What is domestic violence?

What is domestic violence? Well, from the CMHC's "Family Violence Program" brochure, domestic violence is...

Physical: Use of slapping, kicking, hitting, biting, shoving, or other physical means to gain power or control over another individual.

Sexual: Sexual behavior involving force, threat of force, or coercion.

Psychological: Behavior involving intimidation, coercion, or threat; emotional abuse; isolation of the victim from family and friends; controlling/witholding finances or money from the victim; assertion of "male privilege" to gain power and control over the victim; and "using" the children to manipulate the victim (Domestic Abuse Treatment Project).


Over the couse of discussions here about Domestic Violence, and, to a degree, other subjects, I've noticed a number of legal terms being used. I decided a bit of research was in order and looked up some of the common ones, as well as others that seemed connected to the topic. Here they are.

[All definitions are from: Law Dictionary by Steven H. Gifis, Barron's Educational Series, Inc., Woodburry, NY,1975; ISBN 0-8120-0543-0; Lib. of Congress # 74-18126]

ABUSE OF PROCESS employment of the civil or criminal process for a use other than one which is intended by law; "the improper use of process after it has been issued, that is, a perversion of it." 32 A. 2d 413, 415. "Malicious use of civil process has to do with the wrongful initiation of such process, while abuse of civil process is concerned with a perversion of a process after it is issued." Id.

ALIENATION OF AFFECTIONS "a tort based upon willful and malicious interference with the marriage relation by a third party, without justification or excuse....By definition, it includes and embraces mental anguish, loss of social position, disgrace, humiliation and embarrassment, as well as actual pecuniary loss due to destruction of disruption of the marraige relationship and the loss of financial support, if any." 415 S.W. 2d 127, 132. The interference may be in the nature of adultery (a tort called then CRIMINAL CONVERSATION) or may result from lesser acts which deprive the other spouse of affection from his or her marital partner. "More actions of this kind have been brought against parents than anyone else and the meddling mother-in-law is more frequently a defendant than the wicked lover." Prosser, Torts 876 (4th ed. 1971). Statutes in several states have abolished this cause of action because of the potential for abuse through blackmail and extortion. See Id.at 887. See consortium.

ASSAULT an attempt, with unlawful force, to inflict bodily injury upon another, accompanied by the apparent present ability to give effect to the attempt if not prevented. 125 P. 2d 681, 690. As a tort, an assault may be found even where no actual intent to make one exists (as where a "joke" is intended) if the actor places the victim in reasonable fear. Because an assault need not result in a touching, so as to constitute a battery, no physical injury need be proved to establish an assault. An assault is both a personal tort and a criminal offense and thus may be a basis for a civil action and/or a criminal prosecution. Some jurisdictions have by statute defined the criminal assault to include what at common law was the battery -- the actual physical injury. In those jurisdictions an offense of "menacing" often replaces the common law assault. See e.g., N.Y. Penal Law Art. 120.

AGGREVATED ASSAULT an assault where "serious bodily injury" is inflicted on the person assaulted, 282 P. 2d 772; a particularly fierce or reprehensible depravity or atrocity -- including assaults committed with dangerous or deadly weapons; an assault committed intentionally concomitant with further crime.

BATTERY "the unlawful application of force to the person of another," Perkins, Criminal Law 107 (2nd ed. 1969); the least touching of another's person willfully, or in anger, 3 Bl. Comm. *120; the actual touching involved in an "assault and battery." In tort law the legal protection from battery extends to any partpf one's body or to "anything so closely attached thereto that it is customarily regarded a a part thereof." Restatement, Torts 18. "Thus, contact with the plaintiff's clothing, or with a cane, ... the car which he is riding [sic] or driving" will be sufficient to create civil tort liability. Prosser, Torts 34 (4th ed. 1971). If the contact is offensive, even though harmless, it entitles the plaintiff to an award of nominal damages. I the criminal law, every punishable application of force to the person of another is a criminal battery (a misdemeanor at common law). Conviction of battery may be based upon criminal negligence but not ordinary civil negligence. See Perkins, supra at 111-12.

CLEAN HANDS the concept in equity that claimants who seek equitable relief must not themselves have indulged in any impropriety in relation to the transaction upon which relief is sought; freedom from participation in unfair conduct. A party with "unclean hands" cannot ask a court of conscience [the equity court] to come to his aid.

FIGHTING WORDS "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." 315 U.S. 568, 572. The utterance of fighting words is not protected by the First Amendment guarantee of free speech. Id. Later cases support the view that it is not merely the words themselves, but the context in which they are uttered that qualify them as "fighting words," and there is often a further requirement that the words be spoken with intent to have the effect of inciting the hearer to an immediate breach of the peace. 266 A. 2d 579, 584.

In tort law one who uses fighting words towards another, and who thereby creates reasonable apprehension in that person, may be guilty of an assault despite the doctrine that words alone do not constitute an assault. See generally Prosser, Torts 40 (4th ed. 1971) See also defamation; slander.

REASONABLE MAN [PERSON] a phrase used to denote a hypothetical person who exercises "those qualities of attention, knowledge, intelligence, and judgement which society requires of its members for the protection of their own interest and the interest of others." Restatement Torts 283(a). Thus, the test of negligence is based on a failure to do "something which a reasonable man, guided by those considertions which ordinarily regulate the conduct of human affairs, would do, or [the doing of] something which a reasonable man would not do." 43 S.W. 508, 509. The phrase does not apply to a person's ability to reason, but rather the prudence with which he acts under the circumstances. See id. Similar phrases include: "reasonably prudent person," "ordinarily prudent man," etc.

SELF-DEFENSE the right which exists to protect one's person, or members of one's family, and, to a lesser extent, one's property, from harm by an aggressor. It is a valid defense to a criminal charge or to tort liability. The essential elements of self-defense are, "[f]irst, that the defendant must be free from fault, must not say or do anything for the purpose of provoking a difficulty, nor be unmindful of the consequences in this respect of any wrongful word or act; second, there must be no convienient mode of escape by retreat or by declining the combat; and, lastly, there must be a present impending peril ... either real or apparent, [so] as to create the bona fide belief of an existing necessity." 23 So. 2d 19, 20. Whether or not retreat is required depends upon the jurisdiction and the circumstances.

There are two classes of self-defense, perfect and imperfect. "A perfect right of self-defense can only obtain and avail where the party pleading it acted from necessity, and was wholly free from wrong or blame in occaisioning or producing the necessity which required his action. If, however, he was in the wrong -- if he was himself violating or in the act of violating the law -- and on account of his own wrong was placed in a situation wherein it became necessary for him to defend himself against an attack made upon himself, which was superinduced or created by his own wrong, then the law justly limits his right of self-defense, and regulates it according to the magnitude of his own wrong. Such a state [is] ... the imperfect right of self-defense." 162 U.S. 466, 472. See also justification.

TORT a wrong; a private or civil wrong or injury independent of contract, resulting from a breach of a legal duty. 256 N.E. 2d 254, 259. The essential elements of a tort are the existence of a legal duty owed by defendant to plaintiff, breach of that duty, and a causal relation between defendant's conduct and the resulting damages to plaintiff. See also derivative tort.

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IMO, no home should be without a law dictionary. The particular one I'm using is available in soft cover. I've had mine for some years and haven't priced them lately, but it's still likely under $10. It is probably also available in CD ROM format for the technologically advantaged. I'd imagine also that some university networks have such a resource available on-line.

Bob


> I've seen this too. I've been present a couple of times when 
> I've seen a wife slap a husband and call him stupid. Not only
> is there the embarassment factor. There is also the factor
> for some men who were raised to be perfect gentlemen, and
> that being whacked by the wife was just something to be put
> up with.
I've missed this thread up until now, but I am aware of more than one study on the subject of domestic violence that argues that the frequency of female-to-male violence is roughly equal to the frequency of male-to-female violence. Some references, for those who want to check these things out:
Steinmetz, Suzanne K., and Lucca, Joseph S., "Husband Battering," in
Van Hasselt, Vincent B., (ed), _Handbook of family violence_,
New York: Plenum, 1988.

Steinmetz, Suzanne K., "The Battered Husband Syndrome," _Victimology_,
1977, 2(3-4):499-509.

Chesanow, Neil, "Violence at Home," _New Woman_, February 1992, pg. 96-98.

Garcia, Jane, "The Cost of Escaping Domestic Violence," _Los Angeles
Times_, May 6, 1991. This article focuses on domestic violence
in lesbian couples.

McNeely, R.L., and Robinson-Simpson, Gloria, "The Truth About Domestic
Violence: A Falsely Framed Issue," _Social Work_, 1987, 32(6):485-490.

Gelles, Richard J., "Domestic Criminal Violence," in Wolfgang, Marvin
E., _Criminal Violence_, Beverly Hills: Sage Publications, 1982,
pg. 201-235.
--Ed Matz
Go Back to Shy David's Domestic Violence Page.