34)
o Restraining order against her husband.
o Commanded him not to molest or disturb the peace
o Allowed him restricted access to the children
o Husband killed the children

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III. The Impact of Race and Culture on Domestic Violence Adjudication (85-96 and 101-153)

 David Island and Patrick Letellier: The neighbors call the police, Men who beat the men who
love them (86)
 Notes and Questions
o Homophobia
 Batterer may threaten to out the victim to family, friends, etc.
 Guilt to convince them that they do not deserve any better b/c they are
homosexual.
 State v. Linner
o Facts
 Lesbian relationship
 Three children between them
o Issue
 DV statutes apply to and protect many persons other than those legally married,
including parents, children, etc.
o DV statutes applies to this same-sex couple.
 Notes and Questions
o Equal protection analysis
o Lawrence v. Texas
 Struck down Texas’s sodomy statute
o Same sex marriage amendments (96)
 Karin Wang: Battered Asian American Women: Community Responses from the Battered
Women’s Movement and the Asian American Community(101)
o Asian cultures are group-oriented
o “Keeping face”
 Michelle Fine: Puerto Rican Battered Women (102)
o Women’s tasks sweep across nurturance and feeding of young and old, socialization for
subordination to men, learning that they have responsibility for controlling men’s anger,
self-consciously ‘over protecting children’ and assuring that the next generation is
imbued w/ a sense of optimism despite the overwhelming evidence to the contrary.
 Michelle Decasas: Protecting Hispanic Women (104)
o Alcohol
o Unemployment
o Less high school education
o Low socio-economic status
 Notes and Questions
o Importing Culture
 4 predictors
 Individual
 Relationship
 Household characteristics
 Community characteristics
 Findings indicate 7 factors that increase Haitian women’s risk of intimate partner
violence
 Lack of completion of primary school
 Violence in women’s family of origin
 Partner’s jealousy

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  Partner’s need for power
 Relationship quality
 Partner’s history of intoxication
 Female-dominated financial decision-making
 Minnesota v. Vue (109)
o Facts
 Never legally married
 Order for protection
 Hmong immigrants
o Expert testimony was inherently prejudicial
o Conclusion
 Prejudicial effect of the expert testimony about Hmong males’ tendency to
dominate and abuse their wives, and the tendency of Hmong wives not to want to
report assaults, far outweighed any probative value.
 Notes and Questions
o Native Americans (111)
 DV among Navajo is a consequence of the disruption of traditional norms and
practices caused by forced assimilation and the imposition of mainstream values
and culture.
o Whiteagle-Fintak v. Fintak (113)
o Risk Factors, including poverty
 Native Americans experience some of the most crushing poverty in the US
 Underemployed and unemployed
 Kimberle Crenshaw: Women of Color (115)
o Politicization of DV
 Some worry that attempts to make DV an object of political action may only serve
to confirm such stereotypes and undermine efforts to combat negative beliefs
about the black community.
o DV and antiracist politics
 Saving family from shame
 Reluctant to call police b/c it subjects their lives to scrutiny and control of police
force
 Regard DV as a manifestation of race
 Racism is linked to patriarchy to the extent that racism denies men of color the
power and privilege that dominant men enjoy
o Race and the DV lobby
 DV happens to “others”
 Who will lobby for DV victims?
 Notes and Questions (119)
o Reluctance to summon police
o Reluctance to seek services
 Religion
 Religion may itself isolate victims
 Imperative to ask a victim what their religious beliefs are to fully
understand why they may or may not seek aid.
 Azizah Y. al-Hibri (120)
o Impact of 9-11
 Stacey A. Guthartz (121) – Jewish

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 o Sense of shame from being abused.
o Shanda-blaming women for cuaisng or not prevent abuse in their own home.
o Statistics show that Jewish women stay in abusive relationships longer than non-Jewish
women.
o According to Jewish Law, a marriage can only be absolved two ways:
 Through the documented death of one of the partners or
 By the husband issuing a get to his wife.
 Releases a husband from a wife.
 Notes and Questions
o Arbitration (124)
 Cheryl Hanna-Sex before violence (127)
o Teen dating violence – Cynthia Rodriguez (128)
 Notes and Questions
o 32% of respondents reported experiencing aggression within a heterosexual romantic
relationship.
 Ken Picard Elder abuse (132)
 Notes and Questions
o Mandatory Reporting
 Most mandatory reporting laws don’t require the elderly to be legally incompetent
for the purposes of reporting.
 Karen Nutter-DV in the lives of women w/ Disabilities(136)
o Accurate reporting is difficult
o Why these women don’t leave
 May not know that what she is experiencing is abuse
 May feel that she cannot escape
 Shelby A.D. Moore (141)- Poverty
o Personal Responsibility and Work Opportunity Reconciliation Act of 1996
 No longer an entitlement to receive benefits as was under the AFDC for qualified
recipients
 Maximum life-time benefit of five years, whether or not they were received
consecutively
 Work requirement for all recipients.
o Family Violence Option
 Battered women who meet the criteria are exempt from work requirements and
lifetime benefit limits.
 Inadequacy arguments:
 Not clear how many domestic violence exemptions can be granted
 Block-grant funding system discourages the use of FVO exemptions
 Bonus awards encourages states to compete with each other by moving
recipients off of welfare.
 Notes and questions
o Domestic violence among the privileged (145)
 Some wealthy abusers not only hire private detectives to stalk, terrorize and
frivolously sue their partners, but the advocates who assist them as well.
 Bouley v. Young-Sabourin (147)
o Fair Housing Act makes it unlawful to refuse to sell or rent after the making of a bona
fide offer, or to otherwise refuse to negotiate for the sale or rental of, or otherwise make

11
 unavailable or deny, a dwelling to any person because of race, color, religion, sex,
familial status, or national origin.
o Claims of housing discrimination use the McDonnell Douglas burden-shifting
framekwork.
 Plaintiff has to establish a prima facie case of discrimination, the burden shifts to
the defendant to assert a legitimate, nondiscriminatory rationale for the challenged
decision. If the defendant makes such a showing, the burden shifts bac to the P to
demonstrate that the discrimination was the real reason for the D’s action.
 Notes and questions
o The Violence Against Women Act of 2005 (150)

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IV. DOMESTIC VIOLENCE, IMMIGRATION AND ASYLUM (812-848)

 Julie Dinerstein (813)

o Economic Barriers
 Particularly vulnerable to stay with the batterer because they are:
 More likely to have limited or no English proficiency;
 Less likely to have immigration status and thus less likely to be authorized
to work legally in the United States
 More likely to be ineligible for public benefits or if eligible, fear
immigration consequences of seeking public benefits and face wrongful
denials of public benefits;
 More likely to be rejected by their community for leaving;
 Less likely to be rejected by their community for leaving;
 Less likely to have back-up child care from friends and family;
 Less likely to have education, training or work experience necessary for
employment
o Fear of consequences in the home country
o Fear of losing custody of the children
o Fear of deportation
 Notes and Questions
o Legal services for battered immigrant women
 Legal Services Corporation (LSC) – a private, non-profit organization that
allocates federal funds to organizations that represent indigent clients in civil
clients.
 Linda Kelly
o Early immigration law allowed otherwise inadmissible female aliens who were married
to U.S. citizens or residents to enter the US b/c legal provisions exempted them from
various grounds of exclusions.
o Immigration Marriage Fraud Amendments (IMFA)
 Mandated that the spouse of a U.S. citizen or resident married for less than two
years initially be provided with conditional residence.
 Alien is considered to be a permanent resident for virtually all purposes and is
entitled to all the benefits and privileges that accompany residency.
 However, within the 90-day period immediately preceding the second anniversary
of being accorded conditional residency, the immigrant and his or her spouse
must jointly petition for the removal of the conditional status in order for the alien
to maintain permanent residency.
 Notes and Questions (818)
o VAWA Self-Petition (INA 204(a)(1)
 Petitioner must satisfy six requirements
 Qualifying relationship with her abuser
 Petitioner must show that her abuser is either a legal permanent resident or
a citizen of the US
 Suffered abuse

13
 o Battery or extreme cruelty
 She has good moral character
o Criminal record
 She married her abuser in good faith
 Currently resides in the US
o VAWA Cancellation of Removal
 Petitioner must satisfy the first five elements required under the self-petition. In
addition, must satisfy two additional elements
 Leaving the US would subject her or her children to extreme hardship. 4
factors:
o Petitioner needs access to US courts to obtain criminal
prosecutions against her abuser, child support or custody, or to
enforce any protective orders;
o Needs access to social, medical, mental health and other services
for herself or her child that are not reasonably accessible in her
home country;
o The laws and customs of petitioner’s home country would penalize
or punish the P or her children for being victims of abuse, leaving
the relationship; seeking a divorce or any other action she took in
ending the abuse;
o Would not be protected from her abuser or his family and friends
in her home country and/or
o Any other justifications P may be able to use to show extreme
hardship
 P must show three years of physical presence in the US prior to
application.
o Battered Spouse Waiver
 Battered immigrants who are married to citizen abusers generally have
conditional lawful permanent residency.
 Enables these immigrants to remove the condition of their residency status and
become lawful permanent residents.
 Notes and Questions (819)
o What does extreme cruelty mean?
 Hernandez v. Ashcroft
 Congress distinguished extreme cruelty from battery when it drafted the
immigration provisions in VAWA
o Distinguish overt acts of physical violence (battery) from
something other than physical assault, such as psychological abuse
(extreme cruelty)
o Good moral character
 Immigration officers look at this through criminal record
 Julie Dinnerstein-Working w/ Immigrant Victims of DV
o U Visa
 Unmarried abuse victims who have been the victims of certain crimes, including
DV, who has suffered substantial physical or mental harm as a result of the crime
and who have been or are likely in the future to be, helpful to the investigation or
prosecution of the crime.
 Granted temporary residence status, and the end of the three years upon a showing
of extreme hardship, may apply for lawful permanent residency status.
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 o T Visa
 Victims of trafficking
 More stringent criteria than the U Visa and numerical limits on how many visas
can be granted.
 Notes and Questions
o What is trafficking?
 Under the TVPA, to be eligible for a t visa, the petitioner must show she was
subjected to a severe form of trafficking.
 Sex trafficking in which a commercial sex act is induced by force, fraud or
coercion, or in which the person induced to perform such act has not
attained 18 years of age; or the recruitment, harboring, transportation,
provisions, or obtaining of a person for the use of force, fraud, or coercion
for the purpose of subjection to involuntary servitude, peonage, debt
bondage, or slavery.
 Jayashri Srikantiah (825)
o A trafficking victim may still be under the psychological control of the trafficker when
she is liberated by law enforcement.
 Notes and Questions
o Sex Workers
 Three dimensions of trafficking
 Domestic workers
 Migrant workers in restaurants, hotels, farm work and factories
 Forced sex work
o Mail Order Brides (828)
 In Re R-A (831)
o Whether the respondent qualifies as a refugee as a result of the heinous abuse she
suffered and still fears from her husband in Guatemala
 Whether the repeated spouse abuse inflicted on the respondent makes her eligible
for asylum as an alien who has been persecuted on account of her membership in
a particular social group or political opinion.
o Law
 An asylum applicant bears the burden of proof and persuasion of showing that he
or she is a refugee
 Refugee:
 Any person who is outside any country of such person’s nationality...and
who is unable or unwilling to return to, and is unable or unwilling to avail
himself or herself of the protection of, that country because of persecution
or a well-founded fear of persecution on account of race, religion,
nationality, membership in particular social group, or political opinion.

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V. THE CRIMINAL JUSTICE SYSTEM (247-291; 298-309; 314-329; 339-346)

VI. Evidence and Expert Testimony (191-209; 373-397; 427-436)

 Connecticut v. Borrelli (195)
o Stark testified that some battered women develop a learned helplessness from repeated
failures to take control of the relationship. The result of such learned helplessness is that
battered women fail to take advantage of subsequent opportunities to seek help and
escape the battering situation.
o Expert testimony concerning battered woman’s syndrome has been accepted by many
courts when the testimony was offered by a criminal defendant to bolster a claim of self-
defense.
 Notes and Questions
o Helpful to the jury
 Expert testimony is admissible when it is helpful to the jury.
 Federal Rules of Evidence 702
o The Relevance of Expert Testimony
 Dixon v. United States
 Firearm w/ false statements
 Wanted to have an expert testimony to battered women’s syndrome to
state why she did what she did.
 Expert testimony was not relevant to show whether or not her perceptions
were “well-grounded” or objectively reasonable under the circumstances.
 People v. Santiago
o Perfect example of the wheel of violence cycle
o Victim refused to testify
 Notes and Questions (205)
o Admitting Evidence of Battered Women’s experiences
 Battered women’s experiences
 Descriptive references should be made to expert testimony concerning
battered women’s experiences rather than to battered woman syndrome.
 The scope of the testimony concerning battered women’s experiences
should be framed within the overall social context that is essential for
explaining battered women’s responses to violence.
 Evaluation and testimony concerning battered women’s psychological
reactions to violence should incorporate the diverse range of traumatic
reactions described in the scientific literature, and should not be limited to
an examination of learned helplessness, PTSD, or any other single reaction
or profile.
 Crawford v. Washington
o State marital privilege
 Which generally bars a spouse from testifying without the other spouse’s consent.
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  In Washington, this privilege does not extend to a spouse’s out of court statements
admissible under a hearsay exception, so the State sought to introduce Sylvia’s
tape-recorded statements to the police as evidence that the stabbing was not done
in self-defense.
o Where testimonial evidence is at issue, the Sixth Amendment demands what the common
law required: unavailability and a prior opportunity for cross-examination.
o Provision bars admission of testimonial statements of a witness who did not appear at
trial unless he was unavailable to testify, and the defendant had had a prior opportunity
for cross-examination.
 Tom Lininger: Prosecuting Batterers after Crawford
o State v. Courtney
 Six-year daughter described the assault in an interview conducted by a child-
protection. The trial court admitted a videotape of this interview. The appellate
court reversed the defendant’s conviction because the daughter was not available
for cross-examination at trial.
o People v. Adams
 The prosecution introduced her hearsay statements to the police in lieu of her live
testimony at trial. The appellate court vacated the defendant’s conviction, holding
that the admission of the victim’s hearsay statements violated Crawford.
o People v. Kilday
 She gave a statement to the police on the police on the day of the defendant’s
arrest, but she later refused to cooperate with the prosecution, indicting that the
defendant had threatened to retaliate against her. The prosecution relied on her
hearsay statements to the police, and the appellate court vacated under Crawford.
 Notes and Questions
o 911 Calls and Statement to the police officers at the scene
 911 calls were generally admitted under the theory that 911 calls qualify as
excited utterances.
 After Crawford, this became an issue
 Brief Amici Curiae of the National Network to End Domestic Violence...
 Davis v. Washington (382)
o Primary purpose test
o Statements are non-testimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is to
enable police assistance to meet an ongoing emergency.
o They are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to establish or
prove past events potentially relevant to later criminal prosecution.
 Notes and Questions
o Forfeiture by wrongdoing (390)
 FRE 804(b)(6)
 Allows out of court statements to be admitted against a party who has
engaged or acquiesced in wrongdoing that was intended to, and did,
procure the unavailability of the declarant as a witness.
 State v. Sanders
o Prior bad acts
 State argues that the evidence was offered to show why the victim was afraid of
defendant and to prove that defendant had the requisite intent to threaten the
victim with a knife.
17
 o Court held they did not need to decide whether the prior bad acts may be admissible
solely to show fear or intent b/c the evidence was relevant also to portray the history
surrounding the abusive relationship, providing the needed context for the behavior in
issue.
 Notes and Questions (393)
o Propensity Evidence in Sexual Assault and Child molestation cases
 FRE 413-415:
 Allow for introduction of character evidence in cases in which the D is
accused of sexual assault, child molestation, or in civil cases predicated on
the party’s commission of an offense involving sexual assault or child
molestation.
o Modern trends in evidence
 CA and AZ have passed statutes that allow for introduction of prior abuse in
domestic violence cases to prove a propensity to abuse.
 Expert Testimony (395)
o Expert will likely need to correlate the escalating violence with the abused person’s
inability to identify and use resources.
o Explain the frequency, severity and nature of the abuse suffered by the battered defendant
to the jury.
o Three evidentiary issues that govern the admissibility of expert testimony
 Must be relevant to the case
 Helpful to the jury
 Based on reliable information.
 Notes and Questions (427)
o Gender bias – self defense
 Reasonableness of the defendant’s determination that force was necessary, and
the extent to which a reasoned judgment can draw on the defendant’s experiences
as a woman, or battered woman.
 Temporal proximity between the threat against the defendant her use of violence
to deflect it.
 Some jurisdictions require that the threat be imminent, while others use
immediacy.
 Proportionality of the violence threatened, and the violence used in self-defense.
 Duty to Retreat-requires a person threatened by violence to retreat rather than
counterattack if they can safely do so.
o Justification v. Excuse
 State of Washington v. Wanrow (430)
o Justification of self defense is to be evaluated in light of all the facts and circumstances
known to the defendant, including those known substantially before the killing.
 Notes and Questions
o Reasonableness standard

VII. Protective Order Procedure and Theory (210-227; 231-245; 269-272; 763-771)

VIII. THE IMPACT OF DOMESTIC VIOLENCE ON DIVORCE, CUSTODY AND OTHER FAMILY LAW
ISSUES (502-581)

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[Page 541-581]

 Notes and Questions

o Defining Domestic Violence
 North Dakota statute’s definition of domestic violence as an act that causes bodily
harm, fear of imminent bodily harm, or coerced sexual activity is a common
definition.
o Standards of proof for triggering and rebutting the presumption
 Under the ND statute the presumption against awarding custody to a batterer
comes into existence if there is “credible” evidence and can be rebutted only by
clear and convincing evidence.
o Time lapse between the violence and the custody proceeding
 ND statute requires that the domestic violence have occurred within a reasonable
time proximate to the proceeding.
o Rebutting the presumption
 CA Statute
 Best interest of the child
 Successful completing of a batter’s treatment program
 Successful completion of a parenting class
 Compliance with any probation or parole terms
 Compliance with the terms of an applicable restraining order
 Commission of any further acts of domestic violence.
o Protective orders and presumptions against awarding custody to batterers
 MA
 The presumption statute specifically states that the existence of a
protective order against one parent is not to be considered as evidence of
DV on the part of that parent.
o Allegations of mutual abuse
 ND S. Ct. has said that when there are claims of mutual abuse the trial court
should attempt to determine which parent is the primary abuser.
 Louisiana; if the court finds that both parents have a history of perpetrating family
violence, custody shall be awarded solely to the parent who is less likely to
continue to perpetrate family violence.
 Joint custody and friendly parent provisions
o Joint custody may mean either joint legal custody or joint physical custody.
o Gives both parents the right and responsibility to participate in making major decision’s
about a child’s life.
o Friendly parent provisions require a court to give positive weight in a custody
determination to the parent who is most likely to facilitate the child’s relationship with
the other parent.
 Solangel Maldonado: Beyond Economic Fatherhood: Encouraging Divorced Fathers to Parent
(547)
o Educational and Societal benefits
 Positive correlation between paternal involvement and both higher IQ and a better
school performance.
 Positive correlation between paternal absence and delinquent behavior and drug
abuse.
o Emotional and Psychological benefits

19
  Children want to see their fathers, and they feel rejected when contact w/ their
fathers is infrequent.
o Child Support
 Children whose fathers pay child support tend to experience fewer behavioral and
social problems and to perform better in school than children whose father do
not.
o Reasons for paternal disengagement
 Gender bias
o Changing the norm: encouraging paternal engagement
 Presumption of joint legal custody serves an important symbolic function.
 Many fathers reject joint legal custody in favor of joint physical custody, arguing
that the former does not provide them greater access to their children because the
children still live with the mother in most cases, and the father has only visitation.
 Clare Dalton: When Paradigms Collide: Protecting battered parents and their children in the
family court system (551)
o Three separate bodies of learning that describe problematic intimate relationships, test
hypotheses about the sources of the problems, and suggest, or measure the efficacy of,
specific interventions.
 Conflict
 Violence
 Abuse
 Visitation (554)
o Orders of visitation are legally governed by a best interests of the child standard, but
heavily influenced by two other factors.
 Assumption that parents have a right to some relationship with their minor
children except in the most extreme situations.
 Conviction that in the overwhelming majority of cases, children will do better if
they have access to both parents rather than one.
o Judges have broad discretion to structure visitation, and impose conditions on its exercise
so as to protect the best interests of the child.
 Judges consider both the frequency and length of visits between children and
nonresidential parents.
 Karjanis v. Karjanis (555)
o Father would tell kids their mother is the devil
o Judge found that the father’s emotional state was detrimental to the best interests of the
children and ordered that he have supervised visitation with them.
o Shows an example of the order
 Notes and Questions (559)
o Visitation and studies about the effects of paternal involvement after divorce
 Studies about the advantages to children of having two parents involved in their
routine activities
 Child development focuses on the quality of the child’s attachments to his
or her parents as significant in the child’s overall development and in the
child’s ability to form relationships and to separate from the parents.
o Does a nonresidential parent have a constitutional right in visitation
 Infringement of rights can only be justified by a compelling state interest, and
even so, the infringement must be as narrowly drawn as possible.
o Parental Alienation
 PAS
20
  Situations involving false claims of abuse of the child by the noncustodial
parent, an extreme negative reaction to the noncustodial parent by the
child, and in which that reaction is caused by the custodial parent’s having
influenced the child.
o What is supervised visitation?
 Supervised visitation provides a place for a parent to see and interact w/ the child
while minimizing risks to the child b/c the visitation is conducted under the
watchful eye of a third party.
 Supervised visitation may be ordered if the court believes that one parent is
alienating the child from the other.
o When is a court likely to order supervised visitation?
 Used as a means to protect the supervised parent from the custodial parent’s
allegations of wrong-doing during supervision or as means to reestablish a
relationship between a noncustodial parent and a child.
o Who serves as supervisor when visitation is supervised?
 Neutral third party to supervise
 Family member or friend
o Use of supervised visitation records in custody trials (563)
o Pro se litigants, domestic violence and custody litigation
 Common for parties to not have attorneys.
 Relocation
 Janet M. Bowermaster: Relocation custody disputes involving domestic violence (566)
o Mother asked the court’s permission to remove a restraint that prevented her from leaving
the state with her son.
o She wanted to take her family to FL where her parents and her brother and his wife were
living. She had a job offer there.
o Was unable to get the restraint modified and son continued to have supervised visits, that
made the boy’s mental health suffer.
 Notes and questions (568)
o Domestic Violence, Family courts and criminal courts
 Family courts often do not give priority to stopping violence.
o Relocation requests and traditional notions of patriarchy
 Janet Bowermaster: Relocation custody disputes involving domestic violence (569)
o Distance limitations protect only the ability of noncustodial parents to have convenient
access to their children.
 Notes and questions (570)
o Recent Research
 Preponderance of negative effects correlated with either parent’s move away from
the child, including distress related to the divorce, hostility in interpersonal
relations and reduced perceptions of their parents as role models.
 Valentine v. Valentine (572)
o Appeals a judgment of denying her request to relocate her children out of state.
o Court stated its within the best interest of child for them to stay in Ohio
 Notes and Questions (574)
o Changing custody as a result of a motion to relocate
 Raising allegations of abuse [child abuse or spousal abuse] may harm a protective
parent more than the alleged abuser. Women who inform custody mediators that

21
 they are victims of DV often receive less favorable custody awards than those
who do not.
o Standards for determining relocation disputes
 Number of states today recognize the importance of maintaining custodial
stability despite the custodial parent’s desire to relocate.
 These states often create a presumption or preference in favor of allowing
relocation.
 Many states review the question of the child’s best interests when a custodial
parent seeks to relocate, often putting the burden of proof on the custodial parent.
o Relocations in initial custody situations or in situations in which the parents have joint
custody (576)
 Leaving w/o the children: is it abandonment?
 Leaving w/ the children and w/o the court’s permission: Civil consequences
 Odom v. Odom (577)
o Denying her request for change of custody and granting her former husband, continuing
custody of their two minor children. Reversed and remanded.
o Sole custody awarded
 Notes and Questions (580)
o Punishing survivors of abuse who flee w/ their children
 Model code on domestic and family violence (1994)
 Relocation b/c of an act of DV will not be a factor that weighs against the
parent in determining custody or visitation and further creates a rebuttable
presumption that it is in the best interest of the child to reside w/ the parent
who is not a perpetrator of domestic or family violence in the location of
that parent’s choice, within or outside the state.
IX. THE CHILD PROTECTION SYSTEM AND BATTERED MOTHERS (645-653; 663-688)
 Notes and Questions
o Risks to Children from living in families in which one parent abuses the other
 Approximately half of those who abuse their intimate partners also abuse their
children.
 The rate of harm to children that rises to the level of abuse in domestic violence
cases is only slightly higher than the rate in the general population, and less than
the comparable risk in foster families.
 Nicholson v. Williams (648)
o Facts
 Mr. Barnett punched, kicked her and threw objects. When he left, her head was
bleeding profusely.
o Removal
 The worker informed Ms. That ACS had possession of her children and that if she
wanted to see them she had appear in court the following week
o Family Court ordered that Ms. Children be paroled to her, on the condition that she and
the children not return to Ms. Address in Brooklyn, but instead live with her Bronx
cousin.
 Notes and Questions
o Reasonable battered woman standard and child abuse
 Battered women’s syndrome framework may limit the judge from seeing Mrs. G’s
repeated and affirmative efforts, although unsuccessful, to try to leave.
o Neglect and the strict liability standard

22
  Strict liability standard is more appropriate
 If our goal is to protect children, why should we care whether a parent was
or was not at fault in exposing them to risk?
 Nicholson v. Scoppetta
o Action brought on behalf of mothers and their children who were separated because the
mother had suffered domestic violence, to which the children were exposed, and the
children were for that reason deemed neglected by her.
o Standard
 The Family Court Act is explicit in requiring that a party seeking to establish
neglect must show, by a preponderance of the evidence fits, that a child’s
physical, mental or emotional condition has been impaired or is in imminent
danger of becoming impaired and second, that the actual or threatened harm to the
child is a consequence of the failure of the parent or caretaker to exercise a
minimum degree of care in providing the child with proper supervision or
guardianship.
 Notes and Questions
o Neglect Proceedings and Domestic Violence, Post-Nicholson
 Before removal, the TC must consider not only whether the child has been
neglected, but also whether it would be in the child’s best interests to remove him
or her from the home.
o Gender Norms and Definitions of neglect
 Constitutional Issues in Nicholson v. Williams (670)
o In Stanley, the U.S. Supreme Court declared that it was unconstitutional to remove an
unmarried man’s children from his care without a hearing when the basis for the removal
was that, as an unmarried man, he was an unfit parent.
o Need probable cause to remove a child from the home.
 Need to have a hearing or petition. Can’t make a presumption on category of
people/families.
 Prosecuting battered mothers for failure to protect
o Three categories
 Where the mother was present when the child was abused and did not prevent or
half the abuse
 Where the mother left the child in the care of a known abuser
 Mother failed to seek assistance for a child for abuse-related injuries.
 Campbell v. State (674)
o Hot liquid case
o Coercion or duress has been recognized as a defense to criminal charges. Coercion or
duress must be present, imminent or impending, and of such a nature so as to induce a
well-grounded fear of death or serious bodily harm if the otherwise criminal acts is not
done.
 Notes and Questions (678)
o Mens Rea
 This requirement is satisfied by showing that the passive parent had knowledge of
the likelihood of abuse.
o Defenses to failure to protect prosecutions (679)
 Coercion
 Duress

23
  Some states provide statutory defenses if the accused fears that intervention on
behalf of the child would result in physical injury to herself or would increase the
danger to the child.
 Dorothy E. Roberts – Mothers who fail to protect their children (680)
o Accounting for private and public responsibility
o Punishing Mothers’ Resistance
o Commonwealth v. Cardwell

X. DOMESTIC VIOLENCE AS A TORT ACTION (697-743)

 Clare Dalton: Domestic Violence, Domestic Torts, and Divorce: Constraints and Possibilities
o Married Women’s Property Acts and Earnings Act had made significant inroad on the
marital unity ideology, endowing women w/ legal personality and capacity, and thereby
recognizing their individuality.
o Two arguments for interspousal tort immunity
 Domestic harmony
 Requires that a state committed to the institution of marriage – as all states
are – should encourage the maintenance of marital relationships, and not
provide discontented partners w/ opportunities for blowing their domestic
grievances out of all proportion, exacting revenge for minor slights and
injuries, rather than kissing and making up.
 Privacy
 Family life is an essential feature of society, but at the same time fragile,
requiring protection from the incursions of the state.
 Notes and Questions (700)
o Interspousal immunity in Georgia and Louisiana
 Georgia

24
  Common law doctrine of interspousal tort immunity is codified in Ga.
Code. Ann 19-3-8 (2006)
o GA Supreme Court refused to allow a divorcing wife to sue her
husband for injuries that she had suffered in a motorcycle accident
prior to marriage.
o Immunity were to be abridged or abolished, it should be done by
the legislature, not by the court.
o Civil Suits for marital rape
 Marital rape immunity
 Shielding rape within marriage from criminal liability, has proven even
more resistant to change than interspousal tort immunity.
 Existing Causes of Action (703)
o Survival and wrongful death actions (704)
o Intentional infliction of emotional distress (705)
 Plaintiff must prove that the defendant by extreme and outrageous conduct
intentionally or recklessly caused severe emotional distress.
 Ira Mark Ellman & Stephen D. Sugarman: Spousal emotional Abuse as a tort? (706)
o Massey v. Massey
 Wife claimed that her husband denied her any independent access to funds and
doled out money to her in small amounts.
 Wife made no claim of personal physical violence, and the jury ultimately found
that the husband has not assaulted the wife by threat of imminent injury nor acted
w/ malice.
 The distress claim, resulted in a judgment against the husband for $362,000 in
compensatory damages. Texas appeals court affirmed the award.
 Policy issue:
 Shall the outrageousness of spousal conduct be judged by external or
internal standards – seem fundamental.
 Threshold for outrageousness
 Marital conduct crosses the line into outrageousness at just the point when
it becomes so extreme that it is not credible to think it was part of any
reasonable couple’s marital understanding.
 Notes and Questions (710)
o Restricting IIED suits in intimate relationships
 Twyman v. Twyman
 Conclude that if consensual bondage between married couples is not a
crime, it should not be actionable in tort either. It seems to us that
objecting spouse’s remedy in these situations should be separation, not
grudging consent followed by litigation.
 Feltmeier v. Feltmeier (711)
o Divorce; wife sued husband for IIED.
o Policy concerns
 DV is a serious crime against the individual and society and that the legal system
has ineffectively dealt with family violence in the past, allowing abusers to escape
effective prosecution or financial liability.
 Threat of excessive and frivolous litigation if the tort is extended to acts occurring
in the marital setting.

25
  Believe that the showing required of a P in order to recover damages for
intentional infliction of emotional distress provides a built-in safeguard
against excessive and frivolous litigation.
 A tort action for compensation would be redundant.
o Conclusion
 Majority have recognized that public policy considerations should not bar actions
for intentional inflection of emotional distress between spouses or former spouses
based on conduct occurring during the marriage.
 Notes and Questions (716)
o Defining outrageousness (716)
 Abusers’ defensive actions to tort suits
o Statutes of Limitations (717)
o Duress or Insanity (718)
 Notes and questions (719)
o Insanity and tolling the statute of limitations
 Insanity usually tolls the SOL.
 Giovine v. Giovine (720)
o Insane:
 Such a condition of mental derangement as actually prevents the sufferer from
understanding his legal rights or instituting legal action
o Jones v. Jones
 Found individuals subjected to childhood sexual abuse often find it impossible to
communicate and describe such misconduct. Jones likened plaintiff’s condition
to the condition of insanity, which tolls the SOL.
o S. Ct:
 A trial court shall itself w/o a jury hear and determine
 Whether insanity developed on or subsequent to the date of the alleged act
of defendant and w/in the period of limitation and if so, whether that
insanity resulted from the defendant’s acts; and
 Whether plaintiff’s suit was started w/in a reasonable time after restoration
of sanity.
 Nussbaum v. Steinberg (721)
o Sued for assault, battery and IIED. Defendant was in prison and SOL had run; court
determined that it was tolled.
 Notes and Questions
o The discovery Rule
 The period of limitations begins to run at the point where the plaintiff is capable
of recognizing the wrongful nature of the therapist’s conduct and acting on it.
o Legislation to toll statutes of limitations (725)
 Continuing Torts
 Many courts have found that where a tort is of a continuous nature, the
SOL will not bar an action if the tort has continued into the statutory
period.
 A person seeking professional assistance has a right to repose confidence
(throughout the course of the representation) in the professional’s ability
and good faith, and realistically cannot be expected to question and assess
the techniques employed or the manner in which the services are rendered.
 Feltmeier v. Feltmeier (726)

26
 o General rule
 A limitations period begins to run when facts exist that authorize one party to
maintain an action against another. However, under the continuing tort or
continuing violation rule, where a tort involves a continuing or repeated injury,
the limitations period does not begin to run until the date of the last injury or the
date the tortuous acts cease
o Holding
 The continuing tort rule should be extended to apply in cases of intentional
inflection of emotional distress.
 Celley v. Stevens (730)
o Facts
 Plaintiff filed a complaint against defendant, in which he alleged that on July 3,
2000, defendant Stevens wrongfully filed a domestic assault charge against him
for which he faced criminal charges.
o Analysis
 To establish a prima facie case of negligence, a plaintiff must prove:
 A duty owed by the defendant to the plaintiff
 A breach that duty
 Causation and
 Damages
 Plaintiff argues that a fiduciary duty, including the duty not to make a false
domestic violence allegation, arises out of the relationship between a husband and
wife, and that the existence of such a duty support his cause of action for
negligence.
 Fiduciary relationship arises only when there is a reposing of faith,
confidence and trust and the placing of reliance by one upon the judgment
and advice of another.
 IIED, a plaintiff must establish:
 Extreme and outrageous conduct
 Intent or recklessness
 Causation and
 Severe emotional distress
 Malicious prosecution
 Defendant has initiated a criminal prosecution against him
 That the criminal proceedings terminated in his favor
 That the private person who instituted or maintained the prosecution
lacked probable cause for his actions, and
 That the action was undertaken w/ malice or a purpose in instituting the
criminal claim other than bringing the offender justice.
 Successful claim of abuse of process requires proof of:
 An ulterior purpose and
 An act in the use of the process that is improper in the regular prosecution
of the proceeding.
 Notes and questions (733)
o Issue Preclusion and claim preclusion as barring further litigation
 Issue of preclusion
 Party seeking the doctrine must show
o The issue to be precluded has already been litigated

27
 o The issue was actually decided in the previous litigation
o The issue’s determination was necessary to the decision in the
previous litigation
o The judgment in the previous litigation is final and
o The party against whom the preclusion is asserted had a full
opportunity to litigate the issue in the previous proceeding.
 Riemers v. Peters-Riemers
o Anti-SLAPP Act litigation
 At least 14 states have specific statues that permit the rapid dismissal of suits filed
w/ the objective of limiting the defendant’s right to exercise first amendment
rights of speech or petition.
 McLarnon v. Jokisch
o Cost of Litigation (735)
o Suits by alleged abusers against Third parties who assist their claimed victims (736)
 Twyman v. Twyman
o Adopt the tort of IIED and hold that such a claim can be brought in a divorce proceeding.
o A spouse should not be allowed to recover tort damages and a disproportionate division
of the community estate based on the same conduct.
o The court may still award a disproportionate division of property for reasons other than
the tortuous conduct.
 Notes and Questions (739)
o Tort and Divorce Actions: Mandatory Joinder
 Divorce is an action in equity and there is no right to a jury.
 McCulloh v. Drake
 Held that spousal tort cases could not be heard with the parties’ divorce
b/c the two types of actions are so different.
o Divorce is to terminate the parties’ relationship whereas a tort case
is to provide money damages for the commission of a wrong.
o Tort case, the plaintiff is usually entitled to a jury and frequently
will have numerous witnesses to present.
o The defense of claim preclusion
 The doctrine of claim preclusion precludes a party from litigating a claim when
there has been previous litigation under the following circumstances
 The two cases must involve the same claim
 The parties to the two suits must be identical or in privity and
 The first case must have ended in a valid final judgment on the merits.
 There must have been an opportunity to bring the claim in the first action.
o The defense of issue preclusion
 One is legally estopped from making a particular claim if one has taken an action
(or has not acted) and that action (or failure to act) has reasonably induced
reliance by the other party.
o The defense of waiver
 Most divorce settlements include a zipper clause that indicates that the settlement
resolves all of the claims between the parties.
 Since a waiver cannot be valid without knowledge of what one is waiving, one
cannot waive a right to sue for future tortuous actions that have not yet occurred.

28
XI. THIRD PARTY LIABILITY AND DV IN THE WORKPLACE (785-811)
 Remedies for abuse at work – worker’s compensation
o Whether or not the injury is covered by the workers’ compensation statute.
 Dildy v. MBW Investments, Inc. (788)
o Facts
 Plaintiff was responsible for running register at gas station.
 Boyfriend came in and attacked the plaintiff.
 Manager refused to call the police
 Boyfriend called gas station and threatened to kill plaintiff.
 Manager still refused to call police
 Boyfriend walked up to the counter and shot at plaintiff three times, hitting her
once in the right hand and once in the leg.
 Plaintiff filed a worker’s compensation suit
o Deputy Commissioner concluded that the risk of assault was not attributable to the
employment and that plaintiff’s injuries did not arise out of her employment.
o In order to be compensable under the Act, an injury must result from an accident arising
out of and in the course of employment.

29
  An accident is an unlooked for and untoward event which is not expected or
designed by the employee and which interrupts the employee’s normal work
routine and introduces unusual conditions likely to result in unexpected
consequences.
 Accident is unexpected and without design on the part of the employee who
suffers from it.
o Arising out of employment
 Refers to the origin or casual connection of the accidental injury to the
employment.
 If a contributing proximate cause of the injury is a risk to which the employee was
exposed because of the nature of the employment, and to which the employee
would not have been equally exposed apart from the employment.
 Increased risk analysis
 Notes and Questions
o Injuries to other employees
 Hemric
 Court of Appeals decided that the co-worker’s injury was not
compensable, because it was caused by the criminal act of a third party
that did not arise out of employment.
 Carroll v. Shoney’s Inc., d/b/a Captain D’s Restaurant
o Restaurant worker – husband comes in and confronts. She explains to manager to call
police b/c she is afraid of husband
o General rule
 Employer is not liable to its employees for criminal acts committed by third
persons against an employee
 It is well settled that absent a special relationship or special circumstances a
person has no duty to protect another from criminal acts of a third person
o Exception to general rule:
 If the particular criminal conduct was foreseeable.
o Alabama law requires plaintiff to show three elements to establish a duty:
 Particular criminal conduct must have been foreseeable
 Defendant must have possessed special knowledge of the criminal activity
 Criminal conduct must have been a probability.
 Notes and Questions (796)
o Tort Theories if the abuser is a co-employee of the victim
 If the conduct is intentional, the employer will not be liable on a respondent
superior basis.
 The employer could potentially be liable for negligent hiring, negligent
supervision or negligent retention of the abusive employer.
o Claims under Title VII
 An employee who is threatened, harassed, or assaulted by another employee or by
a supervisor at work may also be able to invoke Title VII of the Civil Rights Act
of 1964, claiming sexual harassment as a form of gender discrimination.
 Remediable sexual harassment in the workplace falls into two categories:
o Quid pro quo harassment
 Unwelcome conduct on the basis of an employee’s sex
affecting a term or condition of employment.
o Hostile work environment harassment

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  Requires an employee show she was, based on her gender,
subject to unwelcome conduct sufficiently severe or
pervasive that it affected the conditions of her employment
and created an abusive working environment.
 In order to recover, the employee must show that the employer knew or had
reason to know about the harassment and failed to take appropriate action to end
it.
o OSHA
 Federal Occupational and Safety Health Act
 Imposes a duty on employers to provide a workplace that is free from
recognized hazards.
 When Employers punish victims
 More than half of the states have laws on the books that make it illegal for
an employer to fire, or otherwise discriminate against, any victim of a
crime who takes time off from work to testify in a criminal proceeding,
pursuant to a subpoena.
 Green v. Bryant (799)
o Wrongful discharge
o Negligent inflection of emotional distress
o Intentional inflection of emotional distress
o Beach of covenant of good faith and fair dealing
 Notes and Questions (802)
o Disclosure of Domestic Violence
 You need to warn her that she may be fired simply for having the conversation or
because of perceived security threats, and if this happens she may have little or
not recourse.
o Welfare-to-work requirements (804)
 Block grants to the states came w/ requirements that the states move recipients off
of welfare and into the workforce within five years.
 Fredrica Lehrman – Domestic Violence practice and procedure (806)
o An employer who accuses an employee suspected of committing domestic violence of
being a “wifebeater” may find itself liable for defamation.
o To prove liability, the defamed employee must show:
 The employer made a false and defamatory statement about the employee;
 An unprivileged publication to a third party;
 Fault amounting to at least negligence on part of the publisher; and
 Either actionability of the statement regardless of special harm or the existence of
special harm caused by the publication.
o Employers have a qualified privilege in the area of defamation. This qualified privilege
allows an employer to publish a false and defamatory statement about an employee if the
employer can show that the statement:
 Was made w/ a good faith belief in its truth;
 Served a business interest or had a business purpose;
 Was limited to a business interest or purpose to be served; and
 Was made on a proper occasion.
o Invasion of privacy
 An employer who investigates charges that an employee has engaged in acts of
DV should do so with the employee’s privacy rights in mind. State courts have
recognized four different types of invasion of privacy torts:
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  Appropriation of another’s name or likeness;
 False light publicity;
 Public disclosure of private facts;
 Intrusion upon seclusion
 Notes and Questions (808)
o Using the ADA as a Batterer’s Defense (809)
o Attorney Discipline for Intimate partner abuse (810)

XII. DOING THE WORK (942-952; 960-975)

 Ann Shalleck-Representing Women who have been abused
o Feminist Critique
 Theorists see construct of the battered woman as essentializing.
 Makes one characteristic of a woman’s experience define her entire
identity, thereby marginalizing or trivializing other aspects of her identity.
 View construct of battering as essentializing b/c this framework treats intimate
abuse as a single, uniform experience.
 Battered women are portrayed as victims, as powerless and passive objects of
another’s violence, helpless to free themselves from the constraints imposed by
the batterer.
 Power of the construct of the battered woman tends to put the focus on the
woman, rather than the man who is violent.
 The common question asked about abused women is “why didn’t she
leave?”
 Twin constructs of battering and battered woman are dependent upon the
demonization of the batterer.
 These four characteristics of the concepts of battering and battered woman lead
many women not to recognize themselves or their experiences in the standard
narrative of DV.
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  Using legal remedies may create additional dangers for women who have been
abused rather than ensuring or even increasing their safety or the safety of their
children.
 Ann Shalleck-Theory and Experience (946)
o Elements they think are essential to effective representation of women who have been
abused.
 Reflection on the experience
 Models of lawyering encourage lawyers representing women who have
been abused to identify and reflect upon, both before and during their
representation, their own experiences of and feelings about violence or
powerlessness in intimate relationships.
o Understanding his or her own vulnerability and powerlessness w/in
intimate relationships is part of a lawyer’s ability to experience
empathy with the client’s situation.
 Develop empathy with their clients.
 Recognition of the fluidity of the lawyer-client relationship
 Lawyer’s role is furthering a stable goal of their clients.
 2 components of a particular importance for a woman
o it helps to affirm w/in the process of representation the non-
judgmental attitude of the lawyer.
o Better able to accept the seemingly non-instrumental character of
the representation.
 Working Collaboratively with clients
 Two principles
o Rejects the pre-eminence of legal solutions for women who are
abused in their intimate relationships.
o Lawyer’s ability to act effectively for his or her client is dependent
upon a relationship within which lawyer and client recognize each
other as jointly involved in a common enterprise.
 Developing responses that enable clients to take steps that are viable within their
particular situations.
 Attentive to the limitations of remedies available through the legal system
to women who have been in abusive relationships.
 Making Time
 Need to be responsible for time, and not just in responsive manners.
 Lois H. Kanter and V. Pualani Enos – Client-Centered interviewing and Counseling skills
o Client empowering interviewing skills for the battered women’s advocate
 Validating the woman’s experience
 Empathize w/ her and validate her feelings.
 Advocate needs to take a stand against the violence and make an alliance
w/ the battered woman.
 Universalize the information.
 Reminding her of and building her strengths
 Remind them they are strong and courageous
 Avoid victim-blaming
 Frame questions so not to blame victim.
 Exploring her options while advocating for her safety (962)
 Identifying support systems

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  Identifying legal options
 Assistance if she chooses to take not legal action
 Respecting her right to self-determination
 Do not bully the woman or mandate conditions for your help.
 Allow women to talk about their ambivalence toward the batterer
 Respect her pace in the process
 Accept that each woman must find solutions that she can live.
o Additional tips applicable to interviewing battered women (964)
 Listening and giving support
 Contradict the batterer
 Notes and Questions (966)
o Self-care and client counseling
 Set appropriate limits w/ the clients, guarding against over-commitment, finding
room in one’s life for relaxation and pleasure, and about working in an
environment in which there is sufficient support, ideally among peer, but at a
minimum from a clinical supervisor.
o Lawyers and substance abuse
 15-18% of lawyers from substance abuse.
o Representing abusers
o The duty to warn
 Attorney inaction may reflect troublesome minimization and denial about the
potential danger to victims, but ignorance about the issue demands remedial
education – it in no way relieves the lawyer of responsibility to avoid complicity
in a pending crime.
 Emily J. Sack – Battered women and the state (968)
o Reduction in manipulation of the justice system by batterers
o Prevention strategies
 Efforts to educate the community
o Procedural Justice
 Way that court system treats victims
 On-going training for court personnel
o Civil Legal assistance and economic self-sufficiency for battered women
 Need help in legal assistance w/ custody, divorce, and child support and
protection issues; adequate housing, job training; and educational programs.
 Notes and Questions (973)
o Coordinated Community Responses
o Partnering w/ other professionals
o Possibilities of different models

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