Criminal Infliction of Emotional Distress

Avlana K. Eisenberg*

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way.

In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it has only implicitly accounted for emotional harm; it has not made emotional harm an element of criminal liability. CIED statutes represent a break in this narrative. The Article uses these statutes as an entry point to examine the role that victim emotion does and should play in substantive criminal law, and it finds that CIED statutes may endanger free expression and equality and provide insufficient notice to defendants. These statutes thus offer a cautionary tale, illustrating problems that can arise when victim emotion plays an explicit role in criminal culpability. CIED statutes also reveal the comparative benefits of the implicit approach, which acknowledges the significance of nonphysical harm yet does not predicate criminal liability on the existence of emotional harm.

* Lab Fellow, Edmond J. Safra Center for Ethics, Harvard Law School; Lecturer on Law, Harvard Law School. Thanks to Albert Alschuler, Susan Bandes, Chris Buccafusco, Michael Coenen, James Coleman, Ronald Eisenberg, Richard Fallon, Charles Fried, Jacob Gersen, John Goldberg, Janet Halley, Mark Kelman, Duncan Kennedy, Michael Klarman, Adam Kolber, Adriaan Lanni, Youngjae Lee, Lawrence Lessig, Justin Marceau, Daniel Meltzer, Bernadette Meyler, Martha Minow, Saira Mohamed, Leah Plunkett, Laura Rosenbury, Andrea Roth, Francis Shen, Sonja Starr, Carol Steiker, Matthew Stephenson, Jeannie Suk, Susannah Tobin, Robert Weisberg, and workshop participants at the SMU Criminal Justice Colloquium and Harvard Law School for helpful comments and suggestions. Ryan Lipes and Bradley Oppenheimer provided excellent research assistance.

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