Criminal infliction of emotional distress.

Author:Eisenberg, Avlana K.
Position:III. Criminal Infliction of Emotional Distress Statutes C. Justifications through Conclusion, with footnotes, p. 638-662
  1. Justifications

    The primary justifications for CIED law are twofold: First, CIED statutes have been justified according to a prophylactic rationale, which is forward looking and stresses the importance of allowing police to intervene proactively, before a serious, violent crime is committed. Second, CIED statutes have been justified according to an independent wrong rationale, which holds that emotional distress is intrinsically harmful and thus worthy of attention. (183) While the prophylactic rationale

    focuses on the need for early intervention and the independent wrong rationale focuses on reshaping social norms to give credence to emotional injury, both of these justifications are keenly concerned with protecting specific classes of individuals, namely women and children.

    1. Prophylactic Rationale

      According to the prophylactic rationale, CIED statutes are justified to prevent physical violence: they allow law enforcement to intervene before the victim has been physically harmed. (184) Legislative history suggests that policymakers have frequently used the prophylactic rationale to justify CIED laws. (185) For example, according to Carol Hanson, a former representative in the Florida legislature and a proponent of the state's stalking statute, "the intent of the bill is to stop the stalker before a more serious criminal offense, such as murder, occurs." (186) Florida's stalking statute, like many others, was designed as a stopgap measure to protect women from harassment before the defendant's behaviors escalated to involve physical injury or the threat thereof. (187) Courts have also cited the prophylactic rationale as part of their analysis in CIED cases. (188) A Connecticut court justified its state's stalking statute as "compelling in providing law enforcement authorities with a means for intervening in stalking situations early on, before the behavior can escalate into something more serious, including physical assault." (189)

      The prophylactic rationale assumes that emotional distress is often a precursor to physical harm and, therefore, that criminalizing emotional harm in stalking or bullying contexts prevents future physical harm. Such future physical harm might be imposed by the perpetrator (as in stalking contexts) or it could be self-imposed (as in some bullying cases in which the victim begins self-harming). (190)

    2. Independent Wrong Rationale

      CIED statutes have also been justified based on an understanding of emotional harm as no less damaging than physical harm. (191) According to the independent wrong rationale, CIED statutes are crucial to educating society and to changing social norms such that emotional harm will be understood as an independent wrong. (192) This rationale is grounded in psychological literature that asserts the primacy of emotions and the interconnectedness of mind and body. (193) Various studies have documented a link between physical and emotional well-being and have found that emotional stress can lead to physical disease. (194) CIED laws thus are intended to send a broad message that behaviors such as stalking and bullying are not acceptable in a civil society.

      The examples that dominate the discussion focus on a need to protect women and children from emotional harm. For example, the enactment of stalking statutes has been characterized as "part of a rapidly spreading effort to protect women from the terrifying advances of obsessed men." (195) In the bullying context, legislators have described criminal bullying statutes as critical to "help and protect the children." (196) In the cyber context, there is an increasing concern about anonymous online groups or "cyber-attack" groups that "attack women, people of color, and members of other traditionally disadvantaged classes." (197) Here, the concern is not about allowing early intervention or preventing future escalation but instead about protecting vulnerable populations from intrinsic emotional harm. (198)


      Having outlined the elements of CIED statutes and their leading justifications, the Article now assesses these statutes critically. This Part highlights tensions between CIED statutes and core criminal law values such as notice to defendants, free expression, social consensus, and equality. In doing so, it explains why these laws are unsettling: they make criminal responsibility turn directly on a new, unpredictable, and subjective category of harm rather than on clearly defined conduct and defendant mental states.

  2. Notice

    For punishment to be justified--and to satisfy the demands of predictability and fairness, two primary criminal justice values--criminal laws must provide adequate notice to defendants. Many CIED statutes fail to provide this notice because of (1) the breadth of terms describing both the prohibited behavior and the required result of the defendant's conduct; (2) the weak mental state required of defendants; and (3) the unpredictability of emotional harm. After examining these issues, this Section raises concerns about institutional competence, challenging the claim that we can rely on institutional actors--such as prosecutors, police, and school administrators--to prevent the overreach of broad CIED laws.

    Many CIED statutes do not specify prohibited conduct (instead relying on a nonexhaustive list of unwanted communications), and thus they risk criminalizing a wide array of behaviors that would be impossible to define in advance. (199) Furthermore, despite using such adjectives as "substantial" or "significant," CIED laws fail to draw a meaningful line delineating the level to which a victim's emotional distress must rise before triggering criminal culpability. (200) And the scope of CIED laws promises to expand further as states increasingly follow the lead of the NCVC and classify lower levels of emotional distress as criminal harm. (201)

    The reach of CIED statutes is often vast since repeated unwanted communication is something that many, if not most, in this hyperconnected world could allege. (202) While school bullying may be the cause du jour, (203) there are unlimited contexts in which criminal-harassment statutes could apply; indeed, many repeated unwanted communications--by a stranger, by a loved one, by a former loved one, at work, at school, online, off-line-- could potentially be encompassed by an expansive definition of criminal harassment.

    In addition to expanding the scope of harm that criminal law punishes, modern CIED statutes have also adopted relatively loose mental state requirements. These statutes thus lack both clear directives and a specific intent requirement. CIED statutes have broadened the type of harm the defendant intended to cause--and, even more troubling, many statutes do not require that the defendant intended to cause any harm at all. While regulatory offenses such as environmental or financial crimes may do away with specific intent requirements, at least they feature clear directives, and criminal liability is premised on a failure to follow these directives. (204) By contrast, the loosely defined harms in many CIED statutes are exacerbated by their weak intent requirements. (205)

    Furthermore, emotional harm, let alone degree of emotional harm in a particular case, is highly variable and evades prediction. And yet, with rare exception, (206) CIED statutes neither require any warning to the defendant nor any indication that future communication is unwanted. The same unwanted communication may be a mere annoyance to one person but emotionally distressing to another, and it may be impossible to predict ex ante how the recipient of the communication will react. (207)

    The unpredictability and variability of emotional responses help to explain why some CIED cases involve behaviors that may not at first blush strike readers as criminal. For example, a defendant was charged under Rhode Island's CIED statute after he sent three nonthreatening greeting cards to the complainant, his ex-girlfriend, over the course of two months. These cards included a birthday card, a Valentine's Day card, and a condolence card after the passing of her grandmother. An appellate court in Rhode Island affirmed the defendant's felony conviction for stalking, and, in attempting to analyze the conduct that might have resulted in the complainant's emotional distress, the court highlighted the "love stamps" affixed to each of these cards. (208)

    While some might argue that we can rely on institutional actors--such as prosecutors, police, and school administrators--to prevent the overreach of CIED laws, this assumption fails to take into account the diverse motivations of criminal justice actors, who cannot be relied upon to pursue only the most severe CIED cases. For example, legislators may justify CIED statutes according to a prophylactic rationale, but prosecutors may prioritize the text of the law rather than focusing on the stated motivations of the legislature. (209) Notably, in one case, the defendant was incarcerated and unable physically to harm the complainant at the time of the alleged stalking incident, so the prosecutor's charge was not rooted in prophylactic concerns. (210) While a prophylactic justification--the desire to allow police to intervene in a stalking case before the stalker becomes violent--may have motivated Montana policymakers to enact a CIED statute, that justification carried little weight at the prosecution phase in this case. Without further statutory guidance, there is simply no reason to expect prosecutors to pursue only particularly egregious CIED cases or to prioritize underlying legislative motivations for CIED statutes rather than the statutory text.

    Similar concerns are germane to the bullying context. One might think that discretion represents a solution to overreach concerns, such that bullying need never form a basis for criminal prosecution if it is not very serious. Yet some state legislatures are...

To continue reading