THIS PAST MAY, a Virginia woman, Janet Goldstein, won a $65,000 jury award for damages she sustained during a fight with her husband. Her case was one of the first in the country in which a wife successfully sued a former spouse, claiming he had beaten her. In so doing, Goldstein hurdled -- at least temporarily -- the doctrine of spousal immunity, which rose out of the medieval notion that a husband and wife were one unit: The husband.
This doctrine has been used to keep spouses from testifying against each other -- you can't be forced to testify against yourself -- and from suing each other. The legal basis for the doctrine -- that women are chattel -- has changed over the centuries and now, we are told, spousal immunity is a good thing because it helps preserve the harmony and sanctity of marriage.
There are exceptions. Some states, including Virginia, now allow a spouse injured in an auto accident to sue the spouse who was driving. It's a handy way of collecting insurance money.
Recently, the U.S. Supreme Court ruled that a woman could not be prevented from testifying against her husband who was being tried on federal drug charges. She was not allowed to testify about confidential marital conversations, but she could tell about acts she had witnessed in the presence of a third party. Her husband was convicted, primarily on the strength of her testimony.
Chief Justice Warren Burger wrote that the ancient foundation for spousal immunity long ago has disappeared and he is not persuaded that the modern foundation -- that it helps keep marriage together -- holds water. "When one spouse is willing to testify against the other in a criminal proceeding . . . their relationship is almost certainly in disrepair. There is probably little in the way of marital harmony for the privilege to conserve."
But last week, the Virginia State Supreme Court reaffirmed its belief in spousal immunity and its role in preserving family peace. The court acknowledged that spouses can sue for automobile injuries and that the estate of a murdered spouse can sue the spouse who did the killing. But there the court drew the line. It decided that a man could not sue his wife for injuries he received when he was shot by a man his wife had hired to kill him.
The court noted that "an uninvited kiss, no matter how cold and chaste is an assault and battery and substantial damages may be awarded." To do away with spousal immunity would create "the possibility of recovering monetary damages by an overkissed" wife or husband.
The immediate upshot of that court ruling has nothing to do with an overkissed spouse. It has to do with the fact that Janet Goldstein is probably not going to collect the $65,000 she was awarded as compensation for a beating that put her in the hospital for 10 days. As a result of the state supreme court decision, the trial judge has held up her award, pending another hearing June25.
In the case, Goldstein pressed charges against her husband and he subsequently received a 12-month suspended sentence and a $1,000 fine. They divorced and she received alimony. Then she sued. "The court held it was proper for a husband to be sued by his wife when they had been divorced," says her lawyer John Epperly. "There was no marital relationship to maintain . . . I can't see the difference between a wife suing her husband for an automobile accident and not for beating her up."
"How many remedies do you give any spouse?" argues Harvey Lutins, who represents Leonard Goldstein. "They have the remedy of criminal prosecution, the remedy of spousal support. Now we give the spouse an additional remedy -- the right to sue for personal injury. The court said we're not going to do it.
"So many states have eroded or abolished the doctrine. That's the trend. But Virginia, being a conservative state and being very protective of the family, being very sensitive to that unit, has refused . . . to disturb or imperil that unit. It's not a denial of rights. It's preservation of the family unit. We are in a permissive society but here in this area, we still encourage marriage."
There are valid questions to be raised in diluting the concept of spousal immunity. Would the right to sue encourage divorce? Would we suddenly be deluged by cases of people seeking mental anguish damages for real or imagined grievances that occurred during a marriage? But there are restraints within the system -- you might have to prove intent or negligence, you have to prove damages, you have to have enough money to hire a lawyer and you have to have a spouse who is, after a divorce settlement, still worth suing.
And there is the fact that civil damages could provide a remedy for battered spouses and the prospect of suits might serve as a deterrant to a battering spouse. "Civil liability is increasingly becoming recognized among women's rights attorneys as an avenue of redress we have ignored in the past," says Donna Lenhoff, of the Women's Legal Defense Fund. "Increasingly, women are finding themselves in situations where they want medical expenses and some kind of pecuniary remedy for pain and suffering."
Courts do have to draw the line which, as Lenhoff points out, they have been doing for hundreds of years. In their zeal to preserve marital harmony, the Virginia court might find the line has to be drawn a number of times, in a lot of different ways. But there is a whole lot of space between being beaten or shot and being overkissed.