Women and Justice: Court: Supreme Court of West Virginia

Domestic Case Law

Thomas v. Morris Supreme Court of West Virginia (2009)

Domestic and intimate partner violence

The Court reversed the lower court and remanded to family court for entry of a protective order on behalf of petitioner.  Petitioner and defendant had been in a twelve year relationship that ended.  A year later, defendant made efforts to renew the relationship and began harassing petitioner with numerous phone calls, voice mail messages to her home and work phone and by making unannounced appearances at her workplace and home.  Defendant arrived at her home and didn’t leave the premises for approximately two hours.  During that time, he banged a three foot metal bar against her trailer.  She felt trapped in her home.  He routinely carried a concealed weapon, his car was blocking her driveway so that she couldn’t leave in her car and she did not have telephone service.  The lower court found that the defendant did not commit domestic violence because defendant remained outside the home during this time and plaintiff was not physically restrained or confined within her home.  In reversing the lower court, the Supreme Court stated that plaintiff did not have to show proof “of some overt physical exertion on the part of the alleged offender in order to justify issuance of a protective order.”  It held that domestic violence defined in West Virginia Code 48-27-202(3) (2001) as “[c]reating fear of physical harm by harassment, psychological abuse or threatening acts” provides that fear of physical harm may be established with (1) proof of harassment, (2) proof of psychological abuse, or (3) proof of overt or threatening acts.” 



State v. Mechling Supreme Court of West Virginia (2006)

Domestic and intimate partner violence

Appellant argued that the court wrongly allowed the admission of victim’s statements regarding alleged battery by the defendant after defendant was convicted of domestic battery.  The victim made statements to others and did not appear in court or testify at trial; therefore, appellant had no opportunity to cross-examine the victim.  The court held that the victim’s statements were “improperly admitted in violation of the Confrontation Clause of the Sixth Amendment to the . . . Constitution and Article III, Section 14 of the West Virginia Constitution.”  The lower court had permitted the state to introduce the victim’s statements made to two sheriff’s deputies.  The West Virginia Supreme Court held that these statements were testimonial and should not have been admitted into evidence under the Confrontation Clause.  Similarly, the victim’s statements to a neighbor were improperly admitted. The Court, however, noted that domestic violence cases are unique because victims rarely call the police or use the criminal justice system, and often fail to “cooperate with prosecutors because they fear retaliation.”  The Court conceded that the Confrontation Clause, therefore, gives defendants a “windfall” because domestic violence victims are “notoriously susceptible to intimidation….”  The Court therefore emphasized the “doctrine of forfeiture” under which “an accused who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.”



Roth v. DeFeliceCare, Inc. Supreme Court of West Virginia (2010)

Sexual harassment

Plaintiff brought a hostile work environment claim, among others.  She witnessed her supervisor and another employee in a compromising position.  Her supervisor threatened her with the loss of employment and her license if she shared what she had witnessed.  She promised to remain silent and shortly thereafter went on vacation.  When she returned, her supervisor fired her, stating that he did not like the way she dressed or styled her hair.  Plaintiff was an at-will employee at the time of termination.  Plaintiff alleged that she “was subjected to improper and sexually explicit conduct by her superiors … thereby creating a hostile and abusive environment in violation of the West Virginia Human Rights Act.”  To state a claim for 13 under the West Virginia Human Rights Act, a plaintiff must prove “(1) the subject conduct was unwelcome; (2) it was based on the sex of the plaintiff; (3) it was sufficiently severe or pervasive to alter the … [plaintiff’s] conditions of employment and create an abusive work environment, and (4) it was imputable on some factual basis to the employer.”  The Court also held that “an employee may state a claim for hostile environment 13 if unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature have the purpose or effect of unreasonably interfering with an individual’s work performance or creates an intimidating, hostile, or offensive working environment.”  The Court held that plaintiff sufficiently pled a cause of action for hostile workplace and overturned the lower court’s grant of a motion to dismiss.



State v. Harden Supreme Court of West Virginia (2009)

Domestic and intimate partner violence

Defendant shot and killed husband after a night of “domestic terror.”  Defendant claimed she acted in self-defense; however, the state argued that she unreasonably used deadly force and that she could have retreated from the danger.  The court held that the defendant was entitled to a self-defense jury instruction and that the evidence supported her claim of self-defense.  To claim self defense, the court explained, the defendant’s belief that she was at “imminent risk of bodily injury or death” must be “subjectively reasonable,” i.e., the defendant believed that his or her actions were necessary to “prevent death or serious bodily injury.”  In addition, defendant’s belief must be “objectively reasonable,” i.e., another similarly situated person could have “reasonably formed the same belief.”  The court held that even if the defendant could not claim self-defense, evidence of abuse can be used to negate elements of the charged offense.  The court also held that there is no duty to retreat (leave the home) if attacked by a co-occupant of a home.  After evaluating the extensive evidence the defendant presented of the abuse that occurred prior to the killing of her husband, the court concluded that she did have a reasonable basis to believe that she was at risk of death or serious bodily injury and that the danger was imminent.