Saturday, 6 September 2008

Marriage and sex- part one

Sex as we know can be a lot of fun, but can be at the centre of a lot of misery when marriages breakdown. In two recent cases, it was the nature of the sex that was at the centre of the marriages falling apart.

It's also the case that when marriages fall apart, both former spouses and their lawyers typically think that the only ways to get money from their former spouses is under the Family Law Act or in child support. These two cases are timely reminders that it ain't necessarily so...

If you can prove sexual assault, then you might be able to obtain damages...
Case 1 is below. Case 2 will be posted tomorrow.

Case 1: The Viagra case from New South Wales

In the recent New South Wales Court of Appeal decision in Varmedja v Varmedja, the husband, who was 80, was a Serbian-Australian who sponsored his wife, who was 53, to come out from Serbia. She was initially reliant on her husband for everything- she could not speak English and they lived on a rural property.

At first things went well, and she was happy. And then things went quickly awry, when according to the wife the husband got a supply of Viagra from his doctor.

And then:

Following that, her life became an extremely unhappy one. The reason for that according to the [wife] is that when the [husband] began to use Viagra, his erections were much stronger and his penis much larger than she had been accustomed to, and he took much longer to ejaculate and she found vaginal intercourse very painful. Further, she says, he made it known to her at that time that he gained sexual excitement from having anal and oral sex, and he desired now to begin to have both of those forms of sexual activity as well. Because of the change in his penis size and the longer time he took to climax she now began to suffer vaginal bleeding following intercourse. As to his pursuit of anal and oral sex, she says she did not want it or enjoy it. She told him she no longer wanted vaginal sex and did not want anal or oral sex. But he began to engage in very threatening behaviour to make her comply with his sexual wishes. He threatened to kill her or to have her deported or killed. In connection with the threats to kill, he told her that he had killed a fiancée he had once had in Serbia when she had danced with someone who was inappropriate. She says he began to beat her, using for that purpose items such as a stick, a curtain rod, or a shotgun. Occasionally he would point the barrel of the shotgun at her head while making his threats. On one occasion he threw lighted matches at her body and the matches burned her. On another occasion he drove their car in an erratic fashion until it hit a tree, at the same time explaining to her that that was how easy it would be to have her punished. Then there was an occasion when he cut off her hair when she displeased him. Finally, on 21 September 2002, she told him she was leaving. His response was to attempt to strangle her.

By reason of the threats, she said, she did comply with his requests for anal and oral sex and his ongoing requests for vaginal sex. By reason of the sexual acts she suffered anal pain and bleeding and continued to have vaginal bleeding and vaginal pain, and suffered a great deal of humiliation.


Ultimately the trial judge found that there had been 200 acts of vaginal intercourse without consent, and 25 acts each of oral and anal intercourse without consent.

The husband had also hit the wife with a gun or pointed it at her over 30 times. On another occasion the husband assaulted the wife with a curtain rod, the wife saying that it broke during the assault.

The wife was awarded a total of $232,000+: including $150,000 compensatory damages, $25,000 aggravated damages and $50,000 for exemplary damages.

The wife made few complaints about the assaults, which became a defence of the husband. The trial judge noted that when the wife went to see doctors, the husband accompanied her, to act as her interpreter, so it was unlikely that she would complain. The wife also gave unchallenged evidence that she would not tell a counsellor about the sexual assaults as she was afraid of being killed, a threat which she said he had made on at least 60 occasions.

The wife left, moved into a refuge and then obtained an apprehended violence order, to which the husband consented without admission.

The husband surrendered the gun for which he did not have a licence, but appears to have kept the other gun.


Property settlement proceedings were then commenced in the Federal Magistrates Court, which settled. It appears that there was vague reference to the assaults in that case, but nothing specific. The wife did not realise then that she could sue for damages for the assaults as well as obtain property settlement.

The husband defended the claim on the basis that it was out of time (for which he was ultimately unsuccessful).

As to the award of exemplary damages of $50,000, Tobias JA (with whom the other judges agreed)said:

The [husband] submitted that an award of exemplary damages can apply only where the conduct of the defendant merits punishment which is only where his conduct is wanton or it discloses fraud, malice, violence, cruelty, insolence or the like or, as it is sometimes described, where the defendant acts in contumelious disregard of the plaintiff’s rights. The [husband]’s conduct was so described by his Honour and rightly so. He further submitted that the primary judge had focussed on the [husband]’s conduct towards the [wife] in deciding to award both aggravated and exemplary damages and had thus engaged in double counting. The submission was made, which I would reject, that his Honour did not differentiate between the two heads of damages....
In the present case, that conduct [by the husband] was high handed, outrageous and showed complete contempt for the rights and feelings of the [wife]. It was malicious and deliberate. The [wife] was forced to undergo and undertake humiliating sexual acts without her consent and in circumstances where she was threatened with dire consequences if she did not succumb to the [husband]’s demands. A stronger case for exemplary damages is difficult to imagine.


Comment:

Whilst I do not dispute for a second the wife's analysis that it was the taking of Viagra that changed things for her, the reality of domestic violence is that it often involves sexual assault, and control, that there is often a honeymoon phase at the beginning of a relationship before it commences, and features of isolation- by being on a farm, not speaking English and having to rely on her abuser to communicate, and being threatened with deportation if she did not agree, are all depressingly familiar.

Whilst this case at first looks impressive for what it has achieved at some level ie the wife was viciously assaulted and as a result the husband has to pay over $230,000in damages, it remains the case that the finding of the trial judge was that the wife was sexually assaulted over 250 times, making the amount of damages payable per sexual assault at less than $1000.

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