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

handle is hein.journals/crimlbrf5 and id is 33 raw text is: By LESLIE YALOF GARFIELD ords hurt! Recent cyber bulling news stories show that a word can be as painful as a punch.' Unfortunately, the law redresses those who suffer injury from harmful speech through a series of innocuous remedies, including financial remuneration or retribu- tion 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 nhvsical harm3 In other words, the legislature and the courts are have not yet ele- vated an actor's intentional inflictions of verbal harm to the same jurisprudential ech- elon as intentional inflictions of physical force.' Consider the first fed- eral cyber bullying case of Ms. Lori Drew.' Ms. Drew, a forty-nine-year-old woman, was charged for using a fake MySpace account to tor- ment a thirteen-year-old girl.6 The girl committed sui- cide as a result of the hoax., Initially, Ms. Drew was found guilty of three counts of unauthorized access to a web site-misdemeanors that carry minimal punish- ment.8 The verdict was subsequently overturned by a federal judge.9 The conduct that Ms. Drew was charged with was one that millions of people engaged in, and the judge was reluctant to establish a precedent on which any person may be convicted for a mere violation of MySpace's terms of service)0 Society does not impose criminal sanctions for the intentional infliction of severe mental anguish; in- stead, such acts are punished civilly as the intentional infliction of emotional distress (IIED). Interestingly, IILD is the only intentional tort involving hann to a per- son that does not share a criminal counterpart.' Exvery state has imposed criminal penalties for the intentional torts of assault, battery, and false imprisonment.)3 It ap- pears that the intentional infliction of emotional distress is accorded a lesser punitixve status than the choice to threaten or use physical force against another. The same elements are used to prove both IIED and the criminal charges for assault, battery and false imprison- ment. IIED, like assault and false imprisonment, is largely a mental anguish offense.3 A prima facie case for IIED requires, among other elements, proof that the plaintiff suffered severe emotional harm.14 Similarly, as- sault 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.' In contrast, battery re- Quires proof of physical harm.16 At first blush, one might argue that IIED, which is a harm of severe emotional distress, does not share the requirement that the plaintiff suffered some physical pain. How- ever, according to recent biological and neurochem- ical studies, one can expe- rience physical pain in response to a tone or a par- ticular set of harsh words.1 If one accepts these findings as true, the physical harm requirement of battery may be equally prevalent among those who are subject to severe and outrageous conduct. Given that IIED presents the same types of harm as the criminalized intentional torts, society would be well- served by assigning IIED the same criminal status. Some modern theorists may argue that, given the current state of the law, it is unnecessary to criminalize IIED.M According to these scholars, tort law has effec- tively absorbed the theories of retribution and deterrence through the use of large civil sanctions. 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, xvhereas criminal law serves to prohibit socially harmful behavior.' Consequently, the assignment of monetary penalties as both retributive and deterrent in nature will never compensate for the larger threat to individual lib- erty2 According to those in the latter camp, in order to safeguard against physical harm, it is important to instill in society a general fear xvhich cannot be adequately Criminal Law Briefr 33

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