FAMILY LAW ARTICLES

What Is Legally Actionable Domestic Violence? Part 1 of 2

By “actionable” I mean a type of domestic violence that will be recognized by the Courts of the State of California as sufficient to warrant a Domestic Violence Restraining Order.  Many web sites now call a wide variety of behaviors “domestic violence,” but those sites are often adding to the legal definition of domestic violence used by the courts.  These non-statutory social additions are not actionable at law as domestic violence warranting a restraining order, in and of themselves.

Part 1:  What is not legally actionable domestic violence?

I recently perused a number of web sites focusing on domestic violence and was surprised at the types of behaviors they place under the domestic violence umbrella.  In addition to physical violence, sexual violence, threats of violence, stalking and harassing, many sites have added the following:  verbal abuse, emotional abuse, social abuse, and even spiritual abuse.

I will not discuss social and spiritual abuse, as these are relatively new on the social web sites.  But verbal and emotional abuse are old, old inappropriate behaviors now being called domestic violence on these social sites. These must be discussed analytically in a legal context.

The broad definition of verbal abuse, as used on many sites, is when your significant other puts you down, calls you names, or yells at you – it can be about what you are wearing, how you are acting, or telling you that you are useless or wrong.  That definition bleeds over into emotional abuse as described on many such sites, which adds conduct such as ignoring you, economic threats, and looking at you in an intimidating manner – just looking, mind you, no threats, no approaches.  While these may be excellent indicators that you are in an unhealthy relationship, and can be precursors to actionable domestic violence, these examples in and of themselves will not warrant a domestic violence restraining order.

This broadening social definition of domestic violence is, alas, creating a flood of meritless domestic violence claims in our courts, most of which can be defeated by effective counsel.

One such example from my own personal experience:

I was the attorney of record where opposing party, a woman, accused my client of domestic violence.  She got the Temporary Restraining Order on the pleadings and without notice to my client.  At the evidentiary hearing for the permanent Restraining Order, her testimony was exclusively “verbal abuse” as defined above.  When her direct testimony concluded, the judge actually stated that her allegations of “a lot of yelling” would not get her a permanent restraining order.  Then, in open Court, she accused my client of rape.

On cross-examination, I asked her if my client would ask her for sex; she said, “Yes.”  I asked if she said no; she said, “Yes.”  I asked if he went away when she said no; she said, “Yes.”  I asked if he would then ask for sex again; she said, “Yes.”  I asked him if she said no to his second request; she said, “No.”  I asked why not; she said, “I am afraid of what he does to me when he is angry.”  I asked what he did to her when he was angry.  She said, “He ignores me.”  I shut up then, because legally, being ignored is not abusive or coercive behavior sufficient to overcome a person’s will.    The Temporary Restraining Order was dismissed, and the permanent Restraining Order was denied.

Read about the legal definition of domestic violence in Part 2 of 2.