The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

FIRST CASE ON THE COURT'S CALENDAR THIS MORNING IS HERZFELD VERSUS HERZFELD. COUNSEL, ARE YOU READY TO PROCEED?

THANK YOU. GOOD MORNING, YOUR HONORS. MY NAME IS SHARON KEGEREIS, AND I REPRESENT GARY HERZFELD. THE ISSUE THAT IS PRESENTED BY THIS CASE, BY THE THIRD DCA IN ITS DECISION, IS SHOULD THIS COURT ABOLISH THE DOCTRINE OF PARENTAL IMMUNITY, AND I WANT TO START BY REMINDING THE COURT OF ITS ADMONITION IN WADE V WADE, WHEN THIS COURT ABOLISHED SPOUSAL IMMUNITY. THIS COURT STATED THAT THE COMMON LAW WILL NOT BE ALTERED OR EXPANDED BY THIS COURT, UNLESS DEMANDED BY PUBLIC NECESSITY OR TO VINDICATE FUNDAMENTAL RIGHTS. AND WE WOULD ASSERT THAT, IN THIS INDICATES -- IN THIS CASE, PARENTAL I AM UNIT -- IMMUNITY SHOULD NOT BE ABOLISHED, BECAUSE IT IS NOT REQUIRED BY PUBLIC NECESSITY, AND IT IS NOT NECESSARY IN ORDER TO VINDICATE THE RIGHTS OF THE CHILD IN THIS CASE.

WAR OUR OPTIONS IN THIS CASE? WE ARE TALKING ABOUT THE ABOLITION OF CHILD AND PARENT IMMUNITY. WHAT ARE THE OPTIONS? THAT SOUNDS LIKE A RATHER BROAD CHANGE FROM THE PAST.

IT WOULD BE. IN FACT --

WHAT ARE OUR OPTIONS IN THIS REGARD?

IN THIS REGARD, YOUR HONOR, I THINK THAT THE APPROPRIATE PLACE TO ADDRESS WHETHER OR NOT PARENTAL IMMUNITY SHOULD REMAIN THE LAW SHOULD BE THE LEGISLATURE. WE ARE IN THE LEGISLATURE, AND ALL OF THE COMPETING SOCIETAL FACTORS CAN BE ADDRESSED, AND THERE IS A LOT OF CONSIDERATIONS. IF PARENTAL IMMUNITY IS TO BE CHANGED, AND WHAT. SHOULD IT TAKE.

WELL, IN THE PAST, IN SOME INSTANCES, WE VERY NARROWLY MADE EXCEPTIONS, WITH REFERENCE TO THE IMMUNITY DOCTRINE, FOR INSTANCE WITH REFERENCE TO INSURANCE. SO WHY COULDN'T A SIMILAR NARROW EXCEPTION BE CREATED IN A CASE LIKE THIS?

WELL, I THINK THAT IS WHAT THE THIRD DCA WAS ATTEMPTING TO DO, BY CARVING OUT AN EXCEPTION FOR CASES INVOLVING SEXUAL ABUSE, AND THE PROBLEM WITH THAT EXCEPTION WOULD BE THIS, THERE IS NO DISTINCT TORT OF SEXUAL ABUSE, SO IF THIS EXCEPTION IS CARVED OUT, IN EFFECT, THE COURT IS CREATING A NEW CAUSE OF ACTION, A NEW TORT, THAT WAS NOT -- THAT HAS NOT BEEN PREVIOUSLY RECOGNIZED AS A TORT SEPARATE FROM BATTERY OR --

WE ARE NOT CREATE AGO NEW TORT, ARE WE? THE TORT OR THE CAUSE OF ACTION HAS ALWAYS BEEN THERE. IT IS A MATTER OF WHETHER OR NOT YOU ARE GOING TO IMMUNIZE SOMEBODY BECAUSE OF THEIR RELATIONSHIP TO THE INJURED PARTY. ISN'T THAT WHAT YOU ARE TALKING ABOUT?

THAT IS CORRECT, BUT IN DECIDING THIS ISSUE ON THE PLEADINGS, YOU WOULD NECESSARILY HAVE TO MAKE A FACTUAL DETERMINATION AS TO WHETHER OR NOT THIS CAUSE OF ACTION, THIS SEXUAL ABUSE, IN FACT, OCCURRED, WHAT STANDARD OF PROOF SHOULD BE USED. NOW, ONE OF THE COURTS, AND I THINK IT WAS THE ALABAMA COURTS, THAT DID ABOLISH PARENTAL IMMUNITY. THEY ESTABLISHED A NEW, A NEW BURDEN OF PROOF. THEY SAID THAT SEXUAL ABUSE WOULD HAVE TO BE PROVEN BY CLEAR AND CONVINCING EVIDENCE, BEFORE PARENTAL IMMUNITY WOULD BE WAIVED, AND IN THAT PARTICULAR CASE, THEY, YOU KNOW, CARVED OUT A NEW PROCEDURAL MECHANISM, TO DEFINE AND CIRCYOU MEAN SCRIBE HOW -- AND CIRCYOU MEAN SCRIBE -- CIRCUMSCRIBE COULD BE VIEWED.

HOW DOES THAT TELL THAT AN ADULT WHO SEXUALLY ABUSES A MINOR SHOULD BE IMMUNIZED TO THAT MINOR. WHAT IS YOUR CASE FOR GRANTING IMMUNIZATION TO THAT ADULT?

WELL, I BELIEVE, YOUR HONOR, THE RIGHTS OF THE CHILD COULD BE VINDICATED COMPLETELY IN THE CRIMINAL JUSTICE SYSTEM, AND LET ME JUST ELABORATE, BECAUSE IS THERE A WIDE PANOPLY OF PROCEDURAL PROTECTIONS IN PLACE IN THE CRIMINAL JUSTICE SYSTEM. FIRST, THE CRIMINAL INVESTIGATORS ARE TRAINED TO INVESTIGATE SENSITIVE ISSUES SUCH AS CHILD ABUSE. THERE ARE PROCEDURAL PROTECTIONS IN THE CRIMINAL JUSTICE SYSTEM WHERE A CHILD VICTIM, FOR EXAMPLE, CAN TESTIFY BY VIDEOTAPE, INSTEAD OF BEING BROUGHT IN FOR DEPOSITIONS, AS THE CIVIL PROCEDURES WOULD REQUIRE.

OTHER VICTIMS, WHEN THEY HAVE BEEN VICTIMIZED IN SUCH AN EXTREME WAY, THROUGH OUR SYSTEM, TRADITIONALLY, ARE ENTITLED TO SOME TYPE OF COMPENSATION FOR BEING VICTIMIZED IN THAT WAY.

THAT'S CORRECT.

WHY SHOULDN'T A CHILD IN THIS SITUATION BE ENTITLED TO COMPENSATION FOR BEING VICTIMIZED?

THEY WOULD BE IN THE CRIMINAL JUSTICE SYSTEM. RESTITUTION IS NOT ONLY AVAILABLE BUT MANDATORY FOR VICTIMS OF ANY TYPE OF CRIME, SUCH AS SEXUAL ABUSE, AND ANY OTHER TYPE OF CRIMINAL CONDUCT WHICH CAUSES DAMAGE TO SAY THE VICTIM. WHAT I AM SAYING, JUSTICE ANSTEAD, IS THAT THE CRIMINAL LAWS ALREADY HAVE, IN PLACE, SUBSTANTIAL PROTECTIONS FOR CHILD VICTIMS OF SEXUAL ABUSE. THERE IS AN EXTENSION OF THE STATUTE OF LIMITATIONS, SO THE STATUTE OF LIMITATIONS TOLLS, UNTIL THE MINOR REACHS THE WAGE OF EMANCIPATION OR IS OUTSIDE THE FAMILY HOME. THAT IS ESSENTIAL PROTECTION.

IF YOU ARE TALKING ABOUT RESTITUTION AND COMPENSATION BEING AVAILABLE IN A CRIMINAL SETTING, THEN WHY SHOULDN'T IT BE AVAILABLE IN A CIVIL SET SOMETHING.

THAT'S CORRECT. WELL, YOUR HONOR, I THINK WHAT WILL HAPPEN, IF YOU MAKE A CIVIL CAUSE OF ACTION AVAILABLE TO A CHILD IN THIS RESPECT, THAT THERE IS A DANGER OF MANIPULATION IN THE -- AMONG, BETWEEN SPOUSES, THAT ALLEGATIONS OF CHILD ABUSE, UNFORTUNATELY, ARE ALL TOO COMMON IN DIVORCE ACTIONS. I THINK, IF THIS CAUSE OF ACTION IS RECOGNIZED BY A CHILD AGAINST THE PARENT, WE WILL SEE MORE CHILDREN IN DIVORCE ACTIONS, BRINGING THESE ACTIONS BY ONE PARENT OR ANOTHER, TO GAIN ADVANTAGE IN DIVORCE PROCEEDINGS, WHICH WOULD BE AN EXTREMELY UNFORTUNATE CONSEQUENCE. IN ADDITION, ONE OF THE RATIONALES FREQUENTLY CITED FOR MAINTAINING PARENTAL IMMUNITY IS GOING TO CAUSE DEPLETION OF THE FAMILY RESOURCES. FOR EXAMPLE MR. HERZFELD, IN THIS CASE, HAS TWO OTHER CHILDREN IN ADDITION TO THE STEPSON WHO IS RAISING THESE ALLEGATIONS. IF THIS STEPSON IS -- RECOVERS DAMAGES AND COMPENSATION, THE ENTIRE FAMILY RESOURCES MAY WELL BE DEPLETED AND DISPROPORTIONATELY DIRECTED TOWARD ONE CHILD.

ISN'T THAT AN ARGUMENT WHEN YOU CONCEDE THAT YOUR CLIENT WOULD FACE CRIMINAL CHARGES AND CERTAINLY IN TERMS OF IMPOSING CRIMINAL SANCTIONS? THE ABILITY TO PRODUCE RESOURCES TO SUPPORT THE FAMILY OR WHATEVER IS GOING TO BE DIMINISHED IN A MUCH MORE SEVERE WAY THAN WITH THE ALLOCATION OF DAMAGES FROM THE CIVIL SIDE.

WELL, YOUR HONOR, I THINK THAT IS CORRECT, AND IT SHOULD BE APPOINTED OUT THAT, IN THE CRIMINAL SYSTEM, IN THIS CASE, THERE HAS BEEN NO CRIMINAL COMPLAINT MADE. THE VICTIM DID NOT FOLLOW-UP, SO DO NOT CONCEDE, BECAUSE IT IS NOT PART OF THE FACTS OF THIS CASE, AND I THINK, AT A MINIMUM, THERE SHOULD BE A REQUIREMENT THAT THERE BE SUFFICIENT EVIDENCE, PROBABLE CAUSE EVIDENCE, THAT THESE ACTS REALLY WERE COMMITTED. THE DAMAGE OF BRINGING THIS TYPE OF LITIGATION THAT MAY NOT BE -- HAVE MERIT --

WHAT IS WRONG WITH OUR TRADITIONAL SYSTEM? JUDGES AND JURIES AND DISCOVERY AND ALL OF THOSE, HAVEN'T THOSE HELD US IN PRETTY GOOD STEAD? DON'T WE HAVE, IN THE CRIMINAL COURTS, DECISIONS LIKE THIS MADE FAIRLY AND PROPERLY EVERYDAY AND IN THE DOMESTIC RELATIONS SETTINGS, DECISIONS MADE ON ISSUES LIKE THIS EVERYDAY? ISN'T THE SYSTEM WORKING ALL RIGHT ABOUT THAT? IS THERE SOME INDICATION THAT IT IS NOT WORKING?

WELL, YOUR HONOR, I DON'T THINK THE COURTS WANT TO BECOME EMBROILED IN ISSUES OF FAMILY DISCIPLINE. IF PARENTAL IMMUNITY IS ABOLISHED, IT WILL OPEN THE DOORS OF THE COURT TO ANY ALLEGATIONS BETWEEN A PARENT AND A CHILD, REGARDING DISCIPLINARY ISSUES, REGARDING PARENTAL AUTHORITY.

THAT IS THE INITIAL QUESTION THAT I ASKED YOU, AS FAR AS WHAT OUR OPTIONS WERE, IN TERMS OF THIS CASE.

IF PARENTAL IMMUNITY IS COMPLETELY ABOLISHED, YOU ARE CORRECT, THAT IT WILL ALLOW ANY TYPE OF SUIT FOR TORT TO BE BROUGHT BETWEEN FAMILY MEMBERS. A SPANKING COULD TURN INTO A SUIT FOR BATTERY. A TIME OUT COULD TURN INTO A SUIT FOR FALSE IMPRISONMENT.

THAT IS NOT WHAT THE THIRD DISTRICT DID HERE, IS IT?

NO, THEY DIDN'T. THEY TRIED TO CARVE OUT AN EXCEPTION, AND THEY SAID IN SEXUAL ABUSE CASES, PARENTAL IMMUNITY WILL NOT BE RECOGNIZED.

NOW, THIS COMPLAINT WAS IN FOUR COUNTS, RIGHT?

THAT'S CORRECT.

AND THE FOURTH COUNT WAS FOR NEGATIVE SEXUAL ABUSE. IS THAT CORRECT?

THAT WAS THE COUNT, YOUR HONOR. I AM NOT SURE IF THAT IS THE PROPER CAUSE OF ACTION. WE ARGUED THAT IT WAS NOT. BUT SINCE THERE WAS NO LIABILITY INSURANCE, AND THE ONLY EXCEPTION THAT THIS COURT HAS RECOGNIZED IN ARDVARD, ABOLISHES PARENTAL -- IN ARRESTED V ARD, THERE IS NO PARENTAL I AM UNIT -- IMMUNITY.

THEN THE COURT MADE THE DETERMINATION THAT LIBERTY MUTUAL HOMEOWNERS POLICY WOULD NOT COVER THAT CAUSE OF ACTION?

THAT'S CORRECT, YOUR HONOR.

THAT WAS NOT DEALT WITH BY THE THIRD DISTRICT?

IT WAS NOT, YOUR HONOR. IT WAS NOT DEALT WITH. I THINK THEY ADDRESSED JUST WILLFUL TORT.

NOW, DID THIS SEXUAL ABUSE COUNT, DID IT -- WHAT WERE THE ULTIMATE FACTS UPON WHICH IT WAS BASED? I AM HAVING -- I AM INTERESTED IN YOUR ARGUMENT AS TO WHETHER THERE IS OR ISN'T A TORT RECOGNIZED IN FLORIDA, QUOTE, SEXUAL ABUSE. WERE ANY CASES CITED?

YOUR HONOR, NO, THEY WERE NOT. THE THREE COUNTS THAT WERE RAISED, I BELIEVE, ARE ASSAULT, BATTERY, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, SO THOSE ARE THE TRADITIONAL TORTS UNDER WHICH THIS ALLEGATION OF SEXUAL ABUSE WAS SUBSUMED. SO THAT THERE WASN'T A SPECIFIC ALLEGATION OF SEXUAL ABUSE. THERE IS NO SPECIFIC TORT OF SEXUAL ABUSE. THE -- THERE WAS NO DISCOVERY. THIS CASE WAS DISMISSED ON THE PLEADINGS, THEMSELVES, BASED UPON THE DOCTRINE. WE ARE TAKING THE PLEADINGS AS TRUE, FOR WHAT THEY SAY, BUT THERE WAS NO EVIDENCE TAKEN AT ALL, NO TESTIMONY, NO CASE LAW, SO THERE IS NO FACTS THAT, BASED ON THE RECORD BELOW, SO WE ARE DEALING SOLELY WITH THE ALLEGATIONS, AS PRESENTED IN THE COMPLAINT.

THIS PERSON, THE PLAINTIFF HERE, WAS ADOPTED CHILD?

THAT'S CORRECT.

WOULD THE IMMUNITY EXTEND, AS IT HAS BEEN DEVELOPED BY CASE LAW IN FLORIDA, IF IT -- IF THE PLAINTIFF HAD BEEN A STEPSON? IN OTHER WORDS WHERE THERE IS ACTUALLY NOT A LEGAL FAMILY RELATIONSHIP, OTHER THAN THROUGH THE MARRIAGE. HAS THE PARENTAL IMMUNITY BEEN EXTENDED TO STEPCHILDREN?

I BELIEVE SO. I HAVEN'T SEEN A SPECIFIC CASE ON THAT, BUT MY UNDERSTANDING IS THAT IT WOULD APPLY TO ANY DEPENDENT CHILD WITHIN THE CUSTODY --

NOW YOU ARE SAYING DEPENDENT. I AM SAYING JUST A STEPCHILD, SO WHERE THERE IS A -- THE CHILD IS ACTUALLY WITH THE MOTHER MOST TIMES BUT COMES OVER TO THAT FAMILY EVERY SO OFTEN.

NO. NO. THAT WOULD NOT APPLY. IT WOULD HAVE TO BE WITHIN THE CUSTODY AND CARE OF THE PARENT.

THERE HAS TO BE THE LEGAL RELATIONSHIP.

THAT'S CORRECT. AND THE REASON FOR THE IMMUNITY IS BECAUSE THERE IS A GREAT DEAL OF PHYSICAL CONTACT AND DISCIPLINE AND AUTHORITY, BY NECESSITY, BETWEEN PARENTS AND CHILDREN, AND IF THE COURTS ARE GOING TO REGULATE THE DEGREE OF PHYSICAL CONTACT THAT CAN TAKE PLACE, WE ARE GOING TO HAVE THE COURTS INTRUDING INTO WHAT HAS BEEN A TRADITIONALLY SACROSANCT AREA FOR PARENTS TO REGULATE THE AMOUNT OF DISCIPLINE AND HOW THEIR CHILDREN ARE GOING TO BE DISCIPLINED. PLAINLY IF THERE IS -- I AM SORRY.

THAT IS THE POLICY RATIONALE, AS DEVELOPED BY COURTS. THIS IS NOT -- YOU HAD NEXTED EARLIER -- YOU HAD MENTIONED, EARLIER, COMMON LAW DOCTRINE. THIS IS NOT A DOCTRINE KNOWN IN COMMON LAW. THIS IS SOMETHING THAT, SPECIFICALLY WITHIN THE LAST CENTURY, COURTS HAVE CREATED FOR SPECIFIC POLICY REASONS, CORRECT?

THIS IS DEVELOPED BY THE COURTS, IN THE COURSE OF THE COMMON LAW, AND THAT IS AN IMPORTANT POINT THAT I WANT TO ELABORATE ON. IN WADE V WADE --

I DO HAVE ANOTHER QUESTION I HAVE GOT TO ASK ABOUT THE DIFFERENT DEGREES. THE PERSON -- THE PLAINTIFF HERE WAS AN ADULT WHEN HE SUED. IS THAT CORRECT?

THE PLAINTIFF WAS AN ADULT WHEN HE BROUGHT THE SUIT. THE CLAIMS AROSE WHEN THE PLAINTIFF WAS NOT AN ADULT.

NOW, BUT, IF THE CLAIM, IF THE ASSAULT AND BATTERY OCCURRED WHEN HE WAS EMANCIPATED, IS THERE ANY IMMUNITY THEN?

NOT IF THE CLAIM AROSE, IF THE ASSAULT OCCURRED WHILE HE WAS EMANCIPATED.

SO I AM HAVING TROUBLE UNDERSTANDING, EVEN IF WE WERE NOT TO CHANGE THE DOCTRINE, WHY, WHEN THE LAWSUIT ARISES, AFTER THE CHILD HAS BEEN EMANCIPATEED, SO THERE IS NO MORE OF THE FAMILY DYNAMICS THAT YOU ARE TALKING ABOUT, SUBJECT TO DISCIPLINE, WHY THERE CAN BE ANY CONCEIVABLE DISRUPTION OF THE FAMILY, WHEN THE PERSON, AT THE TIME THEY BRING THE CASE, IS ALREADY AN ADULT AND IS OUTSIDE OF THE FAMILY SETTING.

WHAT THE IMMUNITY DOCTRINE PROTECTS IS THE FAMILY UNIT AND THE RESOURCES OF THAT FAMILY UNIT, DURING THE TIME THAT THE CHILD IS WITHIN THE CUSTODY AND CARE OF THE PARENT, AND IF THE CLAIMS AROSE DURING THAT TIME, PARENTAL IMMUNITY APPLIES. IF THE CLAIMS AROSE AFTERWARDS --

YOU DON'T SEE ANY ILLOGIC IN SAYING THAT, IF THE PERSON IS ALREADY EMANCIPATED, THAT THE SAME POLICY REASONS APPLY THAN IF THEY WERE A TEN-YEAR-OLD CHILD SUING FOR TIME OUT? YOU DON'T SEE THAT AS BEING AT INCONSISTENT?

NO. I WOULD NOT. BECAUSE ONCE THE CHILD IS EMANCIPATED, I THINK THE POLICIES WOULD NO LONGER APPLY, BUT IF I CAN JUST FOLLOW-UP ON AN EARLIER POINT, AND, AGAIN, SUGGEST THAT THE LEGISLATURE'S MOST APPROPRIATELY SUITED TO DEAL WITH THESE ISSUES, I WOULD POINT OUT THAT THIS COURT DID NOT ABOLISH SPOUSAL IMMUNITY, UNTIL THE LEGISLATURE HAD ALREADY RECOGNIZED A CAUSE OF ACTION FOR A SPOUSE TO SUE THE OTHER SPOUSE IN BATTERY. THERE HAVE BEEN BILLS CONSIDERED IN THE HOUSE ON THIS VERY ISSUE. THERE IS A NUMBER OF EVIDENTIARY SIRBS ISSUES -- ISSUES THAT HAVE TO BE CONSIDERED, AND ONE OF THESE ISSUES IS PROOF IS NECESSARY. SHOULD THERE BE A CRIMINAL CONVICTION BEFORE THE CHILD SHOULD SUE, SHOULD BE ENTITLED TO SUE, AND IF A CRIMINAL CONVICTION, I WOULD SUGGEST THAT THAT IS AN APPROPRIATE METHOD OF LIMITING THIS TYPE OF ACTION, THAT THE LEGISLATURE COULD ADDRESS. THE LEGISLATURE COULD, ALSO, ADDRESS LIMITS, IN TERMS OF COMPENSATION, TO DO OTHERWISE, I WOULD SUGGEST, WOULD EXPAND, GREATLY, THE REALM OF TORT LIABILITY, AND TO BRING THAT ACTION, MAKE ACTIONS BETWEEN CHILDREN AND PARENTS ALL TOO COMMON AND FOR CONDUCT WHICH, REALLY, SHOULD NOT BE DECIDED IN A JUDICIAL FORUM.

IF YOU WISH TO RESERVE SOME TIME FOR REBUTTAL, YOU MAY.

THANK YOU.

THANK YOU. MR. RASCHE.

-- MR. RASH.

MAY IT PLEASE THE COURT. MY NAME IS DAVID RASH, AND I REPRESENT THE APPELLEE, FRANK HERZFELD. WHILE I HEARD SOMEWHAT OF A PROCEDURAL HISTORY, THAT IS CORRECT. THE CORRECT PROCEDURAL HISTORY AS WE ARE HERE. WE ARE HERE ON A CERTIFIED QUESTION FROM THE THIRD DISTRICT, AND THE APPELLANT'S NOTICE TO INVOKE THIS COURT'S JURISDICTION. HOWEVER, WE WOULD ADD, TO THE FACTS, THAT WHETHER YOU TAKE THE ALLEGATIONS IN THE COMPLAINT AS TRUE OR WHETHER YOU VIEW THE FACTS, THE MINIMAL FACTS THAT WERE BROUGHT FORTH IN THE TRIAL COURT, IF YOU VIEW THOSE IN THE LIGHT MOST FAVORABLE TO FRANK HERZFELD, IT CLEARLY SHOWS THAT, AT THE TIME HE BROUGHT THIS LAWSUIT, HE WAS EMANCIPATEED, AND THAT IS IMPORTANT, AND I WILL GET TO THAT LATER, AS JUDGE PARIENTE HAD BROUGHT UP, BECAUSE THERE IS NO DISTINCTION BETWEEN AN EMANCIPATEED CHILD BRINGING A CAUSE OF ACTION FOR TOWARDS OR ANY TYPE OF TORT SUIT.

BEFORE WE GET INTO THAT, I AM CONCERNED ABOUT THE UNDERLYING ASPECT OF THIS CLAIM. AS I UNDERSTAND, THE THIRD DISTRICT'S MIGNON, IT SAYS -- OPINION, IT SAYS BECAUSE WE FIND NO JUSTIFICATION FOR PARENTAL IMMUNITY, WHERE A PARENT IS ACCUSED OF SEXUALLY ABUSING HIS OR HER CHILD. NOW IS THAT A ASSAULT AND BATTERY?

YES, SIR. YOUR HONOR THAT, IS A CLASSIC ASSAULT AND BATTERY.

WHAT IS YOUR FOURTH COUNT ABOUT NEGATIVE SEXUAL --

THE FOURTH COUNT IS A COUNT THAT WAS BROUGHT IN AN EFFORT TO, QUITE CANDIDLY, TO BRING IN LIABILITY INSURANCE, BECAUSE OF THE DOCTRINE.

IS THERE ANY CASE IN FLORIDA WHICH IS RECOGNIZED, A TORT, QUOTE, A NEGATIVE SEXUAL ABUSE?

NO. IN FACT THERE HIS CASE LAW, AND I CAN'T RECALL THE CASE, BUT IT SAYS THAT THE ARGUMENT IS THAT THE TORTFEASOR DOESN'T KNOW THAT HE IS CAUSING AN INJURY. THAT HE IS NEGATIVE. HE KNOWS -- HE IS SICK. AND HE IS ABUSING THIS CHILD, AND HE DOESN'T UNDERSTAND WHAT HE IS DOING, AND SO THERE WAS CASE LAW WHERE LAWYERS HAD COUCHED IT, IN TERMS OF A NEGLIGENCE COUNT. THAT WAS STRUCK DOWN BY THE COURTS, AND IT SAID THAT THE ACT IS INTENTIONAL, AND THEREFORE IT IS AN INTENTIONAL TORT. THAT WAS AN ALTERNATIVE COUNT THAT WAS RAISED IN THE COMPLAINT. ALBEIT CANDIDLY TO --

SO IS YOUR CONTENTION ONLY INVOLVED IN INTENTIONAL TORTS?

NO, YOUR HONOR. WE SUBMIT THAT THE DOCTRINE SHOULD BE COMPLETELY ABOLISHED, AND THERE IS NUMEROUS REASONS FOR THAT.

I AM CONCERNED ABOUT YOUR CAUSES OF ACTION, TO BEGIN WITH, BEFORE WE GET TO THE PARENTAL IMMUNITY. THE -- I HAVE -- I HAVE DIFFICULTY WITH A CONCEPT OF A -- WHERE WE ARE GOING, IF WE EVEN IMPLIEDLY RECOGNIZE A CAUSE OF ACTION FOR A NEGATIVE SEXULE ABUSE. -- FOR A NEGLIGENT SEXUAL ABUSE. DOES IT REQUIRE PENETRATION? IS IT ONE SEX-OTHER SEX HARASSMENT, OR WHAT DOES THAT MEAN?

I THINK THAT, IN THIS CASE, YOU DON'T HAVE TO RECOGNIZE A NEGATIVE CAUSE OF ACTION FOR SEXUAL ABUSE, IN ORDER TO ABOLISH THE DOCTRINE. THAT CASE WAS -- THAT CAUSE OF ACTION WAS THROWN OUT BY THE TRIAL COURT, ON A SUMMARY JUDGMENT MOTION, AND ALTHOUGH WE HAVE APPEALED THAT COUNT TO THIS COURT AND ARE ASKING THE COURT TO ABROGATE THE DOCTRINE COMPLETELY, I DON'T THINK THAT IT WOULD REQUIRE THE COURT TO IMPLIEDLY CREATE A CAUSE OF ACTION FOR NEGATIVE SEXUAL ABUSE. IN FACT, THE LEGISLATURE, IN 1992, PASSED OR AMENDED THE STATUTE OF LIMITATIONS, SECTION 9511, SECTION 7, AND IT SPECIFICALLY SAYS THAT, FOR INTENTIONAL TORTS, BASED UPON INCEST, WHICH IS A FAMILY RELATIONSHIP, OR ABUSE, AS FOUND IN THE STATUTES TO DEFINE THOSE TERMS, IT PROVIDES FOR A STATUTE OF LIMITATIONS, AND IT MAKES NO SENSE THAT THEY WOULD DO THAT WHILE, AT THE SAME TIME, REALIZING THAT THERE IS NO CAUSE OF ACTION FOR A CHILD AGAINST A PARENT FOR INCEST. BUT, AGAIN, I THINK THAT, BY ABROGATING THE DOCTRINE, THIS COURT WOULD NOT BE SANCTIONING CAUSES OF ACTION FOR NEGATIVE SEXUAL ABUSE, AND THERE HIS CASE LAW.

AND YOU ARE NOT ADVOCATING IT. IS THAT, IN ESSENCE, WHAT YOU ARE SAYING?

NOT ESPECIALLY, YOUR HONOR. THAT WAS AN ALTERNATIVE COUNT. WE FEEL THAT THE DOCTRINE SHOULD BE ABROGATED, BECAUSE AS WE ARE STEPPING INTO THE 21st CENTURY, AND WHEN YOU LOOK AT LEGAL AND LOGICAL AND EQUITABLE OR REASONABLE SCRUTINY OF THE DOCTRINE, IT SIMPLY SHOULD NOT BE APPLIED ANYMORE.

BUT THE IMPORTANCE OF THAT, TO ME, IS THE FACT THAT, IF WE ARE ONLY TALKING ABOUT INTENTIONAL TORTS, THEN WE ARE IN AN AREA IN WHICH THERE IS NO INSURANCE COVERAGE. IF WE ARE IN AN AREA IN WHICH THERE IS NO INSURANCE COVERAGE, THEN WE HAVE REALLY STEPPED MUCH FURTHER ALONG THE WAY THAN THIS COURT HAS DONE IN ARD VERSUS ARD, AND WE GET INTO THE QUESTION WHICH I WOULD LIKE FOR YOU TO ADDRESS, AND THAT IS THE POTENTIAL FOR ABUSE IN DOMESTIC RELATIONS SITUATIONS, USING CHILDREN AS WEAPONS AGAINST OTHER SPOUSES, BY THESE TYPES OF CLAIMS.

JUST TO RESPOND TO THAT SPECIFIC PART OF YOUR QUESTION, YOUR HONOR, CERTAINLY IN THE SPOUSAL IMMUNITY SITUATION, THE SAME ISSUE ARISES. AND IN DOMESTIC CASES, SPOUSES ACCUSE EACH OTHER OF ALL KINDS OF THINGS. AND THIS COURT HAD NO TROUBLE ABOLISHING THAT DOCTRINE, AND AS CHIEF JUSTICE HARDING STATED, AND IF I WOULD LIKE TO QUOTE HIM, IN HIS CONCURING OPINION IN THAT CASE, HE SAID THAT, BECAUSE THIS DOCTRINE IS NOT ROOTED IN COMMON LAW, IT WAS MADE BY THE COURTS, AND BECAUSE IT WAS CREATED BY THE COURTS, THE COURTS DO NOT HAVE TO DEFER TO THE LEGISLATURE, AND THEY CAN ABROGATE IT, AND THAT IS WHAT THEY DID IN THE SPOUSAL IMMUNITY, WHICH IS --

BUT WE DON'T HAVE ANY LONG HISTORY IN THE SPOUSAL IMMUNITY AREA, DO WE, OF ONE SPOUSE'S RIGHT TO DISCIPLINE THE OTHER SPOUSE? OR WE DO HAVE A LONG TRADITION OF THE RIGHT OF A PARENT TO DISCIPLINE THEIR CHILD.

THAT IS CORRECT.

POLICY WISE, WE EVEN HAVE LEGISLATION THAT HAS BARRED SCHOOL BOARDS FROM PROHIBITING CORPORAL PUNISHMENT IN SCHOOLS. IN TERMS OF DISCIPLINING CHILDREN. BUT WHAT ABOUT THIS SLIPPERY SLOPE THAT IS, THAT IF YOU OPEN THIS UP, THAT THE NEXT TIME A CHILD IS SPANKED BY ITS PARENTS, THAT IT, OBVIOUSLY, IF THAT PARENT SPANKED A NEIGHBOR'S CHILD, THERE WOULD BE A BATTERY THERE AND A CAUSE OF ACTION, AND SO IF WE COMPLETELY ABANDON THIS, THEN WHERE ARE WE GOING, AND HOW WILL YOU EVER BE ABLE TO DRAW LINES?

WELL, IF WE LOOK AT OTHER JURISDICTIONS AND LEGAL SCHOLARS AND HISTORICALLY WHAT THE DOCTRINE HAS DONE, CERTAINLY THERE IS NO SLIPPERY SLOPE. IN FACT, AND THESE ARE SOME OF THE OPTIONS THAT YOU ARE TALKING B THE COURT COULD ABOLISH THE DOCTRINE, AS TO INTENTIONAL TORTS, AND CERTAINLY A NUMBER OF STATES, AT LEAST 18, HAVE DONE THAT VERY THING. 13 STATES HAVE COMPLETELY ABOLISHED IT OR NEVER ADOPTED IT.

SO WHAT DO WE DO IN THE ANALOGY THAT I JUST GAVE YOU? THAT IS THAT THE NEIGHBOR'S CHILD IS SPANKED. THERE IS A CAUSE OF ACTION FOR BATTERY. YOU SPANK YOUR OWN CHILD. WE ABOLISH THE DOCTRINE. THERE IS A CAUSE OF ACTION FOR BATTERY?

WELL, THERE -- TECHNICALLY THERE WOULD BE A CAUSE OF ACTION, BUT THAT IS WHAT THE SYSTEM IS HERE FOR, AND THE LAWYERS AND THE JUDGES AND THE COURTS AND THE JURIES CAN DECIDE THOSE CASES, JUST AS THEY CAN DECIDE A MINOR IMPACT AUTOMOBILE --

HOW WOULD A JUDGE AND AN INJURY DECIDE THAT? WHAT INSTRUCTIONS WOULD THEY BE GIVEN ABOUT THE LAW?

THE SAME INSTRUCTIONS THAT YOU FIND IN ANY INTENTIONAL TORT CASE.

SO --

BURDEN OF PROOF.

IN ONE FELL SWOOP, A PARENT COULD NOT PHYSICALLY DISCIPLINE THEIR CHILD ANY LONGER.

THAT IS NOT TRUE, YOUR HONOR.

WELL, HELP ME THEN. YOU JUST SAID THAT, IF IT IS GOING TO BE TREATED THE SAME AS IF THE PARENT SPANKED THE NEIGHBOR CHILD, THAT IS A BATTERY, THEN WHERE ARE WE GOING TO DRAW LINES?

WE ARE FORGETTING ONE ELEMENT YOU HAVE TO PROVE, AND THAT IS DAMAGES. CERTAINLY A CASE WHERE YOU BRING A CAUSE OF ACTION, AND THERE IS NO DAMAGES FROM A MERE SPANKING, IT WOULD BE A CASE THAT MAY NOT MAKE IT TO THE JURY, BUT I KNOW THIS COURT HAS A TIME-HONORED TRADITION OF PROTECTING CHILDREN AND PROTECTING, AT THE SAME TIME, PROTECTING A PARENT'S RIGHT TO DISCIPLINE THEIR CHILD AND TO, I MEAN, IT IS IN THE CONSTITUTION. THEY HAVE A RIGHT TO PRIVACY. AND THE RECENT CASE, BY JUDGE PARIENTE, THAT SHE WROTE THE DECISION IN THE -- NOT ALLOWING GRANDPARENTS OR DECIDING THE UNCONSTITUTIONALITY OF THE STATUTE PERMITTING GRANDPARENTS TO HAVE ACCESS TO THE CHILDREN, IN THAT CASE, AGAIN, THE COURT STRESSED THAT YOU HAVE TO HAVE A COMPELLING SUSTAINED INTEREST TO INTERFERE, AND CERTAINLY WHEN THERE IS A THREAT OF HARM OR DANGER TO THE CHILD, THAT HAS ALWAYS BEEN DECIDED BY THIS COURT TO BE A COMPELLING STATE INTEREST, BUT WE ARE GETTING OFF THE ISSUE HERE, BECAUSE THE ISSUE IS THE ABROGATION OF THIS DOCTRINE AND ALLOWING CHILDREN ACCESS TO THE COURTS, IN ORDER TO COMPENSATION FOR DAMAGES CAUSED BY THEIR PARENTS, WHICH HERETOFORE THEY HAVE NOT BEEN ABLE TO DO, AND --

JUSTICE SHAW --

BY CARVING OUT EXCEPTION AFFECTION EPINGS, WE ARE UNDERMINING THE DOCTRINE, TO BEGIN WITH, AND LEGAL SCHOLARS FOLLOW THAT ALL THE TIME. IT IS JUST SIMPLY A SITUATION WHERE --

COUNSEL, JUSTICE SHAW WANTED TO ASK A QUESTION.

I AM SORRY.

YOU ARE CORRECT THAT THE DOCTRINE IS COURT MADE, AND WE DO NOT NECESSARILY HAVE TO DEFER TO THE LEGISLATURE, BUT AS A PRACTICAL MATTER, WHAT YOU ARE PROPOSING IS SO FAR-REACHING, AND IT TOUCHES AND CHANGES THE LAW SUBSTANTIALLY. IT AFFECTS INSURANCE. IT AFFECTS FAMILY RELATIONSHIPS. IT IS VERY FAR-REACHING. AS A PRACTICAL MATTER, WHY ISN'T IT BEST TO LEAVE THIS TO THE LEGISLATURE? WHY WOULDN'T THAT BE THE BETTER PRACTICAL APPROACH TO IT? THEY ARE IN A BETTER POSITION TO DO FACT FINDING AND FEEL THE TEMPERMENT OF THE STATE OF FLORIDA AND DETERMINE WHICH WAY WE WANT TO GO, AS A STATE.

WITH ALL RESPECT, THAT CERTAINLY WASN'T THE ANALYSIS IN THE SAME SPOUSAL IMMUNITY DOCTRINE. IN THAT CASE, THE COURT TOOK IT UPON THEMSELVES TO ABROGATE THE DOCTRINE THAT WAS CREATED BY COMMON LAW, THE SAME AS THIS CASE, BUT I THINK THIS COURT HAS THE CASE BEFORE IT, AND IT IS TIME TO ABOLISH THIS DOCTRINE.

AND WHAT IS CHANGED?

WELL, WHAT IS CHANGED, OVER THE TIME, IS THE FACT THAT, WHEN YOU SCRUTINIZE THE PUBLIC POLICY REASONS BEHIND THE DOCTRINE, THEY SIMPLY DON'T STAND UP.

AND THE PUBLIC POLICY REASONS ARE?

MAINTAINING FAMILY HARMONY AND PROTECTING FAMILY ASSETS. THOSE ARE THE CORE REASONS. THERE ARE OTHER REASONS, BUT THOSE ARE THE TWO THAT ARE --

AREN'T YOU REALLY SAYING THAT, WHAT WE WOULD BE SAYING -- AREN'T YOU SUGGESTING, AND WHAT WE WOULD BE SAYING, IS THAT THE POLICY WAS NEVER GOOD, TO BEGIN WITH.

I AGREE WITH THAT, YOUR HONOR. I THINK THAT, OVER TIME, AND IF YOU LOOK AT OTHER JURISDICTIONS, ALL THE LEGAL SCHOLARS, THE AMERICAN LAW INSTITUTE, THEY ALL SIDE IN FAVOR OF ABROGATING THE DOCTRINE. THE MAJORITY OF JURISDICTIONS HAVE EITHER ABOLISHED IT OR CARVED OUT EXCEPTIONS, SO THAT IT IS BASICALLY --

AREN'T WE DEALING IN A SITUATION DIFFERENT FROM THAT WE DEALT WITH IN WADE, BECAUSE THERE HAD BEEN A NUMBER OF CHANGES ADDRESSED, BECAUSE OF, CHANGES IN THE DOCTRINE BECAUSE OF CHANGES IN CIRCUMSTANCES, AND BECAUSE OF LEGISLATION.

WELL, I DON'T THINK THAT WAS THE BASIS BEHIND THE COURT'S DECISION. THE COURT SIMPLY FOUND THAT IT WAS NO BASIS FOR UPHOLDING THE SPOUSAL IMMUNITY DOCTRINE, ON THE BASIS OF MAINTAINING THE FAMILY --

IT HAD BEEN PRETTY WELL CHIPPED AWAY, AND THERE WAS JUST A VERY THIN THREAD HOLDING IT TOGETHER, AT THE TIME WE VIEWED IT UNDER WADE. ISN'T THAT CORRECT?

I THINK THAT YOU CAN CALL IT THAT, BUT I DON'T THINK IT IS THE SAME IN THIS CASE, BECAUSE THE DOCTRINE HAS BEEN -- THERE IS AN EXCEPTION TO THE EXTENT THAT INSURANCE APPLIES, AND CERTAINLY I DON'T KNOW IF INSURANCE WOULD BE AFFECTED PARTICULARLY, BECAUSE THERE IS NO INSURANCE COVERAGE FOR SBONKSAL TORT ACTS, AND IN FACT, AFTER THE EXCEPTION WAS CARVED OUT IN THE ARD CASE, INSURANCE COMPANIES AMENDED THEIR POLICIES, TO PROVIDE FOR EXCLUSIONS FOR FAMILY CAUSE OF ACTION.

LET ME ASK A QUESTION. WE ARE DEALING HERE, WITH A SITUATION WHERE AN ADULT CHILD IS BRINGING AN ACTION. IS IT YOUR POSITION THAT, IF WE CHANGE THIS IMMUNITY, THAT WE, WE WOULD ALLOW MINOR CHILDREN TO BRING AN ACTION FOR BATTERY OR SEXUAL ABUSE, WITH THE NEXT OF KIN OR THE OTHER PARENT STANDING IN THE STEAD OF THAT CHILD?

WELL, TRADITIONALLY THAT HAS BEEN THE CASE, WHEN A CHILD, A MINOR CHILD, SUES, BUT THERE ARE OTHER ALTERNATIVES. THERE CAN BE GUARDIAN AD LITEMS APPOINTED TO REPRESENT THE CHILD, BUT THAT IS A MINOR IMPOSITION, WHEN WE ARE TALKING ABOUT OPENING THE COURT'S DOORS TO A CHILD, TO HAVE A CHILD COME IN AND CLAIM HIS RIGHT TO ACCESS, AND FOR REMEDY, FOR THE DAMAGES HE HAS SUSTAINED AT THE HANDS OF HIS PARENT.

IF WE DECIDE, TOO, TO MOVE IN THIS AREA, DOES IT MAKE MUCH SENSE TO JUST SAY THAT, IN THE INSTANCE OF SEXUAL ABUSE, THAT THIS WOULD BE THE NARROW EXCEPTION? DOES THAT MAKE SENSE? ISN'T THAT PRETTY ARTIFICIAL? WELL, THAT IS THE PROBLEM WITH CARVING EXCEPTIONS, YOUR HONOR. ON A CASE BY CASE BASIS, AND THAT IS WHY, OVER TIME, THIS DOCTRINE HAS SUFFERED THAT SAME FATE. YOU KEEP CARVING EXCEPTIONS, AND EVENTUALLY THE RATIONALE BEHIND THE DOCTRINE SIMPLY DOES NOT EXIST. AND WEAKENS IT TO THE POINT WHERE THERE IS NO USEFUL PURPOSE IN MAINTAINING THE DOCTRINE, BUT IN THIS CASE, IF THE COURT DECIDES TO DO THAT, THAT WOULD BE ACCEPTABLE TO THE APPELLEE, FRANK HERZFELD.

YOU WERE SAYING, AT THE VERY BEGINNING OF YOUR ARGUMENT, YOU WERE MENTIONING WHAT I HAD ASKED YOUR OPPONENT ABOUT, WHICH WAS THAT HE IS EMANCIPATEED AT THIS TIME. ISN'T THERE -- DO YOU SEE A VERY STRONG DISTINCTION BETWEEN AN EMANCIPATEED ADULT BRINGING A CLAIM, EVEN IF THE ACTION, EVEN IF THE CONDUCT OCCURRED DURING THE CHILDHOOD, THAN A MINOR CHILD BRINGING THE CLAIM?

NO, YOUR HONOR, AND THAT IS BECAUSE, I BELIEVE, THE DOCTRINE, ITSELF, IS FLAWED, FROM THE BEGINNING, BUT CERTAINLY AS THE APPELLANT POINTED OUT, THERE IS AN ARGUMENT THAT IT INVADES THE PARENTAL DISCRETION IN DISCIPLINING THEIR CHILD.

I AM NOT SURE I UNDERSTAND. I MEAN I GUESS WHAT I AM STILL TRYING TO UNDERSTAND IS HOW DOES, IF AN EMANCIPATED CHILD IS SUING THEIR ADOPTED PARENT, WHERE COULD THE POLICY REASON BE THAT THERE IS A CONCERN THAT THERE IS A DISRUPTION IN THE HARMONY OF THE FAMILY?

THAT IS THE POINT, YOUR HONOR. THERE ISN'T A DISTINCTION.

SO YOU WOULDN'T WANT, IF WE WERE TO -- AN ALL OR NOTHING, OR WOULD YOU BE, FOR THIS CASE, SATISFIED TO SAY, WELL, IF THEY ARE EMANCIPATEED, ESPECIALLY IN LIGHT OF THE LEGISLATURE HAVING EXTENDED THE STATUTE OF LIMITATIONS FOR INCEST, WHICH SEEMS TO BE INDICATIVE OF THE LEGISLATURE ASSUMING THAT THE CHILD COULD SUE, AND ALLOWING THEM TO BE ABLE TO SUE WHEN THEY BECAME EMANCIPATEED, THAT THAT AT LEAST IS ONE IN ROAD, IF NOT THE WHOLE BALL OF WAX.

THAT IS ONE OPTION, YOUR HONOR, AND WE WOULD ACCEPT THAT.

THAT SEEMS CONSISTENT, AT LEAST, WITH CERTAINLY THAT PART IS CONSISTENT WITH WHAT THE LEGISLATURE WAS DOING, WHEN THEY EXTENDED THE STATUTE OF LIMITATIONS, TO ALLOW A CHILD TO BRING AN ACTION FOR SEXUAL ABUSE, AFTER THEY WERE EMANCIPATED. CORRECT?

THAT IS THE LOGICAL -- THAT IS THE -- IN MY OPINION, THE SAME. THAT IS CORRECT.

AS FAR AS THE POLICY REASONS, AND ESPECIALLY AS IT PERTAINS TO SEXUAL ABUSE, SINCE THIS DOCTRINE WAS FIRST ADOPTED BY THE COURT, HAVE WE NOT SEEN AN ENTIRE REVOLUTION, REALLY, IN WHAT WE UNDERSTAND ABOUT THE TERRIBLE CRIME OF SEXUAL ABUSE, THAT MAY GO ON AND SCAR A CHILD FOR THEIR LIFETIME, AND MANY CRIMINAL LAWS THAT HAVE BEEN ADOPTED IN THE LAST 20 YEARS, TEN YEARS, TO PROTECT CHILDREN FROM JUST THIS HARM?

I AGREE, AND THAT ANSWERS THE QUESTION THAT, I BELIEVE, CHIEF JUSTICE HARDING ASKED ME. HAVE CIRCUMSTANCES CHANGED. AND YOU MADE THAT ARGUMENT FOR ME, YOUR HONOR, AND THAT IS SOMETHING THAT HAS CHANGED, OVER THE TIME FROM THE BEGINNING OF THIS DOCTRINE, AND THIS COURT HAS ACTUALLY NEVER ADDRESSED THIS ISSUE, ESPECIALLY AS IT INVOLVES INTENTIONAL TORTS.

BUT THERE WAS SOME VERY GOOD REASONS FOR THE DOCTRINE. AND FOR YEARS, IT HAS SERVED A PURPOSE. AT LEAST MANY STATES, MOST STATES, FELT, FOR YEARS, THAT IT SERVED A PURPOSE, AND IF YOU ABOLISH IT, HOW DO YOU ADDRESS THOSE CONCERNS THAT INITIALLY ARE BROUGHT ABOUT IN THE DOCTRINE?

WITH ALL RESPECT --

DISRUPTION OF THE FAMILY, AND IT IS A LITANY OF THING THAT IS BROUGHT ABOUT THE DOCTRINE IN THE FIRST PLACE. WHAT WOULD YOU DO WITH THOSE? HOW WOULD YOU ADDRESS THOSE?

WITH ALL RESPECT, I DON'T THINK THAT THERE IS ANY EVIDENCE TO SUPPORT THAT IT DID SERVE AN USEFUL PURPOSE, TO BEGIN WITH. THOSE UNDERLYING REASONS FOR THE DOCTRINE HAVE, UNDER SCRUTINY, JUST DON'T HOLD ANY WEIGHT. THE FAMILY HARMONY IS DISRUPTED, CERTAINLY, BY A CRIMINAL PROCEEDING, IF THAT IS THE ONLY BASIS A CHILD HAS. THE PARENT GOES TO JAIL. THERE IS NO INCOME AT ALL FROM THAT PARENT. THE CHILD IS REMOVED FROM THE FAMILY HOME, AND IT MAY BE PLACED IN STATE CUSTODY. IF THAT IS NOT FAMILY DISRUPTION, I DON'T KNOW WHAT IS, BUT THE POINT IS THE UNDERLYING BASIS OF MAINTAINING FAMILY HARMONY AND PROTECTING FAMILY ASSETS, AS THE THIRD DISTRICT POINTED OUT, SIMPLY DOES NOT HOLD WATER, AND THE DOCTRINE SHOULD BE ABOLISHED.

THANK YOU, COUNSEL. REBUTTAL?

I JUST WANT TO BRIEFLY SAY THAT I THINK THAT THE OBSERVATION THAT WAS MADE THAT YOU ARE GOING -- YOU ARE GREATLY EXPANDING THE REALM OF TORT LIABILITY FOR PARENTS AND THEIR CHILDREN, IS WHAT WOULD OCCUR, IF PARENTAL IMMUNITY IS COMPLETELY ABOLISHED.

HOW DO YOU DEAL WITH THE STATUTE OF LIMITATIONS ISSUE, IF IT WERE NOT CONTEMPLATED THAT THERE BE SOMETHING OF THIS NATURE?

THE STATUTE OF LIMITATIONS ISSUE, I THINK, EXISTS ON THE CRIMINAL SIDE, AND WHAT IT PERMITS IS FOR A CRIMINAL COMPLAINT TO BE BROUGHT WHEN, AFTER THE CHILD REACHES THE AGE OF EMANCIPATION, AND ALL OF THOSE PROCEDURAL PROTECTIONS, I WOULD SUBMIT, ALLOW THE CRIMINAL COURT SYSTEM TO DEAL WITH THESE ISSUES OF SEXUAL ABUSE MUCH BETTER THAN THE CIVIL COURTS COULD EVER DO.

SO IT IS YOUR VIEW THAT THE STATUTE OF LIMITATIONS ISSUE IS CRIMINAL NOT CIVIL INNATE AT ALL.

I BELIEVE IT IS TRUE ON THE CRIMINAL SIDE. I AM NOT FAMILIAR WITH THE CIVIL STATUTE OF LIMITATIONS, BUT I KNOW IT IS TRUE ON THE CRIMINAL SIDE. IF I COULD JUST BRIEFLY DISTINGUISH WADE V WADE, WHEN THIS COURT ABOLISHED SPOUSAL IMMUNITY, THERE WAS ALREADY LEGISLATIVE INTENT TO ALLOW ONE SPOUSE TO SUE THE OTHER SPOUSE FOR BATTERY. THE BASIS FOR SPOUSAL IMMUNITY WAS THE HUSBAND AND WIFE WERE CONSIDERED TO BE ONE LEGAL UNIT. THAT WAS NEVER THE RATIONALE FOR PARENTAL IMMUNITY. THE RATIONALE FOR PARENTAL IMMUNITY IS THERE IS A GREAT DEGREE OF DISCRETION IN HOW PARENTS DISCIPLINE THEIR CHILDREN, AND THIS REALM OF PARENTAL AUTHORITY HAS BEEN RECOGNIZED AND HAS BEEN AN AREA IN WHICH THE COURTS HAVE HISTORICALLY NOT WANTED TO INTRUDE.

IF WE ARE INTERESTED IN LIMITING THE SPOUSAL IMMUNITY, THE PARENT-CHILD IMMUNITY IN SOME WAY, WHAT WOULD BE YOUR SUGGESTION, SHORT OF COMPLETE ABOLISHMENT?

WELL, YOUR HONOR, I THINK THAT, IT IS SOMETHING THAT THE LEGISLATURE NEEDS TO ADDRESS, BECAUSE THERE ARE SO MANY WAYS IN WHICH --

BUT IN THIS PARTICULAR CASE.

LET ME END THIS, BECAUSE I THINK THERE IS -- YOU COULD RECOGNIZE, FOR EXAMPLE, AN AREA OF PARENTAL PRIVILEGE, AND SCOPE OUT EXACTLY WHAT A REASONABLE PARENT WOULD DO.

BUT IN THIS PARTICULAR CASE, IF WE ARE GOING TO MAKE SOME ADJUSTMENT TO THE PARENT-CHILD IMMUNITY, WHAT WOULD YOU SUGGEST?

IN THIS -- THIS POINTS OUT WHY THE JUDICIARY IS NOT WELL SUITED TO DOING THIS, BECAUSE THE ONLY THING THIS COURT CAN DO, WITH RESPECT TO THIS CASE, IS TO SAY THAT THE CAUSES OF ACTION BROUGHT BY THE PLAINTIFF CAN STAND. THOSE CAUSES OF ACTION ARE ASSAULT, BATTERY, AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. IF YOU ALLOW THOSE CAUSES OF ACTION TO STAND, THAT WILL MEAN THAT ANY CHILD WHO IS SPANKED, ANY CHILD WHO --

THERE IS NOTHING SHORT OF COMPLETE ABOLISHMENT?

I BELIEVE THAT MY WORTHY OPPONENT HAS, ALSO, SAID THAT COMPLETE ABOLISHMENT IS WHAT HE IS ADVOCATING, AND THAT THAT WILL, BY NECESSITY, OCCUR.

LET ME JUST ASK, SO YOU ARE NOT FAMILIAR WITH 9511, SUBSECTION 7, THAT TALKS ABOUT INTENTIONAL TORTS, BASED ON ABUSE AND EXTENDS THE STATUTE OF LIMITATIONS FOR ACTIONS FOUNDED ON ALLEGED ABUSE OR INCEST, THAT THEY MAY BE COMMENCED AT ANY TIME WITHIN SEVEN YEARS AFTER THE AGE OF MAJORITY?

AS READ THE STATUTE, I THINK THE STATUTE WOULD APPLY NOT SIMPLY TO A FAMILY UNIT, BUT TO ANY CHILD THAT HAD BEEN ABUSED BY ANOTHER THIRD PARTY.

INCEST IS HAVING A SPECIFIC TERM WEIGHTED TO FAMILIAL --

IT RAISES THE QUESTION YOU RAISED BEFORE. INCEST COULD OCCUR, REGARDLESS OF WHETHER THE CHILD WAS LIVING WITH THE PARENT OR NOT. PARENTAL IMMUNITY, I THINK, REQUIRES THE CHILD TO BE UNDER THE CARE AND CONTROL OF THE PARENT, AT THE TIME OF THE CLAIM ARISES.

THANK YOU, COUNSEL. THANKS TO BOTH OF YOU FOR ASSISTANCE.

THANK YOU.