Duhaime's Law Dictionary


Domestic Violence Definition:

An assault or battery upon another member of a family or, in some jurisdictions, threatening words.

Related Terms: Spousal Abuse, Battered Woman Syndrome, Battering Cycle

In R. v W. (also called R. v. W. (S.A.) or R. v S.A.W.), Nova Scotian Judge Williams defined domestic violence as follows:

"[W]hen ... an assault has occurred in situations where the parties have been living within the status of a domestic relationship.... [A] domestic relationship could be found in cases where the prosecution has proved beyond a reasonable doubt that the parties involved, at the time of the allegation of assault, were living together and through cohabitation had created a household or a family."

In N.B. v. T.B., Justice Humphreys of the Superior Court of New Jersey used words frequently cited in American case law:

"Domestic violence is a pattern of abusive and controlling behavior injurious to its victims."To address this serious problem, the Legislature enacted the (New Jersey) Prevention of Domestic Violence Act. The Legislature did not create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law, but ensured that spouses who were subjected to criminal conduct by their mates had full access to the protections of the legal system."

domesticn violenceWhere there is considerable variance in the case law is determining whether domestic violence includes battery or might include emotional abuse.

The Cadillac of odd cases is JNS v DBS, to be contrasted by the more reasonable view espoused in Lovcik v Ellingson (both detailed in the LAWmag article Domestic Violence: A Tale of Two Cities).

The rule of thumb is to defer to a statutory definition of domestic violence if one exists. For example, in Florida, injury must result:

"Domestic violence means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another who is or was residing in the same single dwelling unit."1

If there is no statutory definition, consider these words of in R. v. W. and in N.B. v T.B. above.

Justice Cuff of the Superior Court of New Jersey endorsed the proposal that mere words could constitute domestic violence (Chernesky v Fedorczyk):

"In order for a communication or conduct to constitute harassment and an act of domestic violence, the defendant must speak or act with the purpose to harass another and the words or conduct must be of a nature to cause alarm."

But compare with Brown v Brown in which Justice Sandstrom of the Supreme Court of North Dakota in which the wife alleged domestic violence because she had been the recipient of derogatory names from the husband. Referring to the North Dakotan statute, the claim was dismissed:

"... domestic violence ... does not include name-calling."

In Rosenthal v Roth, Justice Fletcher of the District Court of Appeal of Florida concluded that physical violence between siblings constituted domestic violence.

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