Wife’s Liability for Husband’s Sex Crimes

August 30, 2008

Should a wife be liable to a child for sexual abuse suffered at the hands of the husband? The Washington Court of Appeals just handed down a fascinating case which discusses a spouse’s liability under Washington law for the tortious conduct of the other spouse. The rule is that the wife’s separate property is immune but community property is vulnerable if the wrongful conduct

“either (1) results or is intended to result in a benefit to the community or (2) is committed in the prosecution of the business of the community.”

In this case the fact that the boy did lawn work for the couple before the assaults was critical to finding community liability. The standard is awfully vague, which makes liability something that can often be argued.

But what if the community was in no way involved? The husband just went off on his own and sexually abused someone (or committed some other tort) far from home? The victim could go after the husband’s separate property but typically there is none. Most couples own community property without much separate property. Is the victim left empty handed? The rule is Washington is that, if there is no separate property, then the victim can get half the community property.

What if the wife files for divorce and enters into a property agreement that gives her the property? This will not work unless the division between the husband and wife is deemed fair.

This is certainly a messy area of law but I agree with the notion, particularly with respect to sexual predators, that there is some duty on the part of the wife, or non-offending spouse, to share some of the financial responsibility, rather than depriving the victim entirely.

This is a very tough call as both the non-offending spouse and the victim are innocent in a very important sense and both suffer mightily in the situation. All things being equal my scales tip a little more toward the victim.

Merit System in Washington Chopped Off

July 16, 2008

As you know, if you’ve been reading this a while, there was a bill last session of Washington’s legislature to adopt the merit system for the selection of judges to the Court of Appeals and the State Supreme Court. This is the system advocated diligently by Sandra Day O’Connor to eliminate the influence of deep pockets on judges’ decisions and to assure that the most qualified people are appointed to the bench.

The bill was sponsored by Jay Rodue, a Republican from the 5th District, Sherry Appleton, a Democrat from the 23rd District, Helen Sommers, from the 36th District. Here is a copy of the final form of the bill. The house report explained generally how it would work.

The bill made it to Frank Chopp’s Rules Committee, a death chamber for bills that do not advance the interests of the most powerful lobbies. He predictably killed the bill.

The people who sponsored the bill deserve accolades for wanting to improve our judicial system for the sake of the people here and not any special interest. The members of the House Rules Committee are listed here.

Our legislators need to know that we care about having the best court system that we can muster. I’ll write more when the legislature is in session.

Lease/Option: Watch Out

June 3, 2008

Over the last five years or so there has been a noticeable increase in Washington in the use of residential leases that include an option to purchase.  These are often put together by either the buyer or seller and treated rather informally.  This is a mistake for both parties, as the lease/option is becoming commonplace in the courts and the source of a great deal of anguish.  There are a host of technical reuqirements that the instrument must meet in order to be enforceable.  Typically a home-made lease/option lies in a nether world where it is arguable whether the technical requirements are met.

The recent case Pardee v. Jolly is an example of the legal entanglements and uncertainty in which one finds oneself in entering into a home-made lease/option. Shortly after signing the nefarious thing, the parties found themselves in court.  The judge held that the document had been properly enforced and ordered the landlord/pwner to convey to the tenant.  The landlord/owner appealed and the court of appeals reversed the trial judge.  The tenant then appealed to the Washington State Supreme Court and the Court reversed the court of appeals, sustaining the trial judge in part and remanding for further proceedings.

In drafting an option one must satisfy the statute of frauds among other things.  This requires a full legal description and an adequate writing.  It should have virtually all of the elements of a valid purchase and sale agreement.  If formalities are observed the option must be exercised in conformance with the requirements of the option.