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Hastings International and Comparative Law Review

Abstract

Abuse in general, and within an ongoing, intimate relationship with a spouse in particular, is a scourge that the legal system must uproot. This paper examines two models that differ in their approach to the issue of spousal abuse (physical, sexual, and emotional): modern secular common law, as represented by two legal systems-American and Israeli law-and ancient, religious Jewish law. Thus, the paper offers an opportunity to see and analyze the dialogue between an ancient, religious legal system and its modern, secular counterparts, and the possible-perhaps surprising--contribution of the former to the latter.

The two models, secular common law and religious Jewish law, offer similar (although not identical) legal solutions to the problem in certain cases, but their overall approaches to the issue are different. The secular common law model indeed addresses various types of abuse, but the approach is partial, inconsistent, and insufficient. The Jewish law model deals with the issue more comprehensively, but it needs to be adapted to serve as the basis for a proposed model to improve the current situation in modern law.

The paper offers an original model, appropriate for American and Israeli law, which attempts to draw on the advantages of the existing systems and improve upon them. The proposed model is inspired especially by important principles drawn from Jewish law, whose protection of the spouse is unique, not only in ancient legal systems, but even in modern ones. We will try to adapt its arrangements to modern law.

The new model, based on the spirit of Jewish law, proposes enacting an independent tort and criminal offense of physical, sexual, and emotional abuse of a spouse and to enhance the status of emotional abuse as grounds for a restraining order. The proposed model emphasizes that spousal abuse is a behavior unique to a relationship of trust, and constitutes a breach of that trust. As such, in creating unique arrangements (in all relevant areas of law) for dealing with spousal abuse, the law should reflect the uniqueness of the relationships involved.

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