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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


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