NATURE OF THE CASE: This case involved the defense of interspousal immunity for an alleged assault and battery by a husband against his wife.

FACTS: Betty Burns (P) sued her husband Erit Burns (D) in circuit court for personal injuries resulting from an alleged assault and battery. In oral argument before this Court, counsel for the parties revealed that Mr. Burns and Mrs. Burns have separated and have filed for divorce in chancery court. The Circuit Court of Alcorn dismissed the complaint on a motion for summary judgment on the pleadings by D, holding that it was barred under the doctrine of interspousal immunity.

ISSUE: Is interspousal tort immunity still valid law in Mississippi?

RULE OF LAW: No. Interspousal tort immunity is no longer valid law in Mississippi.

HOLDING AND DECISION (Parther): Interspousal tort immunity is an ancient common law doctrine founded on the theory of the legal unity of husband and wife. At common law there was no right of action either by husband or wife against the other for a personal tort and there was absolute equality in that respect. There was no occasion to emancipate the wife with reference to such torts because husband and wife were treated equally.

The forty-four states that have rejected this doctrine recognize that reasons for the common law rule no longer exist as a matter of public policy. The three reasons traditionally assigned as justification for the doctrine of interspousal immunity are: (1) the legal unity of the husband and wife recognized at common law; (2) the promotion of peace and harmony in the home; and (3) the avoidance of fraudulent or collusive claims.

As a matter of public policy this rule no longer fits the reasoning and rationale of today’s mores as evidenced by the abrogation of the rule in whole or in part in 44 of the states.

DISPOSITION: Reversed and remanded.

DISSENT (Griffin): Here I know of no public clamor to allow one spouse to sue another in this type of action, and if it exists the legislature will take notice and debate it as a public issue. The legislature has had approximately sixty-four years to amend the statutes to permit such an action as this and to my knowledge no bill has even been introduced.

NATURE OF THE CASE: This criminal law case involved an appeal from a conviction for rape and sodomy committed by the defendant against his wife.

FACTS: Mario Liberta (D) and Denise were married in 1978. Liberta began to beat his wife shortly after the birth of their son and she brought a proceeding to seek a domestic violence protection order in Family Court in Erie County. A temporary restraining order was issued to her by the Family Court and Liberta was to move out and remain away from Denise and the family home.

Denise agreed to allow Liberta to pick up their son and her and take them both back to his motel for a visit after being assured that a friend of his would be with them at all times. Liberta and his friend picked up Denise and the boy and the four of them drove to his motel. When they arrived the friend left and Liberta attacked Denise, threatened to kill her, and forced her to perform fellatio and engage in sexual intercourse with him. The son was in the room at the time and Liberta forced Denise to tell their son to watch. Denise went to a hospital to be treated for scratches on her neck and bruises on her head and back and notified the authorities.

Liberta was indicted for rape in the first degree and sodomy in the first degree. Defendant moved to dismiss the indictment on the grounds that he and Denise were married and therefore within the marital exemption to both rape and sodomy. The prosecutor opposed the motion, contending that the temporary order of protection required Mario and Denise to live apart and that they were therefore not married for purposes of the statutes.

The trial court held that the marital exemption applied and granted Liberta’s motion and dismissed the indictment. The Appellate Division reversed and reinstated the indictment and remanded the case for trial. The Appellate Division ruled that a Family Court order of protection is within the scope of an order which by its terms or in its effect requires such living apart even though it is directed only at a husband, and thus found that Liberta and Denise were not married for purposes of the statute at the time of the incident.

On remand Liberta was convicted of rape in the first degree and sodomy in the first degree and the Appellate Division affirmed. This appeal resulted. Liberta contends that the statutes regarding rape and sodomy violate the equal protection clause because only men can be prosecuted under it.

ISSUE: Does a statutory marital exception for rape violate equal protection?

RULE OF LAW: Yes. A statutory marital exception for rape violates equal protection.

HOLDING AND DECISION: Under the statute a male is guilty of rape in the first degree when he engages in sexual intercourse with a female by forcible compulsion. Female, for purposes of the rape statute, is defined as any female person who is not married to the actor. A person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person by forcible compulsion.

Deviate sexual intercourse is defined as sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva. Due to the not married language in the definitions of female and deviate sexual intercourse, there is a marital exemption for both forcible rape and forcible sodomy. The marital exemption itself, however, has certain exceptions. A husband and wife are considered to be not married if at the time of the sexual assault they are living apart pursuant to a valid and effective: (i) order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart, or (ii) decree or judgment of separation, or (iii) written agreement of separation.

Liberta was properly found to have been statutorily not married to Denise at the time of the rape. A married man ordinarily cannot be convicted of forcibly raping or sodomizing his wife. This is the so-called marital exemption for rape. The equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group of individuals. Where a statute draws a distinction based upon marital status, the classification must be reasonable and must be based upon some ground of difference that rationally explains the different treatment.

We find that there is no rational basis for distinguishing between marital rape and non-marital rape. We therefore declare the marital exemption for rape in the New York statute to be unconstitutional. Other than in the context of rape statutes, marriage has never been viewed as giving a husband the right to coerced intercourse on demand.

As a matter of public policy, a married woman has the same right to control her own body as does an unmarried woman. Further, women are no longer regarded as chattel or demeaned by denial of a separate legal identity and the dignity associated with recognition as a whole human being. Just as a husband cannot invoke a right of marital privacy to escape liability for beating his wife, he cannot justifiably rape his wife under the guise of a right to privacy. The final argument in defense of the marital exemption is that marital rape is not as serious an offense as other rape and is thus adequately dealt with by the possibility of prosecution under criminal statutes, such as assault statutes, which provide for less severe punishment. There is no evidence to support the argument that marital rape has less severe consequences than other rape. We hold that the marital exemption violates equal protection. We choose to nullify the marital exemption portion of the statute and as such the part under which Liberta was convicted is still valid.

DISPOSITION: Affirmed.

NATURE OF THE CASE: This case involved a dispute over whether a court has the authority to issue domestic protection decrees if the parties have agreed to a provision prohibiting them from harassing each other.

FACTS: Mr. and Ms. Felton’s dissolution decree contained a no harassment provision. The trial court nevertheless issued a domestic violence protection order. The parties appealed and the court of appeals ruled that the order was unnecessary. The Supreme Court of Ohio granted cert.

ISSUE: May a court issue a domestic violence protection order even if the parties’ dissolution decree includes a no harassment provision?

RULE OF LAW: Yes. A court may issue a domestic violence protection order even if the parties’ dissolution decree includes a no harassment provision.

HOLDING AND DECISION: The no harassment provision contains only a general prohibition whereby each party shall not annoy, harass, or interfere with the other. The remedies and procedures under the protection order statute are in addition to and not in lieu of any other available civil or criminal remedies. Nothing in the statute prohibits an order when the dissolution decree includes a no harassment provision.

Several important features of the protection order give the judge more flexibility than those available with a dissolution or divorce decree. A protection order is much more immediate and consequential. Criminal prosecution and a decree of contempt of court are available for violation of a protection order. A violation of a dissolution decree however is only subject to contempt of court with a fine of up to $250 and imprisonment for not more than 30 days.

Also under the protection order, the statutes provide for the preferred arrest of a violator. In addition, the statute requires that a copy of the protection order be issued to all law enforcement agencies that have jurisdiction to enforce the order and that all agencies maintain an index of the protection orders sent them. A protection order is easier to enforce than a no harassment provision in a dissolution decree. The overwhelming benefits to the victim of domestic violence that the order affords far outweigh the temporary nature of the protection order. A strong public policy demands the issuance of such orders as violence against a former spouse does not stop with the separation.

The burden of proof necessary for the issuance of a protective order is preponderance of the evidence. Under the facts of this case P has shown a prima facie case supporting the issuance of a protective order. The trial court erred in considering D’s answer as evidence in its decision to issue the order.

The only admissible evidence was the uncontroverted testimony of W’s witnesses who testified to D’s violent behavior toward P. The trial judge incorrectly held that corroborating medical evidence was necessary to establish domestic violence. Domestic violence is seldom committed in the presence of eyewitnesses and often the only evidence of such violence is the testimony of the victims. We hold that the evidence presented was by a preponderance of evidence.

DISPOSITION: Reversed and remanded.

NATURE OF THE CASE: This family law case involved a FRCP 12(b)(c) motion to dismiss by the defendant in a domestic violence case.

FACTS: One month after Ms. Kuhn (P) and Mr. Kuhn were married, D confessed to P that he had had sexual relations with another woman shortly before their wedding. P wanted a divorce and D restrained P and struck her as she attempted to leave their residence. The incident left P with a black eye and numerous bruises. Three months later P refused to have sex with D who subsequently became angry and forced her to have sex with him twice. D was physically violent toward P on several other occasions and broke her finger after taking a phone call from a process server.

P and D subsequently became involved in a contested divorce proceeding in the local circuit court of DuPage County, North Dakota. On the same day that a judgment of dissolution was entered P filed a six count complaint under the Violence Against Women Act of 1994 (VAWA). The first count of P’s complaint was a claim under the VAWA and under the remaining counts P claimed state tort claims under supplemental jurisdiction. D moved to dismiss the complaint under the Rule 12(b)(6) of the Federal Rules of Civil Procedure (FRCP) and filed a motion to request abstention on the VAWA cause of action.

ISSUE: What must a claim allege in order to withstand a motion to dismiss under FRCP 12(b)(6)?

RULE OF LAW: In order to withstand a motion to dismiss under FRCP 12(b)(6) a claim must allege facts sufficiently setting forth the essential elements of the cause of action.

HOLDING AND DECISION: Congress passed the VAWA to establish a civil remedy in the form of a federal cause of action for victims of gender motivated violence. The VAWA does not cover random acts of violence unrelated to gender or acts that cannot be demonstrated by a preponderance of the evidence to be motivated by gender. To bring a cause of action under the VAWA, P must alleged that she was the victim of a crime of violence committed because of her gender, and that the crime was carried out on the alleged perpetrator’s animus based on the plaintiff’s gender.

In light of the evidence in this case D’s motion to dismiss must be denied. P has pleaded sufficient facts to establish that D’s alleged criminal sexual assault of her was motivated by P’s gender. The interplay between P’s gender and her status as wife will require a greater evidentiary exposition. We agree with the courts in Anisimov and Mattison that the crime of rape is motivated by gender.

P bases her VAWA count on three different crimes allegedly motivated by gender: unlawful restraint, aggravated battery, and criminal sexual assault. The VAWA defines a crime of violence as an act or series of acts that would constitute a felony against the person whether or not those acts have actually resulted in criminal charges, prosecution or conviction.

DISPOSITION: D’s motions are denied.

NATURE OF THE CASE: This case explored the issue of whether battered woman’s syndrome is a recognized civil cause of action.

FACTS: Jean Marie Cusseaux (P) lived with Wilson Pickett (D) for ten years and alleged that during that time Pickett severely mistreated her and caused her physical injuries on numerous occasions. Cusseaux alleges that Pickett’s conduct constituted a pattern of violent behavior frequently associated with alcohol abuse. On numerous occasions, Cusseaux was required to seek medical attention from the attacks by Pickett. Cusseaux alleged that she was suffering from battered woman’s syndrome and Pickett moved to dismiss for failure to state a cause of action.

ISSUE: Is battered woman’s syndrome a recognized cause of civil action?

RULE OF LAW: Battered woman’s syndrome is a recognized cause of civil action.

HOLDING AND DECISION: It is well established in New Jersey that an injured party may sustain a cause of action for serious personal and emotional injuries directly and causally related to the actions of another person. The New Jersey legislature has determined that domestic violence is a serious crime against society and that our judicial and law enforcement system was insufficient to address the problem. Civil common law tort claims for assault and battery are insufficient to redress the harms suffered as a result of domestic violence.

For this cause of action, Cusseaux must prove that the couple was involved in a marital like intimate relationship, that physical or psychological abuse perpetrated by the dominant partner in the relationship extended over a period of time, and that the abuse has caused recurring physical or psychological injury and a past or present inability to act to improve or alter the situation unilaterally.

DISPOSITION: Motion to dismiss denied.