CRIMINAL INFLICTION OF EMOTIONAL DISTRESS

• Published in: Michigan law review Vol. 113; no. 5; pp. 607 - 662
• Main Author: Eisenberg, Avlana K.
• Format: Journal Article
• Language: English
• Published: Ann Arbor Michigan Law Review Association 01-03-2015
• Subjects: Civil law; Common law; Criminal law; Criminal liability; Criminalization; Emotional abuse; Emotional disorders; Emotions; Laws, regulations and rules; Liability for emotional distress; Manslaughter; Mental distress (Law); Murders & murder attempts; Psychology; Rape; Social aspects; Stalking; State court decisions; Stereotypes; Studies; Victims; UNITED STATES; United States > US
• ISSN: 0026-2234; 1939-8557

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 non-physical 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.