Criminal Infliction ofEmotional Distress

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.INTRODUCTIONIn 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.4Each 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. …