Criminal infliction of emotional distress.

• Author: Eisenberg, Avlana K.
• Position: Introduction through III. Criminal Infliction of Emotional Distress Statutes B. Expansive Tendencies, p. 607-637

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress ("CIED") statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way.

In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it has only implicitly accounted for emotional harm; it has not made emotional harm an element of criminal liability. CIED statutes represent a break in this narrative. The Article uses these statutes as an entry point to examine the role that victim emotion does and should play in substantive criminal law, and it finds that CIED statutes may endanger free expression and equality and provide insufficient notice to defendants. These statutes thus offer a cautionary tale, illustrating problems that can arise when victim emotion plays an explicit role in criminal culpability. CIED statutes also reveal the comparative benefits of the implicit approach, which acknowledges the significance of nonphysical harm yet does not predicate criminal liability on the existence of emotional harm.

TABLE OF CONTENTS INTRODUCTION I. THE TRADITIONAL IMPLICIT APPROACH TO VICTIM EMOTION IN CRIMINAL Law A. Emotional Harm and Punishment Theory B. Emotional Harm and Crime Definition C. The Unique Role of Fear II. EXPLICIT CONSIDERATION OF VICTIM EMOTION A. The Victims' Rights Movement and Victim Impact Statements B. The Civil-Law Context 1. Emotional Distress Torts 2. Limiting Principles III. CRIMINAL INFLICTION OF EMOTIONAL DISTRESS STATUES A. Elements 1. Act 2. Intent 3. Result B. Expansive Tendencies 1. Expanding the Criminal Result: From Reasonable Fear to Emotional Distress 2. Expanding the Criminal Act: Beyond Physical Proximity 3. Broadening the Mens Rea Requirement: From Specific to General Intent C. Justifications 1. Prophylactic Rationale 2. Independent Wrong Rationale IV. CRITIQUE OF CIED STATUTES A. Notice B. Free Expression C. Social Consensus D. Equality V. IMPLICATIONS A. Statutory Reform 1. Prohibiting Specific Conduct 2. Tracking the Emotional Distress Tort B. Beyond the Criminal Justice System C. Preferring the Implicit Approach CONCLUSION APPENDIX: CIED STATUTES INTRODUCTION

In Florida, two middle school-age girls (1) 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...