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American University Criminal Law Brief
Volume 5 | Issue 1 Article 3
The Case for a Criminal Law Theory of Intentional
Infliction of Emotional Distress
Leslie Yalof Garfield
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Recommended Citation
Garfield, Leslie Yalof. "The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress." American University
Criminal Law Brief 5, no. 1 (2009):33-50.
Criminal Law Brief 33
Words hurt! Recent cyber bulling news
stories show that a word can be as
painful as a punch.1 Unfortunately, the
law redresses those who suffer injury
from harmful speech through a series of innocuous
remedies, including financial remuneration or retribution
through minimal criminal penalties.2 However, the
law does not criminally sanction those who intentionally
inflict verbal emotional harm to the same degree as
those who intentionally inflict physical harm.3 In other
words, the legislature and the
courts are have not yet elevated
an actor’s intentional
inflictions of verbal harm to
the same jurisprudential echelon
as intentional inflictions
of physical force.4
Consider the first federal
cyber bullying case of
Ms. Lori Drew.5 Ms. Drew, a
forty-nine-year-old woman,
was charged for using a fake
“MySpace” account to torment
a thirteen-year-old girl.6 The girl committed suicide
as a result of the hoax.7 Initially, Ms. Drew was
found guilty of three counts of unauthorized access to a
web site—misdemeanors that carry minimal punishment.
8 The verdict was subsequently overturned by a
federal judge.9 The conduct that Ms. Drew was charged
with was one that “millions of people” engaged in, and
the judge was reluctant to establish a precedent on which
any person may be convicted for a mere violation of
MySpace’s terms of service.10
Society does not impose criminal sanctions for
the intentional infliction of severe mental anguish; instead,
such acts are punished civilly as the intentional
infliction of emotional distress (IIED). Interestingly,
IIED is the only intentional tort involving harm to a person
that does not share a criminal counterpart.11 Every
state has imposed criminal penalties for the intentional
torts of assault, battery, and false imprisonment.12 It appears
that the intentional infliction of emotional distress
is accorded a lesser punitive status than the choice to
threaten or use physical force against another.
The same elements are used to prove both IIED and the
criminal charges for assault, battery and false imprisonment.
IIED, like assault and false imprisonment, is
largely a mental anguish offense.13 A prima facie case
for IIED requires, among other elements, proof that the
plaintiff suffered severe emotional harm.14 Similarly, assault
and false imprisonment require proof that a victim
suffered a similar type of cognitive distress, such as a
fear of harm or loss of liberty.15 In contrast, battery requires
proof of physical harm.16
At first blush, one
might argue that IIED,
which is a harm of severe
emotional distress, does
not share the requirement
that the plaintiff suffered
some physical pain. However,
according to recent
biological and neurochemical
studies, one can experience
physical pain in
response to a tone or a particular
set of harsh words.17
If one accepts these findings as true, the physical harm
requirement of battery may be equally prevalent among
those who are subject to severe and outrageous conduct.
Given that IIED presents the same types of harm as the
criminalized intentional torts, society would be wellserved
by assigning IIED the same criminal status.
Some modern theorists may argue that, given the
current state of the law, it is unnecessary to criminalize
IIED.18 According to these scholars, tort law has effectively
absorbed the theories of retribution and deterrence
through the use of large civil sanctions.19 These sanctions
serve a utilitarian purpose by regulating human behavior
and satisfying the need for vengeance.20 Others,
however, argue that tort law primarily “prices” harm,
whereas criminal law serves to prohibit socially harmful
behavior.21 Consequently, the assignment of monetary
penalties as both retributive and deterrent in nature will
never compensate for the larger threat to individual liberty.
22 According to those in the latter camp, in order to
safeguard against physical harm, it is important to instill
in society “a general fear which cannot be adequately
The Case for a Criminal Law Theory of Intentional
Infliction of Emotional Distress
By LESLIE YALOF GarfieLd
34 Winter 2009
remedied by compensation.”23 Therefore, an issue arises
as to the appropriateness of extending criminal sanctions
to a harm that the law already redresses.24
This article will explore the appropriateness of criminalizing
IIED. Part I will discuss the historical context
of civil and criminal remedies and evaluate their modern
application to intentional acts. Part II will explore the
limitations of IIED and analyze whether the harm
caused by IIED parallels the harm caused by intentional
criminalized torts. Part III will evaluate the appropriateness
of criminalizing IIED. The article will conclude
that, given recent neuroscientific findings, IIED should
be criminalized.
The common law distinction between modern
criminal law and tort law was predicated on the victim’s
desire for retribution.25 In the early common law, a victim
could pursue justice for the same wrongful act either
through what is now considered tort law or through
criminal law.26 Forbidden actions were punishable by
the crown, as the King was said to have been wronged
by every impermissible act.27 In addition, individuals
could independently seek retribution from impermissible
acts through the legal system, which was intended
to deter private physical retaliation.28 As such, whether
an action was brought in tort or in criminal law was
largely a function of the wronged parties’ preference.29
A. Punishing Civil and Criminal Wrongs
The present distinctions between criminal and
tort law vary little from their early predecessors. Criminal
wrongs harm society while civil wrongs harm individuals.
30 Although, most jurisdictions have codified
criminal wrongs and enumerated specific punishments,
torts remain largely uncodified.31 Damages can be nominal,
compensatory, or punitive,32 and the assignment of
each is left to the complete discretion of a judge or jury.33
Tort damage awards seek to achieve three fundamental
goals: (1) to make the victim whole or as near
to whole as possible;34 (2) to compensate the victim for
additional pain or suffering inflicted by the wrong;35 and
(3) to deter wrongdoers from engaging in the same conduct
in the future.36 Thus, tort damages do not solely
serve to regulate human conduct, but rather to place the
injured party in the same position he or she was in before
the wrong occurred.
In contrast, criminal punishment serves to curtail
future undesirable conduct by reshaping societal
norms.37 In certain instances, criminal punishment may
result in the loss of liberty or finances. The legislature
is largely responsible for determining the range of punishment
that may be assigned for a specific criminal
act.38 As such, judges have a degree of discretion within
these ranges to determine the punishment that is warranted
in a given criminal case.39
During this process, a judge may consider several
theories of punishment, including retribution and
deterrence. Retribution imposes punishment as a means
of societal revenge.40 Deterrence imposes individual
punishment as a disincentive to the individual and to
others from engaging in the same harmful conduct in
the future.41 These theories are designed to satiate a
community’s need for revenge and to assure conformity
to desirable social mores.
This judicial embrace of retribution and deterrence
has blurred the line between criminal and tort law,
particularly within the area of damages awards. In recent
years, tort law has incorporated the criminal theories
of retribution and deterrence.42 Courts have been
more inclined to use tort awards to sanction undesirable
conduct and to help shape societal norms. For example,
in TXO Production Corp. v. Alliance Resources Corp.,43
the Supreme Court upheld the jury’s award of $19,000
in compensatory damages and $10 million in punitive
damages for slander, reasoning that “a substantial [civil]
award was required in order to serve the goals of punishment
and deterrence.”44 The Court’s rationale has
been recognized by scholars as a bourgeoning relationship
between civil and criminal law.45 John Coffee recently
noted that “the dominant development in
substantive federal criminal law over the last decade has
been the disappearance of any clearly definable line between
civil and criminal law.”46
Thomas Koenig and Michael Rustad have explicitly
recognized that the criminal law principles of
retribution and deterrence have been assimilated into
tort law, ultimately coining the term “crimtort.”47 Crimtort
is generally used to advance the notion that civil
sanctions can serve to regulate corporate wrongdoers.48
Financial deterrence at the corporate level is of great
value since loss of monies can threaten the financial
health, or even existence, of a particular business entity.
49
Theorists have posited the existence of a retributive
factor within the assignment of tort awards.50
George P. Fletcher’s notion of corrective justice supports
I. Intentional Wrongs -
the Crime/tort Distinction
this theory. Under corrective justice theory, “wrongful
acts create an imbalance in the equilibrium established
under criteria of ‘the geometric proportionality’ of distributive
justice.”51 The wrongdoer “creates a shift in
resources from victim to the injurer.”52 In turn, “the injurer
should be required to give half the imbalance as
payment to the victim” to restore the status quo.53 From
a purely economic perspective, corrective justice suggests
that the wronged party is responsible for making
the injured party whole.54 According to this definition,
it is hard to see how the use of a civil award—viewed
from a corrective justice perspective—provides any deterrent
effect. However, to the extent that a victim feels
satisfied that he or she is now whole again, corrective
justice has a large retributive aspect.55
Theorists’ evaluation of the use of punitive damages
to support criminal theories of punishment has
played out in the courts, which, after the TXO Productions
Corp. decision, have routinely assessed punitive
damages against defendants in civil cases as a means of
satiating a plaintiff’s need for retribution.56 In BMW of
North America, Inc. v. Gore,57 the Supreme Court “emphasized
the constitutional need for punitive damages
awards to reflect (1) the ‘reprehensibility’ of the defendant’s
conduct, (2) a ‘reasonable relationship’ to the
harm the plaintiff (or related victim) suffered, and (3)
the presence (or absence) of ‘sanctions,’ e.g., criminal
penalties, that state law provided for comparable conduct.”
58
The Court, however, has recently begun to halt
the use of damage assessments as a means to punish.
Although the Court has yet to use the Eight Amendment
Excessive Fines Clause to limit punitive awards,59 the
Court has announced a series of cases that, under the
Due Process Clause, curtail a state or individual’s right
to collect unreasonably huge punitive awards. For example,
in Honda Motor Co. v. Oberg,60 the Court ruled
that due process principles require judicial review of
punitive damage awards.61 In BMW of North America,
Inc. v. Gore, a 5-4 majority ruled that the Constitution
prohibits “grossly excessive punishment on a tortfeasor.”
62 Most recently, in Philip Morris v. Williams,63 a
widow brought a suit against Philip Morris for negligence
and deceit on behalf of her dead husband, a heavy
cigarette smoker.64 The Court considered the appropriateness
of a large jury award and ruled in a 5-4 decision
that the Constitution’s Due Process Clause prohibits the
use of punitive damage awards to punish defendants for
harm inflicted on persons who are not parties to the
suit.65 Courts at the state level have rendered similar decisions.
For example, the New Jersey Supreme Court
recently ruled that the Punitive Damages Act (“PDA”)
did not permit a jury to consider general deterrence to
others when awarding punitive damages.66
This limitation on punitive damage awards as a
means of retribution or deterrence tacitly acknowledges
that its place lies most firmly within the confines of
criminal rather than civil law. Regardless of the use of
civil sanctions, a need remains for using criminal penalties
to achieve the societal goals of conformity. Under
the theory that individuals are most likely to regulate
their behavior out of fear of humiliation or loss of liberty,
criminal sanctions are an appropriate means to assure
that individuals behave within the rules of society.
Robert Nozick has posited that in order to safeguard
against physical harm, society must maintain “a
general fear which cannot be adequately remedied by
compensation.”67 Nozick’s notion is primarily based on
the retributive model.68 According to Professor Nozick,
criminal punishment is deserved under certain instances,
if not demanded.69 Professor Nozick demonstrates this
theory through a formula; punishment deserved = r * H,
where H is the magnitude of the wrongness or harm, and
r is the degree of responsibility.70 Blameworthiness is a
function of the value of the wrong done by the agent (H)
and the degree of the agent’s responsibility for the
wrongdoing (r).71 The value of r may range from no responsibility
(0), as when a criminal defendant is not
guilty by reason of insanity, to full responsibility (1), as
when the defendant intentionally committed the crime.72
Professor Nozick’s theory is particularly applicable
to intentional wrongs. According to the theories
of corrective justice and crimtort, the redistribution of
wealth from the intentional wrongdoer to the victim can
arguably coerce the wrongdoer into behaving properly.73
However, what is absent from both theories is the stigma
that is attached to criminal punishment; Prof. Nozick’s
theory properly accounts for the coercive value of
stigma. His formula indicates that the more responsible
the wrongdoer is, the greater the punishment deserved.74
To the extent that punishment is viewed on a sliding
scale—from probation to monetary obligations to a loss
of liberty—certainly the latter is the most compelling to
ensure social conformity. Defendants who commit torts
must balance the financial penalty against the personal
value gained from committing the wrong. In contrast,
criminal punishment stigmatizes the individual, thereby
imposing a larger punishment and a greater disincentive
to engaging in those particular acts.75
According to Professor Nozick, criminal punish-
Criminal Law Brief 35
ment is “a communicative act transmitting to the wrongdoer
. . . how wrong his conduct was”;76 punishment will
communicate clearly to the community that such conduct
is intolerable.77 The deterrent value served by an
individual’s fear of stigmatization is often appropriate
as it may serve as a “system for public communication
of values.”78
Like two branches from
the same trunk, the law has provided
for criminal and civil relief
from intentional harms to the individual.
The sanctions for both
criminal and civil wrongs are understandably
blurred as similar
theories are often used to attribute
blame and assess compensation.
Huge tort awards continue to usurp
the role of retribution and deterrence,
both of which were previously
reserved for criminal
punishment. However, while tort
law can effectively prohibit individuals
from repeating particular
types of conduct, the non-codified
ad hoc nature of tort law does little
to accomplish the most important
role of communicating a system of shared values that
define the boundaries within which individuals should
live their lives. Tort law sanctions cannot match the reputation
of criminal punishment as an effective means of
regulating behavior. For this reason, society is wellserved
by the existence of both criminal and civil definitions
for the same intentional wrongs.
b. the Criminalized torts: Assault,
battery and False Imprisonment
William Prosser identified four “dignitary torts,”
which are intentional harms against the individual: assault,
battery, false imprisonment, and intentional infliction
of emotional distress.79 These wrongs all require
proof that the defendant chose to engage in the tortious
conduct and that, by engaging in such conduct, intended
or knew with substantial certainty that the conduct
would invade an individual’s right to quiet enjoyment.80
Three of these torts—assault, battery, and false imprisonment—
also exist in criminal law.81
Much has been written about the conduct or elemental
act of intentional torts.82 Unlike criminal law,
the act itself is not merely an element of the tort.83 Instead,
proof of the plaintiff’s injury is mandatory, and
as such, is a prerequisite to liability.84 The act must be a
voluntary act—one in which the actor chooses to engage.
85 An involuntary act—conduct engaged in while
one is otherwise unconscious—is not sufficient.86 Thus,
an individual who hits a child while driving a car due to
an epileptic fit does not commit a
conscious act87 whereas one who
makes a conscious choice to swing
a fist does.88
Perhaps the most confusing
aspect of this process is proving the
actor’s desire to engage in the conduct
such that it subsequently
brings about the intended result, as
opposed to intending the result itself.
The Restatement (Second) of
Torts provides the best illustration
of the element act. “[I]f the actor,
having pointed a pistol at another,
pulls the trigger, the act is the
pulling of the trigger and not the
impingement of the bullet upon the
other person.”89 If the act is to pull
the trigger, the intent would be the
actor’s desired goal that he or she
wishes to achieve by pulling that trigger. According to
Prosser, intent in this context means
(1) . . . a state of mind (2) about consequences
of an act (or omission) and not
about the act itself, and (3) it extends not
only to having in the mind a purpose (or
desire) to bring about given consequences
but also to having in mind a belief
(or knowledge) that given
consequences are substantially certain to
result from the act.90
In order to prove intent, the actor must show that the defendant
chose to commit a particular action, and in so
doing, intended or knew with substantial certainty that
such an action would bring about the undesired result.91
The actor who pulls the trigger for the desired purpose
of causing harm to a particular person is said to intend
such conduct.92 The actor who pulls the trigger for enjoyment
purposes only, but does so in a crowded area,
is also said to have intended such conduct for purposes
of proving intentional torts since the actor knew with
substantial certainty that such conduct would bring
36 Winter 2009
Tort law sanctions cannot
match the reputation
of criminal
punishment as an effective
means of regulating
behavior. For
this reason, society is
well-served by the existence
of both criminal
and civil definitions for
the same intentional
wrongs.
about the undesired wrong.93 This requirement of intent
is the prerequisite for all intentional torts.94
i. The Intentional Tort of Assault
An actor is liable for tortious assault if “he acts
intending to cause a harmful or offensive contact with
the person of the other or a third person, or an imminent
apprehension of such contact, and (b) the other is
thereby put in such imminent apprehension.”95 In other
words, an assault is the threat of harmful or offensive
contact coupled with the present ability to commit a
harmful or offensive contact. Assault occurs in the absence
of contact; therefore, assault would be actionable
on the basis of a mental, rather than physical, type of
harm.96
Proof of assault merely requires some apprehension
of fear on the part of the plaintiff; physical harm is
not an element of the tort. The fear need not be extreme;
proof of fright or humiliation suffices to support a cause
of action.97 For example, standing within striking distance
of another while shaking a stick is assault; shaking
that same stick with the same force behind the victim,
who is therefore unaware of such actions, is not.
Even the most offensive and off-putting words,
alone, are never sufficient to support an assault claim,
regardless of the mental anguish the words may impose.
98 Thus, in Lay v. Kremer,99 the defendant, while
fighting over a parking spot, called a woman a “motherfucking
nigger”* and a “bitch”; the trial court acquitted
the defendant under the premise that “mere words [did]
not constitute assault.”100 Assault actions are generally
successful, it seems, when there is proof that the plaintiff
suffered some degree of fear or mental anguish resulting
from his or her belief that the defendant had a present
capacity to inflict physical harm.101
ii. The Intentional Tort of Battery
Battery is an assault coupled with contact that is
harmful or offensive.102 The Restatement (Second) of
Torts has divided battery into two categories: one in
which harmful contact results, and another in which fensive
contact results.103 According to the Restatement, an
actor is liable for battery if:
(a) he acts intending to cause a harmful
or offensive contact with the person of
the other or a third person or an imminent
apprehension of such a contact and
(b) a harmful contact with the other person
directly or indirectly results,104 or (c)
he acts intending to cause a harmful or
offensive contact with another or third
person or an imminent apprehension of
such a contact,105 and (d) an offensive
contact with the other person directly or
indirectly results.106
Battery requires proof of the exact same intent
as assault.107
The difference lies in the contact. Assault occurs
in the absence of contact, whereas battery requires some
sort of contact in order to be actionable.108
Another relevant distinction exists between the
two wrongs. In order for assault to be actionable, the
plaintiff must be aware of the threat.109 However, battery
requires no awareness on the part of the plaintiff. Thus,
if a defendant raises a stick behind a plaintiff’s back and
the stick hits the plaintiff, even if the plaintiff did not realize
the stick was raised, the defendant’s conduct is actionable
under battery.
Battery is not necessarily considered a crime of
mental anguish, primarily because the element of
harm—or at least contact—is required for the crime.110
Courts have, however, considered offensive contact actionable
when the plaintiff suffered humiliation or embarrassment.
111 This recovery for embarrassment has
extended the boundaries of battery to include emotional
injury, in addition to physical injury.
iii. The Intentional Tort of False Imprisonment.
False imprisonment, sometimes referred to as
false arrest, is the intentional deprivation of another’s
liberty. According to the Restatement (Second) of Torts,
false imprisonment occurs when an actor intends to
“confine another within boundaries fixed by the actor,
and his act directly or indirectly results in such a confinement
of the other, and the other is conscious of the
confinement or is harmed by it.”112
While common law cases permitted an action for
false imprisonment in instances where the plaintiff was
unaware of his confinement, the current formulation requires
proof that the plaintiff realize his liberty is restrained.
113 Thus, false imprisonment, which is an
infringement on the plaintiff’s belief that he is not free
to exercise his will to move about—like assault—is a
wrong against mental anguish.114
The intent element of false imprisonment is very
Criminal Law Brief 37
*The author and the editors deliberated whether to redact language from cases that many people
will find offensive. We decided to pubish the words in full, as best support for the articles’s larger
claims.
similar to that of assault and battery.115 In order to be responsible
for false imprisonment, the defendant must
know that he is confining another or be substantially certain
that his conduct will result in confinement.116 Mental
anguish is, in essence, the chief component of false
imprisonment. Under the Restatement formulation, the
plaintiff is not required to suffer any type of physical
harm; rather, the defendant must only instill in the plaintiff
a sense of loss of freedom to move about.117 There
must only be a sense of boundaries. Such boundaries
may be “large or small, visible or tangible, or through
real, still conception only.”118 Thus, in Allen v. Frome,119
the court held that false imprisonment occurred in a city
in which the defendant felt unable to leave town.120 Similarly,
courts have found that one can be falsely imprisoned
in a car that moves about.121
C. the Corresponding Crimes
Criminal law assigns blame to those who engage
in intentional conduct. Like tort law, criminal convictions
require proof that the defendant chose to engage
in conduct and that, by engaging in that conduct, intended
or knew with substantial certainty that the conduct
would result in a wrong against society.122 While
criminal law also assigns punishment to those who acted
recklessly or negligently,123 the law seems to reserve the
greatest punishment for those who engage in intentionally
wrongful conduct.124
Much has been made of the intent levels in criminal
law. Early on—and still in many jurisdictions—intent
was divided between specific and general intent.125
Courts define specific intent as an actual purpose or goal
to engage in a particular type of conduct or a deliberate
choice to ignore a certainty of harm.126 General intent
translates into a sense of risk-taking or carelessness on
the part of the defendant.127
The Model Penal Code (“MPC”) has created
four classifications of an actor’s mindset as a means to
better delineate between specific and general intent: purposeful,
knowing, reckless, and negligent.128 “Purposeful”
is defined as a conscious goal to engage in
particular conduct,129 while “knowing” requires proof
that the defendant was substantially certain that such a
result would occur from a particular type of conduct.130
The torts of assault, battery, and false imprisonment require
proof of intent similar to general intent in that the
actor is responsible if he or she intended the conduct or
knew with substantial certainty that such an outcom
would occur.131 The Restatement’s definition of intent
corresponds quite closely with the MPC’s definition of
purposeful and knowingly. Thus, proof of the actor’s
awareness is virtually identical in each instance.
i. The Crimes of Assault and Battery
Assault and battery—common law misdemeanors—
exist today as statutory crimes in all American
jurisdictions.132 Although the two crimes are
generally said in one breath, it is important to note that
they are actually distinguishable and are divided in the
same way as their tort counterparts.133 Like the tort, the
crime of battery requires an injury or offensive touching,
134 whereas assault requires no physical contact.135
a. The Crime of Assault
Various statutory formulations of the crime of
assault exist.136 These statutes can be divided into two
general categories: assault as an intentional scaring or
assault as an attempted battery.137 Assault, as an intentional
scaring, is the true codification of civil assault.138
For this type of assault, one is criminally responsible
when he or she carries out some behavior that causes an
apprehension of immediate bodily harm with the intent
to cause such apprehension.139 Pointing a gun at another
individual is sufficient to establish common law assault.
140 Under this formulation, assault criminalizes the
imposition of mental fear or anguish.
In some states, evidence of mental anguish can
support the personal injury requirement of assault141 and
can include evidence that the victim was upset during
or after the assault, needed subsequent psychological
treatment, was unable to conduct a normal life, feared
for the his or her safety, and maintained continuing feelings
of vulnerability.142
The MPC formulation of assault constitutes a
misdemeanor in three circumstances: where the actor attempts
to cause or purposely, knowingly, or recklessly
causes bodily injury; negligently causes bodily injury
with a deadly weapon; and attempts by physical menace
to put another in fear of imminent serious bodily harm.143
This third circumstance incorporates the civil notion of
assault into the criminal law, as had been done in a majority
of jurisdictions at the time the MPC was drafted.144
b. The Crime of Battery
Just as in tort law, the common law crime of battery
requires harmful or offensive touching.145 Battery,
38 Winter 2009
like assault, requires proof of an act or an omission and
a mental state.146 Many jurisdictions allow for both intentional
and unintentional battery.147 Intentional battery
typically requires proof of purposeful conduct.148 For
example, one who—with intent to injure—acts or omits
to act when he has a duty to act, which is the legal cause
of an injury, is guilty of criminal battery.
Battery is not a separate crime under the MPC,
which has synthesized the common law crimes of mayhem,
battery, and assault into a single offense.149 One
who attempts to cause serious bodily injury or one who
causes such injury purposely, knowingly, or recklessly,
and under circumstances manifesting an extreme indifference
to the value of human life is said to commit battery.
150
The MPC codifies civil battery and calls it “aggravated
assault.”151 According to the MPC, a person is
guilty of aggravated assault if he
“attempts to cause serious bodily injury
to another, or causes such injury
purposely, knowingly or recklessly
under circumstances manifesting
extreme indifference to the value of
human life.”152 The level of harm
necessary to show “serious bodily
injury” varies by jurisdiction, and
can range from “reddish marks
around the neck” from a potential
choking153 to extreme physical pain
and disfigurement.154
c. The Crime of False Imprisonment
False imprisonment is the unlawful restraint of
another’s liberty.155 At common law, the offense could
be committed by mere words.156 The gravamen of the
crime is that the victim believes he is unable to remove
himself from the control of the defendant.157 Mere words
are insufficient to constitute false imprisonment if the
person to whom they are spoken is not deprived of freedom
of action.158
According to the Restatement, one who intentionally
causes severe emotional distress to another is
liable “(a) for such emotional distress, and (b) for bodily
harm resulting from it.”159 Stated another way, IIED occurs
when “[o]ne who by extreme and outrageous conduct
intentionally or recklessly causes severe emotional
distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results
from it, for such bodily harm.”160 IIED sanctions those
whose conduct is so outrageous that it brings about mental
and/or physical pain and suffering.161 Additionally,
IIED is the only intentional tort that allows recovery
from one whose goal is limited to creating emotional
havoc.
The tort of IIED is relatively new, as compared
to the traditional common law torts of assault, battery
and false imprisonment, all of which date back to before
the Sixteenth Century.162 Wilkinson v. Downton,163 a late
nineteenth century case, presented the first instance
when a court allowed recovery for a woman, against
whom a mean-spirited practical joke
was played. As a consequence of
the joke, the woman suffered “violent
shock to her nervous system,
producing committing and other
more serious and permanent physical
consequences entailing weeks of
suffering and incapacity . . . .”164
The court allowed the plaintiff to recover
for the harm she suffered as a
result of the defendant’s practical
joke.165
Almost 150 years after
Wilkinson, the tort of IIED appeared
in a 1948 supplement of the Restatement
of Torts.166 The California
Supreme Court first applied the Restatement’s
definition four years later when it decided
the landmark case of State Rubbish Collectors Ass’n v.
Siliznoff.167 Courts across the country followed California’s
lead, and today every state has recognized the independent
IIED tort and “adopted [the] Restatement
(Second) of Torts section 46 in some form.”168
Like assault, battery, and false imprisonment, an
individual is responsible for IIED if it is his intention to
inflict severe emotional distress or he knows with substantial
certainty that severe emotional distress will arise
as a result of such conduct.169 Under the Restatement
approach, the defendant must not only intentionally
cause severe emotional distress, but such conduct must
also be deemed “extreme and outrageous.”170 The Restatements
have never attempted to provide a definition
of “outrageous” conduct, stating rather that something
II. the NoN-CrImINAlIzeD tort: INteNtIoNAl
INFlICtIoN oF emotIoNAl DIstress (IIeD)
Criminal Law Brief 39
The tort of IIED is
relatively new, as
compared to the traditional
common law
torts of assault, battery
and false imprisonment,
all of which
date back to before
the sixteenth century.
is outrageous if “the recitation of the facts to an average
member of the community would . . . lead [the person]
to exclaim, “Outrageous!”171 Scholars and courts, however,
agree that liability for this tort is reserved for the
severest cases where the defendant’s conduct goes “beyond
all possible bounds of decency . . . to be regarded
as atrocious, and utterly intolerable in a civilized community.”
172 “Liability. . . does not extend to mere insults,
indignities, threats, annoyances, petty oppressions, or
other trivialities.”173 As a result, severe emotional distress
can be found only when “the distress inflicted is
so severe that no reasonable person could be expected
to endure it.”174
The modern formulation of IIED permits a
plaintiff to recover for injuries resulting from a defendant’s
intentional use of extreme and outrageous conduct
if that conduct results in mental anguish or physical
harm. A logical formulation of the proposed crime
would be patterned after the 1948 Restatement of Torts.
Thus, an actor would be subject to criminal prosecution
if he purposely or knowingly caused emotional distress
through extreme and outrageous conduct thereby causing
mental anguish or psychic injury. The conduct must
be so extreme as to go “beyond all possible bounds of
decency,” and “the mental anguish suffered by plaintiff
[must be] serious and of a nature that no reasonable person
could be expected to endure it.”175
Like the criminalized torts of assault and false
imprisonment, the criminalized version of IIED would
penalize a defendant when a victim suffers emotional or
psychic damage as a consequence of the defendant’s intentional
conduct. Criminalized IIED would also result
in the same type of physical harm that is required for
proof of the prima facie elements of the criminalized tort
of battery. The commonality of the harm caused by a
different type of conduct supports criminal punishment
for IIED.
Neuroscientific evidence supports the conclusion
that verbal assaults can manifest themselves in
physical pain.176 Thus, where one assaults another with
outrageous verbal comments, the plaintiff might ultimately
experience physical pain. This intentional infliction
of physical pain is the type of harm that society
seeks to punish through the crime of battery.
Since IIED creates the same type of harm as society
has sought to redress through criminalization of
the other intentional torts, it would seem consistent to
criminalize IIED. Criminalizing IIED would further the
retributive and deterrent goals of punishment, particularly
at a time when new technology communicates outrageous
and even horrendous conduct for which there
seems no viable punishment in criminal law. Society
will benefit from criminalizing the intentional use of extreme
and outrageous conduct. Such conduct is rare, but
to the extent that it results in intolerable wrongs, it is
worthy of criminal punishment.
A. similarities between IIeD and the
Criminalized Intentional torts
The proposed criminalization of IIED would require
proof of the same type of intent as the other criminalized
intentional torts. 177 Like assault, battery, and
false imprisonment, the state can only seek punishment
for IIED, and a plaintiff can only recover for the IIED,
upon proof that the defendant intended to cause the
harm or was substantially certain that harm would result
from his conduct.178 But while the intent and the harm
are the same, the act of IIED, use of extreme and outrageous
conduct, is distinct from the other criminalized
intentional torts.
Once the conduct is proven, it is incumbent upon
the prosecution to prove that harm resulted from that
conduct. Harm can be both mental and physical. The
mental anguish that is punishable through the criminalized
torts of assault and false imprisonment is equally
present in intentional infliction of emotional distress.179
A tortfeasor is only responsible for IIED if his actions
were the proximate cause of a psychic injury.180 Prosser
calls both assault and false imprisonment crimes of
mental anguish. It seems, then, that mental anguish,
which the law seeks to curb, is equally present in
IIED.181
The pain inflicted through IIED can result in the
type of harm criminalized in battery. The crime of battery
involves proof of direct physical harm.182 Harm can
include a gunshot wound,183 a kick upon another,184 or
something as slight as intentionally blowing smoke in
another’s face.185 When recovering for IIED, many jurisdictions
require proof of severe physical manifestations
of emotional harm.186 In doing so, the law
recognizes that extreme and outrageous conduct can indeed
cause the type of harm that is recoverable through
the other criminalized torts.
New scientific research supports the conclusion
that the extreme and outrageous verbal conduct meted
III. A CAll to CrImINAlIze INteNtIoNAl
INFlICtIoN oF emotIoNAl DIstress
40 Winter 2009
out through verbal assaults can inflict the same type of
physical harm that is prohibited by criminal battery.
Neuroscientific studies show that verbal abuse can bring
about physical symptoms, which in turn cause physical
pain.187 Actual measurable neurochemical changes can
occur in the amygdala—the part of the brain that performs
a primary role in processing emotional reactions—
when an individual is verbally assaulted or
experiences some other type of emotional trauma.188 The
amygdala instantly responds by inducing a series of
physiologic reactions including rapid heart rate, palpitations,
sweating and increased blood flow to large muscle
groups.189 These physiological changes in the brain,
which occur congruently with emotional harm, become
a form of physical pain, from which the victim clearly
suffers.190
Studies demonstrating the relationship between
psychological and verbal abuse and disorders such as
depression, anxiety, and post-traumatic stress disorder
(PTSD) further support the conclusion that IIED can result
in the type of physical harm which criminal law
seeks to curb by punishing for battery or aggravated assault.
A person suffering from depression may also suffer
from “persistent aches or pains, headaches, cramps
or digestive problems . . .” according to the National Institute
of Mental Health.191 Exacerbating this disease
through a verbal assault can result in more severe physical
symptoms that often accompany anxiety disorders
include “fatigue, headaches, muscle tension, muscle
aches, difficulty swallowing, trembling, twitching, irritability,
sweating, nausea, lightheadedness, having to go
to the bathroom frequently, feeling out of breath, and
hot flashes.”192
In other instances, while the outrageous conduct
of IIED might not immediately cause physical pain, specific
studies confirm that, despite the non-physical nature
of verbal abuse, abuse from IIED can be as
damaging as physical harm.193 In 1990, Psychologists
Nicole M. Capezza and Ximena B. Arriaga conducted a
study, in which they found that seventy-two percent of
234 female victims of both physical and psychological
abuse indicated that they were more negatively impacted
by the psychological abuse than the physical
abuse.194 Regarding their findings, the authors stated,
“[t]he results obtained in the present study clearly indicate
that psychological [abuse] is, with some variations,
as detrimental to women’s mental health as is physical
violence.”195
The seemingly similar requirements of intent
and harm beg the question of why it would be necessary
to criminalize IIED. The need for punishment lies in
the fact that the act element of IIED is markedly different
from assault, battery and false imprisonment; more
importantly, punishment for this type of act does not really
exist in most jurisdictions.196
Assault and battery penalize the actor who intends
to cause direct physical harm. Pointing a gun and
missing satisfies the act element of assault. Pointing a
gun and hitting satisfies the act element of battery or aggravated
assault. The act element of false imprisonment
is satisfied by the actor who voluntarily chooses to confine
another or to make one feel confined. For example,
locking car doors and speeding can satisfy the act element
of false imprisonment.197
The act element of IIED requires proof of extreme
and outrageous conduct. In Rissman v. Chertoff,
a transportation safety expert whose superiors constantly
screamed at him for being too thorough and “scolded
[him] for hours as if he were a terrorist in a poorly written
‘B’ movie script” provided sufficient evidence to
prove IIED.198 With this fact pattern, the courts could
not find an actionable claim for assault, battery or even
false imprisonment. Only if IIED were criminalized
could the TSA supervisors be punished for their behavior.
In Gomez v. Hug,199 a supervisor at a county fairgrounds,
upon seeing an employee enter his office, said
“[w]hat is that fucking spic doing in the office?” 200 “A
fucking Mexican greaser like you, that is all you are.
You are nothing but a Mexican greaser, nothing but a
pile of shit.”201 The badgering continued and, as a consequence,
the victim suffered mental anguish that resulted
in “serious medical problems” that precluded him
from working.202 Under these facts, a state would be unable
to punish for assault. It is long held that assault is
not actionable unless the victim is placed in imminent
apprehension of immediate bodily harm. Here, the verbal
lashings and demeaning behavior does not give rise
to a fear of harm. Battery would also not be actionable
since defendant did not touch or intend to touch the victim.
Nor would false imprisonment apply as there is no
evidence that the victim was unable to escape. In this
scenario, the defendant could not be criminally punished.
If IIED were criminalized, however, the defendant
could be subjected to penalties, as a reasonable jury
might conclude that his conduct was extreme, outrageous
and beyond the bounds of decency.
b. Advancing the Goals of Punishment
Criminal Law Brief 41
Criminalizing IIED would advance the goals of
society’s interest in curbing harmful conduct. By adopting
the newest criminalized intentional tort, jurisdictions
would be sending a message that conduct which mentally
infringes on others’ freedom from harm is intolerable.
Punishment would allow society to seek just
deserts from those who engage in acts that are outrageous
by traditional standards. Moreover, punishing
IIED would send a message to individuals and the general
population that such conduct is intolerable.
i. What to Punish
Applying the proposed criminal statute for IIED,
the perpetrators in Rissman and Hug could be subject to
criminal punishment. In the first hypothetical, the supervisor
hurled racial epithets at the
employee to the point where the employee
suffered physical and emotional
harm.203 A significant number
of states and federal courts have held
that racial epithets shouted by one in
a position of power over another are
evidence of extreme outrageous conduct.
204 In Alcorn v. Anbro Engineering,
Inc.,205 the Supreme Court of
California held that an employee had
sufficiently alleged IIED because his
supervisor shouted racial epithets and
fired him.206 The court found it significant
that the person harassing the
plaintiff was “standing in a position
or relation of authority over plaintiff.”207 In Shuman v.
American Home Assurance Co.,208 a federal district court
found that a defendant who “repeatedly made racial
slurs directed at Plaintiff based upon his Arab ancestry,
calling him names such as “Fucking Arab” and “Fucking
Carpet Salesman,” which slurs “caused, and were
intended by to cause, Plaintiff’s emotional distress”
committed IIED.209 Under this analysis, the defendant
in Hug used language outrageous enough to be actionable.
The plaintiff in Hug also presented evidence of
serious medical problems. Many jurisdictions require
proof of a physical manifestation of emotional harm.210
Assuming there was significant medical evidence to
show a manifestation of physical harm,211 the state would
be able to prove IIED.
Criminalizing IIED would also permit punishment
in other instances, including verbal domestic abuse
or cyber bullying. Criminalizing the use of spoken and
written words that cause severe damage to another
would fall within society’s goal to provide citizens with
a reasonable expectation of quiet enjoyment and liberty.
Verbal abuse is not afforded the same treatment
under the criminal law as physical abuse.212 Many jurisdictions
do not criminalize verbal abuse. In those that
do, it is under the guise of harassment.213 Yet verbal
abuse is a serious assault on one’s personal well-being.214
Additionally, studies confirm that verbal abuse often
leads to physical abuse.215 Criminalizing verbal abuse
would serve to prevent the commission of a greater
crime.216
Jurisdictions criminalize a variety of acts as a
means to prevent that future harm. Conspiracy, stalking,
and loitering are all inchoate crimes that allow police to
constitutionally intervene potentially
greater criminal activity.217
For instance, an agreement to commit
a criminal act, which is conspiracy,
can be prosecuted on its own,
even if the agreed-upon, contemplated
crime never comes to
fruition.218 When considering punishing
verbal abuse, IIED could be
seen as a similar inchoate act, allowing
police intervention before
the verbal violence translates into
physical harm.
Criminalizing IIED would also
provide meaningful punishment to
the crime of cyber stalking. In Lori
Drew’s case, the defendant imparted words, that on their
face, were seemingly innocuous. The defendant secured
a “My Space” page under a false name and then pretended
that she was a teenage boy with a crush on the
13 year-old girl. 219 The woman later sent spiteful messages
to the girl, including one that said “the world
would be a better place without you.”220 A reasonable
jury could find under the circumstances that Ms. Drew’s
conduct went beyond the bounds of decency. In fact,
new accounts report that the jury wanted to convict Ms.
Drew of felonies that would allow punishment of up to
twenty years in prison.221 However, the available laws
did not support their desired goal.222
While internet communication is not criminalized
under IIED, internet communication can lead to a
claim for a criminal case of harassment. For example,
in the instance where a woman posted a call for sexually
explicit favors and listed a neighbor’s phone number,
42 Winter 2009
By adopting the
newest criminalized
intentional tort, jurisdictions
would be
sending a message
that conduct which
mentally infringes on
others’ freedom from
harm is intolerable.
Criminal Law Brief 43
the Suffolk County New York police filed charges of harassment
against the woman.223 Under New York state
law, “[a] person is guilty of aggravated harassment in
the second degree when, with intent to harass, annoy,
threaten or alarm another person, he or she . . . (b) causes
a communication to be initiated by mechanical or electronic
means or otherwise with a person, anonymously
or otherwise, by telephone, by telegraph, or by mail, or
by transmitting or delivering any other form of written
communication, in a manner likely to cause annoyance....”
224 Here, the woman could be successfully prosecuted
for harassment since she initiated phone calls
likely to cause annoyance. The maximum punishment
for this crime is up to one year in prison. 225 However,
the permissible penalty should be more severe.
The type of harm caused in this instance, assuming
that the harm resulted in severe mental harm, would
be more on par with New York’s second degree assault
statute, which criminalizes conduct when a person intends
to and actually causes serious physical injury and
causes such injury. Second degree assault is punishable
as a class D Felony, for a term not to exceed seven
years.226 Thus, even though the mental anguish caused
by the harassing phone calls could be the equivalent to
physical harm, New York’s second degree assault statute
would not allow for such conduct to be prosecuted as a
second degree assault. Absent criminalization of IIED,
the offender in this case would only be sentenced to a
maximum of one year in prison, no matter how severe
the mental harm.
Criminalizing IIED would provide a means to
impose a similar punishment in this similarly harmful
situation. If the harassing phone calls caused the neighbor
to suffer from either emotional trauma or a physical
manifestation of that trauma on a level as contemplated
by second degree assault, then the offender could be
prosecuted under a scheme of criminal IIED. Punishing
this kind of intentional conduct to the same degree assecond
degree assault for intentional conduct that inflicts
a similar type of harm, would serve to further the
principles of our criminal justice system by communicating
that this type of conduct is so intolerable that it
carries with it a threat of significant punishment.
ii. Why Punish
Given that IIED causes the same type of harm
as assault, battery, and the other intentional torts, the
issue becomes whether criminalizing IIED would further
the principles of punishment that drive the American
criminal justice system. Two theories largely govern
the reasons for assessing punishment: retribution and
deterrence.227 Criminalizing IIED would advance each
of these theories.
a. Retribution
Application of Professor Nozick’s equation for
evaluating the instances appropriate for retribution supports
the criminalization of IIED. As previously noted,
criminal punishment deserved = r x H, where H is the
magnitude of the wrongness or harm and r is the degree
of responsibility.228 The high magnitude of harm and the
defendant’s responsibility in the intentional outrageous
conduct of IIED highlight the well-deserved need for
retribution against such conduct.
The r is this equation is easily satisfied. People
are responsible for IIED only if they intend to commit
the outrageous conduct that causes harm or they know
with substantial certainty that such conduct will cause
another to suffer from IIED.229 This intent translates into
a conscious or willful desire to bring about a harmful
result.230 That they chose to engage in such conduct reflects
the high level of responsibility on their part.
The law tends to increase the severity of punishment
based on a defendant’s willfulness.231 Homicides
illustrate this point most clearly. One who intends to
kill by design is guilty of murder, a crime punishable by
life in prison or even death.232 Thus, an individual who
aims his car at someone standing on the street with an
intention of killing that person is said to be the most responsible
and therefore the most deserving of punishment.
Similarly, one who speeds through a crowded
school zone at three o’clock in the afternoon is also, in
many jurisdictions, responsible for the and deserving of
the charge’s maximum punishment for the death of another.
233 Although this person had no intent of killing a
particular person, he knew with substantial certainty that
he would likely kill someone as a result of his conduct.234
In contrast, one who speeds through a school zone at
three o’clock in the morning is likely to be held only responsible
for manslaughter or reckless homicide.235 In
this instance, the individual is said to have only been
aware of a slight risk that someone could die as a result
of his conduct. Because he only engaged in a risk, society
is willing to mete out less punishment.236 In most
jurisdictions, manslaughter is punishable by five to fifteen
years in prison.237
IIED also imposes the same type of harm as the
other intentional torts, thus the H in Nozick’s equation
is as compelling for IIED as it is in other tort-based
crimes. Particularly, IIED shares the sense of mental
anguish that assault and false imprisonment criminalize.
238 As noted above, psychological or verbal abuse
can be as damaging as any physical type of harm.239 Developments
in neuroscience indicate a strong link between
verbal assault and emotional harm.240 This high
degree of provable physical harm meets the H prong of
Nozick’s formula. Therefore, the high magnitude of
harm to the victim and the strong degree of responsibility
on the part of the defendant compel criminalization
of IIED.
Nozick’s theory is ideal for cyber-stalkers. Individuals
who write directed e-mails or set up false accounts
do so with the highest level of intention. The
harm cyber-stalkers cause can go far beyond annoyance
and may rise to the level of death. Under Nozick’s theory,
such conduct is most suitable for punishment because
H, or harm, is at its greatest.
b. Deterrence
Criminalizing IIED is equally supported by the
theory of deterrence. Deterrence advocates that an individual
be punished as an example either to himself or
to others because the individual’s conduct cannot be tolerated.
Ms. Drew intentionally caused a child to suffer
by creating a fake internet “friend” to lure the girl in and
then trick her, acting in a way that society should discourage.
Her actions caused horrible public outcry, in
part because of the unnecessary and irreversible consequences
of her actions and in part because there were
few criminal laws under which she could be punished.242
To the extent that one assumes that deterrence works to
encourage members to conform to society’s laws,243 punishing
this woman at the criminal level could deter others
from committing similar harmful acts.
Criminalizing IIED as an inchoate crime would
serve the same deterrent value as assault. As noted
above, the law criminalizes many inchoate crimes as a
means of preventing more serious crimes that could result
from an individual’s conduct. The MPC’s formulation
of assault and battery is an example of the use of
criminalization as prevention. The law permits the punishment
of those who attempt to cause the physical injury
required for proof of battery by criminalizing an
attempted batterer (for example, assault).244 Those who
subscribe to the theory of crimtort, and even many who
do not, might argue that over-criminalization already exists
and that there is no need to create new crimes.
Crimtort has merit, particularly as it applies to a defendant
corporation, where one is unable to single out an
individual for punishment. However, a loss of liberty is
much harsher than a loss of finances. The criminal justice
system can, through imposition or threat of jail time,
serve to curb individuals’ conduct to a much greater degree
than pecuniary punishment.
Scientific and technological advances in the way
we currently live our lives mandate that jurisdictions
should grant IIED the same criminal status that it grants
other criminalized intentional torts. Words hurt. The
law punishes those who inflict pain. The punishment
should be meted out regardless of whether the pain originates
through a physical force or through verbal or written
words.
Criminalizing IIED provides the retributive
value of satiating those who are injured by others’
choice to bully, and it serves the deterrent value of warning
others that the use of words, whether typed or
shouted, is intolerable and prevents words from escalating
to a more serious physical harm. There is a void in
our current criminalization scheme, left empty by the
failure to recognize that technology makes it easier to
harm and that a word can cause as much pain as a punch.
Criminalizing IIED would fill that void.
Addendum
On January 5th, the BBC reported that members
of French President Nicolas Sarkozy’s ruling party proposed
a measure that would criminalize intentional infliction
of emotional distress.245 The proposed measure
would assess criminal penalties including jail time
against those who psychologically or verbally abuse
their spouse or live-in partner by insult, including repeated
rude remarks about a partner’s appearance, false
allegations of infidelity, and threats of physical violence.
246 The French parliament is expected to approve
the legislation in February. If passed, the law should be
in place six months later. If passed, the bill would be
the first of its kind.247
1 See OFFICE OF MINNESOTAATTORNEY GENERAL LORI SWANSON, PREVENT
CYBERBULLYING AND ONLINE HARASSMENT,
http://www.ag.state.mn.us/Brochures/pubCyberbullyingOnlineHarassment.
pdf.
2 Prezioso v. Thomas, No. 991675, 2000 WL 472874 (4th Cir. Apr. 25,
IV. CoNClusIoN
44 Winter 2009
2000); Erwin v. Milligan, 67 S.W.2d 592 (Ark. 1934); Daluiso v. Boone,
71 Cal. 2d 484 (1969); Emden v. Vitz, 198 P.2d 696 (Cal. Dist. Ct. App.
1948); Tate v. Canonica, 5 Cal. Rptr. 28 (Ca. Ct. App. 1960); Ford v.
Hutson, 276 S.E.2d 776 (S.C. 1981).
3 Jennifer Wriggins, Domestic Violence Torts, 75 S. CAL. L. REV. 121,
136 (2001) (citing to Merle H. Weiner, Domestic Violence and the Per Se
Standard of Outrage, 54 MD. L. REV. 183, 189 n.16 (1995)) (“[S]ome activity
that is tortious, such as conduct causing intentional infliction of
emotional distresses, is not criminal.”).
4 See generally Kenneth Mann, Punitive Civil Sanctions: The Middle
Ground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1806 n.
36 (1992) (quotingWILLIAM L. PROSSER, HANDBOOK OF THE LAW OF
TORTS 22 (5th ed. 1984) (citations omitted)) (“Empirically, as opposed to
paradigmatically, civil and criminal law overlap. Civil law includes
causes of action for intentional acts; criminal law includes strict and negligent
liability. Therefore, no true empirical difference exists between
civil and criminal law with respect to the range of mental states resulting
in liability. However, most criminal cases require proof of subjective
and objective liability, whereas most civil cases require proof only of objective
liability. Therefore, we say that the paradigmatic task of the civil
law is to compensate for damages caused in the normal conduct of
everyday life, usually without regard to actual knowledge or intent.
Thus, the distinctive character in the division in the paradigms lies in the
requirement of attention to the subjective state of mind in the conventional
criminal type.”).
5 Kim Zetter, Lori Drew Not Guilty of Felonies in Landmark Cyberbullying
Trial, WIRED, Nov. 26, 2008, available at
http://www.wired.com/threatlevel/2008/11/lori-drew-pla-5.
6 United States v. Drew, 259 F.R.D. 449, 452 (C.D. Cal. 2009).
7 Id.
8 Id. at 452–53.
9 Id. at 468.
10 See Alexandra Zavis, Judge Tentatively Dismisses Case in MySpace
Hoax That Led to Teenage Girl’s Suicide, LOS ANGELES TIMES, July, 2,
2009, available at http://latimesblogs.latimes.com/lanow/2009/07/myspace-
sentencing.html.
11 See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS (West Publishing
Co. 4th ed. 1971) (1941); see also FOWLER V. HARPER & FLEMING
JAMES, JR., THE LAW OF TORTS (2d ed. 1956).
12 See Prosser, supra note 11.
13 Id.
14 See RESTATEMENT (FIRST) OF TORTS § 46 (1948).
15 See id. at §§ 21, 35.
16 See id. § 13.
17 See infra note 187.
18 See Richard A. Epstein, The Tort/Crime Distinction: A Generation
Later, 76 B.U. L. REV. 1 (1996) (citing RICHARD EPSTEIN, CRIME AND
TORT: OLDWINE IN NEW BOT TLES, ASSESSING THE CRIMINAL: RESTITUTION,
RETRIBUTION AND THE LEGAL PROCESS, 231 (Randy Barnett & John
Hagel III, eds., 1977)); see also Erik Luna, The Over Criminalization
Phenomenon, 54 AM. U. L. REV. 703 (2005).
19 See Luna, supra note 18, at 712.
20 See Andrew R. Klein, Causation and Uncertainty: Making Connections
in a Time of Change, 49 JURIMETRICS J. 5, 8 (2008) (quoting H.L.A.
Hart & Tony Honoré, CAUSATION IN THE LAW (2d ed. 1985)).
21 See John C. Coffee, Jr., Does “Unlawful” Mean “Criminal”?: Reflections
on the Disappearing Tort/Crime Distinction in American Law, 71
B.U. L. REV. 193, 193–94 (1991) (discussing the inherent purpose of
criminal law to embody society’s moral values and its incompatibility
with the balancing between public and private interests in which tort law
engages).
22 See Epstein, supra note 18, at 8.
23 See Kenneth W. Simons, Retributivists Need Not and Should Not Endorse
the Subjectivist Account of Punishment, 109 COLUM. L. REV. SIDEBAR
1 (2009), available at
http://www.columbialawreview.org/Sidebar/volume/109/1_Simons.pdf.
24 See Coffee, supra note 21. See also Luna, supra note 18, at 703.
25 See Epstein, supra note 18, at 11–12. For a good understanding of the
evolution of criminal and tort law, see FOWLER V. HARPER ET AL.,
HARPER, JAMES AND GRAY ON TORTS 304 (Aspen Publishers 3d ed. 2006).
26 See Epstein, supra note 18, at 14.
27 4 WILLIAM BLACKSTONE, 4 COMMENTARIES *2, *5.
28 See Epstein, supra note 18, at 12–13.
29 See id. at 11; David J. Seipp, The Distinction Between Crime and Tort
in the Early Common Law, 76 B.U. L. REV. 59, 59–60 (1996).
30 See Mann, supra note 4, at 1796.
31 See Gail Heriot, An Essay On The Civil-Criminal Distinction With
Special Reference To Punitive Damages, 7 J. CONTEMP. LEGAL ISSUES 43,
54 (1996). The criminal law was one of the first major areas of the law
to be heavily codified, and at least when compared to most civil law subjects,
its codes tend to be somewhat more detailed. In contrast, the civil
law remains heavily common law, particularly in the area of torts. Unlike
criminal law, civil law is generally doctrinally thin and heavy in discretion
by the trier of fact.
32 ALBERT P. MELONE & ALLAN KARNES, THE AMERICAN LEGAL SYSTEM:
PERSPECTIVES, POLITICS, PROCESSES AND POLICIES 197–98 (2d ed. 2007).
33 See Michael E. Weinzierl, Wisconsin’s New Court-Ordered ADR Law:
Why it is Needed and its Potential for Success, 78 MARq. L. REV. 583,
589 (1995) (stating that many large damages awards are attributed to
emotional juries who may not understand the law but award such large
damages because they are sympathetic to the plaintiff).
34 See, e.g., MARC A. FRANKLIN & ROBERT L. RABIN, TORT LAW AND ALTERNATIVES
613 (The Foundation Press, Inc. 6th ed. 1996)
35 See generally Joseph P. King, Jr., Pain and Suffering, Noneconomic
Damages, and the Goals of Tort Law, 57 SMU L. REV. 163, 165 (2004).
36 See Sam B. Edwards, Damage to Ceremonial Property in the State of
Yap: Theories of Recovery, 7 INT’L LEGAL PERSP. 119, 150 (1995) (quoting
Frederick S. Levin, Note, Pain and Suffering Guidelines: A Cure for
Damages Measurement “Anomie,” 22 U. MICH. J.L. REF. 303 (1989))
(“[D]isparate awards send confused signals concerning the appropriate
levels of accident avoidance.”).
37 See WAYNE R. LAFAVE, CRIMINAL LAW 26 (Thompson West 4th ed.
2003) (1972) (emphasizing that criminal law focuses on punishing and
preventing improper conduct rather than rewarding socially desirable
conduct).
38 See Heriot, supra note 31, at 54 (noting that criminal law must be codified
and publicized before it is applied to the public, as compared to
civil law which is primarily based in the common law).
39 Id. at 63 n.75 (citing Lord Camden, L.C.J., Case of Hindson and
Kersey, 8 Howell’s State Trials 57 (1816)) (“The discretion of a judge is
the law of tyrants: It is always unknown: It is different in different men:
It is casual, and depends upon constitution, temper and passions.—In the
best it is often times caprice: In the worst it is every vice, folly, and passion,
to which human nature can be liable.”).
40 The Bible embraced the idea of “eye for eye, tooth for tooth, hand for
hand, foot for foot, burning for burning, wound for wound, stripe for
stripe.” Exodus 21:2425 (King James).
41 See SANFORD H. KADISH, ET AL., CRIMINAL LAW AND ITS PROCESSES
(8th ed. 2007).
42 See Heriot, supra note 31, at 66 (stating that punitive damages may be
used to punish the defendant above and beyond the level necessary to
compensate plaintiff). But see Joseph P. King, Jr., Pain and Suffering,
Noneconomic Damages, and the Goals of Tort Law, 57 SMU L. REV.
163, 181 (2004) (opining that modern tort law has moved away from the
historic tort law goal of vindication for violent conduct).
43 509 U.S. 443 (1993).
44 Id. at 469.
45 See generally Coffee, supra note 21.
46 Id. at 193.
47 See Thomas H. Koenig, Crimtorts: A Cure for Hardening of the Categories,
17 WIDENER L.J. 733 (2008).
48 See id.
Criminal Law Brief 45
49 Id. at 742.
50 See id. at 768 (citing Benjamin C. Zipursky, A Theory of Punitive
Damages, 84 TEX. L. REV. 105, 107 (2005)). See also Ronen Perry,
The Role of Retributive Justice in the Common Law of Torts: A Descriptive
Theory, 73 TENN. L. REV. 177, 180 (2006) (“The law punishes
wrongdoers even when the wrong shows no affront to the victim’s value,
and it can hardly be said that doing so is inherently unfair in the retributive
sense.”).
51 George P. Fletcher, Corrective Justice for Moderns, 106 HARV. L. REV
1658, 1667–1168 (1993) (acknowledging Aristotle as the earliest proponent
of corrective justice).
52 Id. at 1668.
53 Id.
54 Id. at 1676.
55 Thomas B. Colby, Clearing the Smoke from Philip Morris v. Williams:
The Past, Present and Future of Punitive Damages, 118 YALE L.J. 392,
422 n. 125 (2008) (citing RICHARD W. WRIGHT, RIGHT, JUSTICE AND TORT
LAW 175 (David G. Owen ed., 1997)) (making the “[argument] that the
‘notion of punitive damages as retribution ‘for the discrete wrong done
to a particular individual’ accords with corrective justice’”).
56 See id. at 439 (“Punitive damages . . . are all about private
vengeance.”).
57 517 U.S. 559 (1996).
58 Philip Morris USA v. Williams, 549 U.S. 346, 351 (2007) (citing
BMW of North America v. Gore, 517 U.S. 559, 575–76 (1996)).
59 U.S. CONST. AMEND. VIII. (“Excessive bail shall not be required, not
excessive fines imposed, nor cruel and unusual punishments inflicted.”);
see also Michael P. Allen, Of Remedy, Juries, and State Regulation of
Punitive Damages: The Significance of Philip Morris v. Williams, 63
N.Y.U. ANN. SURV. AM. L. 343, 346 n.5 (2008) (citing Browning-Ferris
Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989))
(“[T]he Court left open whether the Excessive Fines Clause is applicable
to the states through the Fourteenth Amendment and whether it is applicable
to corporate entities at all.”).
60 512 U.S. 415 (1994).
61 See id. at 432.
62 See BMW, 517 U.S. at 562; see also State Farm Mut. Auto. Inc. v.
Campbell, 538 U.S. 408, 416 (2003) (holding that there are “substantive
constitutional limitations” on punitive damage awards and that “[t]he
Due Process Clause of the Fourteenth Amendment prohibits the imposition
of grossly excessive or arbitrary punishments on a tortfeasor.”). For
a good discussion of the use of constitutional limitations of jury awards
see Allen, supra note 59.
63 549 U.S. 346 (2007).
64 Id. at 349.
65 Id. at 348, 354.
66 The New Jersey Supreme Court affirmed the Appellate Division’s recently
vacated award of punitive damages to a woman who prevailed at
trial against her former employer in a hostile work environment claim
under the New Jersey Law Against Discrimination (“LAD”). See Tarr v.
Bob Ciasulli’s Mack Auto Mall, Inc., 943 A.2d 866 (N.J. 2008).
67 See Robert W. Drane & David J. Neal, Is the Tort/Crime Distinction
Valid?, 4 LITERATURE OF LIBERTY (1981), available at http://oll.libertyfund.
org/?option=com_staticxt&staticfile=show.php%3Ftitle=1300&cha
pter=100976&layout=html&Itemid=27.
68 ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 363 (Harvard University
Press 1981).
69 Id.
70 See id. at 363–97; see also Youngjae Lee, The Constitutional Right
Against Excessive Punishment, 91 VA. L. REV 677, 703 (2005).
71 See NOZICK, supra note 68, at 363.
72 Id.
73 See id. at 364–365 (using the example that restitution for a millionaire
who steals $100 from an indigent person should not be a corresponding
loss of $100 but a deprivation equal to the loss of the $100 to the indigent
person).
74 See id.
75 Id.
76 Leigh Goodmark, The Punishment of Dixie Shanahan: Is There Justice
for Battered Women Who Kill?, 55 U. KAN. L. REV. 269, 289 (2007) (citing
C.L. TEN, CRIME, GUILT, AND PUNISHMENT: A PHILOSOPHICAL INTRODUCTION
42 (1987)).
77 See id. at 291–292.
78 See Coffee, supra note 21, at 197; see also Leslie Yalof Garfield, A
More Principled Approach to Criminalizing Negligence: A Prescription
for the Legislature, 65 TENN. L. REV. 875, 914 (1998).
79 PROSSER, supra note 11
80 Id.
81 Id.
82 See also Richard W. Wright, Causation in Tort Law, 73 CAL. L. REV.
1735 (1985); Jane Stapleton, Choosing What We Mean By “Causation”
in the Law, 73 MO. L. REV. 433 (2008); See generally H.L.A. HART &
TONY HONORé, CAUSATION IN THE LAW (2d ed. 1985).
83Wright, supra note 82, at 1762.
84 Id.
85 SeeW. PAGE KEETON, PROSSER AND KEETON ON THE LAW OF TORTS 34–
35 (West Publishing Co. 5th ed. 1984) (1941); see also CRIMES AND PUNISHMENTS
231 (Jules L. Coleman, ed., Garland Pub. 1994).
86 Keeton, supra note 85, at 34-35
87 See People v. Decina, 138 N.E.2d 799, 807 (1956).
88 Similarly, an individual who hits another while in a psychotic state
does not engage in a voluntary act.
89 RESTATEMENT (SECOND) OF TORTS § 2 cmt. c (1965).
90 See PROSSER, supra note 11, at 34 (emphasis omitted) (citations omitted).
91 See RESTATEMENT (FIRST) OF TORTS §13 cmt. d (1934). See generally
C. R. McCorkle, Annotation, Civil Liability of Insane or Other Mentally
Disordered Person for Assault or Battery, 77 A.L.R.2d 625 (1961).
92 See KEETON, supra note 85, at 34.
93 See id. at 35. The classic example of substantial certainty appears in
the case of Garrett v. Dailey, 279 P.2d 1091 (Wash. 1955), in which
seven-year-old Billy Dailey chose to pull a chair away from an elderly
Mrs. Garrett. Id. No evidence existed at the time that Billy wanted to
hurt Mrs. Garrett—in fact, he probably did not choose for her to come to
any harm at all. He just wanted to sit down. Id. However, in the case
against Billy for battery, the court found that Billy had the intent necessary
to prove the intentional tort of battery as Billy knew with substantial
certainty that pulling the chair out from under Mrs. Garrett could cause
Mrs. Garrett harm. Id.
94 See RESTATEMENT (THIRD) OF TORTS- PH § 1 cmt. B (2005) (noting that
the intent required in intentional torts is an intent to bring about harm).
95 See RESTATEMENT (SECOND) OF TORTS § 21(1) (1965); see also RESTATEMENT
(SECOND) OF TORTS § 21(2) (1965) (“An action which is not
done with the intention stated in Subsection (1, a) does not make the
actor liable to the other for an apprehension caused thereby although the
act involves an unreasonable risk of causing it and, therefore, would be
negligent or reckless if the risk threatened bodily harm.”).
96 KEETON, supra note 85, at 43. One of the earliest examples of assault
occurred in the case of I de S et. Ux v. W de S, Y.B. Lib. Ass. folio 99,
placitum 60 (Assizes 1348), reprinted in WILLIAM L. PROSSER & JOHN W.
WADE, CASES AND MATERIALS ON TORTS 36 (5th ed. 1971).
97 See KEETON, supra note 85, at 876.
98 See Jenson v. Employers Mut. Cas. Co., 468 N.W.2d 1, 1 (Wis. 1991)
(stating that mere words are not enough for liability under Wisconsin’s
workman’s compensation statute, Wis. Stat. Ann. §102.03 (2004)); see
also Kramer v. Ricksmeier, 139 N.W. 1091, 1091 (Iowa 1913) (ruling
that no action lay against the defendant who caused the relapse of a convalescent
woman through threatening and abusive language over the
telephone unless the defendant knew that the condition of the plaintiff
was so enfeebled that she could not endure such speech).
99 411 So.2d. 1347 (Fl. Dist. Ct. App. 1982).
100 See id.; see also Waag v. Thomas Pontiac, Buick, GMC, Inc., 930
46 Winter 2009
F.Supp 393, 409 (D. Minn. 1996) (holding that a defendant who threatened
a plaintiff by saying, “[c]ome on. Let’s take a ride and I will show
you what life is about,” did not provide sufficient evidence of assault,
even though there was substantial proof that the plaintiff was sufficiently
frightened). While threats coupled with an ability to perform the harm is
sufficient to support a finding of assault, gestures are also sufficient to
constitute assault. KEETON, supra note 85, at 43, 45. The origin of this
rule lay in nothing more than the fact that in the early days, the king’s
courts had their hands full when they intervened at the first threatening
gesture; or in other words, when the fight was about to start and taking
cognizance of all of the belligerent language which the foul mouths of
merry England could dispense was simply beyond their capacity. Mere
words are not assault, regardless of their violent nature. A defendant
who uttered threats, clenched his fist, and started toward plaintiff has
committed assault. See Dahlin v. Fraser, 288 N.W. 851, 852 ( Minn.
1939). But see Atkinson v. Bibb Mfg. Co., 178 S.E. 537, 538–39 (Ga.
Ct. App. 1935) (Guerry, J., dissenting) (commenting that “[i]t seems to
the writer that the right of a person to be secure in his freedom from unjustified
and unwarranted public cursing and insult by words is as valuable
a legal right as is the right to be free from physical assault or
trespass on person, property, or reputation, or the violation of a contractual
right. The law itself recognizes that a private insult or a humiliation
inflicted by words alone may justify the infliction by the person so insulted
or abused of an assault and battery not disproportionate to the insult
offered”).
101 See RESTATEMENT (SECOND) OF TORTS § 21 cmt. c (1965).
102 See id. at § 13.
103 Id.
104 See id.; see also RESTATEMENT (SECOND) OF TORTS 1, 2, 1 Sc. Nt.
(1965) (stating that at common law, the appropriate form of action for
bodily harm directly resulting from an act done with the intention stated
in Clause (a) was trespass for battery).
105 RESTATEMENT (SECOND) OF TORTS § 13 (1965).
106 Early English law defined “battery” as “the infliction of physical injury.”
See Cole v. Turner, 90 E.R. 958 (1704) (providing the earliest formulation
of the modern rule: “the least touching of another in battery is
anger.” The defendant must have carried out some positive or affirmative
act in order to be liable for battery. However, the actor is only responsible
if the defendant intended to cause harmful or offensive contact
upon the plaintiff. In this respect, the intent element is exactly the same
as the intent for assault. Offense to the dignity involved in the unpermitted
and intentional invasion of the person is the gravamen of the complaint
of battery. For example, a doctor’s decision to operate on a patient
without obtaining consent first is a classic example of battery, as is the
equivalent of spitting in the patient’s face); see also PROSSER, supra note
72, at 35, 37; see also W.S. HOLDSWORTH, A HISTORY OF THE ENGLISH
LAW 422–23 (3d. ed. 1922).
107 PROSSER, supra note 11, at 41 (discussing how the similarity of the intent
element seems to be why Prosser said that “assault and battery go
together like ham and eggs”).
108 See RESTATEMENT (SECOND) OF TORTS § 13 (1965).
109 See id. at § 21.
110 See, e.g., Szydlowski v. City of Philadelphia, 134 F.Supp.2d 636, 639
(E.D. Pa. 2001).
111 See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.
1967); see also Prezioso v. Thomas, 211 F.3d 1265, 1267 (4th Cir .
2000); Erwin v. Milligan, 67 S.W.2d 592 (Ark. 1934); Daluiso v. Boone,
455 P.2d 811, 812 (Cal. 1969); Emden v. Vitz, 198 P.2d 696, 699 (Cal.
Dist. Ct. App. 1948); Tate v. Canonica, 5 Cal. Rptr. 28 (Dist. Ct. App.
1960); Ford v. Hutson, 276 S.E.2d 776 (S.C. 1981).
112 RESTATEMENT (FIRST) OF TORTS § 35 (1948).
113 See PROSSER, supra note 79, at 42; see also RESTATEMENT (SECOND) OF
TORTS §§ 1, 35, 42 (requiring that plaintiff knew he was confined).
114 PROSSER, supra note 11, at 47 (stating that the typical original false
imprisonment involved battery since it was a “laying of the hands on another
and depriving him of his liberty.”); see also W.S. HOLDSWORTH, A
HISTORY OF THE ENGLISH LAW 423 (maintaining that false imprisonment
was one of the first trespasses recognized by common law; in medieval
times, battery extended to instances in which no physical contact occurred).
115 However, false imprisonment only requires that the defendant intend
to confine, not that he intend to cause physical or emotional harm to the
plaintiff. See Dan B. Dobbs, A Restatement (Third) of Intentional Torts?,
48 ARIZ. L. REV. 1061, 1067 (2006).
116 RESTATEMENT (SECOND) OF TORTS §35 cmt. f (1965).
117 Id.
118 HARPER, supra note 25, at 287 (quoting Bird v. Jones, 115 Eng. Rep.
668 (1845)).
119 141 A.D. 362 (N.Y. 1910).
120 Id. at 363–64.
121 See KEETON, supra note 85, at 47.
122 Mann, supra note 4, at 1808–09 (quoting 3 WILLIAM BLACKSTONE,
COMMENTARIES *2, which states that “a public mischief” is punished “to
secure to the public the benefit of society, by preventing or punishing
every breach and violation of those laws”).
123 See MODEL PENAL CODE § 2.02 (1985); see also Kenneth W. Simons,
Should the Model Penal Code’s Mens Rea Provisions be Amended?, 1
OHIO ST. J. CRIM. L. 179, 187 (2003).
124 Id.
125 See generally Martin R. Gardner, The Mens Rea Enigma: Observations
on the Role of Motive in the Criminal Law Past and Present, 1993
UTAH L. REV. 635 (1993) (discussing the history of the criminal law).
126 See BLACK’S LAW DICTIONARY 712 (7th ed. 1999) (defining “specific
intent” as “[t]he intent to accomplish the precise criminal act that one is
later charged with. At common law, the specific-intent crimes were robbery,
assault, larceny, burglary, forgery, false pretenses, embezzlement,
attempt, solicitation, and conspiracy”).
127 See id. (defining “general intent” as “[t]he intent to perform an act
even though the actor does not desire the consequences that result. This
is the state of mind required for the commission of certain common-law
crimes not requiring a specific intent or not imposing strict liability”).
128 See MODEL PENAL CODE § 2.02 (1985).
129 Id.
130 Id.
131 Note that there is a burden of proof issue but that is beyond the scope
of this article.
132 See LAFAVE, supra note 37, at 814–15.
133 See Alafair S. Burke, Domestic Violence as a Crime of Pattern and
Intent: An Alternative Reconceptualization, 75 GEO. WASH. L. REV. 552,
558, n. 33 (2007) (citing WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW
§ 16.1 (2d ed. 2003)).
134 LAFAVE, supra note 37, at 816.
135 Id. at 823.
136 See SANFORD H. KADISH, ET AL., CRIMINAL LAW AND ITS PROCESSES,
562 (8th ed. 2007).
137 LAFAVE, supra note 37, at 823, 825.
138 See Matthew J. Gillian, Stalking the Stalker: Developing New Laws to
Thwart Those Who Terrorize Others, 27 GA. L. REV. 285, 295 n. 69
(1992) (citingWAYNE R. LAFAVE & AUSTINW. SCOTT, CRIMINAL LAW
§7.16 at 691 (2d ed. 1986)) (“Generally, the crime of assault is divided
into two types: (1) attempted battery, requiring an actual attempt to cause
physical injury to the victim and not just a mere apprehension of injury;
and (2) intentional scaring, requiring only an intent to cause the victim a
reasonable apprehension of immediate bodily harm.”)
139 See, e.g., id. at 296 n. 71 (citing Commonwealth v. White, 110 Mass.
407, 409 (1872)) (holding that defendant committed assault when he
pointed unloaded gun at victim, intending to cause apprehension of battery
but not to injure); People v. Johnson, 284 N.W.2d 718, 718–19
(Mich. 1979) (finding that the defendant committed assault when he
pointed gun at victim and did not fire but intended to scare, placing victim
in reasonable apprehension); State v. Baker, 38 A. 653, 654 (R.I.
1897) (holding that defendant committed assault when he fired a gun to-
Criminal Law Brief 47
ward victim, intending to miss but intending to scare victim).
140 See State v. Kier, 194 P.3d 212 (Wash. 2008) (citing State v. Waldon,
841 P.2d 81, 83 (Wash. Ct. App. 1992)); see also State v. Wilson, 883
P.2d 320, 323 (Wash. 1994) (noting that one common law form of assault
involves “putting another in apprehension [or fear] of harm whether or
not the actor intends to inflict or is capable of inflicting that harm”).
141 See, e.g., People v. Petrella, 380 N.W.2d 11, 16 (Mich. 1985). In People
v. Petrella, the victim’s boyfriend testified that the victim was the
“most frightened [he] had ever seen her.” The victim experienced nightmares,
had difficulty sleeping, and sought constant protection from her
boyfriend. She also feared that the defendant and his friends—who
knew where she lived—would return; therefore, she wanted to move out
of her house. Consequently, the victim and her boyfriend moved to California,
but the incident continued to affect her up until the defendant’s
trial. At the time of defendant’s trial, the victim had not visited a doctor
for counseling, but had called a rape hotline. Given these facts, there
was sufficient evidence for a jury to find beyond a reasonable doubt that
the victim suffered personal injury in the form of mental anguish.
142 Id. at 34.
143 See MODEL PENAL CODE § 2.11 (1985).
144 See id. (stating that “[a] person is guilty of assault if he: (a) attempts
to cause or purposely, knowingly or recklessly causes bodily injury to
another; or . . . (c) attempts by physical menace to put another in fear of
imminent serious bodily injury”).
145 LAFAVE, supra note 37, at 816.
146 For a good description of the similarities between assault and battery;
see People v. Thurston, 84 Cal. Rptr. 2d 221 (Ct. App. 1999) (where the
trial mistakenly instructed the jury that battery was a general intent
crime).
147 See MODEL PENAL CODE § 2.11 (1985).
148 See Dobbs, supra note 115, at 63 (stating that Section 1 of the Restatement
(Third) of Torts provides for a “new general definition of intent.
An ‘intent’ to produce a consequence means either the purpose to
produce that consequence or the knowledge that the consequence is substantially
certain to result”).
149 See MPC PART II COMMENTARIES, VOL. 1, at 174. The commentary for
§ 211.1 and § 211.3 have consolidated “mayhem.”
150 See MODEL PENAL CODE § 2.11 (B) (1985) (stating that “battery” is
“negligently caus[ing] bodily injury to another with a deadly weapon; or
. . . Simple assault is a misdemeanor unless committed in a fight or scuffle
entered into by mutual consent, in which case it is a petty misdemeanor”).
151 See id.
152 Id.
153 See Harris v. State, 164 S.W.3d 775, 785 (Tex. Ct. App. 2005) (holding
evidence was sufficient to show bodily injury because victim had
“reddish marks around [her] neck” and scratch on her collarbone). See
also North Dakota v. Saulter, 764 N.W.2d 430 (N.D. 2009) (where the
defendant lifted the victim off the ground by her neck).
154 See Scott v. United States, 954 A.2d 1037, 1046 (D.C. Cir. 2008) (saying
serious bodily injury sufficient to affirm an aggravated assault conviction
means the victim sustained life-threatening or disabling injuries
involving grievous stab wounds, severe burnings, or broken bones, lacerations
and actual or threatened loss of consciousness); see also Reynolds
v. State, 668 S.E.2d 846, 849 (Ga. Ct. App. 2008) (ruling that evidence
was sufficient to show injury when victim testified that she was thrown
to the ground, was bruised on multiple parts of her body, experienced
soreness, and “saw stars” when defendant struck her in the head with a
plank); Arzaga v State, 86 S.W.3d 767, 780 (Tex. Ct. App. 2002) (holding
State proved bodily injury by legally sufficient evidence because victim
had at least one abrasion on inside of upper lip and her mouth was
swollen and bruised after being punched by the defendant); Hubert v.
State, 652 S.W.2d 585, 588 (Tex. Ct. App. 1983) (holding victim’s testimony
that appellant struck his face and scratched his neck, which caused
swelling and tenderness, was sufficient to prove bodily injury); Allen v.
State, 533 S.W.2d 352, 354 (Tex. Crim. App. 1976) (holding evidence
was sufficient to show bodily injury where appellant kicked police officer
in nose and officer testified his nose hurt, swelled, and was sore for
three or four days).
155 See WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW §18.3(2), 3
SUBST. CRIM. L. § 18.3 (2d ed.).
156 See CHARLES E. TORCIA, 2 WHARTON’S CRIMINAL LAW § 206 (15th ed.
2009) (stating that false “imprisonment need not be accomplished by violence
or even a touching; it may be accomplished by mere words, accompanied
by a show of force or authority, to which the victim
submits”).
157 See MODEL PENAL CODE § 2.12.2; see also N.J. STAT. ANN.§2C:13-2
(West 2005).
158 See Grayson Variety Store, Inc. v. Shaffer, 402 S.W.2d 424, 425 (Ky.
1966) (finding no false imprisonment where a store manager suspected
the plaintiffs of stealing, stopped the plaintiffs after they left the store,
and asked him to return to store for discussion of the matter).
159 RESTATEMENT (SECOND) OF TORTS § 46 (1965).
160 Id.
161 Sherry Honicutt Everett, The Law of Alienation of Affections After
McCutchen v. McCutchen: In North Carolina, Breaking Up Just Got
Harder to Do, 85 N.C. L. REV. 1761, 1779 n.114 (2007) (quoting
CHARLES E. DAYE & MARKW. MORRIS, NORTH CAROLINA LAW OF TORTS
§5.31 (2d ed. 1999)).
162 See George P. Smith, Re-Validating the Doctrine of Anticipatory Nuisance,
29 VT. L. REV. 687, 687 n. 18 (2005) (citing WILLIAM M. LANDES
& RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF TORT LAW 2
(1987)) (stating that the “first cause of action in tort that arose in the
twelfth century as the intentional tort, which allowed damages to be recovered
through the writ of trespass vi et armis in cases of battery”).
163 Wilkinson v. Downton, 2 q.B. 57 (1897). For a detailed discussion of
IIED and its history; see John J. Kircher, The Four Faces Of Tort Law:
Liability for Emotional Harm, 90 MARq. L. REV. 789 (2007).
164 Kircher, supra note 164, at 795 (quoting Wilkinson v Downton, 2
q.B. 57 (1897)). Before intentional infliction of emotional distress its
own separate tort, United States courts allowed recovery for mental distress
if it was associated with one’s intentional mistreatment of dead
bodies or burial rights. Id. In 1999, the Alabama Supreme Court, reviewing
past history of this old tort, noted that “[i]t has long been the
law of Alabama that mistreatment of burial places and human remains
will support the recovery of damages for mental suffering.” Id. (quoting
Gray Brown-Service Mortuary, Inc. v. Lloyd, 729 So.2d 280 (Ala.
1999)). Prosser has also noted that recovery for the intentional infliction
of emotional distress had been allowed for “common carriers, telegraph
companies, and innkeepers.” Id. (citing W. PAGE KEETON ET AL.,
PROSSER AND KEETON ON THE LAW OF TORTS 43 (West Publishing Co. 5th
ed. 1984) (1941)). The reason why this was the case, it is opined, was
that these entities were “’the only game in town’” and were the equivalent
of a “monopoly as to the services they provided to many communities.”
Id. Due to this, people had no choice but to use these services,
whereby the actions of such services had to be scrutinized quite closely.
Id. Thus, allowing for such a cause of action against common carriers,
telegraph companies, and innkeepers. Id.
165 Id. Wilkinson v. Downton, a late nineteenth century case, presents one
of the earliest recognitions of IIED. The defendant in Wilkinson played a
practical joke on the victim, telling her that her husband’s leg had been
broken and that, in response, he had been taken for urgent care. Id. at
795. A particular sense of urgency was included in the defendant’s tale,
and he urged the plaintiff to quickly rush to her husband’s side. Consequently,
the plaintiff was thrown into a violent shock [in] her nervous
system, producing vomiting and other more serious and permanent physical
consequences at one time threatening her reason, and entailing
weeks of suffering and incapacity to her as well as expense to her husband
for medical attendance. These consequences were not in any way
the result of previous ill-health or weakness of constitution, nor was
there any evidence of predisposition to nervous shock or any other idiosyncrasy.
Id. The court allowed the plaintiff to recover for the harm she
48 Winter 2009
suffered.
166 See RESTATEMENT (FIRST) OF TORTS § 46 (1948). The first Restatement
of Torts curtailed the seemingly broad sweep of Wilkinson by generally
prohibiting individual responsibility for emotional distress or
bodily injury that resulted from conduct intended or likely to cause emotional
disturbance. Id. The only exceptions were for breach of the duty
to exercise civility that common carriers, innkeepers, and telegraph companies
owed to their customers, as well as recovery in cases involving
the mishandling of dead bodies. Id.
167 240 P.2d 282, 284–85 (Cal. 1952) (holding “a cause of action is established
when it is shown that one, in the absence of any privilege, intentionally
subjects another to the mental suffering incident to serious
threats to his physical well-being, whether or not the threats are made
under such circumstances as to constitute a technical assault”).
168 See Kircher, supra note 164, at 806.
169 RESTATEMENT (SECOND) OF TORTS § 46, cmt. F. IIED allows for conduct
that goes beyond intention to include those acts in which the actor
deliberately disregards a high degree or probability that his or her conduct
will cause emotional distress. See id. The difference between one
who is substantially certain that one will suffer from emotional distress
and one who knows of a high probability of such distress is really a matter
of degree. Thus, the drafters of the Restatement allow for recovery
from one who is less than almost certain, but more than just guessing,
that this conduct will cause such distress. See id. If an individual were
to view intent in a linear fashion, with intentional awareness at the outer
left end of the line and unawareness to the right, then the degree of
awareness necessary to prove assault, battery, and false imprisonment
might move slightly to the right of the end of the line while the degree of
awareness allowed to prove IIED would pass that point slightly further
to the right.
170 RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965) (“Liability has
been found only where the conduct has been so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized
community.”)
171 Id.
172 Id.; see also Smallzman v. Sea Breeze, Inc., 1993 WL 15904 (D. Md.
Jan. 7, 1993) (ruling that the defendant reached this threshold when he
shouted “you goddamn ‘niggers’ are not going to tell me about the rules”
at the victims).
173 Kircher, supra note 163, at 800 (citation omitted).
174 Id. at 800 n. 56. (citing RESTATEMENT (SECOND) OF TORTS SEC. 46 cmt.
d (1965)). Prof. John Kircher identified four categories of conduct that
support a finding of outrage when the defendant intentionally inflicts
emotional harm: “(1) abusing a position of power; (2) emotionally harming
a plaintiff known to be especially vulnerable; (3) repeating or continuing
conduct that may be tolerable when committed once but becomes
intolerable when committed numerous times; and (4) committing or
threatening violence or serious economic harm to a person or property in
which the plaintiff is known to have a special interest.” Id.
175 See, e.g., Smullen v. Interfact Polygraphs, Inc., 1991 WL 199495, at
*6 (Ohio Ct. App. 1991) (citing Pyle v. Pyle, 463 N.E.2d 98 (Ohio Ct.
App. 1983). This footnote refers to the case syllabus prepared by the
Reporter of Decisions.
176 See infra notes 187-96.
177 See supra note 154 and accompanying text.
178 Id.
179 See supra note 114.
180 See RESTATEMENT (THIRD) OF TORTS § 33 (1985).
181 Id.
182 See, e.g., TORCIA, supra note 157, § 177, decision approved, 783 So.
2d 967 (Fla. 2001) (citing Clark v. State, 746 So. 2d 1237 (Fla. Dist. Ct.
App. 1999)). Under Florida’s battery statute, “the degree of injury
caused by an intentional touching is not relevant; any intentional touching
of another person against such person’s will is technically a criminal
battery.” Id.
183 See, e.g., Bentley v. Kentucky, 354 S.W.2d 495 (Ky. Ct. App. 1962).
184 See, e.g., Sloan v. Indiana, 42 Ind. 570 (1873).
185 See, e.g., Leichtman v. WLW Jacor Commc’ns, Inc., 634 N.E.2d 697
(Ohio Ct. App. 1994).
186 See Minch Family Ltd. P’ship v. Buffalo-Red River Watershed Dist.,
2007 WL 93084, at *3 (Minn. Ct. App. 2007) (agreeing that the plaintiff’s
distress did not rise to the level required for intentional infliction of
emotional distress); see also Gaspard v. Beadle, 36 S.W.3d 229, 234
(Tex. Ct. App. 2001) (declining to find plaintiff’s behavior “extreme and
outrageous” where evidence showed that she suffered headaches, depression,
and loss of sleep).
187 See National Institute for Mental Health, What are the Symptoms of
Depression?, DEPRESSION 4, available at
http://www.nimh.nih.gov/health/publications/depression/nimhdepression.
pdf [hereinafer Symptoms of Depression]. As for posttraumatic
stress disorder (“PTSD”), which can occur after a person experiences
some type of trauma, the American Psychological Association states,
“Untreated posttraumatic symptoms not only have tremendous mental
health implications, but can also lead to adverse effects on physical
health. Female survivors [of abuse] may encounter physical symptoms
including headaches, gastro-intestinal problems, and sexual dysfunction.”
American Psychological Association, Facts About Women and
Trauma, available at
http://www.apa.org/about/gr/issues/women/trauma.aspx. See also National
Institute for Mental Health, Generalized Anxiety Disorder (GAD),
ANXIETY DISORDERS 12, available at
http://www.nimh.nih.gov/health/publications/anxiety-disorders/nimhanxiety.
pdf [hereinafter Generalized Anxiety Disorder].
188 See Generalized Anxiety Disorder, supra note 188, at 21.
189 Id.
190 See supra note 114.
191 Symptoms of Depression, supra note 188, at 4.
192 Generalized Anxiety Disorder, supra note 188, at 12.
193 See Facts About Women and Trauma, supra note 188 (noting that victims
of emotional abuse can develop PTSD).
194 Diane.R. Follingstad et al., The Role of Emotional Abuse in Physically
Abusive Relationships, 5 J. FAM. VIOLENCE 107, 107–119 (2005).
195 Id. at 609. After reviewing the literature on the psychological abuse
of women, Dr. Virginia A. Kelly noted, “[c]ertainly, there is strong evidence
to support a claim that victims of psychological abuse are likely to
exhibit increased levels of both anxiety and depression.”
196 See infra note 213.
197 See State v. Cobbins, 21 S.W.3d 876 (Mo. Ct. App. 1994) (holding
that, although the victim entered the car voluntarily, there was sufficient
proof that she was restrained without her consent so as to substantially
interfere with her liberty because defendant began to drive in the wrong
direction, locked the doors, and told the victim, after she asked to be let
out, she would not be hurt and he only needed money).
198 2008 WL 5191394 (S.D.N.Y. Dec. 12, 2008).
199 645 P.2d 916 (Kan. Ct. App. 1982).
200 Id. at 918.
201 Id.
202 Id.
203 Rissman, 2008 WL 5191394 at *3.
204 See, e.g., Robinson v. Hewlett-Packard Corp., 228 Cal. Rptr. 591, 604
(Cal. Dist. Ct. App. 1986) (quoting Alcorn v. Anborn Eng’g Inc., 468
P.2d 216, 219 n.4 (Cal. 1970)) (stating that “the slang epithet ‘nigger’ . . .
has become particularly abusive and insulting.”).
Indeed, racial slurs perpetuated by police officers can, of themselves, be
sufficient evidence of extreme and outrageous conduct. See Mejia v.
City of New York, 119 F. Supp. 2d 232, 286 (E.D.N.Y . 2000) (reasoning
that ethnically “disparaging remarks” uttered by a police officer may
well fall within the Restatement’s definition of outrageous conduct, even
if the same remarks by a private citizen would not); see, e.g., Kelly v.
City of Minneapolis, 598 N.W.2d 657, 663 (Minn. 1999) (upholding a
Criminal Law Brief 49
50 Winter 2009
jury verdict on an IIED claim in favor of the plaintiff/arrestees where the
officers used justifiable force but also used racial epithets and disparaging
names).
Such slurs by an employer can also be sufficient evidence of extreme
and outrageous conduct. See Jones v. Fluor Daniel Services Corp., 959
So.2d 1044 (Miss. 2007) (ruling in favor of the employees in an IIED
claim when the employees’ supervisor told them “you monkeys can go
to work or go to the rope.”); see also Alcorn v. Anborn Eng’g Inc., 468
P.2d 216, 216 (Cal. 1970) (holding that an employee had sufficiently alleged
IIED because his supervisor shouted racial epithets and fired him).
205 468 P.2d 216 (Cal. 1970).
206 Id. at 219.
207 Id. at 218.
208 2005 WL 3113100 (N.D. Cal. Nov. 21, 2005).
209 Id. at *2.
210 See, e.g., Reeves v. Middletown Ath. Ass’n, 866 A.2d 1115, 1123 (Pa.
Super. Ct. 2004); Fulton v. United States, 198 Fed. App’x 210, 215 (3d
Cir. 2006).
211 In many states, courts require that the plaintiff must suffer some type
of physical harm. Pennsylvania law requires that a plaintiff suffer “some
type of resulting physical harm due to the defendant’s outrageous conduct”
in order to satisfy the “severe emotional distress” element of this
claim. See Reeves, 866 A.2d at 1122–23 (affirming dismissal of intentional
infliction of emotional distress claim because plaintiff’s complaint
only alleged “serious and permanent physical injury” without specifying
the type of injury); see also id. (citing Fewell v. Besner, 664 A.2d 577,
582 (Pa. Super. Ct. 1995) (“[P]laintiff must also show physical injury or
harm in order to sustain a cause of action for intentional infliction of
emotional distress.”); Fulton, 198 Fed. App’x at 215 (non-precedential)
(“[I]n Pennsylvania, both intentional and negligent infliction of emotional
distress requires a manifestation of physical impairment resulting
from the distress.”).
212 See Burton Caine, The Trouble with “Fighting Words”: Chaplinsky v.
New Hampshire is a Threat to First Amendment Values and Should be
Overruled, 88 MARq. L. REV. 441, 444 (2004) (stating that Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942), a case where the Court upheld a
conviction based on New Hampshire “fighting words” statute was
wrongly decided. Furthermore, Caine contends that fighting words, as
opposed to physical attacks, are protected by the First Amendment and
therefore should never be a basis for a conviction.); see Eleanor Beardsley,
France Moves To Outlaw Mental Abuse In Marriages, NPR, Jan. 8,
2010, http://www.npr.org/templates/story/story.php?f=1001&ft=1&storyId=
122362876 (noting that the French Parliament is considering criminalization
of verbal abuse between spouses or co-habitating partners)
213 See N.Y. PENAL LAW § 240.25 (McKinney 2008). See also 18 U.S.C.
§ 245(b)(2); MODEL PENAL CODE § 250.4.
214 See ELAINE M. JOHANNES, WHENWORDS BECOMEWEAPONS: VERBAL
ABUSE (Kan. State U. 1995), available at http://www.ksre.ksu.edu/library/
FAMLF2/GT346.PDF.
215 See id.
216 See Larry Alexander & Kimberly D. Kessler, Mens Rea and Inchoate
Crimes, 87 J. CRIM. L. & CRIMINOLOGY 1138 (1997); see also TORCIA,
supra note 157, at § 182 (supporting the principle of conditional intent).
217 See MODEL PENAL CODE §§ 5.01-.07 (1985).
218 See MODEL PENAL CODE §§ 5.03 (1985).
219 Victoria Kim, Mother Convicted in Internet Hoax Case Scheduled for
Sentencing Today, L.A. TIMES, May 18, 2009, available at http://latimesblogs.
latimes.com/lanow/2009/05/mother-convicted-in-internet-hoaxthat-
led-to-suicide-will-be-sentenced-today.html.
220 Id.
221 Id.
222 Id.
223 See Zachary R. Dowdy & Sophia Chang, Web Ad Spurs Mom’s Arrest,
NEWSDAY, May 9, 2009.
224 N.Y. PENAL LAW § 240.30 (McKinney 2008).
225 N.Y. PENAL LAW § 70.15 (McKinney 2009).
226 N.Y. PENAL LAW § 70.00 (McKinney 2007).
227 KADISH, supra note 41.
228 See Lee, supra note 70, at 703.
229 See id.
230 See id.
231 See Lee, supra note 70.
232 See id.
233 See generally Mark Perlman, Punishing Act and Counting Consequences,
37 ARIZ. L. REV. 227, 232 (1995) (citing Richard Parker,
Blame, Punishment, and the Role of Result, 21 AM. PHIL. q. 269 (1984)).
234 Id.
235 Id.
236 See generally Joel Feinberg, Equal Punishment for Failed Attempts:
Some Bad But Instructive Arguments Against It, 37 ARIZ. L. REV. 117
(1995).
237 See Russell Covey, Reconsidering the Relationship Between Cognitive
Psychology and Plea Bargaining, 91 MARq. L. REV. 213, 229 n. 60
(2007) (citing U.S. Sent’g Comm’n, Statistical Information Packet tbl. 7
(2006), available at http://www.uscs.gov/JUDPACK/2006/1cB6.pdf)
(showing that national federal median sentence for manslaughter is
thirty-seven months); see also Celia Goldwag, The Constitutionality of
Affirmative Defenses After Patterson v. New York, 78 COLUM. L. REV.
655, 658 n. 29 (1978) (stating that the maximum sentence for
manslaughter in Maine is $1,000 or twenty years).
238 See RESTATEMENT (FIRST) OF TORTS §§ 21, 35 (1948).
239 See supra note 187; see also Nicole M. Capezza & Ximena B. Arriaga,
You Can Degrade But you Can’t Hit: Differences in Perceptions of
Psychological Versus Physical Aggression, 25 J. SOC. & PERS. RELATIONSHIPS
225, 240 (2008).
240 See supra note 187.
241 Kim, supra note 220.
242 Id. This article does not propose to argue for or against the theories of
deterrence. For an interesting argument on the value of deterrence, see
Michael Tonry, Learning from the Limitations of Deterrence Research,
37 CRIME & JUST. 279 (2008).
243 See MODEL PENAL CODE § 2.11 (B) (1985).
244 David Chasen, France Mulls ‘Psychological Violence’ Ban, BBC
NEWS, Jan. 5, 2010 http://news.bbc.co.uk/2/hi/europe/8440199.stm.
245 Eleanor Beardsley, France Moves To Outlaw Mental Abuse In Marriages,
NPR, Jan. 8, 2010
http://www.npr.org/templates/story/story.php?f=1001&ft=1&storyId=
122362876.
246 Id.
About the Author
Professor Leslie Yalof Garfield's scholarship and
teaching bridge the worlds of theory and practice.
Prior to coming to Pace, Professor Garfield was a
legislative attorney in the Legal Division of the
Council of the City of New York. Her responsibilities
included drafting legislation, organizing public hearings
and coordinating with city agencies and interest
groups on the city's legislative process. She currently
teaches and writes in the areas of Criminal Law,
Torts, Commercial Law and Constitutional Law. Professor
Garfield's recent publications include articles
on the intersection between criminal and tort law, the
use of race-based preferences in higher education and
academic support for at-risk students.