I recently received a judgment in a tort suit I filed in the Family Court in Jerusalem (Justice E. Katz) against the ex-husband of a client I’ve represented for a few years. The suit was for damages, filed against an ex-husband who had been convicted of physical abuse of his wife of the time, my client.
Here’s a PDF file of the judgment, in Hebrew: fc-damages
Most of the abused women I work with have not wanted to file tort cases when I suggest it to them, for two reasons; first, they are tired of legal proceedings and want to get on with their lives, and second, the other side generally has no significant assets, so that even if they were to win the case, there would be no way to execute any monetary award by the court.
And in fact, there are very few decisions awarding damages to women who have suffered abuse. In addition to the two factors I mentioned above, I think that this has to do with the nature of classic tort law in Israel, where only in recent years has there been a cautious move in the direction of recognizing the need for punitive damages in certain cases. In classic tort law in Israel, one sues for the actual damages, and those damages and their cost must be proven. So, for someone who was beaten up by her spouse but didn’t sustain damage that could be assessed in monetary terms, the suit would probably have cost her more in legal fees than she could ever win. To the best of my research and knowledge, the first time punitive damages were awarded by the Family Court in a case of domestic abuse was by Justice Nili Maimon of the Jerusalem Family Court in 2004.
In this case, we were able to overcome a couple of the classic obstacles to filing a tort case. First, we had a criminal conviction in hand, and evidence law in Israel allows the criminal court conviction to be brought as evidence for the facts in a civil suit. Since domestic abuse is often difficult to prove, having a conviction in hand provides a pole vault for leaping over the main obstacle in a case for damages.
Second, the marital home had not yet been divided up, so we were able to attach a lien to the ex-husband’s share of the apartment, and thus have a way to execute the monetary judgment, either by selling the ex-husband’s share to a third party, or my client buying him out, essentially claiming the monetary award from the apartment.
As nice as the material gain is for my client, the decision is meaningful for an additional reason, to my mind no less important. Here I have a bone to pick with the prosecution. Despite the fact that there is a very nice law on the books about the rights of victims in criminal cases, including victims of domestic violence, and despite the fact that the law says that victims should be consulted before the court authorizes a plea bargain, in my experience this rarely happens. So, despite the fact that my client had experienced years of abuse, and one particularly frightening experience that led to a police complaint and criminal conviction, and despite the fact that I asked the prosecutor to speak with my client before finalizing the plea bargain, this was never done. The result was that my client felt that her ex-husband got a rap on the knuckles for what he had done to her, and her voice was never heard.
The day she testified in court in the tort case, she was finally able to tell her story in a safe environment, she finally felt heard and validated. The sense of validation was of course only strengthened when we received the actual judgment in the case.
In requesting my client’s permission to write about her case, she responded:
“Of course you can post up the story of my tort case. If it means that it might help someone else out there, I’ll be very happy.”
And that’s the point.
Victims of domestic abuse need to know that there is another remedy out there, that the courts are amenable to hearing these cases. We can debate about whether it is a good or bad phenomenon, but the bottom line is that in hearing the “classic” divorce suits – property, support, custody and visitation – the courts simply aren’t that interested in hearing about or relating to the abuse that went on in the marriage. In tort cases of all kinds, the courts serve as the voice of acceptable norms in society; a judgment favor of a woman who was abused serves as a statement from the society in which she moves and lives that domestic violence is beyond the pale.