The criminalization of lying: under what circumstances, if any, should lies be made criminal?

• Author: Druzin, Bryan H.

1. INTRODUCTION

   Imagine you are a resident in an apartment complex. Your neighbor (call him Bartley) knocks on your door one day and informs you that your infant child has been crushed to death by the elevator on the first floor. Gripped with fear, you rush downstairs in a state of frenzied panic, your heart pounding in your chest, only to discover that the nightmare described by Bartley is a work of fiction. Your child is fine. What Bartley just told you was a lie designed to terrorize you. Suppose Bartley repeatedly does this to people, deriving some perverse pleasure from it. The question this Article will pose is a simple one: should Bartley's conduct be a crime? The answer this Article puts forth is "yes." The above example, exaggerated as it is, will serve as the focal point of the discussion which follows, as we assert that while this scenario may give rise to certain tortious liability (i.e., the tort of intentional infliction of emotional distress (1)), Bartley's conduct, in that it causes serious harm, should receive the full attention and sanction of the criminal law. What Bartley did should be a crime--and yet it is presently not a crime.

   There is a long-standing and powerful moral principle that maintains that lying is wrongful conduct. It should not be too controversial of an assertion to state that all well-socialized people revere honesty and disapprove of lying and other forms of deception. (2) And yet, it is also a truism that everyone lies. Dishonesty appears to be a pervasive feature of human interaction. The average person does not kill, rob, or rape, but she does lie, and she lies often. Friends lie to friends to be polite; students lie to their professors about missed assignments; husbands lie to their wives about their whereabouts when in fact they are having affairs; teenagers lie to their parents about the friends they keep; we even lie that we feel fine when we do not. Our relatives lie; our co-workers lie--and we lie to them. And so while the reader's immediate reaction to Bartley's behavior is likely revulsion and a sense that he deserves some form of punishment, we may yet remain uneasy with the notion of criminalizing Bartley's conduct. This mismatch between the ethical prohibition against lying and the criminal law's general reluctance to sanction such conduct will be the central focus of the paper as we attempt to negotiate a distinct set of circumstances where lying should in fact be criminalized. This Article does not assert that all lies should be criminalized; rather it proposes that certain lies in certain circumstances should be made criminal--lies which are explicitly intended to cause uniquely serious harm, and where such harm results.

   Indeed, we can envision many other scenarios involving lying that do not have any tort equivalent, whereby "serious harm" may go beyond physical or mental distress to include loss of opportunity, loss of liberty, or other less easily defined injuries. For instance, consider a scenario in which an individual maliciously lies to an orphaned child that her parents, whom the individual knows, are deceased, when in fact they are alive and desperately searching for the child. (3) What is the crime exactly? Consider a situation where a woman deceives her lover into impregnating her by lying to him regarding her use of birth control. This man involuntarily fathers a child as a result. Imagine the situation is reversed and the woman is involuntarily impregnated. What is the harm? What of a woman who falsely claims to have had sexual relations with a man solely to destroy his marriage and family? (4) Does not a very serious harm result from this lie? Consider a scenario in which an individual jealously conceals her roommate's admissions letters to medical schools, telling the roommate instead she was rejected from all the schools to which she had applied. (5) In fact, one can conceive of many scenarios in which lies cause considerable injury that existing laws simply fail to capture, or capture improperly. There is little question that such harms do occur, and quite likely occur frequently; however, as they are not criminalized nor have produced any body of case law, these incidents go unnoted and unpunished.

   While the idea of criminalizing lying may seem at first blush somewhat radical, it is not so far-fetched when we consider that lying is already criminalized in many contexts, such as perjury, criminal libel, and the making of false statements. This Article asserts that it would in fact be logically inconsistent to not extend this same proscription to circumstances involving the exact same conduct causing an equal or greater measure of harm. This Article will argue the case for criminalizing lying in certain exceptional circumstances that are not presently captured by our criminal law. But these are, the reader might object, private interactions that should remain beyond the purview of our laws. To criminalize such behavior, the reader may protest, would be an unacceptable, and perhaps even dangerous intrusion into the private sphere. There may be a great deal of validity to this objection. Indeed, there may be strong public policy reasons against criminalizing lying; however, there are also, as we will show in the discussion that follows, compelling reasons to extend the law to such conduct. The present inability of the law to protect individuals from such harms does not justify its failure to do so, nor imply that the criminal law should sit on its hands and not criminalize such objectionable and injurious conduct. This Article will advocate for the criminalization of certain exceedingly egregious forms of lying. In doing so, we will propose the creation of a wholly new category of crime, which we will call: "egregious lying causing serious harm." The Article has two broad objectives: the first is to make the case why such a crime should even exist, and the second is to flesh out how this crime might be constructed.

   To do so, we will borrow some key concepts proposed by the political theorist Joel Feinberg. An examination of Feinberg's principle of "mediating maxims" will demonstrate that the crime conceived of in this paper does not just broadly violate his "harm principle," but fulfills the parameters as set out by Feinberg of the kind of conduct that the state may rightly make criminal. (6) The contribution of this Article lies in the radical nature of its stated aim: the outright criminalization of certain kinds of lies. To our knowledge, such a proposal has not previously been made. If by the conclusion of the discussion the case for criminalizing lying appears at least conceptually plausible, then the aim of this paper will have been met.

   The Article proceeds in two parts. Part II examines how and indeed if lying is an intrinsic wrong, and assesses the arguments offered by moral philosophers. The notion of criminalizing lying should not be such a great affront to our sensibilities as lying is already regulated to varying degrees in both criminal law and tort, along with other areas of the law. A summary of this law is provided. There are very compelling reasons as to why the criminal law has been reluctant to extend its coverage and protection to victims of lying; these arguments are also assessed. Part III then advances the proposition that the criminalization of lying may indeed be justified in certain narrow contexts. The second half forms the meat of the Article. Here we construct a wholly new crime, fleshing out its elements and teasing out the implications of what most likely will be received as a somewhat radical proposal. Indeed, the criminalization of certain forms of lies might initially appear fanciful, but it is the aim of this Article to not only establish the plausibility of this position, but to argue the necessity of legislatively constructing such a crime.

2. WHY CERTAIN FORMS OF LIES SHOULD BE CRIMINALIZED: THE LAW'S PRESENT APPROACH TO LYING

   1. THE MORAL DIMENSIONS TO LYING

      We choose an intuitive place to begin our discussion: the idea that it is wrong to lie--the refrain of every scolding mother and perhaps the first moral truth learned by each of us as a child. To properly contextualize our subject, we must begin by examining its moral dimensions. For this, some preliminary mapping of the philosophical landscape underpinning lying is required. Let us start by first defining what it is exactly we mean by a lie. Philosopher Arnold Isenberg has proffered a definition of a lie that will serve the purpose of this Article. His definition of a lie is "a statement made by one who does not believe it with the intention that someone else shall be led to believe it." (7) While lying is widely condemned as wrong, the reasoning behind this moral prohibition differs dramatically. Leading arguments contend that lying is either an absolute wrong in itself, or that the harm that it engenders is severe enough as to warrant its prohibition. These divergent views are represented by the two warring camps of deontology and consequentialism: the first focuses upon the act itself; the latter, the consequences that flow from the act. (8) Thus, deontology would hold that lying is inherently wrong, while consequentialism would say that lying is wrong because of its harmful consequences.

      There are even more finely nuanced approaches to criminalization that we could very well examine: ones rooted in libertarianism, economic analysis, utilitarianism, and contractarianism, for instance. (9) However, these theories, as different as they are, ultimately adhere to, and are subsumed by what is either a deontological or consequentialist position. Thus we will concern ourselves here simply with these two broad conceptual approaches. We should make it clear from the outset that this Article vigorously rejects the first and embraces the second. The thesis of this Article--the criminalization of lying--is not rooted in any kind of...