The Case for a Criminal Law Theory of Intentional Infliction of Emotional Distress

Words hurt! Recent news stories about cyber bulling make clear that a word can cause as much pain as a punch. Unfortunately, the law redresses those who suffer injury from harmful speech through a series of seemingly innocuous remedies, including financial remuneration or retribution through minimal criminal penalties. The law stops, however, at imposing the same type of criminal punishment on those who intend to cause emotional harm through words, as it does those who intend to cause physical harm. In other words, legislatures and courts have been unwilling to elevate an actor’s intentional use of harmful words to the same jurisprudential echelon as the intentional use of physical force. Consider the recent case of Lori Drew. Ms. Drew a 49-year-old woman was charged in the first federal cyber bullying case for using a fake “my space” account to torment a 13-year-old girl. The girl committed suicide in response to the hoax. A federal jury found Ms. Drew guilty of three counts of gaining unauthorized access to a web site - misdemeanors that carry minimum punishment. The “slap on the wrist” conviction was the only remedy available under the current law. Society could best condone the conduct of cyberbullies like Ms. Drew if jurisdictions were to include intentional infliction of emotional distress (IIED) in their bundle of criminalized intentional torts. A criminal statute for IIED would not only allow retributive measures, but would serve to deter others from committing similar crimes. This article will explore the appropriateness of criminalizing IIED. Part I will discuss the history and purposes of assessing civil and criminal remedies for the intentional actions of assault, battery, and false imprisonment as well as evaluating the elements of criminalized intentional torts. Part II will explore the limits of IIED and will evaluate whether those causing IIED impart the same type of harm that society punishes through these other intentional criminalized torts. Part III will evaluate whether it is appropriate to criminalize IIED. The article will ultimately conclude that given recent neuroscientific findings, criminalizing IIED makes sense