Tort Remedies for Survivors of Inter-Personal Violence: An Interview with Jessica Dayton
cw for discussions of sexual assault, gender-based violence and domestic violence
Image description of thumbnail image: a keyboard with torts written on a green background. where the shift key typically is. /end ID.
Jessica Dayton is a founding partner of ADZ Law, based in San Mateo, California. She is a certified Family Law Specialist who dedicates her practice to representing victims of domestic violence with their civil legal needs, including restraining order, custody and tort cases, as well as advising and advocating for victim’s rights in criminal cases.
I decided to interview Jessica after she spoke to my Domestic Violence Seminar in Fall 2020. Her speaking to my class really stood out to me because of how infrequently I hear this topic discussed and how empowering this work can be for survivors.
How do you think tort liability can be used by survivors of gender-based violence?
Tort liability’s value lies in it being used as additional option for survivors. Traditionally, people think of restraining orders or criminal prosecution when they think of legal options for survivors. People don’t realize you can also provide these tort remedies, which provides compensation and solutions that are not available as either part of the criminal legal system or the family law system. Restraining orders can be used for protection, and the criminal legal system is about punishment or rehabilitation. However, the civil system can be used for accountability through settlements and verdicts, and resolution can provide a sense of closure for a survivor as well as damages not compensable through a civil restraining order or criminal restitution.
What options do tort remedies open up?
In CA, a restraining order means a survivor can recover possibly attorney’s fees and payment for actual damages that might have occurred. Actual property damage can be recovered in the criminal legal system, and survivors can also access therapy through the victim’s compensation fund. But these are capped at $10,000 and it is linked to verifiable damages. In civil torts, you can get compensation for non-economic damages like pain and suffering or emotional distress. You’re not going to have a receipt but you can put a monetary value on it to give survivors the tools to rebuild their lives.
Have you seen success in doing this?
Yes; I have had cases resolve for a number of reasons. Defendants often just want it over with to resolve it, or know they will not prevail, like if there was a criminal conviction or other strong evidence. Some defendants put up strong initial fight but eventually realize they will not prevail.
What torts can survivors pursue in California?
California has a Domestic Violence cause of action. However, a lot of states do not, and in many states, you have to fit your facts into a regular assault or battery cause of action. California also has a sexual assault cause of action and a gender violence cause of action. Sometimes, survivors also sue for false imprisonment, IIED, NIED, or image exploitation. Colloquially, image exploitation is referred to as revenge porn.
What emotional impact does pursuing tort remedies have on a survivor?
While we can protect against invasive discovery or abusive deposition techniques, the survivor is going to have to know they will have to turn over medical records, therapy records, and they will likely have to be deposed. The discovery protections from criminal law are not at play. We are very honest that a plaintiff has to know they have to tell their story and they will be under scrutiny from defense counsel, and will possibly have to tell their story multiple times.
What unique problems present themselves when you are working with LGBTQ survivors?
Challenges in civil torts when working with LGBTQ survivors are the same as in pursuing a restraining order or a criminal case. Law enforcement can be unaware of the dynamics in LGBTQ relationships and can be incapable of determining who is the aggressor in the relationship. This lack of understanding of relationship dynamics can allow an abuser to present as a victim.
Of the clients you have worked with to pursue tort remedies, are they happy with that decision?
One of the things I enjoy most about this option is that it is the survivor’s choice. Whereas with a restraining order, survivors might feel compelled to pursue an order for their safety or their children’s safety, especially when restraining orders tend to happen at the most dangerous and volatile time in abusive relationships–the period of separation. Same with the criminal system, many survivors do not want to participate in the prosecution of their batterer. But in torts, the survivors are in the driver’s seat. It is an empowering option for those who want to take it.
How could we expand access to tort remedies for survivors?
First, access to an attorney and access to a good attorney are two different things. Ideally we need more experienced victims’ attorneys who are willing to take these cases. Second, and I am not sure how to correct for this, there really isn’t a path for low-income survivors because all the court can do is award damages. If you have a low-income batterer it won’t be a viable option for them. If there were somehow other financial incentives for attorneys to take these cases or if there were a more streamlined “small claims” option for these lower value cases, it would make it an option for more cases.
Also, family law attorneys rarely advise of this option. My firm is doing some trainings and trying to get the word out here on this. Prosecutors do not seem to be aware it is an option, and legal aid attorneys are not set up to pursue these remedies. Domestic violence law is its own area of practice that transcends family, civil, criminal, and there are not enough people who understand that. So, we need more people to practice domestic violence law and see it for the specialty it is.
Should such torts be part of the curriculum at law school?
Yes! I graduated 17 years ago and there was one case about spousal battery in my Tort class but that was it. Now that we have causes of action for sexual battery and domestic violence, all these intentional torts related to inter-personal relationships should be addressed as a field. And right now the only people who practice it are general personal injury attorneys, but the person doing car accidents should not necessarily be bringing a sexual battery tort because the skill set is very different. It should not be lumped into personal injury. It falls under the personal injury umbrella but it’s not like medical malpractice or slip and fall.
Since tort remedies for survivors are often grouped together with personal injury law, how can this negatively impact survivors?
It can be retraumatizing for survivors to work with an attorney who does not understand the dynamics of abuse. The case involves the most personal of injuries and requires a victim-centered approach. The attorney needs to shepherd their client through the court process in the most sensitive of ways.
Anything else you want us to know?
Just like with other tort lawsuits, there is a negative connotation of the “ambulance chaser.” While yes the remedy is money, the money is representative of so much more. There are so many injuries that are not quantifiable. You cannot put a dollar sign on a lifetime of trauma. When we talk about recovering monetary damages for survivors, it is an opportunity for them to start to rebuild their life. Survivors wish this never happened, but since it did, now these remedies can give them resources to heal and rebuild.