This article is written by Sanjana Santhosh, a law student at Christ (Deemed to be University), Bengaluru. The article explains the various tortious claims that may arise among family relations and the different state laws in the US governing the tort of domestic violence, along with discussions on the torts committed in parent-child and husband-wife relations.

It has been published by Rachit Garg.


The law of torts has grown prominently to accommodate the rising significance of social interests on account of the urbanisation and mechanisation that the modern world is undergoing. Due to this reason, it is fair to assert that the law of torts comes into play today to provide some form of redress. 

Download Now

However, the law of torts would not be of any help in several situations such as, if a pedestrian was the husband or child of an intoxicated driver. The notion that there is no liability for torts committed by an individual against their spouse or child is primarily attributable to the preliminary understanding of the concept of “family” as a social and legal institution. From the legal viewpoint, a married couple was regarded as a single entity where the husband was considered to be the dominant party in any legal proceeding involving the couple. Further, it was impossible to perceive that a spouse could be redressed by suing the other for personal torts, or if a child could sue a parent even though they deviate from the norms established under the law.

The factors of urbanisation and automation of our surroundings have boosted the significance of social interests that underlie the law of torts, and have also aided in the dramatic shift in the social and legal understanding of the concept of “family”. The patriarchal role of a husband and father has shifted from that of a dictator to a friend. Women nowadays are no longer considered as the property of their husbands and they enjoy complete equality with men under the law, in all spheres of life, including the ability to own property, engage in contracts, to sue and be sued, and take part in communal activities.  

Rules of law pertaining to torts committed by one family member against another must take into account the essential social interests in the family relationship. Husband, wife, and minor children all reside in the same residence, contribute to and benefit from the same financial resources, and share a common set of values and activities. Parents are in charge of disciplining their children, and as their legal custodians, they get to decide how their children spend their money and utilise their possessions. Family life is still very important in today’s society.

The family unit and the spirit of unity at its core need safeguarding since they are essential to society’s well-being.

There are several cases where the social goals underlying the law of personal torts appear to be at odds with the social interests behind the preservation and security of the family unit. In any event, in the construction of a rule of law, both should be addressed, and, in as much as is practicable, both should be secured.

Tortious claims for domestic violence

The current paradigm in domestic violence law has to be shifted, with the pursuit of common law tort claims becoming a major method. Victims of domestic abuse have access to immediate legal relief in the form of tort suits, which can help them financially and emotionally. Liability in tort typically arises when one party to a domestic relationship engages in violent, sexual, or otherwise abusive behaviour toward another party.

The rights and protections afforded by common law torts, including negligence, recklessness, and especially deliberate torts, are often invaluable to victims of domestic abuse.

Redress for injuries sustained in domestic abuse cases can be obtained through intentional torts. Many incidents of domestic violence are actionable because the abuses commonly committed in such situations fulfil the characteristics of intentional torts. Battery, assault, false imprisonment and intentional infliction of emotional distress are the most relevant theories of recovery for domestic abuse injuries.


The elements of a battery include the defendant’s intent to cause bodily harm or injury to the plaintiff, the plaintiff’s lack of consent to the contact, and the defendant’s actual or threatened use of force. In order for there to be a liability for damages, it is not necessary to prove that the defendant had the specific sort of injury in mind. A defendant may be found guilty of battery even if he just meant to cause offence but actually caused physical damage.

To commit battery, it is not enough that the defendant’s actions give rise to a reasonable fear of battery; the encounter must be either damaging or insulting.

The two primary interests that the tort of battery is meant to protect are the victim’s physical integrity (i.e., their right to be left alone and free from harmful bodily contact) and their dignity (i.e., their right to be left alone and free from offensive bodily contact).

For conduct to violate “a reasonable sense of personal dignity,” it must be “unwarranted by the social usages prevailing at the time and place in which it is inflicted” and “offend the average person.”

Abuse within a domestic violence environment frequently compromises both of these rights. When a person is physically abused, their right to safety is violated, as is their interest in maintaining their own physical well-being. Any form of physical abuse, including hostile contact, committed by the abuser is also an affront to the victim’s dignity. The purpose of the battery law is to protect people from harmful or objectionable physical contact.

Even though the law protects victims of domestic violence the same way it protects victims of other torts, the physical abuse in domestic violence situations is particularly awful because it breaks the trust that should exist between intimate partners and is usually part of a larger pattern of abuse meant to subjugate and control the victim.

Slapping, hitting, kicking, choking, shoving, twisting and breaking limbs, burning, stabbing, mutilating, tossing the victim, or hurling things at the victim are all examples of battery committed in the context of domestic violence.

It’s very uncommon for abusers to physically harm their victims by forcing them down a flight of stairs, out of a moving car, or up against a wall. Perpetrators of domestic abuse often resort to extreme violence against their victims, such as severe beatings, torture, and the use of weapons like knives and guns to cause severe bodily harm or even death.

The incidence of sexual assault is high in families where there is a history of abuse. Perpetrators of domestic violence commit a wide variety of sexually violent acts that can be prosecuted as criminal acts. An abusive spouse may use physical force to coerce an unwilling partner into sexual activity. The abusive partner may threaten another partner with more violence until they have sex or may even beat and then compel them to have sex in front of their children.

In addition, the abusive partner may coerce the other partner into engaging in oral or anal intercourse, sex with other people, or sex with inanimate things. In cases where the male is the abusive partner, he might not let the victim utilise birth control to prevent unwanted pregnancies and STDs.

Rape and sexual battery are recognized as crimes by the law in several states. A victim of domestic abuse who does not have legal recourse under a particular statute may pursue a claim for battery or sexual battery under common law.


Numerous victims of domestic violence will be able to pursue assault claims. When a defendant takes action with the specific intent to cause the plaintiff to experience hurtful or offensive touch or the reasonable anticipation of such contact, the defendant is guilty of assault. 

Instead of accepting a claim based on genuine concern, some courts demand that this fear of touch be reasonable.

If the plaintiff does not have a reasonable fear of immediate harm or offensive touch because of the defendant’s behaviour or omissions, then the plaintiff cannot successfully establish an assault claim based on the defendant’s verbal threats alone. 

Physical violence is a regular occurrence in toxic relationships. Abusers use intimidation and violence to gain control over their spouses. 97% of respondents in a research done in Pittsburgh said they had been intimidated by their violent partners, and twenty-five percent of the victims said they were threatened “frequently.” Perpetrators of domestic violence frequently make death and suicide threats to their intimate partners during episodes of verbal abuse. Displaying weapons, stalking, or driving dangerously while the victim is present or in the car are all examples of direct physical threats.

Given the power, control, and abusive nature of the relationship, the behaviour that incites immediate fear of attack in the context of domestic violence might be subtle but exceptionally potent for a specific victim. The victim’s perception of the significance of the abuser’s actions is shaped by the victim’s history of abuse. If the offender has a history of abusive conduct, their yelling or threats are more likely to be taken seriously as a genuine threat of harmful or offensive contact.

When someone has previously used violence against someone or someone else in a relationship, the threat of violence becomes much more real and urgent.

False imprisonment

There are several false imprisonment lawsuits being filed on behalf of many victims of domestic violence. When a defendant takes action with the intent to confine the plaintiff within boundaries determined by the defendant, when that action results in the plaintiff’s confinement, and when the plaintiff is aware of the confinement or suffers harm as a result of that confinement, then we have a case of false imprisonment.

For the goal of false incarceration, one can use actual or threatened physical force or other forms of coercion to keep someone inside.

In cases of domestic abuse, it is not uncommon for victims to be falsely imprisoned.

Locking the victim in a closet, room, or the house; making her sit in a car, on the floor, or in one location for hours; forbidding her to leave the house; or refusing to give her keys to the house so that she is either automatically locked out if she leaves or restricted from leaving without the ability to lock the door are all examples of false imprisonment.

A lengthy and persistent pattern of abuse may also give rise to a claim for false imprisonment on the part of the victim. It is not unusual for the abuser to continue the physical assaults for hours or even days, only stopping occasionally to sleep or drink. Due to the abuser’s (realised) threat of further violence, the victim is trapped in this situation.


Some legal systems also allow victims of stalking to file a civil lawsuit against their attackers. As a result of incidents involving high-profile individuals, several states now have civil stalking statutes on the books.

Given the prevalence of stalking in violent relationships, these legislation and common law claims for stalking are especially useful to victims of domestic abuse. When it comes to violent acts, stalking is only surpassed by assault in frequency among perpetrators of domestic abuse. Stalking occurs when an offender follows, watches, or otherwise observes a victim with the intent to harass, harm, or otherwise cause distress.


Alabama prohibits stalking under Alabama Code Title 13A: Criminal Code, Chapter 6: Offences Involving Danger to the Person, Article 5: Stalking and Aggravated Stalking. Here are the four regulations that make stalking a crime:

  1. Stalking in the first degree- Follows or harasses another person with the intent to cause fear of death or significant physical harm and makes an overt or covert threat to injure or kill that person.
  2. Stalking in the second degree- Following, harassing, or interacting with another person or that person’s family or friends for an inappropriate purpose, causing mental or emotional injury to the victim or putting the victim in reasonable fear that his or her career is threatened, after having been told to stop doing so.
  3. Aggravated Stalking in the first degree- First-degree stalking with additional violation of a court injunction or order (e.g., a protection order).
  4. Aggravated Stalking in the second degree- Stalking in the second degree, constituting a violation of a court order or injunction.


Sections 11.41.260 and 11.41.270 of the Alaska Code consider stalking to be a class A misdemeanour punishable by up to one year in prison and a $10,000 fine. However, the maximum term for first-degree stalking is five years in prison (depending on the specifics of the case).


According to Section 646.9 of the California Penal Code, stalking is illegal whenever the victim or their immediate family members are subjected to persistent and objectively dangerous forms of harassment. Orders of protection, or restraining orders, are frequently sought by victims of stalking. Stalkers who violate a restraining order face enhanced penalties or possibly additional charges, depending on the severity of the breach. A year in county jail and/or a $1,000 fine is punishable for this offence. 

If the court decides to award probation or postpone the sentence, counselling must be completed unless good cause is shown. Punishment increases to 2, 3, or 5 years in state prison if the offender has a prior conviction for spousal or child violence, has violated a protective order, or has made terroristic threats.


Although several states have only recently made stalking a felony, it is now illegal in all 50 of them. According to Section 784.048 of the Florida Code, stalking is illegal when the victim is subjected to persistent and threatening behaviour. Former romantic partners and spouses frequently face charges for this offence.

Restraining orders are a civil remedy for victims of stalking in the state of Florida (also called “orders of protection”). A restraining order is a court order that prohibits the stalker from contacting or following the victim in any way. 


According to Section 21-5427 of the Kansas law, stalking occurs when an offender intentionally or recklessly engages in a pattern of behaviour toward a victim that causes the victim to fear for his or her life or the safety of his or her family.

For stalking to be termed a “course of conduct,” two or more of the following behaviours would need to occur over time.

  • Endangering the victim’s life or the lives of those closest to them (parents, children, siblings, spouse, etc.)
  • Conducting further harassment by following, approaching, or even confronting the victim or their loved ones
  • Possessing or using information about the victim’s location to gain access to the victim’s or a family member’s residence, place of employment, school, or other likely places of habitation
  • Causing physical harm to the victim or his/her loved ones, including damaging their property
  • Putting something, directly or indirectly, on the victim’s or their family’s property.
  • Inflicting harm on the victim or the victim’s household pet
  • All forms of contact, including but not limited to the following: phone, mail, packages, internet, text, and instant message.

As a Class A misdemeanour, stalking may get anyone up to a year in prison and a $2,500 fine. Sentences in Kansas are assigned using a sentencing grid that takes into account the offender’s prior record, the severity of the crime committed, whether or not a person was directly hurt (such as in the case of a rape or assault), and whether or not drugs were involved.


Stalking is defined as a crime in Massachusetts’s penal code. One who stalks engages in an obvious and repeated pattern of unwanted, harassing, or threatening behaviour against another person, to the point where the targeted individual or their close family members begin to fear for their safety. As per Massachusetts General Laws Chapter 265, Section 43, stalking can result in a variety of possible criminal consequences, depending on the specifics of each case. Five years at most in state prison, $1,000 tops, two and a half years at most in a correctional institution, or no punishment at all.


Stalking is a misdemeanour the first time it happens, but it’s a Class IV felony punishable by up to five years in jail if it happens again within seven years after the first time, as per Section 28-311.02 of the Nebraska Code. 

New York

New York’s penal statute was groundbreaking because it established the key element of stalking: frequent harassment that escalates into a serious risk of physical harm. Stalking is defined as:

  • 4th degree- A person commits fourth-degree stalking if they knowingly and willfully engage in conduct that: puts the victim or a member of their immediate family in reasonable fear of physical harm; causes physical harm to the victim or a member of their immediate family; causes reasonable fear that the victim’s employment or business is threatened; or has no legitimate purpose.
  • 3rd degree- The offence is considered to be the same as the fourth degree when three or more victims are implicated or when a victim has a reasonable fear of physical harm or serious bodily injury.
  • 2nd degree- A second-degree offence has the same penalties as a third-degree offence if a weapon was used, if it was the offender’s second conviction in five years, or if the victim was 14 or younger.
  • 1st degree- First-degree assault is the same as third-degree or second-degree assault except that the victim was intentionally or recklessly harmed.


The following actions constitute stalking, which is illegal under Ohio law:

  1. No individual shall knowingly engage in behaviour that reasonably frightens another into fearing for his or her bodily safety or causes emotional distress.
  2. No one is allowed to use a computer, computer network, computer program, or computer system to encourage or instigate another person to commit a pattern of malicious activity.


Repeated harassment that causes considerable mental distress is what constitutes stalking under Title 18, Section 2709.1 of the Pennsylvania law. In Pennsylvania, stalking is a first-degree misdemeanour. Repeated stalking of the same victim by the same offender is a third-degree crime.

Separated or divorced couples frequently face charges of stalking from their former partners. Orders of protection, or restraining orders, are frequently sought by victims of stalking. A restraining order is a court document that orders the defendant to refrain from contacting or visiting the victim, as well as the victim’s home or place of employment.


Stalking is illegal under Section 42.072 of the Texas Penal Code when someone intentionally does something that another person would find threatening and that would make a reasonable person fear for their safety. As a third-degree crime, stalking can result in significant jail time if convicted. A second conviction for stalking raises the severity of the crime to that of a second-degree felony. If someone repeatedly and intentionally does the following things to a specific individual as part of a premeditated scheme or pattern of behaviour, they have committed the offence of stalking:

  1. Stalker knows or has reasonable grounds for believing the victim will see him as menacing;
  2. Causes fear;
  3. Would make a rational person apprehensive about the situation.


As per Section 76-5-106.5 of the Utah Code, stalking is a Class A misdemeanour:

  • 3rd-degree felony- If the offender has a prior conviction for stalking, has a conviction for an offence similar to stalking from another jurisdiction, or has a felony conviction in which the victim or a member of the victim’s family was a victim. 
  • 2nd-degree felony- If the offender (1) used a deadly weapon or other force, (2) has two or more prior convictions for stalking, (3) has two or more prior convictions in another jurisdiction for offences similar to stalking, (4) has two or more prior convictions for any combination of (2) and (3), or (5) has two or more prior convictions for felonies in which the victim was also a victim of felonies, then the victim is entitled to receive restitution.


Stalking is illegal under Section 18.2-60.3 of the Code in the state of Virginia if the perpetrator’s repeated actions cause the victim or his or her family to feel threatened with physical harm, sexual assault, or death. Stalkers’ behaviours might range from overt threats to more subtle ones, such as consistently waiting for you in the parking lot of your place of employment. First-time stalking convictions in Virginia carry a misdemeanour penalty and result in an automatic restraining order being issued by the state.

Stalking is a Class 6 felony punishable by up to five years in prison if you are convicted of a third stalking violation or related offences during the past five years.


Washington state law defines stalking as a misdemeanour for a first offence (barring aggravating circumstances), and a Class C felony for subsequent offences. A protection order for stalking can be filed against the offender in various cases.

Intentional infliction of emotional distress and other claims

The victims of domestic abuse frequently have valid claims for the tort of intentional infliction of emotional distress (IIED). If the defendant “intentionally or deliberately causes substantial emotional injury” to the plaintiff by “extreme and outrageous behaviour,” he is liable under IIED for emotional distress and any ensuing bodily harm.

An extreme and outrageous act is one that “exceeds the boundaries typically permitted by civilised society, of a character that is especially likely to cause, and does induce, mental pain of a very serious kind.”

The majority of successful IIED claims in the domestic violence setting have been brought by victims who suffered physical abuse or were threatened with violence.

Defendants in these situations typically engage in unacceptable or awful behaviour with the express intent of causing the plaintiff serious emotional pain. While some courts have been more receptive to IIED claims against a spouse, others have been more hesitant. Stand-alone emotional harm is recognized in cases of IIED and negligent infliction of emotional distress, where the plaintiff can collect for emotional suffering without proving physical injury.

Invasion of privacy, defamation and harassment are further examples of intentional torts that can be brought up in the context of domestic abuse. Some victims of domestic abuse may have a case for tortious infliction of a venereal disease. For example, if their custody or visitation rights were violated or if they were prevented from attending school, they might file a lawsuit for damages.

If the abuser restricted the victim’s access to money or otherwise hindered the victim from becoming financially independent, the victim may have a claim for economic torts such as interference with contractual relations. If the abuser destroyed or sold the victim’s property, the victim may be entitled to file a claim for property torts such as conversion or trespass to chattels.

This list of deliberate wrongdoings is not meant to be comprehensive. There might be grounds for a wrongful death claim if the victim’s death was caused by the abuser’s willful or reckless conduct. In addition, if the victim had a survival action against the abuser, their estate could be allowed to pursue that case.

Intent for Intentional Torts and Recklessness and Negligence Claims

All of the above causes of action are deliberate torts, with the exception of some wrongful death or survival cases. There must be intent for a tort to be considered intentional.  This means that the tortfeasor either intended to cause the harm or knew with a high degree of confidence that the harm would follow from the conduct. 

Intentional tort claims can be made for the majority of domestic abuse incidents. When abusers do it on purpose, victims can pursue intentional tort claims rather than negligence lawsuits. Perpetrators of domestic abuse often employ violent acts as a means of controlling their victims. The couple’s actions are motivated by a desire “to punish, injure, or control” their significant other. Their actions are calculated in order to gain their partner’s approval and subjugation.

Abusers are in charge of their actions, and they are fully conscious of their choices, even while they are using violence. A perpetrator of domestic violence gives himself permission to be violent and decides how far they will go with each act of violence. A real loss of control is significantly more likely to cause serious or fatal damage to the sufferer. It is a deliberate decision on the side of the abuser to resort to physical force against the victim. Abusers, whether at work or at home, never choose violence when they have a disagreement with someone else.

Abusers make their decision to abuse ruthlessly and often take into account their own need for isolation from their families. A factor in this equation is the higher likelihood of abuse due to the private, isolated character of the household. The private domain of the family is less subject to societal oversight than the public arena, and the offender’s cost of abuse to an intimate partner is frequently far lower than the cost of violence to a stranger. It’s also possible that the abuser weighs the benefits of their behaviour toward their spouse against the costs and concludes that it’s worth it. The basis of tort law rests on the idea that people would look at the big picture, reflecting on the aims they are aiming to attain via their conduct, comparing those purposes to other conceivable purposes, and then modifying or abandoning them if necessary.

Abusers’ calculations like these not only provide sufficient responsibility for deliberate torts but also for less culpable torts like carelessness and negligence. Recklessness claims (sometimes called deliberate or wanton conduct) result from the aforementioned forms of violence, typically in the framework of battery. If the court cannot establish intent for an intentional tort, the plaintiff may be allowed to proceed with a claim based on a lesser degree of guilt. Additionally, the plaintiff may have a better chance of recovering if they assert carelessness in their case. Claims based on negligence are frequently covered by insurance, whereas claims based on willful torts are typically not.

Those who have suffered emotional distress as a result of domestic violence may also have a claim for negligent infliction of emotional distress (NIED). Generally speaking, NIED claims are accepted where a person experiences emotional distress due to concern for her own safety or due to seeing the significant bodily harm of a close family member. Liability for NIED due to fear for one’s safety is a common issue in cases of domestic abuse. However, if the harm is purely psychological, an NIED claim may be pursued. For actual physical harm, battery is the appropriate tort, while pain and suffering is the appropriate form of compensation.

Claims against Third Parties 

It’s also worth noting that domestic abuse victims may be able to sue third parties in tort for their injuries. Local governments and law enforcement organisations may be held liable for damages if they delay responding to reports of restraining order violations or violent incidents. There is also the possibility of tort liability for third parties with a “special connection” that creates an obligation. The special connection and its attendant obligation can apply to doctors, therapists, and clergy professionals who may have a duty to third parties, like domestic abuse victims.

Landowners and tenants who are negligent in protecting their property from criminal activity may be held liable for damages under tort law. To give just one example, property owners might be held responsible for domestic abuse torts that take place on their premises. If a third party fails to take reasonable precautions to safeguard a victim from the abuser’s criminal activities, the victim may file a lawsuit against that party. This may aid the victim’s rehabilitation and inspire bystanders to intervene on their behalf when necessary.

State-based claims for domestic violence

While domestic abuse tort claims are still exceedingly uncommon, they have been formed in a few states and one municipality by statute or common law. The Violence Against Women Reauthorization Act, 2013, a civil remedy that some of these lawsuits seek to revive, is no longer available. California has adopted a particular tort of domestic violence, while New Jersey and Washington recognize the tort of “battered women’s syndrome.” New York City and Illinois both recognize allegations of assault motivated by gender.

New Jersey

The “battered women’s syndrome” legal claim for domestic abuse was upheld by a New Jersey trial court. Jean Marie Cusseaux, the plaintiff in Cusseaux v. Pickett (1994), said that her intimate partner, Wilson Pickett, Jr., caused her to suffer from “battered woman’s syndrome” throughout the course of their ten-year relationship. The plaintiff claimed that the defendant had a pattern of abusing and violently beating her, including repeatedly punching her in the face and fracturing her nose. He was also accused of attacking her with a heavy cooking pot and a huge Corningware dish.

The court in Cusseaux essentially invented a new type of domestic abuse tort claim in the state of New Jersey by ruling that the plaintiff had a cognizable claim for battered syndrome.  The components of such a claim have been outlined by the court and are as follows:

  1. Engagement in a marital or domestic relationship;
  2. Chronic physical or mental abuse by the dominant spouse; the third is a history of either.
  3. The aforementioned abuse has resulted in ongoing bodily or mental harm to one or both parties during the relationship; and fourthly, the abuse has occurred at least once.
  4. The victim’s helplessness, in the past or at now, to take any action to ameliorate or modify the situation unilaterally.

A similar proactive civil cause of action was upheld by the court, using many of the same reasons as the battered women’s syndrome defence utilised in criminal proceedings. The Appellate Division of the New Jersey Superior Court upheld the viability of a tort claim for battered woman’s syndrome in the case of Giovine v. Giovine (1995).


Similarly, “battered woman syndrome” is recognized as a tort in Washington State. In a case involving “battered woman syndrome,” the Superior Court of Washington State ruled in favour of the plaintiff.

Theresa Jewett, the plaintiff in Jewett v. Jewett (1961), claimed that she was the victim of assault, battery, battered woman syndrome, iatrogenic injury, emotional distress, and outrage and that her husband, Theresa Jewett, was guilty of deceit/bigamy, negligent misrepresentation, breach of contract of marriage, abuse of the civil legal process, and wrongful initiation of civil proceedings. After the couple was married, Jewett claimed that defendant Michael Jewett began a systematic practice of severe mental and physical abuse. The plaintiff suffered severe neck and upper back injuries when the defendant hyperextended his head in revenge for the plaintiff calling the police.

Another incident had the defendant throwing the plaintiff against a coffee table before repeatedly punching her in the face. Extremely serious facial fractures necessitated reconstructive surgery for the plaintiff. The plaintiff’s lawsuit details many instances of violence.

The defendant’s request to have the plaintiff’s claim for battered woman syndrome dismissed was granted by the trial court. The court recognized the “extreme form of dependence” that victims of domestic violence suffer from. It was pointed out that the communication between the parties promotes both the maintenance of the connection and its escalation towards violence. Traditional legal remedies, such as filing civil cases for assault, battery, and intentional infliction of emotional distress (outrage), are effectively unavailable after the victim is trapped in the cycle due to statutes of limitations.

New York City

New York City’s Victims of Gender-Motivated Abuse Protection Act is a law that protects women against male perpetrators of domestic violence.

The Administrative Code’s Civil Rights section includes the clause which grants victims of violence based on gender the opportunity to sue their attackers in private.

The victim must prove that she was the target of a “crime of violence” and that the offender was “motivated by gender” in order to win under such a claim.

Crimes of violence are defined in the code as “acts that would constitute a misdemeanour or felony against the person” or “against property as defined by state or federal law if the conduct presents a serious risk of physical injury to another, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction.”

An act of violence perpetrated because of gender or on the basis of gender and due, at least in part, to an animus based on the victim’s gender, as defined by the law.

After establishing these two points, the injured party is entitled to compensatory and punitive damages, injunctive and declaratory relief, attorneys’ fees and expenses, and other remedies as a court may judge necessary.


The Gender Violence Act of Illinois is another option for victims of domestic violence seeking a tort remedy.

Although the Act’s scope extends beyond domestic violence, it was written with that issue in mind. The proposed act is framed as one that combats domestic violence and sexual abuse in the preamble to the bill. According to the preamble, “many women and children are harmed by gender-related violence, such as domestic abuse, which is disproportionately visited against women by males.” After stating that “it is known that current State and federal laws have not afforded enough remedies to women survivors of domestic abuse,” the Preamble goes on to argue that “it is imperative that this body act.”  This is followed by the statement that “women survivors of domestic abuse often have found laws against domestic violence utilised against them by their batterers.”

The Illinois legislature plainly intended for the Act to provide a path to tort compensation for victims of domestic abuse, given the bill’s specific phrasing in terms of domestic violence. The Act defines domestic violence and other forms of violence based on a person’s gender as discrimination against women.


The state of California has created both a general domestic violence tort and a civil action for violence against women. The civil action for damages deriving from gender violence in California is quite similar to the provisions of the Illinois Gender Violence Act.

For victims of domestic abuse in California, the “tort of domestic violence” offers civil remedies distinct from those available for other forms of gender-based violence.

Under Section 1708.6 of the California Civil Code a person is guilty of domestic violence if the plaintiff is inflicted with damage as a result of abuse, and such abuse is done by a person who has a relation with the plaintiff as defined under law.. 

Abuse is defined as the intentional or conscious act or attempt to cause physical harm to another person or puts that person in a situation where he or she has a legitimate apprehension that serious physical harm is about to happen to him or her.

A liability under tort can be inflicted by proving that “spouse, former spouse, cohabitant, former cohabitant, or anyone with whom the suspect has had a child or is dating or was dating or was engaged.”

The Husband-Wife relation

The Married Women’s Emancipation Acts

During the course of the 20th century, the legislatures of a number of states enacted a legislation known as the Married Women’s Emancipation Act in response to concerns regarding the development of new social theories and philosophies, and the expanding influence of the feminist movement. The purpose of these laws were to “liberate” or “free” married women from the restrictions of captivity so that they could be treated on equal footing with their husbands in all legal and contractual matters, as well as be able to keep property, sue and be sued in their own right, and vote.

There is a diverse usage of the language employed in these statutes. In  fact, a few of the oldest laws were designed primarily for the purpose of protecting private property. As a result, it is not feasible to understand how these laws might influence the rights of a spouse to sue their partner for personal harm caused by the partner.

Illinois is one of the few states with a law that protects spouses from being sued for wrongdoings done while they were being held captive. In Louisiana, a complaint about injuries sustained while held captive has been ruled illegal because of a law that says married women cannot sue their husbands except in certain divorce and property cases. In New York, however, a statute explicitly states that one spouse can sue the other for physical harm.

Most state laws, though, do not lay clear limits in these types of instances. Instead, they just conclude that married women can sue independently for wrongs committed to them and can usually sue and be sued as though they were unmarried. In most of these states, the courts have decided that such acts do not so affect the common law as to authorise proceedings between spouses for personal torts. In a considerable minority, however, a contradictory outcome has been achieved.

Therefore, the primary issue at hand is one of legislative interpretation. The judgments have been founded on basic principles of legislative construction in the context of the social theories and interests involved, while in other cases, the conclusions have hinged on some specific language in the individual act.

The courts have said that, on the one hand, in reaching their decision, these provisions do not permit one spouse to sue the other for personal torts:

  1. By passing these laws, lawmakers only desired to dispose of the rule that a wife couldn’t take legal action without her husband joining her and let her sue on her own. They didn’t want to change the law by giving married women new reasons to sue where none existed before, as would happen in personal torts between spouses.
  2. Legislators did not aim to alter the essential structure of the marriage relationship by allowing actions between spouses for personal torts when they enacted such legislation, but rather to influence solely contract or property rights.
  3. The goal of these laws was to give married women the same legal protections as their husbands, thus, it seems to reason that if husbands can’t sue their wives for personal torts, wives shouldn’t be allowed to sue their husbands too.
  4. Statutes that contradict the common law must be interpreted as not changing the common law more than what is said or implied by the fact that they cover the whole topic. The Married Women’s Emancipation Acts do not suggest that spouses can sue each other for personal wrongs, and their permission isn’t implied either.

However, the courts have reasoned as follows in rulings that The Married Woman’s Emancipation Acts do permit proceedings between spouses for personal torts:

  1. The common-law norm is based on the illusion of the legal identity of husband and wife, which such regulations aim to and successfully demolish.
  2. When the legislation made it clear that married women may file lawsuits as if they were single, it meant that they could sue anybody who had wronged them, including their spouses.
  3. These laws did more than simply make it such that married women were on an equal footing with their husbands. By its rules, it also provided them with the same rights and standing as single women.
  4. Because of their corrective nature, these laws require a broad interpretation.
  5. Since married women had a right in their persons, a suit for harm to their persons is a choice in action, and a choice in action is property; the law allowed married women to sue their husbands for personal torts where the case involved the women’s separate property.
  6. It’s absurd to think that lawmakers meant to let married women suit for property torts but not personal ones.

Policy considerations

A major portion of the judiciary has acknowledged torts affecting family relations as a social policy issue.

The courts have argued that personal tort actions between spouses should not arise, and the following judicial statements are in favour of this view: 

  1. The approval of such behaviour would encourage and incite a breach in the peace that exists inside matrimonial relations as well as the tranquillity that exists within the household, both of which are essential to the preservation and security of the family unit as a whole.
  2. The approval of such actions would encourage people to file meritless lawsuits out of spite rather than on the basis of legitimate reasons. Furthermore, in situations where the defendant was covered by insurance, it would encourage conspiracy and fraud.
  3. Married individuals have access to proper and reasonable remedies for such wrongs owing to criminal and divorce laws, and these laws also adequately protect society’s interest in preventing such wrongs from occurring.
  4. The funds that were acquired through such legal action would be placed in the family treasury, and any party could use those assets for any domestic needs.
  5. In light of the nuanced character of the aforementioned policies and the challenges involved in formulating a regulation that is practical, this is the type of issue that needs to be delegated to the legislature.

On the other hand, the judicial system has expressed support for the idea that such actions ought to be made lawful, including:

  1. There will be a reasonable course of action left to pursue in the event that a harmed spouse is unable to obtain damages in a tort action.
  2. Such actions will not disturb the tranquillity within homes; and rather they would serve to make an already strenuous situation even worse.
  3. In addition to filing civil cases, spouses also have the option of bringing tort claims for property damage. When it comes to wrongdoings committed by individuals, there is no rational basis for differentiation.

Type of tort and insurance

 In light of the application of the no-liability rule, cases involving violence, carelessness, unlawful arrest, and various other torts have all been dismissed from court. In the case of Wright v. Wright, the court made it clear that the rule of no-liability applies regardless of whether the claim was founded on negligence, intent, wanton, or malicious action. In contrast, the court in an Oregon case stated, “We hold that when a husband intentionally abuses his wife, the peace and harmony of the home has been so injured that there is no chance for an action for damages to make it worse.” This indicates that the plaintiff is permitted to file a lawsuit. 

The courts have cited concerns where allowing such proceedings might promote collusive suits as another justification for upholding the rule of no-liability in cases where the defendant is covered by insurance.  Some courts have ruled that such lawsuits can be brought forward, stating that the risk of collusion is not any higher than it would be in any other type of case, and that this argument cannot be used to avoid culpability.

Premarital torts

In states that still use the “spousal disability rule,” courts have, for the most part, decided that it applies to both wrongs done before and during marriage. The reasoning behind these decisions is mostly the same as stated about wrongs done while a person was in captivity. Some courts have said that the problem is more than just a matter of procedure. They have said that the unity that comes from marriage takes away any right to sue that existed before the marriage.

However, in North Carolina, a court has ruled that the rule of disability does not apply to a premarital tort because marriage does not change a woman’s liability for tort. A decision of the Supreme Court of Missouri upheld the right of a wife to sue her husband for a personal tort arising from a car accident that happened before the couple got married.

Effect of invalidity of marriage or annulment

An Indiana court ruled that a wife can sue her husband for seducing her before marriage because the cohabitation was illegal and the common rule of spousal infirmity did not apply. There are also a number of court decisions that have held that the ban on lawsuits between spouses while in captivity does not change just because the marriage was annulled.

Effect of divorce

The law of incapacity does not cover wrongs done after the divorce is finalised. A court in California has decided that the rule of impairment does not apply when a judgement on divorce has been made but is not yet final. Nevertheless, a similar decision in the District of Columbia ruled that a wife could sue her husband for a wrongdoing he did between the period a divorce was granted and the date it took effect.

Courts that follow the common-law rule on torts related to captivity have stated that the applicability of the rule does not change because of a divorce between two parties. This is due to the lack of reason to sue during captivity, and a divorce does not amount to a cause of action to sue when there did not exist one at the time the events in issue took place. The courts have also agreed with the argument that the divorce decision ends all disputes between the former spouses.

Judicial trends

The courts that have consistently used the common law rule of disability and the courts that have consistently taken the opposite view have both shown little willingness to significantly alter their judgments. Furthermore, common law courts haven’t displayed much willingness to restrict the rule’s scope. The court has only clearly shifted its position once, when it allowed a personal tort lawsuit involving spouses to proceed against its own precedents under the handicap rule.

There have only been two instances where lawmakers have moved against what the courts have done in the past. In New York, a law was passed that specifically allowed these matters, while in Illinois, a law was passed that specifically forbade them..

The parent-child relation

Up until the year 1891, there were no English or American cases that had directly addressed the question of whether or not a minor, under the supervision of their parents is permitted to bring a personal tort action against a parent. The absence of a legally binding opinion has been considered by multiple courts as proof that such an activity was not accepted under common law. Some believe that the fact that such a rule does not exist is evidence that it was never accepted under common law.

However, a court in Mississippi ruled in 1891 that a minor may not sue his or her parents for personal torts. A judge ruled as follows: “No such action may be sustained so long as the parent has a duty to care for, lead, and control the child and the youngster has a duty to help, comfort, and obey the parent. A minor’s right to appear in court to establish a claim to legal relief for personal injuries sustained at the hands of a parent is precluded by public policy intended to protect the peace of families and the public’s best interests. All a child has a right to ask for is protection from parental aggression and wrongdoing, and the state will provide that protection through its criminal laws.”

In 1903, the Supreme Court of Tennessee upheld a lower court’s decision in a case involving a minor child who sued her father and step-mother for cruel and inhuman treatment that the minor girl had allegedly suffered at the hands of the step-mother with the consent of the father.

In another controversial Washington case decided in 1905, a daughter sued her father for rape, but was denied damages because of the same reason. 

On the basis of these instances and the assertions made in their favour, the vast majority of American courts have concluded that young children cannot file personal injury claims against their parents. The principle behind the rule is not that a parent does not owe any responsibility to their child; rather, the principle behind the rule is that the child does not have the right under law to take legal action against the parent for any injuries caused by the parent.

Policy consideration

The courts have used a number of public policy reasons to support the rule that says a child cannot sue their parents.  One of the most discussed and debated ideas is that allowing this kind of conduct would disrupt the peace and tranquillity of the family, which is important for a well-ordered society. Furthermore, the idea that doing so would weaken parental authority is often mentioned as a policy proposal that needs to be dealt with.

It has been argued in some courts that taking money out of a shared family bank account to compensate one family member would be unfair to the other members of the family.

Several courts have ruled that minors are adequately protected by both criminal statutes and the writ of habeas corpus (an order compelling the detainer to produce the prisoner in court so the judge can hear the cause for the detainee’s custody). 

Several courts have decided that allowing such conduct when the parent is covered by liability insurance would encourage fraud and malice. Others have stated that, given the realities of modern family life, it is very important to protect parents from lawsuits regarding their role as parents. It has been suggested that these claims should not be entertained and must be dismissed due to the difficulty of assigning compensation such that the father does not profit from his own wrong. 

The Supreme Court of Washington’s analysis in Borst v. Borst (1952), where one of the most thorough and well-thought-out interpretations by courts regarding these laws is that the rule of disability was qualified and limited to apply mostly to certain torts arising from the performance of parental duties.

Analogies to Actions Between Husband and Wife

Some courts have maintained that a minor’s inability to sue his or her parents is the same as a married couple’s inability to sue each other for personal torts, and that the same policy that prevents married couples from suing each other for personal torts should also prevent minors from suing their parents. Even though the same policy concerns apply to both types of actions, the rule of incapacity for personal torts between spouses is based on the common law’s procedural and substantive difficulties, but the parent-child action does not have similar problems.

Effect of Additional Relationship

Several courts have qualified the rule of disability because of additional relationships between the parent and child, such as master and servant or carrier and passenger, or because the tort arose from the parent’s commercial activity. The justification for this position is that the parent-child relationship is incidental and should not be taken into account for evaluating responsibility when the tort stems from another relationship. In multiple cases addressing the relationship between a carrier and a passenger, a minor child passenger was allowed permission to sue the parent carrier. In these decisions, the courts made it plain that parental rights and obligations are distinct from those that the law imposes on everyone in their dealings with others.

The presence of a master-servant relation between the parties was one of the key reasons why the court, in the seminal case of Dunlap v. Dunlap (1827), ruled that a child may sue his or her father. As the damage occurred on the job, the court concluded that the parent-master assumed the master’s obligation for the child-servant by purchasing liability insurance.

In a number of decisions, it has been argued that lawsuits seeking compensation for injuries experienced by a child as a result of the negligent operation of the family car should be allowed because the breach of duty does not impact the parent-child connection. Yet, courts have not been especially sympathetic to such arguments.

Certain prominent instances provide strong justification for the court’s decision to accept parental tort actions that otherwise would have been dismissed because they arose from the parent’s commercial operations rather than the parent’s discharge of parental duties.

Effect of character of tort

Most courts have agreed with the rule that an individual who has not attained the legal age cannot legally sue their parents for negligence. Nevertheless, some courts have said that actions based on a parent’s intentional and malicious wrongdoing could be supported, mainly because the parent gives up their parental role by acting in this manner. Similar decisions have also made it clear that the policy of promoting peace and harmony in the family cannot be used in these situations because the parent’s actions have already upset family peace and harmony.

When a parent uses his or her authority to punish or discipline a child, courts have often ruled that the child has no means of receiving compensation for the harm inflicted.

Nevertheless, some courts have held that a child can sue for damages when a father employs his authority to discipline the child in an abusive manner. Many people view that a child cannot sue his or her parents for damages, even if the punishment is harsh and violent.

Effect of emancipation

A legally emancipated minor is free to sue their parents for any personal torts they may have committed. There must have been a total breaking of the “filial connections,” according to certain courts.  “Filial connection” here means being or appearing to be a child or offspring of the parents. However, the courts have maintained that a person’s right to maintain an action must be decided as of the time of the unlawful conduct and that the mere fact of emancipation cannot create a right of action where none existed before emancipation.

Waiver of defence by parent

A parent may try to circumvent the rule of disability by waiving either the defence itself or any stake in any recovery in circumstances where a child has filed suit against the parent and the parent is shielded by liability insurance and is defended by the insurance company. The courts ruled in such cases that there was no cause of action since the regulation was substantial and could not be waived.


A rule that absolves family members from the responsibility for personal torts committed by other family members and a system that allows family members to recover in all such circumstances, fail to provide adequate protection for the interest of the society.

In order for any exception to the general principles of the law of personal torts to be considered valid, it is necessary that such exception is ingrained into the very fabric of human society.

In light of this, the following considerations are proposed to be logical and accepted, as they define and protect the interests of the society:

  1. Any activity that is based on behaviour and cannot be linked to any family relation, but can be attributed to some other relation ought to be permitted in such a situation. 
  2. The plaintiff should be granted legal recourse If the plaintiff is able to prove that the defendant’s actions were intentional, deceitful, or driven by pure malice. 
  3. If the action is based on a negligent act linked to a family relation, then such an action must be barred.

The necessity of proximity in family relations, the issues that come along with it, and the societal interests that arise from the proximity have resulted in the formulation of these rules. Thus, these rules should not be applied solely on the basis of whether two people are related by blood or marriage, but rather on the basis of whether or not the two parties actually shared the proximity in a family relation during the act or omission that transpired in question.

The rules that exist today are insufficient because they are largely based on obsolete public policy views and common law concepts. The established rules are not derived primarily from statutory sources in the event of conduct between a husband and wife. It is said that “the common law is not hard and inflexible, a creature dead to all surrounding and changing circumstances,” although the courts can adapt to as per the requirement of the situation. The common law is not a set of basic rules, but rather a living organism that grows and evolves in tandem with the nation’s development.

Frequently Asked Questions (FAQs)

Is there an affirmative tortious duty that parents owe towards their minor children, or whether it should be limited to custodial parents?

The question is crucial in a more general sense due to the high rate of divorce and remarriage in the United States, which has also led to a great variety in child custody arrangement among such families.

Some courts have ruled that the absence of parental custody is a significant factor to take into consideration when deciding whether or not a parent can be held legally responsible for any injury inflicted by their child to a third party. Due to this reason, courts have interpreted that “imposing a duty to monitor upon a non-custodial parent would unnecessarily insert further stress into the domestic relations arena, given the difficulties and emotion that sometimes accompanies custody agreements.” Accordingly, one court came to a conclusion that a divorced father could not be held accountable for his child’s negligence to prevent his son from shooting another minor individual with a BB pistol while the son was in his mother’s custody. However, factors related to legal custody seem less persuasive when the question is whether help should be provided to prevent substantial injury to a young child, as opposed to whether the child should be regulated to prevent harm to other parties. Whoever has knowledge of the facts proving the necessity for action is the one who must do it, regardless of who has custody of the child at the moment. Any parent who does not have legal custody of their child, but witnesses their child being inflicted with injury, is obligated to assist and protect the child.

Whether the cause of action between a parent and a minor be given differential treatment when compared to that between ordinary persons?

In light of the proximity between parties, acts and omissions that would be considered as torts in any ordinary situation, would not be treated as wrong. It would not be considered ‘battery’ even if an individual were to touch another person without consent. Further, in order to meet the reasonable care requirement, the relationship will always affect the extent of care required..

The norms of behaviour practised at home is completely different from those practised in public. It is not practical to consider a child to take responsibility for managing a family in the same manner as a married couple would, since the child does not enter into such a relationship voluntarily. However, considering the fact that the father is also in the relationship against his choice, he should not be compelled with a higher standard of responsibility which is greater than his own capabilities, and must also not be imposed with a greater obligation to any family member greater than his own.

The law requires raising and disciplining the child and gives the right to punish the child and set a course of behaviour that will aid their development and growth due to the fact that there must be plenty of room for discretion, and acting on that discretion should be facilitated.

This is not a part of the relationship between a husband and wife, so it seems to be a reasonable criterion for differentiation. Irrespective of the methods used by the father to get his child to compel compliance, the father has the right to correct his child’s behaviour as part of his duty as a parent. This right and responsibility are part of the father’s responsibility to change the way the child behaves. So, a minor who gets a temporary personal injury that doesn’t affect his or her ability to work after the age of minority or adds to the burden of maintenance of the child can’t usually result in monetary loss because of it.


Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.


Please enter your comment!
Please enter your name here