'Love Does Not Dominate; It Cultivates' - Modes of Contending with Abuse Against Spouses in Tort Law, Criminal Law and Family Law: A Proposal for a New-Old Model (Hebrew)

Abstract

This article examines two models relating in different ways to issues of physical, sexual, and emotional abuse between spouses in various legal contexts (criminal law, tort law, and family law) – Jewish law and Israeli law. The two models find solutions, albeit only partial ones, to the problem, in the various legal fields, but their attitudes towards the issue are different. As a matter of fact, in Israeli tort law, there is no special tort of physical, sexual, or mental abuse within the family or in general. This does not mean that a tort action of a spouse against another spouse due to such abuse cannot be recognized, if the issue enters into the framework of one of the existing torts, but the response by these means is not sufficient. In Israeli criminal law, the situation is even worse: the Penal Code has no crime of physical, sexual, or mental abuse except towards a minor or defenseless person. The family law in Israel is a little more encouraging: while mental violence is recognized as a cause for an injunction and restraining order against the violent and abusive party, this is still in rarer and more exceptional cases than for physical or sexual abuse, for example, and other legislative arrangements also discriminate against it, as compared to physical or sexual abuse. Thus there arises a picture of a relatively problematic situation, under which Israeli law handles matters of abuse in a partial and unsatisfactory manner. Jewish Law has followed another and unique path on this matter, placing on the table the special problematicalness of physical and mental abuse that is so typical, unfortunately, of spousal relations. Firstly, Jewish Law emphasizes the duty of spouses to act respectfully towards one another and gave this duty operative-legal significance. Secondly, the Jewish Sages saw acts of violence against a spouse as particularly severe and thought that they justified strong legal policy substantively different from that taken in regular cases of abuse by one person of another (who is not his spouse). In very many cases, Jewish Law relates to the matter of physical violence, where most of the sources on the subject exist, draws conclusions from it, and creates a similar law with regards to mental abuse as well. This is particularly true in the case of civil-tort law and in the case of abuse as grounds for divorce. Jewish Law also uses, generally with great success, an effective societal-criminal punishment of excommunication and ostracism against one who hits his wife or mentally abuses her, while at the same time employing a long list of additional sanctions (such a financial penalties, prison, corporal punishment, etc). Therefore it seems that Jewish Law can serve as a more appropriate model on the fundamental level for handling this matter, obviously after changes adapting it to Israeli law. The model proposed at the end of the Article is an original model that attempts to utilize the advantages of the existing systems and to improve upon them. Under this model, intervention of the legislator is needed to create a special criminal offense of spousal abuse in the Penal Code and a particular tort of spousal abuse in the Civil Code (besides the possibility of ruling increased or punitive damages for such a tort due to its nature), in addition to making the test for granting a restraining order for mental abuse more flexible within family law. All this is an amendment to the existing Israeli law and influenced by Jewish Law. The model also proposes legislative amendments (a tort and crime of abuse, according to its types) and calls for the status of mental abuse to be equalized to that of physical and sexual abuse in the framework of restraining orders in family law as well.