A Comment on Wrongs Committed During aMarriage: The Child that No Area of the LawWants to Adopt, by Michelle L. Evans

I want to thank Professor Wilson for the opportunity to participate in this and also thank Dean Danforth and Dean Smolla for the opportunity to teach at W&L, my alma mater, this fall. Mr. McGee said that in the dark ages when he was here they didn't have this. In the dark ages when I was here, we were in Tucker Hall, and it was an entirely different school, although the core is still very much the same. And it is a pleasure being here and seeing the quality of students that W&L is attracting and turning out.I want to particularly compliment Ms. Evans on her excellent student note.1 When I got it from Professor Wilson and read through it, I said, "well this must have been co-written by Robin [Wilson] and by Ms. Evans," but I am assured that is not the case. It is exceptionally high level of scholarship and in a good many innovative proposals that she makes [] she is not at all bashful in being critical of those who profess to be experts. Fortunately, I do not have much reason for being critical of what she has said. I do have some disagreements with the practicability of some of the proposals that she is making but far less than I do with the American Law Institute and its principles.2There are no defenders for the American Law Institute up here today, and one of my primary concerns is one that Professor Wilson alluded to, and that is I see a distinction between being critical of the continued reliance on fault for the grounds of divorce as opposed to the continued consideration of fault when it comes to the incidence of [marital assets] as they are divided and distributed. Virginia, as you may be aware, has a fairly limited no-fault divorce ground based on one-year separation or sixmonth separation if there are no children and there is a property settlement agreement.3 But, nonetheless, fault comes into play in determining the distribution of property,4 [] in considering spousal support,5 and indeed, in some instances, even child support.6 And I think there is still a role for fault in that part of the unraveling of a marriage. I happen to be one who believes in accountability for the acts that one commits and performs, and I think although it is very hard to sort out who is responsible for the breakdown of the marriage, it is not hard to assess fault and perhaps make some economic distributions based on that fault when it comes to behavior within the marriage.I think for far too long we disregarded domestic violence in the family law situation. My family law students still go "uhh!" when I show them the eighteenth century British cartoon of Judge Thumb with his rack of sticks over his shoulder saying that you can punish your wife with a stick no bigger around than a thumb if she has misbehaved during the marriage.7 And, even into the late nineteenth century there were American cases asserting the Law of Thumb.8 And even into the twentieth century there was an attitude in the courts that well, yes we need to take cognizance of what occurs during a marriage in the way of violence but we need to apply a somewhat lesser standard. People kind of assume the risk of certain things that go on in a marriage and the courts should not penetrate behind that veil. And I think mere is an element ofthat here, although I would not attribute those motives to the American Law Institute.I think to transfer the determination of fault and the allocation of responsibility for fault to tort law is an abysmal idea. I have often heard mat the law is a blunt instrument. It is more like an ax than a scalpel. And if anything, tort law is a much blunter instrument than is family law. And not only are mere the problems that Michelle has identified with me statute of limitations, and the problems of joinder and res judicata,9 but it looks to me like [] they are even more problematic. If you are familiar with the litigation that has arisen out of recovered memory of child sexual abuse and attempts to redress what occurred to a child during early childhood through tort litigation, you know how difficult it is to climb over that statute of limitations hurdle, even though the childhood of the plaintiff may toll the statate of limitations for a rather considerable amount of time. …