Lawyers Manual - Unified Court System

298 Betty Levinson
you with the facts concerning her abuse. In some instances, she may be seeking
legal help for a matter that does not immediately announce itself as domestic
violence, such as a divorce, a marital property settlement, a custody matter, or a
conflict in a business relationship. Whether or not a tort claim is on the
articulated agenda, it is wise to cast a wide net in determining what causes of
action may be viable for the client.
In interviewing the client, it is best to avoid asking conclusory questions
such as, “Are you a battered woman?” or “Has your husband/boyfriend been
physically abusive to you?” Be aware that the client may have become so inured
to abusive physical and verbal treatment that she does not experience herself as
having been victimized. If her experience does not mirror her notion of “a
battered woman,” i.e., someone with visible facial bruises or broken bones, her
answer will likely be negative. 4 In raising the subject of domestic violence, the
best approach is to ask open-ended questions, such as, “Does your partner touch
you with his hands during arguments?” “Where does he touch you?” “Does he
frighten you?” “Does he hurt you?” Avoid conclusory questions such as, “Did
he rape you?” Blame-seeking questions such as “Why did you stay?” are also
counterproductive. In general, be prepared to make inquiries that allow the
client to express a full range of facts and feelings about her experiences.
Nonjudgmental listening is a learned skill that takes practice. 5
Identifying the Tort
Common Law Torts
The injuries caused by domestic violence are both physical and psychological.
Among the common law torts arising from abusive relationships are assault,
battery, the negligent or intentional infliction of venereal disease, unlawful
imprisonment, and the intentional infliction of emotional distress. 6 Victims of
domestic violence have had difficulty bringing suits for the intentional infliction
of emotional distress in New York courts. Although the common law prohibition
against interspousal torts has been removed by statute, 7 married or divorcing
plaintiffs are effectively barred from suing for the intentional infliction of
emotional distress by the Court of Appeals ruling in Weicker v Weicker. 8 In
Weicker the Court found that a claim for the intentional infliction of emotional
distress was subsumed within a cause of action for divorce on the grounds of cruel
and inhuman treatment. When unmarried partners have sued, the results have been
mixed. A divided Third Department allowed a suit for the intentional infliction of
emotional distress by an unmarried domestic partner, 9 but a contrary result was