Criminal Infliction of Emotional Distress

• Author: Eisenberg, Avlana K

INTRODUCTION

In Florida, two middle school-age girls1 were recently charged with aggravated stalking, a felony; their Facebook messages allegedly caused a classmate to suffer emotional distress that led to her suicide.2 In Montana, Roman McCarthy received a five-year sentence after mailing two letters to his ex-wife, neither of which she opened but which nonetheless caused her emotional distress.3 In Louisiana, Timothy Ryan was convicted of stalking for driving back and forth in front of the Wrights' house several times over the course of a day while he was looking for someone else, a pattern of behavior that caused Mrs. Wright emotional distress.4

Each of these cases involved a criminal statute that imposes liability for causing another person emotional harm. They are part of a growing trend; in recent years, thirty states and the District of Columbia have criminalized the infliction of emotional harm independent of any physical harm or threat of physical injury.5 These laws, which I term criminal infliction of emotional distress ("CIED") statutes, are designed to combat antisocial behaviors such as harassment, stalking, and bullying. Emotional harm is an element of all CIED statutes. Yet the statutes range considerably in both the actions they prohibit and the defendant's required mental state.6 For example, some require proving that the emotional harm was intentional, but others do not. Some enumerate prohibited acts, while others include a catchall phrase- like "repeated unwanted communication"7-without further specification.

In one sense, these laws are unsurprising: emotional harm should beget criminal liability under the three main theories of criminal punishment. Utilitarian theory is premised on maximizing welfare; indeed, one reason why limiting physical harm is of high social value is because of its emotional consequences. Under a retributive theory, morally blameworthy conduct should be punished, and knowingly or recklessly inflicting emotional harm on another person is morally blameworthy. An expressive theory prioritizes communicating solidarity with victims and rectifying a moral imbalance, which would support taking emotional harm seriously and standing by victims of emotional abuse.

Since none of these theoretical arguments for criminalizing emotional harm necessarily requires the existence of related physical harm, we might expect that substantive criminal law would recognize emotional harm as no less legitimate than physical harm. Yet traditionally there is no criminal culpability for emotional distress absent physical injury or threat of physical harm.8 CIED statutes depart from this norm.

This Article uses CIED statutes as an entry point to examine what role victim emotion does and should play in substantive criminal law. It asks several questions: Why has it been so rare in the past to explicitly criminalize infliction of emotional harm (other than fear of physical harm)? In other words, why have we not always embraced CIED laws? Furthermore, should we view CIED statutes as a positive step in realigning criminal law doctrine with theories of punishment, or are they a troublesome break in the criminal law narrative? Ultimately, this Article argues that criminal laws have always acknowledged the importance of victim emotion, even though such laws traditionally avoid explicitly including emotional harm as a result element. I refer to this paradigm as the implicit approach. Indeed, substantive criminal law has always assumed that certain kinds of physical violence are more emotionally traumatic for victims than others. For example, consider why the punishment for rape is more serious than that for other forms of assault that may cause more physical damage.9 The special seriousness of rape comes, at least in part, from its emotional consequences. Yet convicting a defendant on a rape charge does not require an inquiry into whether a victim of rape actually experienced emotional harm.

Laws have tended not to criminalize emotional harm explicitly, through emotional-harm elements, because doing so contravenes several core substantive criminal law design considerations. First, emotional distress is difficult to define-and predict-in a way that would provide adequate notice to criminal defendants.10 Second, criminalizing the infliction of emotional distress conflicts with free-expression values and a strongly maintained distinction between speech and conduct.11 Indeed, central to the First Amendment-protected "marketplace of ideas" is the notion that one need not worry about hurting the feelings of others. Third, lack of social consensus may undermine CIED laws because of sharp cultural disagreement about the types of conduct that emotionally distress a reasonable person. Finally, criminalizing emotional harm exacerbates existing concerns about disparate enforcement and stereotyping by criminal justice actors. The implicit approach traditionally taken by the criminal law therefore represents a careful compromise, if not necessarily a conscious one: it indirectly addresses emotionally harmful conduct while being fair to defendants and preserving the social consensus that supports criminal law.

Against this backdrop, the Article examines and critiques CIED statutes. First, it finds that, in contrast to the implicit approach, CIED statutes fail to provide adequate notice to defendants because of the imprecise definition of prohibited acts as well as the unpredictability of emotional harm. It further raises concerns about institutional competence, challenging the claim that criminal justice actors, such as prosecutors and police, can be relied on to prevent the overreach of CIED laws. Concerns about overreach of these broad CIED statutes may be especially stark in the juvenile context, as these statutes risk prematurely subjecting juveniles to the criminal justice system.12

Second, the use of CIED statutes raises serious concerns about stifling expression. In the CIED context, there is no imminent threat of civil disorder or other serious harm, and these statutes therefore run the risk of chilling and even punishing protected speech. And strong empirical support is lacking for the justification that these laws are necessary as a prophylactic measure to prevent future physical harm.

Third, CIED statutes do not grow out of social consensus, and the criminal justice system is ill-equipped to deal with the nuances of CIED cases. Communications between former intimates are highly personalized, and, in this often-fraught context, differentiating among welcome, annoying, and harassing communications may prove exceptionally difficult.13 For example, even if two unopened letters from a man to his ex-wife constitute a serious harm, is the legal process competent to determine whether that harm is criminal? These cases depend on nuanced interpersonal dynamics, a realm that the criminal law is especially unprepared to regulate.14

Fourth, the use of CIED statutes also risks exacerbating stereotypes; for example, the stalking case involving Timothy Ryan, mentioned above, reinforces the perception that women are so fragile that they would reasonably be emotionally distressed by the sight of a car driving down their block a few times over the course of the day. And criminal justice actors-such as police, prosecutors, and judges-are not always immune from such stereotyping. Thus, relying on their discretion to weed out all but the most egregious CIED cases may not counterbalance the breadth of the statutory text. In Ryan's case, the trial judge explained that, "when I consider all the facts[,] I do believe that there was emotional distress on the part of the victims and that's reasonable to understand because, as I've stated before, the suspicious conduct in a neighborhood causes a certain amount of-degree of emotional distress especially with the womenfolk."15

CIED statutes thus offer a cautionary tale. They illuminate problems that arise when the criminal law abandons its traditional, implicit approach to victim emotion. Indeed, CIED statutes make criminal law's traditional compromise appear prudent, even if not always perfectly calibrated.16

This Article provides the first sustained examination of the role of victim emotion in the criminal law.17 The dominant strain of criminal law scholarship that addresses emotions focuses on the role of defendant emotion,18 especially as pertaining to the murder/manslaughter distinction,19 and the role of emotion in a defendant's punishment.20 Meanwhile, the question of how victim emotion impacts substantive criminal law has been largely ignored.21 This Article fills that gap in the literature by exploring the set of legal doctrines that explicitly categorizes emotional injury as criminal harm and by contextualizing CIED statutes within the theoretical foundations of substantive criminal law. The Article also reframes existing scholarship on law and emotions,22 drawing a distinction between the implicit and explicit ways that the criminal law can consider emotional harm.23

Part I introduces the traditional, implicit approach, which carves out a role for victim emotion in the criminal law without explicitly mentioning emotional harm as the required result of the defendant's conduct. Part II identifies two legal developments outside the confines of substantive criminal law that preceded the first CIED statutes. These developments brought victim emotion into the foreground in narrowly circumscribed contexts. This Part first highlights the role of the victims' rights movement in making victim emotion an explicit consideration in criminal sentencing, most notably through the introduction of victim impact statements. It then examines precursor doctrines in civil law-the emotional distress torts-and draws attention to their limiting principles.

Part III identifies CIED statutes as a category of laws that explicitly criminalizes the infliction of emotional harm by...