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1-1-2009

The Case for a Criminal Law Theory of IntentionalInfliction of Emotional DistressLeslie Yalof GarfieldPace University School of Law, lgarfield@law.pace.edu

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Recommended CitationLeslie Yalof Garfield, The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress, 5 Crim. L. Brief 33 (2009).

B i LESI- YALO GARFIELD

Words hurt! Recent cyber bulling news

stories show that a word can be aspainful as a punch.' Unfortunately, thelaw redresses those who suffer injury

from harmful speech through a series of innocuousremedies, including financial remuneration or retribu-tion through minimal criminal penalties.2 However, thelaw does not criminally sanction those who intentionallyinflict verbal emotional harm to the same degree asthose who intentionally inflict phvsical harm3 In otherwords, the legislature and thecourts are have not yet ele-vated an actor's intentionalinflictions of verbal harm tothe same jurisprudenial ech-elon as intentional inflictionsof physical force.4

Consider the first fed-eral cyber bullying case ofMs. Lori Drew. Ms. Drew, aforty-nine-year-old woman,was charged for using a fake"MySpace" account to tor-ment a thirteen-year-old girl. The girl committed sui-cide as a result of the hoax. Initially, Ms. Drew wasfound guilty of three counts of unauthorized access to aweb site-misdemeanors that carry minimal punish-ment., The verdict was subsequently overturned by afederal judge., The conduct that Ms. Drew was chargedwith was one that "millions of people" engaged in, andthe judge was reluctant to establish a precedent on whichany person may be convicted for a mere violation ofMySpace's terms of service.,,

Society does not impose criminal sanctions forthe intentional infliction of severe mental anguish; in-stead, such acts are punished civilly as the intentionalinfliction of emotional distress (IIED). Interestingly,IIED is the only intentional tort involving harm to a per-son that does not share a criminal counterpart.11 Everystate has imposed criminal penalties for the intentionaltorts of assault, battery, and false imprisonment. 12 It ap-pears that the intentional infliction of emotional distressis accorded a lesser punitive status than the choice tothreaten or use physical force against another.

The same elements are used to prove both IIED and thecriminal charges for assault, battery and false imprison-ment. IIED, like assault and false imprisonment, islargely a mental anguish offense.13 A prima facie casefor IIED requires, among other elements, proof that theplaintiff suffered severe emotional harm.14 Similarly, as-sault and false imprisonment require proof that a victimsuffered a similar type of cognitive distress, such as afear of harm or loss of liberty1 In contrast, battery re-quires Droof of Dhvsical harm.16

At first blush, onemight argue that IIED,which is a harm of severeemotional distress, doesnot share the requirementthat the plaintiff sufferedsome physical pain. How-ever, according to recentbiological and neurochem-ical studies, one can expe-rience physical pain inresponse to a tone or a par-ticular set of harsh words. 17

If one accepts these findings as true, the physical harmrequirement of battery may be equally prevalent amongthose who are subject to severe and outrageous conduct.Given that IIED presents the same types of harm as thecriminalized intentional torts, society would be well-served by assigning lIED the same criminal status.

Some modem theorists may argue that, given thecurrent state of the law, it is unnecessary to criminalizeIIED.11 According to these scholars, tort law has effec-tively absorbed the theories of retribution and deterrencethrough the use of large civil sanctions. 9 These sanc-tions serve a utilitarian purpose by regulating human be-havior and satisfying the need for vengeance. 2" Others,however, argue that tort law primarily "prices" harm,whereas criminal law serves to prohibit socially harmfulbehavior.21 Consequently, the assignment of monetarypenalties as both retributive and deterrent in nature willnever compensate for the larger threat to individual lib-erty.1 According to those in the latter camp, in order tosafeguard against physical harm, it is important to instillin society "a general fear which cannot be adequately

Criminal Law BriefHeinOnline -- 5 Crim. L. Brief 33 2009

ords 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 ohvsical 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 jurispmdential 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 girL6 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. R The verdict was subsequently overturned by a federaljudge. 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 (lIED). Interestingly, lIED is the only intentional tort involving hann 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 lIED and the criminal charges for assault, battery and false imprison­ment. lIED, like assault and false imprisonment, is largely a mental anguish offense. 13 A prima facie case for lIED 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 oroof of ohvsical harm. 16

At first blush, one might argue that lIED, 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 lIED presents the same types of harnl as the criminalized intentional torts, society would be well­served by assigning lIED the same criminal status.

Some modern theorists may argue that, given the current state of the law, it is unnecessary to criminalize lIED.!>: 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" harnl, whereas criminal law serves to prohibit socially harnlful 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

remedied by compensation."21 Therefore, an issue arisesas to the appropriateness of extending criminal sanctionsto a harm that the law already redresses. 2

1

This article will explore the appropriateness of crim-inalizing IIED. Part I will discuss the historical contextof civil and criminal remedies and evaluate their modemapplication to intentional acts. Part II will explore thelimitations of IIED and analyze whether the hamicaused by IIED parallels the harm caused by intentionalcriminalized torts. Part III will evaluate the appropri-ateness of criminalizing IIED. The article will concludethat, given recent neuroscientific findings, IIED shouldbe criminalized.

The common law distinction between moderncriminal law and tort law was predicated on the victim'sdesire for retribution.2 In the early common law, a vic-tim could pursue justice for the same wrongful act eitherthrough what is now considered tort law or throughcriminal law.2 Forbidden actions were punishable bythe crown, as the King was said to have been wrongedby every impermissible act. 2

1 In addition, individualscould independently seek retribution from impermlissi-ble acts through the legal system, which was intendedto deter private physical retaliation .8 As such, whetheran action was brought in tort or in criminal law waslargely a function of the wronged parties' preference.2

A. Punishing Civil and Criminal Wrongs

The present distinctions between criminal andtort law vary little from their early predecessors. Crim-inal wrongs harm society while civil wrongs harm indi-viduals. ° Although, most jurisdictions have codifiedcriminal wrongs and enumerated specific punishments,torts remain largely uncodified.31 Damages can be nom-inal, compensatory, or punitive,32 and the assignment ofeach is left to the complete discretion of a judge or jury.,,

Tort damage awards seek to achieve three fun-damental goals: (1) to make the victim whole or as nearto whole as possible;3" (2) to compensate the victim foradditional pain or suffering inflicted by the wrong;15 and(3) to deter wrongdoers from engaging in the same con-duct in the future." Thus, tort damages do not solelyserve to regulate human conduct, but rather to place theinjured party in the same position he or she was in be-fore the wrong occurred.

In contrast, criminal punishment serves to curtailfuture undesirable conduct by reshaping societalnorms.37 In certain instances, criminal punishment mayresult in the loss of liberty or finances. The legislatureis largely responsible for determining the range of pun-ishment that may be assigned for a specific criminalact.38 As such, judges have a degree of discretion withinthese ranges to determine the punishment that is war-ranted in a given criminal case.3"

During this process, a judge may consider sev-eral theories of punishment, including retribution anddeterrence. Retribution imposes punishment as a meansof societal revenge.10 Deterrence imposes individualpunishment as a disincentive to the individual and toothers from engaging in the same harmful conduct inthe future., These theories are designed to satiate acommunity's need for revenge and to assure conformityto desirable social mores.

This judicial embrace of retribution and deter-rence has blurred the line between criminal and tort law,particularly within the area of damages awards. In re-cent years, tort law has incorporated the criminal theo-ries of retribution and deterrence.12 Courts have beenmore inclined to use tort awards to sanction undesirableconduct and to help shape societal norms. For example,in TXO Production Corp. v Alliance Resources Corp.,"the Supreme Court upheld the jury's award of S 19,000in compensatory damages and $10 million in punitivedamages for slander, reasoning that "a substantial [civil]award was required in order to serve the goals of pun-ishment and deterrence.",, The Court's rationale hasbeen recognized by scholars as a bourgeoning relation-ship between civil and criminal lawi4 John Coffee re-cently noted that "the dominant development insubstantive federal criminal law over the last decade hasbeen the disappearance of any clearly definable line be-tween civil and criminal law. '"4,

Thomas Koenig and Michael Rustad have ex-plicitly recognized that the criminal law principles ofretribution and deterrence have been assimilated intotort law, ultimately coining the term "crimtort. " 41 Crim-tort is generally used to advance the notion that civilsanctions can serve to regulate corporate wrongdoers.8Financial deterrence at the corporate level is of greatvalue since loss of monies can threaten the financialhealth, or even existence, of a particular business en-tity. 9

Theorists have posited the existence of a retribu-tive factor within the assignment of tort awards.10George P. Fletcher's notion of corrective justice supports

Winter 2009HeinOnline -- 5 Crim. L. Brief 34 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.2"

This article will explore the appropriateness of crim­inalizing lIED. Part I will discuss the historical context of civil and criminal remedies and evaluate their modem application to intentional acts. Part II will explore the limitations of IIED and analyze whether the haml caused by lIED parallels the harm caused by intentional criminalized torts. Part III will evaluate the appropri­ateness of criminalizing lIED. The miicle will conclude that, given recent neuroscientific findings, lIED 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 criminallaw.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 impemlissi­ble 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;3" (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 normsY In certain instances, criminal punishment may result in the loss of liberty or finances. The legislature is largely responsible for detemlining 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."o Deterrence imposes individual punishment as a disincentive to the individual and to others from engaging in the same harmful conduct in the future." 1 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 bllllTed 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."2 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.,"3 the Supreme Court upheld the jury's award of 519,000 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.""" The Court's rationale has been recognized by scholars as a bourgeoning relation­ship between civil and criminallaw.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 criminallaw."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."8 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."9

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

this theory. Under corrective justice theory, "wrongfulacts create an imbalance in the equilibrium establishedunder criteria of 'the geometric proportionality' of dis-tributive justice."1 The wrongdoer "creates a shift inresources from victim to the injurer." 52 In turn, "the in-jurer should be required to give half the imbalance aspayment to the victim" to restore the status quo. 53 Froma purely economic perspective, corrective justice sug-gests that the wronged party is responsible for makingthe injured party whole. 54 According to this definition,it is hard to see how the use of a civil award-viewedfrom a corrective justice perspective-provides any de-terrent effect. However, to the extent that a victim feelssatisfied that he or she is now whole again, correctivejustice has a large retributive aspect.1

Theorists' evaluation of the use of punitive dam-ages to support criminal theories of punishment hasplayed out in the courts, which, after the TXO Produc-tions Corp. decision, have routinely assessed punitivedamages against defendants in civil cases as a means ofsatiating a plaintiff's need for retribution.6 In BMW ofNorth America, Inc. v. Gore," the Supreme Court "em-phasized the constitutional need for punitive damagesawards to reflect (1) the 'reprehensibility' of the defen-dant's conduct, (2) a 'reasonable relationship' to theharm the plaintiff (or related victim) suffered, and (3)the presence (or absence) of 'sanctions,' e.g., criminalpenalties, that state law provided for comparable con-duct.",,

The Court, however, has recently begun to haltthe use of damage assessments as a means to punish.Although the Court has yet to use the Eight AmendmentExcessive Fines Clause to limit punitive awards," theCourt has announced a series of cases that, under theDue Process Clause, curtail a state or individual's rightto collect unreasonably huge punitive awards. For ex-ample, in Honda Motor Co. v. Oberg6 the Court ruledthat due process principles require judicial review ofpunitive damage awards.,, In BMW of Vorth America,Inc. v Gore, a 5-4 majority ruled that the Constitutionprohibits "grossly excessive punishment on a tortfea-sor."6 2 Most recently, in Philip Morris v: Williams,,3 awidow brought a suit against Philip Morris for negli-gence and deceit on behalf of her dead husband, a heavycigarette smoker.34 The Court considered the appropri-ateness of a large jury award and ruled in a 5-4 decisionthat the Constitution's Due Process Clause prohibits theuse of punitive damage awards to punish defendants forharm inflicted on persons who are not parties to thesuit. ' Courts at the state level have rendered similar de-

cisions. For example, the New Jersey Supreme Courtrecently ruled that the Punitive Damages Act ("PDA")did not permit a jury to consider general deterrence toothers when awarding punitive damages.6

This limitation on punitive damage awards as ameans of retribution or deterrence tacitly acknowledgesthat its place lies most firmly within the confines ofcriminal rather than civil law. Regardless of the use ofcivil sanctions, a need remains for using criminal penal-ties to achieve the societal goals of conformity. Underthe theory that individuals are most likely to regulatetheir behavior out of fear of humiliation or loss of lib-erty, criminal sanctions are an appropriate means to as-sure that individuals behave within the rules of society.

Robert Nozick has posited that in order to safe-guard against physical harm, society must maintain "ageneral fear which cannot be adequately remedied bycompensation."'

37 Nozick's notion is primarily based on

the retributive model.68 According to Professor Nozick,criminal punishment is deserved under certain instances,if not demandedi 9 Professor Nozick demonstrates thistheory through a formula; punishment deserved = r * H,where H is the magnitude of the wrongness or harm, andr is the degree of responsibility. 70 Blameworthiness is afunction of the value of the wrong done by the agent (H)and the degree of the agent's responsibility for thewrongdoing (r).71 The value ofr may range from no re-sponsibility (0), as when a criminal defendant is notguilty by reason of insanity, to full responsibility (1), aswhen the defendant intentionally committed the crime. 72

Professor Nozick's theory is particularly appli-cable to intentional wrongs. According to the theoriesof corrective justice and crimtort, the redistribution ofwealth from the intentional wrongdoer to the victim canarguably coerce the wrongdoer into behaving properly.73

However, what is absent from both theories is the stigmathat is attached to criminal punishment; Prof. Nozick'stheory properly accounts for the coercive value ofstigma. His formula indicates that the more responsiblethe wrongdoer is, the greater the punishment deserved. 74

To the extent that punishment is viewed on a slidingscale-from probation to monetary obligations to a lossof liberty-certainly the latter is the most compelling toensure social conformity. Defendants who commit tortsmust balance the financial penalty against the personalvalue gained from committing the wrong. In contrast,criminal punishment stigmatizes the individual, therebyimposing a larger punishment and a greater disincentiveto engaging in those particular acts. 71

According to Professor Nozick, criminal punish-

Criminal Law BriefHeinOnline -- 5 Crim. L. Brief 35 2009

this theory. Under corrective justice theory, "wrongful acts create an imbalance in the equilibrium established under criteria of 'the geometric proportionality' of dis­tributive justice."5l 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 aspectY

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 j\1otor Co. v. Oberg,60 the Court ruled that due process principles require judicial review of punitive damage awards.6l 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 j\1orris v. T¥illiams,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 de-

clslOns. For example, the New Jersey Supreme Court recently ruled that the Punitive Damages Act ("PDA") did not pernlit 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 confornlity. 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 mode1.68 According to Professor Nozick, criminal punishment is deserved under certain instances, if not demanded. 69 Professor N ozide demonstrates this theory through a fornmla; punishment deserved = r * H, where H is the magnitude of the wrongness or harm, and r is the degree ofresponsibility.70 Blameworthiness is a function ofthe value ofthe wrong done by the agent (ll) and the degree of the agent's responsibility for the wrongdoing (r).7l The value ofr 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 ofliberty-certainly the latter is the most compelling to ensure social confornlity. 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-

ment is "a communicative act transmitting to the wrong-doer... how wrong his conduct was";6 punishment willcommunicate clearly to the community that such con-duct is intolerable.7 The deterrent value served by anindividual's fear of stigmatization is often appropriateas it may serve as a "system for public communicationof values." 71 ------------------

Like two branches from Tort law sathe same trunk, the law has pro-vided for criminal and civil relief niot m~atchfrom intentional harms to the indi- {iOfi ofvidual. The sanctions for bothcriminal and civil wrongs are un- pulishrnederstandably blurred as similar fective metheories are often used to attributeblame and assess compensation. lating be1iHuge tort awards continue to usurp this reasoithe role of retribution and deter-rence, both of which were previ- wVell-serveously reserved for criminal is{enceof bpunishment. However, while tortlaw can effectively prohibit indi- anrd civil d(viduals from repeating particular dtypes of conduct, the non-codified Ihe S mead hoc nature of tort law does little wrcto accomplish the most importantrole of communicating a system of shared values thatdefine the boundaries within which individuals shouldlive their lives. Tort law sanctions cannot match the rep-utation of criminal punishment as an effective means ofregulating behavior. For this reason, society is well-served by the existence of both criminal and civil defi-nitions 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: as-sault, battery, false imprisonment, and intentional inflic-tion of emotional distress. 79 These wrongs all requireproof that the defendant chose to engage in the tortiousconduct and that, by engaging in such conduct, intendedor knew with substantial certainty that the conductwould invade an individual's right to quiet enjoyment'(Three of these torts-assault, battery, and false impris-onment-also exist in criminal law.8

Much has been written about the conduct or el-emental act of intentional torts. 2 Unlike criminal law,the act itself is not merely an element of the tort. 3 In-

tC

d0

Winter 2009

stead, proof of the plaintiff's injury is mandatory, andas such, is a prerequisite to liability.14 The act must be avoluntary act-one in which the actor chooses to en-gage." An involuntary act-conduct engaged in whileone is otherwise unconscious-is not sufficient." Thus,an individual who hits a child while driving a car due to

an epileptic fit does not commit actions can- conscious act 87 whereas one who

makes a conscious choice to swinghe reputa- a fist does. 8

riminal Perhaps the most confusingaspect of this process is proving the

it as an ef- actor's desire to engage in the con-"S of regUl- duct such that it subsequently

brings about the intended result, as

vior. For opposed to intending the result it-

societyls self. The Restatement (Second) ofTorts provides the best illustration

by the ex- of the element act. "[I]f the actor,having pointed a pistol at another,hcriminal pulls the trigger, the act is the

rinitions for pulling of the trigger and not the

-itentionimpingement of the bullet upon theother person.",, If the act is to pull

[lgS- the trigger, the intent would be theactor's desired goal that he or she

wishes to achieve by pulling that trigger. According toProsser, intent in this context means

(1) ... a state of mind (2) about conse-quences of an act (or omission) and notabout the act itself, and (3) it extends notonly to having in the mind a purpose (ordesire) to bring about given conse-quences but also to having in mind a be-lief (or knowledge) that givenconsequences are substantially certain toresult from the act90

In order to prove intent, the actor must show that the de-fendant chose to commit a particular action, and in sodoing, intended or knew with substantial certainty thatsuch an action would bring about the undesired result.91The actor who pulls the trigger for the desired purposeof causing harm to a particular person is said to intendsuch conduct.9 The actor who pulls the trigger for en-joyment purposes only, but does so in a crowded area,is also said to have intended such conduct for purposesof proving intentional torts since the actor knew withsubstantial certainty that such conduct would bring

HeinOnline -- 5 Crim. L. Brief 36 2009

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 ofvalues."78

Like two branches from the same tmnk, 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 In-

stead, 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. "[IJfthe 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 know ledge) that gIven consequences are substantially certain to result from the acUO

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

about the undesired wrong.,, This requirement of intentis the prerequisite for all intentional torts.94

i. The Intentional Tort of Assault

An actor is liable for tortious assault if "he actsintending to cause a harmful or offensive contact withthe person of the other or a third person, or an imminentapprehension of such contact, and (b) the other isthereby put in such imminent apprehension. " 95 In otherwords, an assault is the threat of harmful or offensivecontact coupled with the present ability to commit aharmfuil or offensive contact. Assault occurs in the ab-sence of contact; therefore, assault would be actionableon the basis of a mental, rather than physical, type ofharm.

96

Proof of assault merely requires some apprehen-sion of fear on the part of the plaintiff, physical harm isnot an element of the tort. The fear need not be extreme;proof of fright or humiliation suffices to support a causeof action.97 For example, standing within striking dis-tance of another while shaking a stick is assault; shakingthat 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 im-pose.98 Thus, in Lay v. Kremer,99 the defendant, whilefighting over a parking spot, called a woman a "mother-flicking nigger"* and a "bitch"; the trial court acquittedthe defendant under the premise that "mere words [did]not constitute assault. '"1 ° Assault actions are generallysuccessful, it seems, when there is proof that the plaintiffsuffered some degree of fear or mental anguish resultingfrom his or her belief that the defendant had a presentcapacity to inflict physical harm.1°1

ii. The Intentional Tort of Battery

Battery is an assault coupled with contact that isharmful or offensive.102 The Restatement (Second) ofTorts has divided battery into two categories: one inwhich harmftul contact results, and another in which fen-sive contact results.l°0 According to the Restatement, anactor is liable for battery if:

(a) he acts intending to cause a harmfulor offensive contact with the person ofthe other or a third person or an immi-nent apprehension of such a contact and

(b) a harmftul contact with the other per-son directly or indirectly results,l° or (c)he acts intending to cause a harmful oroffensive contact with another or thirdperson or an imminent apprehension ofsuch a contact, 1 1 and (d) an offensivecontact with the other person directly orindirectly results. 10

Battery requires proof of the exact same intentas assault. °1

The difference lies in the contact. Assault occursin the absence of contact, whereas battery requires somesort of contact in order to be actionable. 18

Another relevant distinction exists between thetwo wrongs. In order for assault to be actionable, theplaintiff must be aware of the threat.10 9 However, batteryrequires no awareness on the part of the plaintiff. Thus,if a defendant raises a stick behind a plaintiff's back andthe stick hits the plaintiff, even if the plaintiff did not re-alize the stick was raised, the defendant's conduct is ac-tionable under battery.

Battery is not necessarily considered a crime ofmental anguish, primarily because the element ofharm -or at least contact-is required for the crime.110

Courts have, however, considered offensive contact ac-tionable when the plaintiff suffered humiliation or em-barrassment.111 This recovery for embarrassment hasextended the boundaries of battery to include emotionalinjury, in addition to physical injury.

iii. The Intentional Tort of False Imprisonment.

False imprisonment, sometimes referred to asfalse arrest, is the intentional deprivation of another'sliberty. 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 con-finement of the other, and the other is conscious of theconfinement or is harmed by it."112

While common law cases pernitted an action forfalse imprisonment in instances where the plaintiff wasunaware of his confinement, the current formulation re-quires proof that the plaintiff realize his liberty is re-strained.1" Thus, false imprisonment, which is aninfringement on the plaintiff's belief that he is not freeto exercise his will to move about-like assault-is awrong against mental anguish."'

The intent element of false imprisonment is very*The author and the editors deliberated whether to redact language from cases that many people

Criina Law Brief will find offensive. We decided to pubish the words in full, as best support for the articles's largerclaims, HeinOnline -- 5 Crim. L. Brief 37 2009

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 hamlful 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 haml. 96

Proof of assault merely requires some apprehen­sion of fear on the part of the plaintiff; physical harm is not an element ofthe 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."lOo 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. lOG

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 pmi 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 haml-or at least contact-is required for the crime.110

COUlis 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 atTest, 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 pemlitted 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 *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 re-sponsible for false imprisonment, the defendant mustknow that he is confining another or be substantially cer-tain that his conduct will result in confinement.116 Men-tal anguish is, in essence, the chief component of falseimprisonment. Under the Restatement formulation, theplaintiff is not required to suffer any type of physicalharm; rather, the defendant must only instill in the plain-tiff a sense of loss of freedom to move about.11 7 Theremust only be a sense of boundaries. Such boundariesmay be "large or small, visible or tangible, or throughreal, still conception only.""8 Thus, in Allen v. Frome, 19

the court held that false imprisonment occurred in a cityin which the defendant felt unable to leave town.10 Sim-

ilarly, courts have found that one can be falsely impris-oned in a car that moves about.1 2

1

C. The Corresponding Crimes

Criminal law assigns blame to those who engagein intentional conduct. Like tort law, criminal convic-tions require proof that the defendant chose to engagein conduct and that, by engaging in that conduct, in-tended or knew with substantial certainty that the con-duct would result in a wrong against society.1 Whilecriminal law also assigns punishment to those who actedrecklessly or negligently, 13 the law seems to reserve thegreatest punishment for those who engage in intention-ally wrongful conduct. 12

1

Much has been made of the intent levels in crim-inal law. Early on-and still in many jurisdictions-in-tent was divided between specific and general intent.12

1

Courts define specific intent as an actual purpose or goalto engage in a particular type of conduct or a deliberatechoice to ignore a certainty of harm. 12 General intenttranslates into a sense of risk-taking or carelessness onthe part of the defendant. 127

The Model Penal Code ("MPC") has createdfour classifications of an actor's mindset as a means tobetter delineate between specific and general intent: pur-poseful, knowing, reckless, and negligent.121 "Purpose-ful" is defined as a conscious goal to engage inparticular conduct,129 while "knowing" requires proofthat the defendant was substantially certain that such aresult would occur from a particular type of conduct."'The torts of assault, battery, and false imprisonment re-quire proof of intent similar to general intent in that theactor is responsible if he or she intended the conduct orknew with substantial certainty that such an outcomwould occur.13 The Restatement's definition of intent

corresponds quite closely with the MPC's definition ofpurposeful and knowingly. Thus, proof of the actor'sawareness is virtually identical in each instance.

i. The Crimes of Assault and Battery

Assault and battery-common law misde-meanors-exist today as statutory crimes in all Ameri-can jurisdictions.13 Although the two crimes aregenerally said in one breath, it is important to note thatthey are actually distinguishable and are divided in thesame way as their tort counterparts.1 13 Like the tort, thecrime of battery requires an injury or offensive touch-ing, 1 whereas assault requires no physical contact."

a. The Crime of Assault

Various statutory formulations of the crime ofassault exist.116 These statutes can be divided into twogeneral categories: assault as an intentional scaring orassault as an attempted battery.17 Assault, as an inten-tional scaring, is the true codification of civil assault.-For this type of assault, one is criminally responsiblewhen he or she carries out some behavior that causes anapprehension of immediate bodily harm with the intentto cause such apprehension.131 Pointing a gun at anotherindividual is sufficient to establish common law as-sault.141 Under this formulation, assault criminalizes theimposition of mental fear or anguish.

In some states, evidence of mental anguish cansupport the personal injury requirement of assault 1

41 and

can include evidence that the victim was upset duringor after the assault, needed subsequent psychologicaltreatment, was unable to conduct a normal life, fearedfor the his or her safety, and maintained continuing feel-ings of vulnerability.N

The MPC formulation of assault constitutes amisdemeanor in three circumstances: where the actor at-tempts to cause or purposely, knowingly, or recklesslycauses bodily injury; negligently causes bodily injurywith a deadly weapon; and attempts by physical menaceto put another in fear of imminent serious bodily harm. 143

This third circumstance incorporates the civil notion ofassault into the criminal law, as had been done in a ma-jority of jurisdictions at the time the MPC was drafted. 1

44

b. The Crime of Battery

Just as in tort law, the common law crime of bat-tery requires harmful or offensive touching.145 Battery,

Winter 2009HeinOnline -- 5 Crim. L. Brief 38 2009

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."1l8 Thus, in Allen v. Frome,119 the court held that false imprisonment occUlTed 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. 12"

Much has been made of the intent levels in crim­inallaw. 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 haml. 126 General intent translates into a sense of risk-taking or carelessness on the part of the defendant. 127

The A10del 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 ifhe 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 afAssault 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 tme 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 fommlation, assault criminalizes the imposition of mental fear or anguish.

In some states, evidence of mental anguish can support the personal injury requirement of assau!tJ41 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. 1"2

The MPC fommlation 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,

like assault, requires proof of an act or an omission anda mental state.116 Many jurisdictions allow for both in-tentional and unintentional battery.147 Intentional batterytypically requires proof of purposeful conduct."8 Forexample, one who-with intent to injure-acts or omitsto act when he has a duty to act, which is the legal causeof an injury, is guilty of criminal battery.

Battery is not a separate crime under the MPC,which has synthesized the common law crimes of may-hem, battery, and assault into a single offense.1 9 Onewho attempts to cause serious bodily injury or one whocauses such injury purposely, knowingly, or recklessly,and under circumstances manifesting an extreme indif-ference to the value of human life is said to commit bat-tery.150

The MPC codifies civil battery and calls it "ag-gravated assault."1, According to the MPC, a person isguilty of aggravated assault if he"attempts to cause serious bodily in-jury to another, or causes such injury The tortpurposely, knowingly or recklessly relativelunder circumstances manifestingextreme indifference to the value of comparedhuman life."152 The level of harm ditionial conecessary to show "serious bodilyinjury" varies by jurisdiction, and tis of aScan range from "reddish marks tery and ftaround the neck" from a potentialchoking 1

5 to extreme physical pain Oni-nent, aand disfigurement. 15 date bac 1

c. The Crime of False Im- the sixteeprisonment

False imprisonment is the unlawful restraint ofanother's liberty.15 At common law, the offense couldbe committed by mere words. 15

6 The gravamen of thecrime is that the victim believes he is unable to removehimself from the control of the defendant. 17 Mere wordsare insufficient to constitute false imprisonment if theperson to whom they are spoken is not deprived of free-dom of action.15

According to the Restatement, one who inten-tionally causes severe emotional distress to another isliable "(a) for such emotional distress, and (b) for bodily

harm resulting from it."159 Stated another way, IED oc-curs when "[o]ne who by extreme and outrageous con-duct intentionally or recklessly causes severe emotionaldistress to another is subject to liability for such emo-tional distress, and if bodily harm to the other resultsfrom it, for such bodily harm. ' 0 IIED sanctions thosewhose conduct is so outrageous that it brings about men-tal and/or physical pain and suffering.1 1 Additionally,IIED is the only intentional tort that allows recoveryfrom one whose goal is limited to creating emotionalhax oc.

The tort of IIED is relatively new, as comparedto the traditional common law torts of assault, batteryand false imprisonment, all of which date back to beforethe Sixteenth Century.1

62 Wilkinson v. Downton,113 a late

nineteenth century case, presented the first instancewhen a court allowed recovery for a woman, against

whom a mean-spirited practical jokewas played. As a consequence of

f IlED is the joke, the woman suffered "vio-

Siiew, as lent shock to her nervous system,producing committing and other

to the tra- more serious and permanent physi-

xi nOi lawx cal consequences entailing weeks ofsuffering and incapacity to r4,auit, bat- The court allowed the plaintiffto re-

lse impris- cover for the harm she suffered as a

I Of _whiCh1 result of the defendant's practicaljoke. 16 5

to before Almost 150 years after;h century. Wilkinson, the tort of IIED appeared

in a 1948 supplement of the Restate-ment of Torts.",' The CaliforniaSupreme Court first applied the Re-

statement's definition four years later when it decidedthe landmark case of State Rubbish Collectors Ass 'n v.SiliznoJ 137 Courts across the country followed Califor-nia's lead, and today every state has recognized the in-dependent IIED tort and "adopted [the] Restatement(Second) of Torts section 46 in some form."16

Like assault, battery, and false imprisonment, anindividual is responsible for IED if it is his intention toinflict severe emotional distress or he knows with sub-stantial certainty that severe emotional distress will ariseas a result of such conduct.9 Under the Restatementapproach, the defendant must not only intentionallycause severe emotional distress, but such conduct mustalso be deemed "extreme and outrageous.."17° The Re-statements have never attempted to provide a definitionof "outrageous" conduct, stating rather that something

Criminal Law Brief

C

ti

HeinOnline -- 5 Crim. L. Brief 39 2009

like assault, requires proof of an act or an omission and a mental state.1"6 Many jurisdictions allow for both in­tentional and unintentional battery. 147 Intentional battery typically requires proof of purposeful conduct.1"8 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.1"9 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. 15"

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

hann resulting from it. "159 Stated another way, IIED oc­curs when "[0 ]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 T¥ilkinson 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 pernlanent 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 lIED appeared in a 1948 supplement ofthe Restate­ment of Torts. 166 The California Supreme Court first applied the Re­

statement's definition four years later when it decided the landmark case of State Rubbish Collectors Ass 'n v. Siliznojp67 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 fornl."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 ce11ainty 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

is outrageous if "the recitation of the facts to an averagemember of the community would... lead [the person]to exclaim, "Outrageous '!" 171 Scholars and courts, how-ever, agree that liability for this tort is reserved for theseverest cases where the defendant's conduct goes "be-yond all possible bounds of decency .. to be regardedas atrocious, and utterly intolerable in a civilized com-munity. ' 172 "Liability.., does not extend to mere insults,indignities, threats, annoyances, petty oppressions, orother trivialities."17

1 As a result, severe emotional dis-tress can be found only when "the distress inflicted isso severe that no reasonable person could be expectedto endure it."174

The modern formulation of IIED permits aplaintiff to recover for injuries resulting from a defen-dant's intentional use of extreme and outrageous con-duct if that conduct results in mental anguish or physicalharm. A logical formulation of the proposed crimewould be patterned after the 1948 Restatement of Torts.Thus, an actor would be subject to criminal prosecutionif he purposely or knowingly caused emotional distressthrough extreme and outrageous conduct thereby caus-ing mental anguish or psychic injury. The conduct mustbe so extreme as to go "beyond all possible bounds ofdecency," and "the mental anguish suffered by plaintiff[must be] serious and of a nature that no reasonable per-son could be expected to endure it.'175

Like the criminalized torts of assault and falseimprisonment, the criminalized version of IIED wouldpenalize a defendant when a victim suffers emotional orpsychic damage as a consequence of the defendant's in-tentional conduct. Criminalized IIED would also resultin the same type of physical harm that is required forproof of the prima facie elements of the criminalized tortof battery. The commonality of the harm caused by adifferent type of conduct supports criminal punishmentfor IIED.

Neuroscientific evidence supports the conclu-sion that verbal assaults can manifest themselves inphysical pain.176 Thus, where one assaults another withoutrageous verbal comments, the plaintiff might ulti-mately experience physical pain. This intentional inflic-tion of physical pain is the type of harm that societyseeks to punish through the crime of battery.

Since IED creates the same type of harm as so-ciety has sought to redress through criminalization of

the other intentional torts, it would seem consistent tocriminalize lIED. Criminalizing IIED would further theretributive and deterrent goals of punishment, particu-larly at a time when new technology communicates out-rageous and even horrendous conduct for which thereseems no viable punishment in criminal law. Societywill benefit from criminalizing the intentional use of ex-treme and outrageous conduct. Such conduct is rare, butto the extent that it results in intolerable wrongs, it isworthy of criminal punishment.

A. Similarities Between IIED and theCriminalized Intentional Torts

The proposed criminalization of lIED would re-quire proof of the same type of intent as the other crim-inalized intentional torts. 17 Like assault, battery, andfalse imprisonment, the state can only seek punishmentfor lIED, and a plaintiff can only recover for the IIED,upon proof that the defendant intended to cause theharm or was substantially certain that harm would resultfrom his conduct. 17

, But while the intent and the harmare the same, the act of IIED, use of extreme and outra-geous conduct, is distinct from the other criminalizedintentional torts.

Once the conduct is proven, it is incumbent uponthe prosecution to prove that harm resulted from thatconduct. Harm can be both mental and physical. Themental anguish that is punishable through the criminal-ized torts of assault and false imprisonment is equallypresent in intentional infliction of emotional distress.179

A tortfeasor is only responsible for IIED if his actionswere the proximate cause of a psychic injury.18 Prossercalls both assault and false imprisonment crimes ofmental anguish. It seems, then, that mental anguish,which the law seeks to curb, is equally present inIIED.181

The pain inflicted through IIED can result in thetype of harm criminalized in battery. The crime of bat-tery involves proof of direct physical harim. 1 2 Harm caninclude a gunshot wound,- a kick upon another,184 orsomething as slight as intentionally blowing smoke inanother's face. 15 When recovering for lIED, many ju-risdictions require proof of severe physical manifesta-tions of emotional harm. 16 In doing so, the lawrecognizes that extreme and outrageous conduct can in-deed cause the type of harm that is recoverable throughthe other criminalized torts.

New scientific research supports the conclusionthat the extreme and outrageous verbal conduct meted

Winter 2009HeinOnline -- 5 Crim. L. Brief 40 2009

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."17)

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 ofhann as so­ciety has sought to redress through criminalization of

the other intentional torts, it would seem consistent to criminalize IIED. Criminalizing lIED would further the retributive and deterrent goals of punishment, pm-ticu­larly at a time when new technology communicates out­rageous and even hon-endous 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 lIED and the Criminalized Intentional Torts

The proposed criminalization ofIIED 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 lIED, and a plaintiff can only recover for the lIED, 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 lIED, 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. Harn1 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. ISO 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 lIED.lsl

The pain inflicted through lIED 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,ls4 or something as slight as intentionally blowing smoke in another's faceY) When recovering for lIED, 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

out through verbal assaults can inflict the same type ofphysical harm that is prohibited by criminal battery.Neuroscientific studies show that verbal abuse can bringabout physical symptoms, which in turn cause physicalpain.187 Actual measurable neurochemical changes canoccur in the amygdala-the part of the brain that per-forms a primary role in processing emotional reac-tions-when an individual is verbally assaulted orexperiences some other type of emotional trauna.18 Theamygdala instantly responds by inducing a series ofphysiologic reactions including rapid heart rate, palpi-tations, sweating and increased blood flow to large mus-cle groups.18 9 These physiological changes in the brain,which occur congruently with emotional harm, becomea form of physical pain, from which the victim clearlysuffers. 9(

Studies demonstrating the relationship betweenpsychological and verbal abuse and disorders such asdepression, anxiety, and post-traumatic stress disorder(PTSD) further support the conclusion that IIED can re-sult in the type of physical harm which criminal lawseeks to curb by punishing for battery or aggravated as-sault. A person suffering from depression may also suf-fer from "persistent aches or pains, headaches, crampsor digestive problems..." according to the National In-stitute of Mental Health. 91 Exacerbating this diseasethrough a verbal assault can result in more severe phys-ical symptoms that often accompany anxiety disordersinclude "fatigue, headaches, muscle tension, muscleaches, difficulty swallowing, trembling, twitching, irri-tability, sweating, nausea, lightheadedness, having to goto the bathroom frequently, feeling out of breath, andhot flashes." 192

In other instances, while the outrageous conductof IIED might not immediately cause physical pain, spe-cific studies confirm that, despite the non-physical na-ture of verbal abuse, abuse from IIED can be asdamaging as physical harm.193 In 1990, PsychologistsNicole M. Capezza and Ximena B. Arriaga conducted astudy, in which they found that seventy-two percent of234 female victims of both physical and psychologicalabuse indicated that they were more negatively im-pacted by the psychological abuse than the physicalabuse. 194 Regarding their findings, the authors stated,"[t]he results obtained in the present study clearly indi-cate that psychological [abuse] is, with some variations,as detrimental to women's mental health as is physicalviolence." 9

The seemingly similar requirements of intentand harm beg the question of why it would be necessary

to criminalize IIED. The need for punishment lies inthe fact that the act element of IIED is markedly differ-ent from assault, battery and false imprisonment; moreimportantly, punishment for this type of act does not re-ally exist in most jurisdictions.196

Assault and battery penalize the actor who in-tends to cause direct physical harm. Pointing a gun andmissing satisfies the act element of assault. Pointing agun and hitting satisfies the act element of battery or ag-gravated assault. The act element of false imprisonmentis satisfied by the actor who voluntarily chooses to con-fine another or to make one feel confined. For example,locking car doors and speeding can satisfy the act ele-ment of false imprisonment.197

The act element of IIED requires proof of ex-treme and outrageous conduct. In Rissman v. Chertoff,a transportation safety expert whose superiors constantlyscreamed at him for being too thorough and "scolded[him] for hours as if he were a terrorist in a poorly writ-ten 'B' movie script" provided sufficient evidence toprove IIED. 198 With this fact pattern, the courts couldnot find an actionable claim for assault, battery or evenfalse imprisonment. Only if IIED were criminalizedcould the TSA supervisors be punished for their behav-ior.

In Gomez v. Hug,199 a supervisor at a county fair-grounds, upon seeing an employee enter his office, said"[w]hat is that fucking spic doing in the office'?" 00 "Afucking Mexican greaser like you, that is all you are.You are nothing but a Mexican greaser, nothing but apile of shit.'"20 1 The badgering continued and, as a con-sequence, the victim suffered mental anguish that re-sulted in "serious medical problems" that precluded himfrom working202 Under these facts, a state would be un-able to punish for assault. It is long held that assault isnot actionable unless the victim is placed in imminentapprehension of immediate bodily harm. Here, the ver-bal lashings and demeaning behavior does not give riseto a fear of harm. Battery would also not be actionablesince defendant did not touch or intend to touch the vic-tim. Nor would false imprisonment apply as there is noevidence that the victim was unable to escape. In thisscenario, the defendant could not be criminally pun-ished. If IIED were criminalized, however, the defen-dant could be subjected to penalties, as a reasonable jurymight conclude that his conduct was extreme, outra-geous and beyond the bounds of decency.

B. Advancing the Goals of Punishment

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out through verbal assaults can inflict the same type of physical harm that is prohibited by criminal battery. N euroscientific 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 ham1, become a fom1 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, ilTi­tability, sweating, nausea, lightheadedness, having to go to the bathroom frequently, feeling out of breath, and hot flashes."l92

In other instances, while the outrageous conduct of lIED might not immediately cause physical pain, spe­cific studies confirm that, despite the non-physical na­ture of verbal abuse, abuse from lIED 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 lIED. The need for punishment lies in the fact that the act element of lIED 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 ham1. 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 lIED 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 ifhe were a terrorist in a poorly writ­ten 'B' movie script" provided sufficient evidence to prove lIED.198 With this fact pattern, the courts could not find an actionable claim for assault, battery or even false imprisonment. Only if lIED 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 Jhat 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 ver­ballashings 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 lIED 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

Criminalizing IIED would advance the goals ofsociety's interest in curbing harmful conduct. By adopt-ing the newest criminalized intentional tort, jurisdictionswould be sending a message that conduct which men-tally infringes on others' freedom from harm is intoler-able. Punishment would allow society to seek justdeserts from those who engage in acts that are outra-geous by traditional standards. Moreover, punishingIIED would send a message to individuals and the gen-eral population that such conduct is intolerable.

i. WFhat to Punish

Applying the proposed criminal statute for lIED,the perpetrators in Rissman and Hug could be subject tocriminal punishment. In the first hypothetical, the su-pervisor hurled racial epithets at theemployee to the point where the em- By adoployee suffered physical and emo-tional harm.20 A significant number uiexvest ciof states and federal courts have heldthat racial epithets shouted by one in

a position of power over another are dictionsevidence of extreme outrageous con-duct. 2

04 In Alcorn v Anbio Engineer- S dIi nging, Inc. ,20 the Supreme Court of that conICCalifornia held that an employee had Meitafl vsufficiently alleged IIED because hissupervisor shouted racial epithets and others' frEfired him. 2

06 The court found it Sig- harmisinificant that the person harassing theplaintiff was "standing in a positionor relation of authority over plaintiff." 2

17 In Shuman v.American Home Assurance Co., 28 a federal district courtfound that a defendant who "repeatedly made racialslurs directed at Plaintiff based upon his Arab ancestry,calling him names such as "Fucking Arab" and "Fuck-ing Carpet Salesman," which slurs "caused, and wereintended by to cause, Plaintiff's emotional distress"committed lIED.219 Under this analysis, the defendantin Hug used language outrageous enough to be action-able.

The plaintiff in Hug also presented evidence ofserious medical problems. Many jurisdictions requireproof of a physical manifestation of emotional harm.210Assuming there was significant medical evidence toshow a manifestation of physical harm,211 the state wouldbe able to prove IIED.

Criminalizing IIED would also permit punish-ment in other instances, including verbal domestic abuse

or cyber bullying. Criminalizing the use of spoken andwritten words that cause severe damage to anotherwould fall within society's goal to provide citizens witha reasonable expectation of quiet enjoyment and liberty.

Verbal abuse is not afforded the same treatmentunder the criminal law as physical abuse. 2

1 Many ju-risdictions do not criminalize verbal abuse. In those thatdo, it is under the guise of harassment.213 Yet verbalabuse is a serious assault on one's personal well-being.214Additionally, studies confirm that verbal abuse oftenleads to physical abuse.21 Criminalizing verbal abusewould serve to prevent the commission of a greatercrime.216

Jurisdictions criminalize a variety of acts as ameans to prevent that future harm. Conspiracy, stalking,and loitering are all inchoate crimes that allow police to

constitutionally intervene poten-Sting the tially greater criminal activity.2

17

For instance, an agreement to com-1minalized mit a criminal act, which is conspir-Stort, jur.is- acy, can be prosecuted on its own,

even if the agreed-upon, contem-would be plated crime never comes to

fruition.21, When considering pun-f Tessage ishing verbal abuse, IIED could be

uct which seen as a similar inchoate act, al-lowing police intervention before

111fl aeS O11 the verbal violence translates into

edom from physical harm.tolrabe. Criminalizing IIED would also

Sto lerabl h provide meaningful punishment to

the crime of cyber stalking. In LoriDrew's case, the defendant imparted words, that on theirface, were seemingly innocuous. The defendant secureda "My Space" page under a false name and then pre-tended that she was a teenage boy with a crush on the13 year-old girl. 219 The woman later sent spiteful mes-sages to the girl, including one that said "the worldwould be a better place without you." 22

0 A reasonablejury could find under the circumstances that Ms. Drew'sconduct 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 totwenty years in prison .1 However, the available lawsdid not support their desired goal.222

While internet communication is not criminal-ized under IIED, internet communication can lead to aclaim for a criminal case of harassment. For example,in the instance where a woman posted a call for sexuallyexplicit favors and listed a neighbor's phone number,

Winter 2009

r

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Criminalizing lIED would advance the goals of society's interest in curbing harmful conduct. Byadopt­ing 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 nED 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 nED, 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 con­ducuo4 In Alcorn v. Anbro Engineer­ing, Inc. ,205 the Supreme Court of Califomia held that an employee had sufficiently alleged nED 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 lIED.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.2lo

Assuming there was significant medical evidence to show a manifestation of physical harm,211 the state would be able to prove lIED.

Criminalizing lIED 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 confiml 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 haml. Conspiracy, stalking, and loitering are all inchoate crimes that allow police to

constitutionally intervene poten­tially greater criminal activity.217 F or instance, an agreement to com­mit a criminal act, which is conspir­acy, can be prosecuted on its own, even if the agreed-upon, contem-

be plated crime never comes to fmition.218 When considering pun­ishing verbal abuse, nED could be seen as a similar inchoate act, al­lowing police intervention before the verbal violence translates into physical harm.

Criminalizing lIED 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 cmsh 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 intemet communication is not criminal­ized under lIED, intemet 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,

the Suffolk County New York police filed charges of ha-rassment against the woman.22

1 Under New York statelaw, "[a] person is guilty of aggravated harassment inthe second degree when, with intent to harass, annoy,threaten or alarm another person, he or she... (b) causesa communication to be initiated by mechanical or elec-tronic means or otherwise with a person, anonymouslyor otherwise, by telephone, by telegraph, or by mail, orby transmitting or delivering any other form of writtencommunication, in a manner likely to cause annoy-ance .... 224 Here, the woman could be successfully pros-ecuted for harassment since she initiated phone callslikely to cause annoyance. The maximum punishmentfor this crime is up to one year in prison. 25 However,the permissible penalty should be more severe.

The type of harm caused in this instance, assum-ing that the harm resulted in severe mental harm, wouldbe more on par with New York's second degree assaultstatute, which criminalizes conduct when a person in-tends to and actually causes serious physical injury andcauses such injury. Second degree assault is punishableas a class D Felony, for a term not to exceed sevenyears.226 Thus, even though the mental anguish causedby the harassing phone calls could be the equivalent tophysical harm, New York's second degree assault statutewould not allow for such conduct to be prosecuted as asecond degree assault. Absent criminalization of IIED,the offender in this case would only be sentenced to amaximum of one year in prison, no matter how severethe mental harm.

Criminalizing IIED would provide a means toimpose a similar punishment in this similarly harmfulsituation. If the harassing phone calls caused the neigh-bor to suffer from either emotional trauma or a physicalmanifestation of that trauma on a level as contemplatedby second degree assault, then the offender could beprosecuted under a scheme of criminal IIED. Punishingthis kind of intentional conduct to the same degree as-second degree assault for intentional conduct that in-flicts a similar type of harm, would serve to further theprinciples of our criminal justice system by communi-cating that this type of conduct is so intolerable that itcarries with it a threat of significant punishment.

ii. Why Punish

Given that IIED causes the same type of harmas assault, battery, and the other intentional torts, theissue becomes whether criminalizing lIED would fur-ther the principles of punishment that drive the Ameri-

can criminal justice system. Two theories largely gov-em the reasons for assessing punishment: retribution anddeterrence. 227 Criminalizing lIED would advance eachof these theories.

a. Retribution

Application of Professor Nozick's equation forevaluating the instances appropriate for retribution sup-ports the criminalization of lIED. As previously noted,criminal punishment deserved = r x H, where H is themagnitude of the wrongness or harm and r is the degreeof responsibility.22

1 The high magnitude of harm and thedefendant's responsibility in the intentional outrageousconduct of IIED highlight the well-deserved need forretribution against such conduct.

The r is this equation is easily satisfied. Peopleare responsible for IIED only if they intend to committhe outrageous conduct that causes harm or they knowwith substantial certainty that such conduct will causeanother to suffer from IIED. 229 This intent translates intoa conscious or willful desire to bring about a harmfulresult. 0 That they chose to engage in such conduct re-flects the high level of responsibility on their part.

The law tends to increase the severity of punish-ment based on a defendant's willfulness .21 Homicidesillustrate this point most clearly. One who intends tokill by design is guilty of murder, a crime punishable bylife in prison or even death.2 Thus, an individual whoaims his car at someone standing on the street with anintention of killing that person is said to be the most re-sponsible and therefore the most deserving of punish-ment. Similarly, one who speeds through a crowdedschool zone at three o'clock in the afternoon is also, inmany jurisdictions, responsible for the and deserving ofthe charge's maximum punishment for the death of an-other.21

3 Although this person had no intent of killing aparticular person, he knew with substantial certainty thathe would likely kill someone as a result of his conduct .214

In contrast, one who speeds through a school zone atthree o'clock in the morning is likely to be held only re-sponsible for manslaughter or reckless homicide. Inthis instance, the individual is said to have only beenaware of a slight risk that someone could die as a resultof his conduct. Because he only engaged in a risk, so-ciety is willing to mete out less punishment. 2 6 In mostjurisdictions, manslaughter is punishable by five to fif-teen years in prison.21

7

IIED also imposes the same type of harm as theother intentional torts, thus the H in Nozick's equation

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the Suffolk County New York police filed charges ofha­rassment 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 F dony, for a tern1 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 lIED, 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 lIED 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 lIED. 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 calTies with it a threat of significant punishment.

ii. FVhy Punish

Given that lIED 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 Ameri-

can criminal justice system. Two theories largely gov­ern the reasons for assessing punishment: retribution and deterrence.227 Criminalizing lIED 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 lIED. As previously noted, criminal punishment deserved = r x H, where H is the magnitude of the wrongness or harm and r is the degree ofresponsibility.228 The high magnitude of harm and the defendant's responsibility in the intentional outrageous conduct of lIED highlight the well-deserved need for retribution against such conduct.

The r is this equation is easily satisfied. People are responsible for lIED only if they intend to commit the outrageous conduct that causes hann 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 0' 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 conducU34

In contrast, one who speeds through a school zone at three 0' 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

lIED 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-basedcrimes. Particularly, IIED shares the sense of mentalanguish that assault and false imprisonment criminal-ize.2 As noted above, psychological or verbal abusecan be as damaging as any physical type of harm.239 De-velopments in neuroscience indicate a strong link be-tween verbal assault and emotional harm.2

10 This highdegree of provable physical harm meets the H prong ofNozick's formula. Therefore, the high magnitude ofharm to the victim and the strong degree of responsibil-ity on the part of the defendant compel criminalizationof IIED.

Nozick's theory is ideal for cyber-stalkers. In-dividuals who write directed e-mails or set up false ac-counts do so with the highest level of intention. Theharm cyber-stalkers cause can go far beyond annoyanceand may rise to the level of death. Under Nozick's the-ory, such conduct is most suitable for punishment be-cause H, or harm, is at its greatest.

b. Deterrence

Criminalizing IIED is equally supported by thetheory of deterrence. Deterrence advocates that an in-dividual be punished as an example either to himself orto others because the individual's conduct cannot be tol-erated. Ms. Drew intentionally caused a child to sufferby creating a fake internet "friend" to lure the girl in andthen trick her, acting in a way that society should dis-courage. Her actions caused horrible public outcry, inpart because of the unnecessary and irreversible conse-quences of her actions and in part because there werefew criminal laws under which she could be punished.2

12

To the extent that one assumes that deterrence works toencourage members to conform to society's laws,24

1 pun-ishing this woman at the criminal level could deter oth-ers from committing similar harmful acts.

Criminalizing IIED as an inchoate crime wouldserve the same deterrent value as assault. As notedabove, the law criminalizes many inchoate crimes as ameans of preventing more serious crimes that could re-sult from an individual's conduct. The MPC's formula-tion of assault and battery is an example of the use ofcriminalization as prevention. The law permits the pun-ishment of those who attempt to cause the physical in-jury required for proof of battery by criminalizing anattempted batterer (for example, assault).2 Those whosubscribe to the theory of crimtort, and even many whodo not, might argue that over-criminalization already ex-ists and that there is no need to create new crimes.

Crimtort has merit, particularly as it applies to a defen-dant corporation, where one is unable to single out anindividual for punishment. However, a loss of liberty ismuch harsher than a loss of finances. The criminal jus-tice system can, through imposition or threat ofjail time,serve to curb individuals' conduct to a much greater de-gree than pecuniary punishment.

Scientific and technological advances in the waywe currently live our lives mandate that jurisdictionsshould grant IIED the same criminal status that it grantsother criminalized intentional torts. Words hurt. Thelaw punishes those who inflict pain. The punishmentshould be meted out regardless of whether the pain orig-inates through a physical force or through verbal or writ-ten words.

Criminalizing IIED provides the retributivevalue of satiating those who are injured by others'choice to bully, and it serves the deterrent value of warn-ing others that the use of words, whether typed orshouted, is intolerable and prevents words from escalat-ing to a more serious physical harm. There is a void inour current criminalization scheme, left empty by thefailure to recognize that technology makes it easier toharm and that a word can cause as much pain as a punch.Criminalizing IIED would fill that void.

AddendumOn January 5

t1, the BBC reported that membersof French President Nicolas Sarkozy's rulihg party pro-posed a measure that would criminalize intentional in-fliction of emotional distress.245 The proposed measurewould assess criminal penalties including jail timeagainst those who psychologically or verbally abusetheir spouse or live-in partner by insult, including re-peated rude remarks about a partner's appearance, falseallegations of infidelity, and threats of physical vio-lence.11 ' The French parliament is expected to approvethe legislation in February. If passed, the law should bein place six months later. If passed, the bill would bethe first of its kind.

See OFFICE OF MINNESOTAATTORNEY GENELRAL LORI SWANSON, PREVENT

CYBERBULLYING AND ONL1NE HARASSMENT,

http:iiwww.ag. state.mn.us!Brochures/pubCyberbullyingOnlineHarass-ment.pdf.2 Prezioso v. Thomas, No. 991675, 2000 WL 472874 (4th Cir. Apr. 25,

Winter 2009HeinOnline -- 5 Crim. L. Brief 44 2009

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 ofhann.239 De­velopments in neuroscience indicate a strong link be­tween verbal assault and emotional harm.2"o This high degree of provable physical hann meets the H prong of Nozick's formula. Therefore, the high magnitude of hann to the victim and the strong degree of responsibil­ity on the part of the defendant compel criminalization ofIIED.

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 hann 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 hann, is at its greatest.

b. Deterrence

Criminalizing lIED 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 intemet "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 ilTeversible conse­quences of her actions and in part because there were few criminal laws under which she could be punished.2"2 To the extent that one assumes that deterrence works to encourage members to confonn to society's laws,243 pun­ishing this woman at the criminal level could deter oth­ers from committing similar hamlful 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 pennits the pun­ishment of those who attempt to cause the physical in­jury required for proof of battery by criminalizing an attempted batterer (for example, assault).2"4 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 lIED provides the retributive value of satiating those who are injured by others' choice to bully, and it serves the deterrent value ofwam­ing 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 , the BBC reported that members

of French President Nicolas Sarkozy's 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 mde remarks about a partner's appearance, false allegations of infidelity, and threats of physical vio­lence.21c, The French parliament is expected to approve the legislation in Febmary. Ifpassed, the law should be

place six months later. I f passed, the bill would be the its kind.217

1 See OFFICE OF MIl'i"ESOTAATTO~NtY GENE~"L LORI SWANSON, PREVENT

CYBERBlJLLYING 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,

2000); Erwin v. Milligan, 67 S.W2d 592 (Ark. 1934); Daluiso v. Boone,71 Cal. 2d 484 (1969); Emden v. Vitz, 198 R2d 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).I Jennifer Wriggins, Domestic Violence orts, 75 S. CAL. L. REv. 121,136 (2001) (citing to Merle H. Weiner, Domestic Violence and the Pei- SeStandard ofOutrage, 54 MD. L. REv. 183, 189 n.16 (1995)) ("[S]ome ac-tivity that is tortious, such as conduct causing intentional infliction ofemotional distresses, is not criminal.").4 See generall Kenneth Maim, Punitive Civil Sanctions: The MiddleGround Between Criminal and Civil Lax 101 YALE L.J. 1795, 1806 n.36 (1992) (quoting WILLIAM L. PROSSER, HANDBOOK OF THE LAW OFTORTS 22 (5th ed. 1984) (citations omitted)) ("Empirically, as opposed toparadigmatically, civil and criminal law overlap. Civil law includescauses of action for intentional acts; criminal law includes strict and neg-ligent liability. Therefore, no true empirical difference exists betweencivil and criminal law with respect to the range of mental states resultingin liability. However, most criminal cases require proof of subjectiveand objective liability, whereas most civil cases require proof only of ob-jective liability. Theretore, we say that the paradigmatic task of the civillaw is to compensate for damages caused in the normal conduct ofeveryday life, usually without regard to actual knowledge or intent.Thus, the distinctive character in the division in the paradigms lies in therequirement of attention to the subjective state of mind in the conven-tional criminal type.").5 Kim Zetter, Lori Drew Not Guily of Felonies in Landmark Cyberbiuly-

ing Trial, WIRED, Nov. 26, 2008, available athttp:iiwww.wired.com/threatlevel!2008 11 lori-drew-pla-5.6 United States v. Drew, 259 ER.D. 449, 452 (C.D. Cal. 2009).

Id. at 452 53.9 Id. at 468.

See Alexandra Zavis, Judge Tentatively Dismisses Case in Mi SpaceHoax That Led to feenage Girl Suicide, Los ANGELES TIMES, July, 2,2009, available at http:iilatimesblogs.latimes.comlanowi2009i07imy-space-sentencing.html.' See WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS (West Pub-

lishing 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

1I.

!4 See RESTATEMENT (FIRST) OF TORTS § 46 (1948).15 See id. at §§ 21, 35.16 See id. § 13.!7 See infia note 187.!' See Richard A. Epstein, The fort/Crime Distinction: A Generation

Later, 76 B.U. L. REv. 1 (1996) (citing RtIhCIxID EPSTEIN, CRIME AND

TORT: OLD WINE IN NEW BOTTLES, ASSESSING THE CRIMINAL: RESTITU-

TION, RETRIBUTION AND THE LEGAL PROCESS, 231 (Randy Barnett & JohnHagel III, eds., 1977)); see also Erik Luna, fhe Over CriminalizationPhenomenon, 54 AM. U. L. REv. 703 (2005).19 See Luna, supra note 18, at 712.21 See Andrew R. Klein, Causation and Uncertainty: 3Mfaking Connec-tions in a ime of Change, 49 JIRIMETRICS J. 5, 8 (2008) (quoting H.L.A.Hart & Tony Honor&, CAU1SATioN IN THE LAW (2d ed. 1985)).21 See John C. Coffee, Jr., Does "Unlaw/id "'lean "'Criminal "?: Reflec-tions on the Disappearing fort/Crime Distinction in American Law, 71B.U. L. REV. 193, 193 94 (1991) (discussing the inherent purpose ofcriminal law to embody society's moral values and its incompatibilitywith the balancing between public and private interests in which tort lawengages).22 See Epstein, supra note 18, at 8.23 See Kenneth X. Simons, Retributivists Need Not and Should Not En-dorse the Subjectivist Account of Punishment, 109 COLUM. L. REV. SIDE-

BAR 1 (2009), available athttp:iiwww.colunbialawreview.orgiSidebarix olume! 109 i Simons.pdf.

21 See Coffee, supra note 21. See also Luna, supra note 18, at 703.21 See Epstein, supra note 18, at 11 12. For a good understanding of theevolution 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 14.274 WILLIAM BLACKSTONE, 4 COMMENTARIES *2, *5.21 See Epstein, supra note 18, at 12 13.21 See id. at 11; David J. Seipp, The Distinction Between Crime and fortin the Earl Common Law, 76 B.U. L. REV. 59, 59 60 (1996).30 See Mann, supra note 4, at 1796.

See Gail Heriot, An Essay On The Civil-Criminal Distinction WithSpecial Ref krence To Punitive Damages, 7 J. CONTEMP. LEGAL ISSU'ES 43,54 (1996). The criminal law was one of the first major areas of the lawto be heavily codified, and at least when compared to most civil law sub-jects, its codes tend to be somewhat more detailed. In contrast, the civillaw remains heavily common law, particularly in the area of torts. Un-like criminal law, civil law is generally doctrinally thin and heavy in dis-cretion by the trier of fact.12 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 New Court-OrderedADR Law:Whi it is Needed and its Potential/fbr Success, 78 MARQ. L. REV. 583,589 (1995) (stating that many large damages awards are attributed toemotional juries who may not understand the law but award such largedamages because they are sympathetic to the plaintiff).34 See, e.g., MARc A. FRANKL1N & ROBERT L. RABIN, TORT LAW AND AL-TEI&NATIVES 613 (The Foundation Press, Inc. 6th ed. 1996)15 See generally Joseph P. King, Jr., Pain and Suffjring, Noneconomic

Damages, and the Goals of Tort Law, 57 SMU L. REv. 163, 165 (2004).36 See Sam B. Edwards, Damage to Ceremonial Proper in the State ofYap: fheories of Recovery, 7 INT'L LEGAL PERSP. 119, 150 (1995) (quot-ing Frederick S. Levin, Note, Pain and Sutkring Guidelines: A Cure fbrDamages Measurement "Anomie, "22 U. MICH. J.L. RE. 303 (1989))("[D]isparate awards send confrised signals concerning the appropriatelevels of accident avoidance.").37 See VWAYNE R. LAFAvE, CRIMINAL LAW 26 (Thompson West 4th ed.2003) (1972) (emphasizing that criminal law focuses on punishing andpreventing improper conduct rather than rewarding socially desirableconduct).3 See Heriot, supra note 31, at 54 (noting that criminal law must be cod-ified and publicized betore it is applied to the public, as compared tocivil law which is primarily based in the common law)."Id. at 63 n.75 (citing Lord Camden, L.C.J., Case offHindson andKersey, 8 Howell's State Trials 57 (1816)) ("The discretion of ajudge isthe law of tyrants: It is always unknown: It is different in different men:It is casual, and depends upon constitution, temper and passions. In thebest it is often times caprice: In the worst it is every vice, folly, and pas-sion, to which human nature can be liable.").40 The Bible embraced the idea of "eye for eye, tooth for tooth, hand forhand, foot for foot, burning for burning, wound for wound, stripe forstripe." 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 beused to punish the defendant above and beyond the level necessary tocompensate plaintiff). But see Joseph P King, Jr., Pain and Sutkring,Noneconomic Damages, and the Goals offTort Law, 57 SMU L. RE,.163, 181 (2004) (opining that modern tort law has moved away from thehistoric 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 Jfo Hardening of the Cate-

gories, 17 WIDENER L.J. 733 (2008).41 See id.

Criminal Law BriefHeinOnline -- 5 Crim. L. Brief 45 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 Matm, Punitive Civil Sanctions: The l'vfiddle Ground Between Criminal and Civil Lmt; 10 1 YALE L.J. 1795, 1806 n. 36 (1992) (quoting WILLlA'V[ L. PROSSER, H"'-NDBOOK OF THE LAW OF TORTS 22 (5th ed. 1984) (citations omitted)) ("Empirically, as opposed to paradigmatic ally, 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 lite, 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 DreH' Not Guilty of Felonies in Landmark Cyberbully­ing Trial, WIRED, Nov. 26, 2008, available at http://www.wired.comfthreatlevel/2008/11/lori-drew-pla-5. o United States v. Drew, 259 F.R.D. 449, 452 (C.D. Cal. 2009). 71d. x ld. at 452-53. 91d. at 468. 10 See Alexandra Zavis, Judge Tentatively Dismisses Case in l'vfySpace Hoax That Led to Teenage Girl's Suicide, Los ANGELES TI'V[ES, July, 2, 2009, available at http://latimesblogs.latimes.comflanow/2009/07 Imy­space-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 JA'V[ES, JR., THE LAW OF TORTS (2d ed. 1956). 12 See Prosser, supra note 11. 131d.

14 See RESTATEMENT (FIRST) OF TORTS § 46 (1948). 15 See id. at §§ 21, 35. 10 See id. § 13. 17 See infra note 187. Ix See Richard A. Epstein, The Tort/Crime Distinction: A Generation Later, 76 B.U. L. REv. 1 (1996) (citing R1CHl\RD EpSTEIN, CRIME ANTI TORT: OLD WINE IN NEW BOTTLES, 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: l'vfaking Connec­tions in a Time of Change, 49 JURlMETRICS J. 5, 8 (2008) (quoting H.L.A. Hart & Tony Honore, CAUSATION IN THE LAW ed. 1985)). 21 See John C. Coffee, Jr., Does "Unlawfitl" l'vfean "Criminal"?: Reflec­tions on the Disappearing Tort/Crime Distinction in American Lmt; 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 vv. Simons, Retributivists Need Not and Should Not En­dorse the Subjectivist Account of Punishment, 109 COLUM. L. REv. SlDE­BAR 1 (2009), available at http://www.columbialawreview.orgiSidebar/volume/ 1 091 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). 20 See Epstein, supra note 18, at 14. 27 4 vVILLlA'V[ BLACKSTONE, 4 COMMENTARlES *2, *5. 2, 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 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 Kl\Rc"\fES, THE AMERlCAN LEGAL SYSTEM: PERSPECTIVES, POLITICS, PROCESSES ANTI POLICIES 197-98 (2d ed. 2007). 33 See Michael E. Weinzierl, Wisconsin's Nnv Court-Ordered ADR Law: Why it is Needed and its Potentialfor 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 plaintift). 34 See, e.g., MARC A. FRc<\Nl(LIN & ROBERT L. RABIN, TORT LAW AND AL­TE~NATIVES 613 (The Foundation Press, Inc. 6th ed. 1996) 35 See generally Joseph P. King, Jr., Pain and Suj(i?ring, Noneconomic Damages, and the Goals of Tort Law, 57 SMU L. REv. 163, 165 (2004). 30 See Sam B. Edwards, Damage to Ceremonial Property in the State 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 Afeasurement "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, CRlMINAL 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). 3x 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). 391d. 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 difTerent 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., CRlMINAL LAW ANTI 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 plaintifl). But see Joseph P. King, Jr., Pain and Suffering, Noneconomic Damages, and the Goals of Tort Lmv, 57 SMU L. REv. 163, 181 (2004) (opining that modem tort law has moved away from the historic tort law goal of vindication for violent conduct). 43 509 U.S. 443 (1993). 44 ld. at 469. 45 See generally Coffee, supra note 21. 4°1d. at 193. 47 See Thomas H. Koenig, Crimtorts: A Curefor Hardening of the Cate­gories, 17 WIDENER L.J. 733 (2008). 4X See id.

49Id. at 742.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 Descrip-tive Theory, 73 TLNN. L. REv. 177, 180 (2006) ("The law punisheswrongdoers 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 retribu-tive sense.").5! George P. Fletcher, Corrective Justice for Moderns, 106 HARV. L. REV

1658, 1667 1168 (1993) (acknowledging Aristotle as the earliest propo-nent of corrective justice).52 Id. at 1668.53 Id.54 Id. at 1676.55 Thomas B. Colby, Clearing the Smoke from Philip M4orris v. Wiiliams:The Past, Present and Future of Punitive Damages, 118 XALE L.J. 392,422 n. 125 (2008) (citing RICHARD . WRIGHT, RIGHT, JU-STICE AND TORT

LAW 175 (David G. Owen ed., 1997)) (making the "[argument] that the.notion of punitive damages as retribution 'for the discrete wrong doneto a particular individual' accords with corrective justice.').56 See id. at 439 ("Punitive damages ... are all about privatevengeance.").57 517 U.S. 559 (1996).51 Philip Morris USA v. Williams, 549 U.S. 346, 351 (2007) (citingBMW of North America v. Gore, 517 U.S. 559, 575 76 (1996)).51 U.S. CONST. AMEND. VIII. ("Excessive bail shall not be required, notexcessive fines imposed, nor cruel and unusual punishments inflicted.");see also Michael P Allen, Of Remnedy, Juries, and State Regulation ofPunitive Damages: The Sig-nificance of Philip Morris v. Williams, 63N.YU. ANN. SURV. AM. L. 343, 346 n.5 (2008) (citing Browning-FerrisIndus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 260 (1989))("IT]he Court left open whether the Excessive Fines Clause is applicableto the states through the Fourteenth Amendment and whether it is appli-cable to corporate entities at all.").60 512 U.S. 415 (1994).6! See id. at 432.62 See B[J', 517 U.S. at 562; see also State Farm Mut. Auto. Inc. v.

Campbell, 538 U.S. 408, 416 (2003) (holding that there are "substantiveconstitutional limitations" on punitive damage awards and that "[t]heDue Process Clause of the Fourteenth Amendment prohibits the imposi-tion of grossly excessive or arbitrary punishments on a tortfeasor."). Fora good discussion of the use of constitutional limitations of jury awardssee 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 re-

cently vacated award of punitive damages to a woman who prevailed attrial against her former employer in a hostile work environment claimunder 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 X. Drane & David J. Neal, Is the fort/Crime DistinctionValid?, 4 LITERATURE OF LIBERTY (1981), available at http:i oll.liberty-fund.orgioption com staticxt&staticfile show.php%3Ftitle 1300&chapter 100976&layout html&Itemid 27.61 ROBERT NoZICK, PHILOSOPHICAL ExPLANATIONs 363 (Harvard Univer-sity Press 1981).69 Id.71 See id. at 363 97; see also Youngjae Lee, The Constitutional RightAgainst Excessive Punishment, 91 -VA. L. REv 677, 703 (2005).7! See NozIcK, supra note 68, at 363.72 Id.73 See id. at 364 365 (using the example that restitution for a millionairewho steals $100 from an indigent person should not be a correspondingloss of $100 but a deprivation equal to the loss of the $100 to the indi-gent person).

71 See id.75 Id.76 Leigh Goodmark, fTe Punishment of Dixie Shanahan: Is There Justiceor Battered ,Vomen Who Kill?, 55 U. KAN. L. REMV. 269, 289 (2007) (cit-

ing C.L. TEN, CRIME, GUiLT, AND PVNSHMENT: A PHILOSOPHICAL INTRO-

DUC TIo 42 (1987)).77 See id. at 291 292.71 See Coffee, supra note 21, at 197; see also Leslie Xalof Garfield,AMore Principled Approach to Criminalizing Negig-ence: A Prescription/or the Legislature, 65 TENN. L. REv. 875, 914 (1998).71 PROSSER, supra note 1180 Id.8! Id.12 See also Richard W. Wright, Causation in Tort Law, 73 CAL. L. REv.

1735 (1985); Jane Stapleton, Choosing What M/e Mean B} "Causation"in the Law, 73 Mo. L. REMV. 433 (2008); See generally H.L.A. HART &TONY HONORE, CAUSATION iN THE LAW (2d ed. 1985).

" Wright, supra note 82, at 1762.84 Id.

" See W. PAGE KEETON, PROSSER AND KEETON ON THE LAW OF TORTS 34-35 (West Publishing Co. 5th ed. 1984) (1941); see also CRIMES AND PtTN-ISHMENTS 231 (Jules L. Coleman, ed., Garland Pub. 1994).16 Keeton, supra note 85, at 34-3517 See People v. Decina, 138 N.E.2d 799, 807 (1956)." Similarly, an individual who hits another while in a psychotic statedoes not engage in a voluntary act.

RESTATEMENT (SECOND) OF TORTS § 2 cmt. c (1965).90 See PROSSER, supra note 11, at 34 (emphasis omitted) (citations omit-ted).1! See RESTATEMENT (FIRST) OF TORTS §13 cmt. d (1934). See generallyC. R. McCorkle, Amotation, Civil Liability of'Insane oi Other MentallyDisordered Person /or Assault or Battery, 77 A.L.R.2d 625 (1961).12 See KEETON, supra note 85, at 34." See id. at 35. The classic example of substantial certainty appears inthe case of Garrett v. Dailey, 279 P.2d 1091 (Wash. 1955), in whichseven-year-old Billy Dailey chose to pull a chair away from an elderlyMrs. Garrett. Id. No evidence existed at the time that Billy wanted tohurt Mrs. Garrett in fact, he probably did not choose for her to come toany harm at all. He just wanted to sit down. Id. However, in the caseagainst Billy for battery, the court found that Billy had the intent neces-sary to prove the intentional tort of battery as Billy knew with substantialcertainty that pulling the chair out from under Mrs. Garrett could causeMrs. Garrett harm. Id.94 See RESTATEMENT (THIRD) OF TORTS- PH § I cmt. B (2005) (noting thatthe intent required in intentional torts is an intent to bring about harm).95 See RESTATEMENT (SECOND) OF TORTS § 21(1) (1965); see also RE-STATEMENT (SECOND) OF TORTS § 21(2) (1965) ("An action which is notdone with the intention stated in Subsection (1, a) does not make theactor liable to the other for an apprehension caused thereby although theact involves an unreasonable risk of causing it and, therefore, would benegligent or reckless if the risk threatened bodily harm.").96 KEETON, supra note 85, at 43. One of the earliest examples of assaultoccurred 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 WILI AM L. PROSSER & JOHN W.VADE, CASES AND MATERIALS ON TORTS 36 (5th ed. 1971).

97 See KEETON, supra note 85, at 876.9' See Jenson v. Employers Mut. Cas. Co., 468 N.W2d 1, 1 (Wis. 1991)(stating that mere words are not enough for liability under Wisconsin'sworkman's compensation statute, Wis. Stat. AXim. § 102.03 (2004)); seealso Kramer v. Ricksmeier, 139 N.W 1091, 1091 (Iowa 1913) (rulingthat no action lay against the defendant who caused the relapse of a con-valescent woman through threatening and abusive language over thetelephone unless the defendant knew that the condition of the plaintiffwas so enfeebled that she could not endure such speech).9 411 So.2d. 1347 (Fl. Dist. Ct. App. 1982).100 See id.; see also Waag v. Thomas Pontiac, Buick, GMC, Inc., 930

Winter 2009HeinOnline -- 5 Crim. L. Brief 46 2009

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 A Descrip-tive TheO/}', 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 l'vfoderns, 106 HARV. L. REv 1658, 1667-1168 (acknowledging Aristotle as the earliest propo­nent of corrective justice). 52 Id. at 1668. 53 Id. 54 !d. at 1676. 55 Thomas B. Colby, Clearing the Smoke from Philip }vforris v. TYilliams: The Past, Present and Future of Punitive Damages, 118 YALE L.J. 392, 422 n. 125 (2008) (citing RICHARD W. WRIGHT, RIGHT, JUSTICEANTJ 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'''). 50 See id. at 439 ("Punitive damages ... are all about private vengeance."). 57 517 U.S. 559 (1996). 5x 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. A'V[END. VIII. ("Excessive bail shall not be required, not excessive fines imposed, nor cmel and unusual punishments inflicted. see also Michael P. Allen, Of Remedy, Juries, and State Regulation of Punitive Damages: The Significance ofPhifip }vforris v. FVilliams, 63 N.Y.U. ANN. SURV. AM. L. 343, 346 n.5 (2008) (citing Browning-Ferris Indus. ofVt., 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. "). 00 512 U.S. 415 (1994). 01 See id. at 432. 02 See BAITY, 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. 03 549 U.S. 346 (2007). MId. at 349. 05 Id. at 348, 354. 00 The New Jersey Supreme Court atlirmed 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). 07 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%3 Ftitle= 13 OO&cha pter= 1 00976&layout=html&Itemid=27. oR ROBERT NOZICK, PHILOSOPHICAL EXPLANATIONS 363 (Harvard Univer­sity Press 1981). mId. 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.

70 Leigh Goodmark, The Punishment of Dixie Shanahan: Is There Justice Battered rVomen TYho Kill?, 55 U. IC<\N. L. REv. 269, 289 (2007) (cit­

ing C.L. TEN, CRIME, GUlLI, ANTJ PUNISHMENT: A PHILOSOPHICAL INTRO­DUCTION 42 (1987)). 77 See id. at 291-292. 7x See Coffee, supra note 21, at 197; see also Leslie YalofGarfield, A Afore Principled Approach to Criminalizing Negligence: A Prescription

the Legislature, 65 TENN. L. REv. 875, 914 (1998). 79 PROSSER, supra note 11 xO Id. xl Id.

x2 See also Richard W. Wright, Causation in Tort Lmv, 73 CAL L. REv. 1735 (1985); Jane Stapleton, Choosing What rVe Afean By "Causation" in the Lmt; 73 Mo. L. REv. 433 (2008); See generally H.L.A. HART & TONY HONORE, CAUSATION IN THE LAW (2d ed. 1985). x3 Wright, supra note 82, at 1762. x4 Id.

xj See W. 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). Xo Keeton, supra note 85, at 34-35 x7 See People v. Decina, 138 N.E.2d 799,807 (1956). xx Similarly, an individual who hits another while in a psychotic state does not engage in a voluntary act. x9 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, Almotation, Civil Liability of Insane or Other }vfentally 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 trom 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 RE-STATEMENT (SECOND) OF TORTS § (1965) ("An action which is not done with the intention stated in Subsection 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."). 9h KEETON, supra note 85, at 43. One of the earliest examples of assault occurred in the case on de S et. Ux v. W de S, Y.B. Lib. Ass. folio 99, placitum 60 (Assizes 1348), reprinted in WILLlA\1 L. PROSSER & JOHN W. WADE, CASES AND MATERIALS ON TORTS 36 (5th ed. 1971). 97 See KEETON, supra note 85, at 876. 9X 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. AIm. § 102.03 (2004)); see also Kramer v. Ricksmeier, 139 N.W. 1091, 1091 (Iowa 1913) (mling 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). 99411 So.2d. 1347 (Fl. Dist. Ct. App. 1982). 100 See id.; see also \Vaag v. Thomas Pontiac, Buick, GMC, Inc., 930

F.Supp 393, 409 (D. Minn. 1996) (holding that a defendant who threat-ened a plaintiff by saying, "[c]ome on. Let's take a ride and I will showyou what life is about," did not provide sufficient evidence of assault,even though there was substantial proof that the plaintiff was sufficientlyfrightened). While threats coupled with an ability to perform the harm issufficient to support a finding of assault, gestures are also sufficient toconstitute assault. KEETON, supra note 85, at 43, 45. The origin of thisrle lay in nothing more than the fact that in the early days, the king'scourts had their hands full when they intervened at the first threateninggesture; or in other words, when the fight was about to start and takingcognizance of all of the belligerent language which the foul mouths ofmerry England could dispense was simply beyond their capacity. Merewords are not assault, regardless of their violent nature. A defendantwho uttered threats, clenched his fist, and started toward plaintiff hascommitted 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 "[ilt seems tothe writer that the right of a person to be secure in his freedom from un-justified and unwarranted public cursing and insult by words is as valu-able a legal right as is the right to be free from physical assault ortrespass on person, property, or reputation, or the violation of a contrac-tual right. The law itself recognizes that a private insult or a humiliationinflicted by words alone may justily the infliction by the person so in-sulted or abused of an assault and battery not disproportionate to the in-sult offered").01 See RESTATEMENT (SECOND) OF TORTS § 21 cmt. c (1965).

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 forbodily harm directly resulting from an act done with the intention statedin Clause (a) was trespass for battery).!05 RESTATEMENT (SECOND) OF TORTS § 13 (1965).!06 Early English law defined "batter" as "the infliction of physical in-jury." See Cole v. Turner, 90 E.R. 958 (1704) (providing the earliest for-mulation of the modem rule: "the least touching of another in battery isanger." The defendant must have carried out some positive or affirma-tive act in order to be liable for battery. However, the actor is only re-sponsible if the defendant intended to cause harmful or offensive contactupon the plaintiff. In this respect, the intent element is exactly the sameas the intent for assault. Offense to the dignity involved in the unpermit-ted and intentional invasion of the person is the gravamen of the com-plaint of battery. For example, a doctor's decision to operate on a patientwithout obtaining consent first is a classic example of battery, as is theequivalent of spitting in the patient's face); see also PROSSER, supra note72, at 35, 37; see also W.S. HOLDSWORTH, A HISTORY OF THE ENGLISH

LAW 422 23 (3d. ed. 1922).!)I PROSSER, supra note 11, at 41 (discussing how the similarity of the in-tent element seems to be why Prosser said that "assault and battery gotogether like ham and eggs").

See RESTATEMENT (SECOND) OF TORTS § 13 (1965).9 See id. at § 21.!0See, e.g., Szydlowski v. City of Philadelphia, 134 F.Supp.2d 636, 639(E.D. Pa. 2001).1 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).12 RESTATEMENT (FIRST) OF TORTS § 35 (1948).113 See PROSSER, supra note 79, at 42; see also RESTATEMENT (SEcOND) OFTORTS §§ 1, 35, 42 (requiring that plaintiff knew he was confined).' PROSSER, supra note 11, at 47 (stating that the typical original false

imprisonment involved battery since it was a "laying of the hands on an-other and depriving him of his liberty."); see also W.S. HOLDSWORTH, A

HISTORY OF THE ENGLISH LAw 423 (maintaining that false imprisonmentwas one of the first trespasses recognized by common law; in medievaltimes, battery extended to instances in which no physical contact oc-curred).! However, false imprisonment only requires that the defendant intendto confine, not that he intend to cause physical or emotional harm to theplaintiff. See Dan B. Dobbs, A Restatement (Third) otIntentional forts?,48 ARIz. L. REv. 1061, 1067 (2006).11 RESTATEMENT (SECOND) OF TORTS §35 cmt. f (1965).11"Id."I HARPER, supra note 25, at 287 (quoting Bird v. Jones, 115 Eng. Rep.668 (1845)).119 141 A.D. 362 (NA. 1910).!20 Id. at 363 64.121 See KEETON, supra note 85, at 47.121 Mann, supra note 4, at 1808 09 (quoting 3 WILLIAM BLACKSTONE,

COMMENTARIES *2, which states that "apublic mischief' is punished "tosecure to the public the benefit of society, by preventing or punishingevery breach and violation of those laws").123 See MODEL PENAL CODE § 2.02 (1985); see also Kenneth W. Simons,Should the Model Penal Code Mens Rea Provisions be Amended?, IOHIO ST. J. CRIM. L. 179, 187 (2003).!24 Id.!25 See generally Martin R. Gardner, The Mens Rea Enigna: Observa-

tions on the Role of Motive in the Criminal Law Past and Present, 1993UTAH L. REv. 635 (1993) (discussing the history of the criminal law).26 See BLACK'S LAW DICTIONARY 712 (7th ed. 1999) (defining "specific

intent" as "[t]he intent to accomplish the precise criminal act that one islater charged with. At common law, the specific-intent crimes were rob-bery, assault, larceny, burglary, forgery, false pretenses, embezzlement,attempt, solicitation, and conspiracy").!27 See id. (defining "general intent" as "[t]he intent to perform an acteven though the actor does not desire the consequences that result. Thisis the state of mind required for the commission of certain common-lawcrimes not requiring a specific intent or not imposing strict liability").18 See MODEL PENAL CODE § 2.02 (1985).

I29 Id.130 d.

!3' Note that there is a burden of proof issue but that is beyond the scopeof this article.131 See LAFAVE, supra note 37, at 814-15.!33 See Alalair S. Burke, Domestic Violence as a Crime otPattern andIntent: An Alternative Reconceptualization, 75 GEO. WASH. L. R\V. 552,558, n. 33 (2007) (citing WA1YNE R. LAFAVE, SU-BSTANTIVE CRIMINAL LAw

§ 16.1 (2d ed. 2003)).!34 LAFAVE, supra note 37, at 816.!35 Id. at 823.!36 See SANFORD H. KADISH, ET AL., CRIMINAL LAW AND ITS PROCESSES,

562 (8th ed. 2007).!37 LAFAVE, supra note 37, at 823, 825.131 See Matthew J. Gillian, Stalking the Stalker: Developing New Laws toThwart Those Vho errorize Others, 27 GA. L. REv. 285, 295 n. 69(1992) (citing WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAw§7.16 at 691 (2d ed. 1986)) ("Generally, the crime of assault is dividedinto two types: (1) attempted battery, requiring an actual attempt to causephysical injury to the victim and not just a mere apprehension of injury;and (2) intentional scaring, requiring only an intent to cause the victim areasonable 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 hepointed unloaded gun at victim, intending to cause apprehension of bat-tery but not to injure); People v. Johnson, 284 N.W2d 718, 718 19(Mich. 1979) (finding that the defendant committed assault when hepointed gun at victim and did not fire but intended to scare, placing vic-tim in reasonable apprehension); State v. Baker, 38 A. 653, 654 (RI.1897) (holding that defendant committed assault when he fired a gun to-

Criminal Law BriefHeinOnline -- 5 Crim. L. Brief 47 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 liie 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 mle 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 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 int1iction the person so in-sulted or abused of an assault and battery not disproportionate to the in­sult of Ie red"). 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 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. Tumer, 90 E.R 958 (1704) (providing the earliest for­mulation of the modem mle: "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 plaintifI. 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). Ill' 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 (SECONTJ) OF TORTS §§ 1,35,42 (requiring that plaintifIknew 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 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). 11, Id.

113 H.<\RPER, 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 WILLL<\'V[ BLACKSTONE, COMMENTARIES *2, which states that "a public mischief' is punished "to secure to the public the benefit of society, 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 Afodel Penal Code s J'vfens Rea Provisions be Amended?, 1 OHIO ST. J. CRIM. L. 179, 187 (2003). 124 Id.

125 See generally Martin R Gardner, The Afens Rea Enigma: Observa­tions on the Role o("Afotive in the Criminal Lmv 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"). 12, 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 Alaiair S. Burke, Domestic vIolence as a Crime of Pattern and Intent: An Alternative Reconceptualization, 75 GEO. WASIL 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. I(ADlSH, ET AL., CRIMINAL LAW ~ND ITS PROCESSES, 562 (8th ed. 2007). 13' LAFAVE, supra note 37, at 823,825. 133 See Matthew J. Gillian, Stalking the Stalker: Developing New Laws to Thwart Those Tllho Terrorize Others, 27 GA. L. REv. 285, 295 n. 69 (1992) (citing WAYNE R LAFAVE & AUSTIN W. SCOTT, CRlMINAL 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 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 (RI. 1897) (holding that defendant committed assault when he fired a gun to-

ward victim, intending to miss but intending to scare victim).!4 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, 883P.2d 320, 323 (Wash. 1994) (noting that one common law form of assaultinvolves "putting another in apprehension [or tear] of harm whether ornot the actor intends to inflict or is capable of inflicting that harm").!' See, e.g., People v. Petrella, 380 N.Wv2d 11, 16 (Mich. 1985). In Peo-pie v. Petrella, the victim's boyfriend testified that the victim was the"most frightened [he] had ever seen her." The victim experienced night-mares, had difficulty sleeping, and sought constant protection from herboyfriend. She also feared that the defendant and his friends whoknew where she lived would return; therefore, she wanted to move outof her house. Consequently, the victim and her boyfriend moved to Cali-fornia, but the incident continued to affect her up until the defendant'strial. At the time of defendant's trial, the victim had not visited a doctorfor counseling, but had called a rape hotline. Given these facts, therewas sufficient evidence for a jury to find beyond a reasonable doubt thatthe victim suffered personal injury in the form of mental anguish.!42 Id. at 34.143 See MODEL PENAL CODE § 2.11 (1985).!44 See id. (stating that "[a] person is guilty of assault if he: (a) attemptsto cause or purposely, knowingly or recklessly causes bodily injury toanother; or ... (c) attempts by physical menace to put another in fear ofimminent serious bodily injury").!45 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 thetrial mistakenly instructed the jury that battery was a general intentcrime).!47 See MODEL PENAL CODE § 2.11 (1985).141 See Dobbs, supra note 115, at 63 (stating that Section 1 of the Re-statement (Third) of Torts provides for a "new general definition of in-tent. An 'intent' to produce a consequence means either the purpose toproduce that consequence or the knowledge that the consequence is sub-stantially certain to result").149 See MPC PART II COMMENTARIES, VOL. 1, at 174. The commentary for§ 211.1 and § 211.3 have consolidated "mayhem."15o 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 scuf-fle entered into by mutual consent, in which case it is a petty misde-meanor").151 See id.!52 Id.

!53 See Harris v. State, 164 S.W3d 775, 785 (Tex. Ct. App. 2005) (hold-ing evidence was sufficient to show bodily injury because victim had"reddish marks around [her] neck" and scratch on her collarbone). Seealso North Dakota v. Saulter, 764 N.W2d 430 (N.D. 2009) (where thedefendant lifted the victim off the ground by her neck).!54 See Scott v. United States, 954 A.2d 1037, 1046 (D.C. Cir. 2008) (say-ing serious bodily injury sufficient to affirm an aggravated assault con-viction means the victim sustained life-threatening or disabling injuriesinvolving grievous stab wounds, severe burnings, or broken bones, lacer-ations and actual or threatened loss of consciousness); see also Reynoldsv. State, 668 S.E.2d 846, 849 (Ga. Ct. App. 2008) (ruling that evidencewas sufficient to show injury when victim testified that she was thrownto the ground, was bruised on multiple parts of her body, experiencedsoreness, and "saw stars" when defendant struck her in the head with aplank); Arzaga v State, 86 S.W3d 767, 780 (Tex. Ct. App. 2002) (hold-ing State proved bodily injury by legally sufficient evidence because vic-tim had at least one abrasion on inside of upper lip and her mouth wasswollen and bruised after being punched by the defendant); Hubert v.State, 652 SAV.2d 585, 588 (Tex. Ct. App. 1983) (holding victim's testi-mony that appellant struck his face and scratched his neck, which causedswelling and tenderness, was sufficient to prove bodily injury); Allen v.State, 533 SAV.2d 352, 354 (Tex. Crim. App. 1976) (holding evidence

was sufficient to show bodily injury where appellant kicked police offi-cer in nose and officer testified his nose hurt, swelled, and was sore forthree or four days).!55 See WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 18.3(2), 3SUBST. CRIM. L. § 18.3 (2d ed.).!56 See CHARLES E. TORCIA, 2 WHARTON'S CRIMINAL LAW § 206 (15th ed.2009) (stating that false "imprisonment need not be accomplished by vi-olence or even a touching; it may be accomplished by mere words, ac-companied by a show of force or authority, to which the victimsubmits").!57 See MODEL PENAL CODE § 2.12.2; see also N.J. STAT. ANN.§2C:13-2(West 2005).151 See Grayson Variety Store, Inc. v. Shaffer, 402 SW.2d 424, 425 (Ky.1966) (finding no false imprisonment where a store manager suspectedthe plaintiffs of stealing, stopped the plaintiffs atter 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 otAlienation of Aftetions AfterMcCutchen v. McCutchen: In North Carolina, Breaking Up Just GotHarder to Do, 85 N.C. L. RE, . 1761, 1779 n.114 (2007) (quotingCHARLES E. DAYE & MARK W. MORRIS, NORTH CAROLINA LAw OF TORTS

§5.31 (2d ed. 1999)).162 See George P. Smith, Re-Validating the Doctrine of Anticipatory Nui-sance, 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 thetwelfth century as the intentional tort, which allowed damages to be re-covered 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 ofIED and its history; see John J. Kircher, The Four Faces Of Tort Law:Liabiliti -br Emotional Harm, 90 MARQ. L. REV. 789 (2007).164 Kircher, supra note 164, at 795 (quoting Wilkinson v Downton, 2Q.B. 57 (1897)). Before intentional infliction of emotional distress itsown separate tort, United States courts allowed recovery for mental dis-tress if it was associated with one's intentional mistreatment of deadbodies or burial rights. Id. In 1999, the Alabama Supreme Court, re-viewing past history of this old tort, noted that "[i]t has long been thelaw of Alabama that mistreatment of burial places and human remainswill support the recovery of damages for mental suffering." Id. (quotingGray Brown-Service Mortuary, Inc. v. Lloyd, 729 So.2d 280 (Ala.1999)). Prosser has also noted that recovery for the intentional inflictionof emotional distress had been allowed for "common carriers, telegraphcompanies, and innkeepers." Id. (citing NV PAGE KEETON ET AL.,

PROSSER AND KEETON ON THE LAW OF TORTS 43 (West Publishing Co. 5thed. 1984) (1941)). The reason why this was the case, it is opined, wasthat these entities were "'the only game in town' and were the equiva-lent of a "monopoly as to the services they provided to many communi-ties." 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.161 Id. J 'kinson v. Downton, a late nineteenth century case, presents oneof the earliest recognitions of IIED. The defendant in Wlkinson played apractical joke on the victim, telling her that her husband's leg had beenbroken and that, in response, he had been taken for urgent care. Id. at795. Aparticular sense of urgency was included in the defendant's tale,and he urged the plaintiff to quickly rush to her husband's side. Conse-quently, the plaintiff was thrown into a violent shock [in] her nervoussystem, producing vomiting and other more serious and permanent phys-ical consequences at one time threatening her reason, and entailingweeks of suffering and incapacity to her as well as expense to her hus-band for medical attendance. These consequences were not in any waythe result of previous ill-health or weakness of constitution, nor wasthere any evidence of predisposition to nervous shock or any other idio-syncrasy. Id. The court allowed the plaintiff to recover for the harm she

Winter 2009HeinOnline -- 5 Crim. L. Brief 48 2009

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. 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 iear] of harm whether or not the actor intends to int1ict 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 boyiriend testified that the victim was the "most frightened [he] had ever seen her." The victim experienced night­mares, had difficulty sleeping, and sought constant protection irom her boyiriend. She also ieared 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 boyiriend 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: attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or . .. (c) attempts physical menace to put another in iear 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). 14' 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 COMMENTARlES, 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) (mling that evidence was sufficient to show injury when victim testified that she was thrown to the ground, was bmised 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) (hold-ing State proved bodily injury legally sufficient evidence because vic-tim had at least one abrasion on inside of upper lip and her mouth was swollen and bmised aHer being punched 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 oUker testified his nose hurt, swelled, and was sore for three or four days). 155 See WAYNn R. LAI:-AVE, SUBST~NTlVE CRIMINAL LAW §18.3(2), 3 SUB ST. CRIM. L. § 18.3 (2d ed.). 156 See CHARLES E. TORClA, 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, ac-companied a show of force or authority, to which the victim submits"). 15' See MODEL PENAL CODE § 2.12.2; see also N.J. STAT. ANN.§2C: 13-2 (West 2005). 153 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 plaintiifs aHer they left the store, and asked him to return to store for discussion of the matter). 159 RESTATEMENT (SECOND) OF TORTS § 46 (1965). 100 Id.

161 Sherry Honicutt Everett, The Lmv of Affections Afier AfcCutchen v. AfcCutchen: In North Carolina, Breaking Up Just Got Harder to Do, 85 N.C. L. REv. 1761, 1779 n.114 (2007) (quoting CHARLES E. DAYE & MARI<" W. 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 WlLLL<\'V[ 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 twelt1h 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 lIED and its history; see John J. Kircher, The Four Faces Of Tort Law: Liability for Emotional Harm, 90 M<\RQ. 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 Mort1.Jary, 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. TYilkinson v. Downton, a late nineteenth century case, presents one of the earliest recognitions of lIED. 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 plaintiiIto 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 plaintiiIto recover for the harm she

suffered66 See RESTATEMENT (FIRST) OF TORTS § 46 (1948), The first Restate-

ment of Torts curtailed the seemingly broad sweep of Wilkinson by gen-erally prohibiting individual responsibility for emotional distress orbodily injury that resulted from conduct intended or likely to cause emo-tional disturbance. Id. The only exceptions were for breach of the dutyto exercise civilitv that common carriers, innkeepers, and telegraph com-panies owed to their customers, as well as recovery in cases involvingthe mishandling of dead bodies. Id.167 240 P.2d 282, 284 85 (Cal, 1952) (holding "a cause of action is estab-

lished when it is shown that one, in the absence of any privilege, inten-tionally subjects another to the mental suffering incident to seriousthreats to his physical well-being, whether or not the threats are madeunder such circumstances as to constitute a technical assault").6 See Kircher, supra note 164, at 806.! RESTATEMENT (SECOND) OF TORTS § 46, cmt. F. IIED allows for con-

duct that goes beyond intention to include those acts in which the actordeliberately disregards a high degree or probability that his or her con-duct will cause emotional distress. See id. The difference between onewho is substantially certain that one will suffer from emotional distressand one who knows of a high probability of such distress is really a mat-ter of degree. Thus, the drafters of the Restatement allow for recoveryfiom one who is less than almost certain, but more than just guessing,that this conduct will cause such distress. See id. If an individual wereto view intent in a linear fashion, with intentional awareness at the outerleft end of the line and unawareness to the right, then the degree ofawareness necessary to prove assault, battery, and false imprisonmentmight move slightly to the right of the end of the line while the degree ofawareness allowed to prove IED would pass that point slightly furtherto the right.!70 RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965) ("Liability hasbeen found only where the conduct has been so outrageous in character,and so extreme in degree, as to go beyond all possible bounds of de-cency, and to be regarded as atrocious, and utterly intolerable in a civi-lized 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 heshouted "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 thatsupport a finding of outrage when the defendant intentionally inflictsemotional harm: "(1) abusing a position of power; (2) emotionally harm-ing a plaintiff known to be especially vulnerable; (3) repeating or contin-uing conduct that may be tolerable when committed once but becomesintolerable when committed numerous times; and (4) committing orthreatening violence or serious economic harm to a person or property inwhich the plaintiff is known to have a special interest." Id.!75 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 theReporter of Decisions.176 See intia notes 187-96.177 See sapra note 154 and accompanying text.!78 Id.179 See supra note 114.!I' See RESTATEMENT (THIRD) OF TORTS § 33 (1985).

!Id.

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 injurycaused by an intentional touching is not relevant; any intentional touch-ing of another person against such person's will is technically a criminal

battery." Id.See, e.g., Bentley v. Kentucky, 354 SA..2d 495 (Ky. Ct. App. 1962).See, e.g., Sloan v. Indiana, 42 Ind. 570 (1873).

115 See, e.g., Leichtman v. WLW Jacor Commc'ns, Inc., 634 N.E.2d 697(Ohio Ct. App. 1994).16 See Minch Family Ltd. P 'ship v. Buffalo-Red River Watershed Dist.,2007 WL 93084, at *3 (Minn. Ct. App. 2007) (agreeing that the plain-tiff's distress did not rise to the level required for intentional infliction ofemotional distress); see also Gaspard v. Beadle, 36 S.Wi3d 229, 234(Tex. Ct. App. 2001) (declining to find plaintiff's behavior "extreme andoutrageous" where evidence showed that she suffered headaches, depres-sion, and loss of sleep)." See National Institute fbr Mental Health, What are the Symptoms ofDepression?, DEPRESSION 4, available athttp:iiwww.nimh.nih.govihealth/publicationsidepression/nimhdepres-sion.pdf [hereinafer Synptoms otDepression]. As for posttraumaticstress disorder ("PTSD"), which can occur after a person experiencessome type of trauma, the American Psychological Association states,"Untreated posttraumatic symptoms not only have tremendous mentalhealth implications, but can also lead to adverse effects on physicalhealth. Female survivors [of abuse] may encounter physical symptomsincluding headaches, gastro-intestinal problems, and sexual dysfinc-tion." American Psychological Association, Facts About tMomen andrauma, available at

http:iiwww.apa.orgiaboutigriissuesiwomen/trauma.aspx. See also Na-tional Institute for Mental Health, GeneralizedAnxiety Disorder (GAD),AXITY DISORDERS 12, available at

http:iiwww.nimh.nih.govihealth/publicationsianxiety-disordersinimhanx-iety.pdf [hereinafter Generalized Anxiety Disorder]."I See Generalized Anxiety Disorder, supra note 188, at 21.

9d.

! See supra note 114.Symptoms of Depression, supra note 188, at 4.Generalized Anxiety Disorder, supra note 188, at 12.

! See Facts About Women and Trauma, supra note 188 (noting that vic-tims of emotional abuse can develop PTSD).! Diane.R. Follingstad et al., The Role ofEmotional Abuse in Physically

Abusive Relationships, 5 J. FAm. VIOLENCE 107, 107 119 (2005).15 Id. at 609. After reviewing the literature on the psychological abuseof women, Dr. Virginia A. Kelly noted, "[c]ertainly, there is strong evi-dence to support a claim that victims of psychological abuse are likely toexhibit increased levels of both anxiety and depression."! See inf a note 213.

See State v. Cobbins, 21 S.W3d 876 (Mo. Ct. App. 1994) (holdingthat, although the victim entered the car voluntarily, there was sufficientproof that she was restrained without her consent so as to substantiallyinterfere with her liberty because defendant began to drive in the wrongdirection, locked the doors, and told the victim, after she asked to be letout, she would not be hurt and he only needed money).!" 2008 XNL 5191394 (S.D.N.Y. Dec. 12, 2008).19' 645 P.2d 916 (Kan. Ct. App. 1982).200 Id. at 918.201 Id.202 Id.

2o' Rissman, 2008 WL 5191394 at *3.2o4 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., 468P.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, besufficient evidence of extreme and outrageous conduct. See Mejia v.City of New York, 119 F. Supp. 2d 232, 286 (E.D.N.Y. 2000) (reasoningthat ethnically "disparaging remarks" uttered by a police officer maywell fall within the Restatement's definition of outrageous conduct, evenif the same remarks by a private citizen would not); see, e.g., Kelly v.City of Minneapolis, 598 NA..2d 657, 663 (Minn. 1999) (upholding a

Criminal Law BriefHeinOnline -- 5 Crim. L. Brief 49 2009

suffered. 166 See RESTATEMENT (FIRST) OF TORTS § 46 (1948). The first Restate-ment of Torts curtailed the seemingly broad sweep of FVilkinson gen-erally prohibiting individual responsibility for emotional distress or bodily injury that resulted from conduct intended or likely to cause emo­tional disturbance. ld. 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. ld. 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"). 108 See Kircher, supra note 164, at 806. 1m RESTATEMENT (SECOND) OF TORTS § 46, cmt. F. HED 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 irom emotional distress and one who knows of a high probability of such distress is really a mat­ter of degree. Thus, the draHers 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 necessalY to prove assault, battery, and ialse imprisonment might move slightly to the right of the end of the line while the degree of awareness allowed to prove HED 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 !d.

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 goddanm '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 int1icts emotional harm: "(1) abusing a position of power; 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. Interiact 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 notes 187-96. 17' See supra note 154 and accompanying text. 173Id.

179 See supra note 114. 190 See RESTATEMENT (THIRD) OF TORTS § 33 (1985). 19lId.

192 See, e.g., TORClA, 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.

193 See, e.g., Bentley v. Kentucky, 354 S.W.2d 495 (Ky. Ct. App. 1962). 194 See, e.g., Sloan v. Indiana, 42 Ind. 570 (1873). 195 See, e.g., Leichtman v. WLW Jacor Commc'ns, Inc., 634 N.E.2d 697 (Ohio Ct. App. 1994). 196 See Minch Family Ltd. P 'ship v. ButTalo-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 sutTered headaches, depres­sion, and loss of sleep). 19, See National Institute for Mental Health, What are the Symptoms of Depression?, DEPRESSION 4, available at http://www.nirnh.nih.gov/health/publications!depression/nirnhdepres­sion.pdf [hereinafer Symptoms of Depression ]. As for posttraumatic stress disorder ("PTSD"), which can occur aHer 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 efTects 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.nirnh.nih. gov !health/publications! anxiety -disorders!nirnhanx­iety.pdf [hereinaHer Generalized Anxiety Disorder]. 198 See Generalized Anxiety Disorder, supra note 188, at 21. 199Id.

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 aI., The Role of Emotional Abuse in Physically Abusive Relationships, 5 J. FAM. VIOLENCE 107, 107-119 (2005). 195Id. 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 note 213. 19, See State v. Cobbins, 21 S.W.3d 876 (Mo. Ct. App. 1994) (holding that, although the victim entered the car voluntarily, there was sutlicient 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, aHer she asked to be let out, she would not be hurt and he only needed money). 193 2008 \VL 5191394 (S.D.N.Y. Dec. 12,2008). 199 645 P.2d 916 (Kan. Ct. App. 1982). 200Id. at 918. 201 Id.

202Id.

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 police otlicers can, of themselves, be sutlicient 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 a police otlicer may well fall within the Restatement's definition of outrageous conduct, even if the same remarks a private citizen would not); see, e.g., Kelly v. City of Minneapolis, 598 N.W2d 657, 663 (Minn. 1999) (upholding a

jury verdict on an IED claim in favor of the plaintiff arrestees where theofficers used justifiable force but also used racial epithets and disparag-ing names).Such slurs by an employer can also be sufficient evidence of extremeand outrageous conduct. See Jones v. Fluor Daniel Services Corp., 959So.2d 1044 (Miss. 2007) (ruling in favor of the employees in an IIEDclaim when the employees' supervisor told them "you monkeys can goto work or go to the rope."); see also Alcom v. Anbom Eng'g Inc., 468P.2d 216, 216 (Cal. 1970) (holding that an employee had sufficiently al-leged IIED because his supervisor shouted racial epithets and fired him).215 468 P.2d 216 (Cal. 1970).02 6 Id. at 219.

27 Id. at 218.20s 2005 XNl 3113100 (N.D. Cal. Nov. 21, 2005).209 Id. at *2.211 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 (3dCir. 2006).211 In many states, courts require that the plaintiff must suffer some typeof physical harm. Pennsylvania law requires that a plaintiff suffer "sometype of resulting physical harm due to the defendant's outrageous con-duct" in order to satisfy the "severe emotional distress" element of thisclaim. See Reeves, 866 A.2d at 1122 23 (affirming dismissal of inten-tional infliction of emotional distress claim because plaintiff's complaintonly alleged "serious and permanent physical injury" without specifyingthe 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 orharm in order to sustain a cause of action for intentional infliction ofemotional distress."); Fulton, 198 Fed. App'x at 215 (non-precedential)("[I]n Pennsylvania, both intentional and negligent infliction of emo-tional distress requires a manifestation of physical impairment resultingfrom the distress.").212 See Burton Caine, The rouble with "'Fighting Words ": Chaplinsky v.New Hampshire is a Threat to FirstAmendment Values and Should beOverruled, 88 MARQ. L. REV. 441, 444 (2004) (stating that Chaplinsky v.New Hampshire, 315 U.S. 568 (1942), a case where the Court upheld aconviction based on New Hampshire "fighting words" statute waswrongly decided. Furthermore, Caine contends that fighting words, asopposed to physical attacks, are protected by the First Amendment andtherefore should never be a basis for a conviction.); see Eleanor Beards-ley, France Moves o Outlaw Mentai Abuse In Marriages, NPR, Jan. 8,2010, http:iiwww.npr.orgitemplates/storyistory.php?f 1001&fi 1&sto-ryld 122362876 (noting that the French Parliament is considering crim-inalization 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 § 250.4.2!4 See ELAINE M. JOHANNES, WHEN WORDS BECOME WEAPONS: VERBAL

ABUSE (Kan. State U. 1995), available at http:iiwww.ksre.ksu.edu/li-brary/FAMLF2/GT346.PDF.211 See id.261 See Larry Alexander & Kimberly D. Kessler, Mens Rea and InchoateCrimes, 87 J. CRiM. L. & CRIMINOLOGY 1138 (1997); see also TORClA,

supra note 157, at § 182 (supporting the principle of conditional intent).27, See MODEL PENAL CODE §§ 5.01-07 (1985).211 See MODEL PENAL CODE §§ 5.03 (1985).219 Victoria Kim, Mother Convicted in Internet Hoax Case Scheduled /brSentencing Ioday, L.A. TIMES, May 18, 2009, available at http:i latimes-blogs.latimes.com/lanowi2009i05imother-convicted-in-internet-hoax-that-led-to-suicide-will-be-sentenced-todayhtml.220 Id.221 Id.222 Id.221 See Zachary R. Dowdy & Sophia Chang, Web Ad Spurs Mom Arrest,NEWSDAY, May 9, 2009.22

4 N.Y. PENAL LAW § 240.30 (McKinney 2008).221 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 703.22 See id.2o See id.131 See Lee, supra note 70.23 See id.233 See generally Mark Perlman, PunishingAt and Counting Conse-

qu nces, 37 Ariz. L. REv. 227, 232 (1995) (citing Richard Parker,Blame, Punishment, and the Role ofResult, 21 AM. PHIL. Q. 269 (1984)).234 Id.235 Itd.

236 See generally Joel Feinberg, Equal Punishment /r Failed Attempts:

Some Bad But Instructive Arguments Against It, 37 ARiz. L. REv. 117(1995).231 See Russell Covey, Reconsidering the Relationship Between Cogni-tive Psilchoiogv and Plea Batgaining, 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.uses.gov/JUDPACI( 2006/lcB6.pdf)(showing that national federal median sentence for manslaughter isthirty-seven months); see also Celia Goldwag, The Constitutionaliti ofAffirmative De/nses Aier Patterson v. New Xork, 78 COLU-M. L. REV.655, 658 n. 29 (1978) (stating that the maximum sentence formanslaughter in Maine is $1,000 or twenty years).231 See RESTATEMENT (FIRST) OF TORTS §§ 21, 35 (1948).239 See supra note 187; see also Nicole M. Capezza & Ximena B. Ar-

riaga, You Can Degrade But vou Cant Hit: Diferences in Perceptions ofPsychological Versus PhysicaiAggression, 25 J. Soc. & PERS. RELATION-

SHIPS 225, 240 (2008).240 See supra note 187.241 Kim, supra note 220.24 Id. This article does not propose to argue for or against the theories of

deterrence. For an interesting argument on the value of deterrence, seeMichael Tonry, Learning ftom the Limitations of Deterrence Research,37 CRIME & JU-ST. 279 (2008).243 See MODEL PENAL CODE § 2.11 (B) (1985).21' David Chasen, France Mlls 'Ps~chological V/zolence'Ban, BBCNEWS, Jan 5, 2010 http://news.bbccouk2/hiieuropei8440199.stm24' Eleanor Beardsley, France Moves To Outlaw Mental Abuse In Mar-riages, NPR, Jan 8, 2010http ://,wvw.inpr.org/templates/story/storv php?f= 1001&ft= 1&sto-rid=122362876.246 Id.

Winter 2009HeinOnline -- 5 Crim. L. Brief 50 2009

jury verdict on an nED claim in favor of the plaintitT/arrestees where the otIicers used justifiable force but also used racial epithets and disparag­ing names). Such slurs by an employer can also be sutIicient 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 HED claim when the employees' supervisor told them 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 sutIiciently al­leged HED because his supervisor shouted racial epithets and fired him). 205 468 P.2d 216 (Cal. 1970). 206 Id. at219. 20"7 Id. at 218. 208 2005 \VL 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 sutTer some type of physical harm. Pennsylvania law requires that a plaintitT sutTer "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 (atIirming dismissal of in ten­tional 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]laintitT 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. Nnv 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 J'v!oves To Outlmv }vIental Abuse In J'v!arriages, NPR, Jan. 8, 2010, http://www.npr.orgitemplates/story/story.php?f=100 l&ft= l&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, WHEN \VORDS BECOME \VEAPONS: 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, Afens Rea and Inchoate Crimes, 87 J. CRIM. L. & CRIMINOLOGY 1138 (1997); see also TORClA, supra note 157, at § 182 (supporting the principle of conditional intent). 21"7 See MODEL PENAL CODE §§ 5.01-.07 (1985). 213 See MODEL PENAL CODE §§ 5.03 (1985). 219 Victoria Kim, Afother Convicted in Internet Hoax Case Scheduled for Sentencing L.A. TIMES, May 18, 2009, available at http://lati~es­blogs.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 Afom 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. m See Lee, supra note 70, at 703. 229 See id. 230 See id. 231 See Lee, supra note 70. 231 See id.

See generallv Mark Perlman, Punishing Act and Countirw Conse­quences, 37 A~z. L. REv. 227, 232 (1995) (citing Richard P~rker, Blame, Punishment, and the Role of Result, 21 AM. PHIL Q. 269 (1984)). 234 Id. 235 Id. 236 See generally Joel Feinberg, Equal Punishmentfor Failed Attempts: Some Bad But Instructive Arguments Against It, 37 ARIZ. L. REv. 117 (1995). 237 See Russell Covey, Reconsidering the Relationship Between Cogni­tive Psycholof,:ry 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/lcB6.pdf) (showing that national federal median sentence for manslaughter is thirty-seven months); see also Celia Goldwag, The Constitutionalitv of Affirmative Defenses Afier Patterson v. New York, 78 COLUM. L. fuov.· 655,658 n. 29 (1978) (stating that the maximum sentence for manslaughter in Maine is $1,000 or twenty m See RESTATEMENT (FIRST) OF TORTS §§ 21, 35 (1948). 239 See supra note 187; see also Nicole M. Capezza & Ximena B. Ar­riaga, You Can Degrade Can't Hit: Dijfi:;rences 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/rom the Limitations of Deterrence Research, 37 CRIME & JUST. 279 (2008). 243 See MODEL PENAL CODE § 2.11 (B) (1985). 244 David Chasen, France }vIulls 'Psychological violence' Ban, BBC NEWS, Jan. 5, 2010 http://news.bbc.co.uk/2!hiieurope/8440 199.stm. 245 Eleanor Beardsley, France lvloves To Outlaw Mental Abuse In lvlar­riages, ~PR, Jan. 8,2010 http://vvww.npr.org/templates/story /story. php?f= 1 00 1 &ft= 1 &sto­ryld= 122362876. 2461d.