Spousal Emotional Abuse as a Tort?

Maryland Law Review, Vol. 55, p. 1268, 1996

76 Pages Posted: 3 Sep 2009

See all articles by Ira Mark Ellman

Ira Mark Ellman

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley; Arizona State University College of Law; Arizona State University (ASU) - Department of Psychology

Stephen D. Sugarman

University of California, Berkeley - School of Law

Date Written: 1996

Abstract

This article addresses the issue of whether states should recognize a cause of action by one spouse against another for intentional infliction of emotional distress as set out in section 46 of the Restatement (Second) of Torts. While divorce is possible in all fifty states without any showing of fault, and in the majority of states fault plays little role in the allocation of property and the fixing of spousal support obligations, the pervasive character of no-fault reforms masks a discontent that occasionally surfaces in the cases as well as in the scholarly and professional literature to incorporate into the law a code of conduct for marriage has its source in worthy values that are both instrumental and moral. This article surveys the landscape of discord that might lead to marital abuse, analyzes the case for intentional infliction of emotional distress, and concludes, somewhat reluctantly, against the general recognition of spousal emotional abuse as a tort, although we are prepared to support tort claims between spouses for emotional harm in certain more narrowly defined settings.

Keywords: No-fault divorce, Intentional Infliction of Emotional Distress, Family Law

Suggested Citation

Ellman, Ira Mark and Sugarman, Stephen D., Spousal Emotional Abuse as a Tort? (1996). Maryland Law Review, Vol. 55, p. 1268, 1996, Available at SSRN: https://ssrn.com/abstract=1467016

Ira Mark Ellman (Contact Author)

Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley ( email )

Berkeley, CA 94720-2150
United States

HOME PAGE: http://csls.berkeley.edu/people/csls-affiliates

Arizona State University College of Law ( email )

Box 877906
Phoenix, AZ
United States

Arizona State University (ASU) - Department of Psychology ( email )

950 S. McAllister Ave
P. O. Box 871104
Tempe, AZ 85287-1104
United States

Stephen D. Sugarman

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-642-0130 (Phone)
510-643-2672 (Fax)

HOME PAGE: http://www.law.berkeley.edu/faculty/sugarmans

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