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January 14, 2016
Imprecise Language is Misleading in Domestic Violence Decision

The 2nd Appellate District’s opinion in Rodriguez v Menjivar, ordered published on January 7, 2016, implies that emotional harm does constitute domestic violence.

Generally “emotional harm” to a spouse has been non-actionable under domestic violence statutes, for obvious reasons codified in cliches throughout society:  “No one escapes childhood unscathed” is one common saying speaking of emotional harm visited on children by parents who are probably just doing their best;  “If Mama ain’t happy, ain’t nobody happy” is another common saying speaking of emotional manipulation by… well, by Mama, in many settings.  “You can be right or you can be happy” is another tried but true cliche used in the world of marriage.  Any two people interacting is going to result in some “emotional harm;” that is why “emotional harm,” in and of itself, is not actionable domestic violence.

Yet, the Appellate Court overturned a trial court’s ruling to find that emotional harm does constitute domestic violence.  Is this a change in the law? Is this judicial activism?

No.  It’s imprecise language.  The trial court in the Rodriguez case used the phrase “emotional harm” to characterize activity constituting threats of harm, and in some cases harm itself, in this case.  The Appellate Court, rather than correct the lower court’s inaccurate characterization of the perpetrator’s actions as merely “emotional harm,” chose to employ that term instead, inaccurate as it was.

Yes, some of the harm suffered is emotional… but that wasn’t all it was. My previous contention that “emotional harm, in and of itself, is not actionable domestic violence,” stands.

Consider:  In Rodriguez, the perpetrator’s activities ranged from playing with a knife close to her face (believable threat); threatening to beat her with a studded belt (believable threat); practicing martial arts in proximity to her (wobbler, but in context a believable threat); pulling her hair (actual harm); kicking her (actual harm); slapping her (actual harm); punching her (actual harm); and pushing her head into a seat belt holder while driving (actual harm).  On top of that, he required her to keep her telephone like open to him when he was not at home so he could monitor her activities and threatened to harm her if she did not comply.  He isolated her from other people, called her constantly (harassment), and threatened to drive her into an oncoming train (actual threat with threat of suicide on top).

His victim escaped, but the perpetrator continued to harass her.  When she sought protection from the trial court, somehow the trial court characterized all this as emotional abuse.  THAT is imprecise language – language so imprecise as to be misleading. Yes, that behavior also, no doubt, caused great harm to her emotions.  In context of the physical harm, stalking, harassment and believable threats – all of which are actionable domestic violence – of course there is substantial emotional harm.

Domestic violence is often multi-faceted.  But at its most basic it involves significant violation of, or believable threat of violation of, the victim’s safety.  Because domestic violence is so heinous, we must be careful in our language when applying that label.  Every domestic violence case must be measured on its facts, and in the context of the perpetrator’s actions.

In conclusion, it’s my opinion the Rodriguez case hasn’t changed what is and is not actionable domestic violence.  But the imprecise use of “emotional harm” here is likely to cause problems for attorneys who don’t read the entire case.

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