# Barnes v. Barnes

> Indiana Court of Appeals · February 19, 1991 · 566 N.E.2d 1042

URL: https://www.frixlaw.com/law-library/cases/9717491

## Case

- **Full name:** John E. BARNES, III, Appellant (Defendant Below), v. Polly Anna BARNES, Appellee (Plaintiff Below)
- **Court:** Indiana Court of Appeals
- **Decided:** February 19, 1991
- **Citations:** 566 N.E.2d 1042; 1991 Ind. App. LEXIS 215; 1991 WL 22396
- **Precedential status:** Published
- **Opinion:** Dissent by Conover
- **Judges:** Staton, Garrard, Conover
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

*1046 CONOVER, Judge,
dissenting.
I respectfully dissent.
A young girl has been repeatedly raped, sodomized, forced to perform fellatio, maliciously bitten, and brutalized over a 4 day period while held hostage by an adult rogue male run amok. The majority would apply the parental immunity doctrine, exempting him from liability and the civil punishment the jury imposed upon him for this unspeakable outrage simply because the perpetrator was the child's natural father. I dissent from this view because I believe (a) the parental immunity doctrine currently does not grant civil immunity to parents who perpetrate sexual felonies upon their children, and (b) even if that were true, the facts here put this case clearly within a recognized exception to that doctrine.
The purpose of the parental immunity doctrine is to preserve domestic peace and tranquility, proper parental discipline and control, and family unity and harmony. 67A C.J.S. Parent & Child § 129, p. 508. Because the family unit is the foundation upon which any civilized society builds, preservation of that unit is in the public interest. Society among other things relating to child rearing recognizes the need for parents to impose reasoned discipline upon their children from time to time as a necessary part of raising them from infancy to responsible, law abiding adulthood. For this primary reason, the parental immunity doctrine is recognized by the courts. It protects parents from frivolous lawsuits by their children seeking redress for the imposition of parental discipline.
Immunity from civil suit for the parent’s commission of sexual transgressions upon his children simply does not exist under the mores of modern society, regardless of Smith’s dicta it is ancient learning the parental immunity rule
... has been applied, not only in cases of excessive punishment ..., but to the most extreme case possible, that of the ravishment of a minor daughter by her father.
Smith v. Smith (1924), 81 Ind.App. 566 , 142 N.E. 128 -129. Society’s current attitude toward the raising and nurturing of children is readily discernible from the vast array of social services it currently provides to neglected and abused children.
When our supreme court abrogated the doctrine of interspousal immunity in Brooks v. Robinson (1972), 259 Ind. 16 , 284 N.E.2d 794 , it pointed out the fallacy of the argument the doctrine served the public interest. The court found the doctrine could not be upheld “under the guise of maintaining the peace and harmony of the marriage” in interspousal tort cases, relying on Professor Prosser’s argument it was fallacious to reason the doctrine maintained marital peace and harmony “on the bald theory that after a husband has beaten his wife, there is a state of peace and harmony left to be disturbed.... Prosser, Law of Torts, 863 (4th Edit.1971).” Brooks, 284 N.E.2d at 796 . Likewise here.
The parental immunity doctrine is judge-made law. As Justice Hunter reflected in Brooks
Judicial devotion to the doctrine of stare decisis is indeed a justifiable concept to be followed by our courts. However, it cannot and must not be so strictly pursued to the point where our view is opaqued and reality disregarded. To do so is to envision the common law to be as immutable as the laws of the Medes and Persians, and thus render our system of jurisprudence forever impotent. The strength and genius of the common law lies in its ability to adapt to the changing needs of the society it governs....
We cannot close our eyes to the legal and social needs of our society, and this Court should not hesitate to alter, amend, or abrogate the common law when society’s needs so dictate.
Brooks, 284 N.E.2d at 797 . To argue any peace or tranquility worth preserving remains between parent and child after the parent subjects the child to felonious sexual battery is equally as fallacious. Finally, the abrogation of the parental immunity doctrine in such cases would act as a further deterrent to the imposition of such cruelty upon children by their parents. In my view there is not one compelling reason *1047 for imposing that doctrine to the child’s detriment in sexual battery cases. Nothing is lost and deterrent value is gained by the doctrine’s abolition.
Regardless, this case falls squarely within a recognized exception to the parental immunity doctrine in this state. Polly’s mother and father were separated and had been living apart for much of their marriage. Polly lived with her mother in Florida and her brothers lived with their father in Indiana, except for 4 months in 1983 and a 2 month summer vacation in 1984. These events transpired over a four day period from January 2 through 5 in 1987 while John was on vacation. He and Polly, his 15 year old daughter, were in the Captiva Island house alone only because John’s then wife had attempted suicide and was in the hospital recovering. Except for the formality of a divorce decree, the circumstances are identical to those in Buffalo v. Buffalo (1982), Ind.App., 441 N.E.2d 711 . Without question, John was a non-custodial parent. He had not been around to participate in the raising of Polly for most of Polly’s life and for more than 2 years from the last time the family lived together under one roof. Also, it is readily apparent from the morbid facts of this ease, the peace and tranquility of this marriage had been broken irretrievably many years before John perpetrated the sex crimes of which his daughter civilly complains. Clearly, no reason for imposition of the parental immunity doctrine exists under these facts.
For these reasons I dissent. I would affirm the trial court in all respects.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9717491. Public record. Not legal advice.