Criminal Infliction of Emotional Distress

57 Pages Posted: 11 Mar 2015

See all articles by Avlana Eisenberg

Avlana Eisenberg

Florida State University - College of Law

Date Written: January 16, 2015

Abstract

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.

Keywords: criminal law, emotional harm, victims rights movement, stalking, harassment, emotional distress torts

Suggested Citation

Eisenberg, Avlana, Criminal Infliction of Emotional Distress (January 16, 2015). Michigan Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2576293

Avlana Eisenberg (Contact Author)

Florida State University - College of Law ( email )

425 W. Jefferson St.
Tallahassee, FL Florida 32306
United States

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