pageok
pageok
pageok
Maliciously Cheating on One's Lover = Soon-to-Be Felony in Missouri?

A few weeks ago, I blogged about how a proposed law in Massachusetts would (likely inadvertently) criminalize cheating on one's lover -- not just adultery, but cheating on nonmarital relationships as well. A few days ago, I blogged about how the Missouri legislature had passed a law criminalizing emotionally distressing another person.

But I completely missed the connection between the two: Under the Missouri bill (which will soon be law, assuming the Governor signs it), it will be a crime to cheat on a lover with the purpose of emotionally distressing them.

The law makes it a crime to "Without good cause engage[] in any [act other than communication] with the purpose to frighten, intimidate, or cause emotional distress to another person, [and thereby] cause such person to be frightened, intimidated, or emotionally distressed, [when] such person's response to the act is one of a person of average sensibilities considering the age of such person." Say someone cheats on one's lover in order to distress them, for instance to retaliate for the lover's past affair or other mistreatment, and then allows the lover to discover this. That's engaging in an act with the purpose of causing emotional distress to another person. It causes emotional distress. The emotional distress is what a person of average sensibilities would experience under the circumstances. And it's hard to see any "good cause" for cheating, though I suppose the defendant could try to persuade the jury to the contrary.

And it's not just cheating, in the sense of illicit sex. The same could be if you have a not-yet-sexual romantic relationship with Alan, and then let yourself be caught kissing Bob in order to distress Alan. The touchstone, after all, is just the intentional infliction of emotional distress.

But wait, there's more: Let's say that you're not trying to hurt your regular lover, but the regular lover is under seventeen (for instance, if you're both sixteen; sex among sixteen-year-olds isn't statutory rape in Missouri), and you recklessly let slip something in conversation with the regular lover that reveals your cheating. That too might be a crime, because it's "[k]nowingly communicates with another person who is ... seventeen years of age or younger and in so doing and without good cause recklessly ... caus[ing] emotional distress to such other person." I suppose that if you just confess to the lover, that probably wouldn't be a crime, since the desire to come clean might be seen as "good cause." But if you just let something slip, it's hard to see how the reckless causing of emotional distress would be seen as having a "good cause" (especially since the slip may make the cheating even more distressing than either successful concealment or a deliberate confession).

Fortunately, all this is just a class A misdemeanor -- except if you're a repeat offender: If you've been found guilty of violating the law before, subsequent violations are class D felonies.

Oh, and if you're a parent who recklessly lets slip to your under-17 child that you're cheating on the child's other parent, that's a class D felony, too, since the "[h]arassment" will have been "[c]ommitted by a person twenty-one years of age or older against a person seventeen years of age or younger."

And yes, I know that prosecutorial discretion will keep these cases from being filed often. But how much are you willing to trust prosecutors? What if the wronged lover -- or the wronged lover's parent -- is a prosecutor, or a police officer or other government official or prominent citizen who has the prosecutor's ear? What if the cheating unintentionally leads to harm (even suicide, which cheating sometimes does lead to), and the public demands retribution? Might it not be better to just avoid the problem by not passing such broad and vague laws to begin with?

Related Posts (on one page):

  1. Missouri Prosecution for Emotionally Distressing a Minor:
  2. Maliciously Cheating on One's Lover = Soon-to-Be Felony in Missouri?
  3. A Crime to Emotionally Distress People?
EIDE_Interface (mail):
This is truly absurd. You do not have a legal right to not be emotionally hurt. Except in Missouri, there's def something in the water there.
5.23.2008 1:24pm
Paul Barnes (mail):
Great, another hurdle (besides personality, poverty, and ugliness) that I have to leap for girls to go out with me.
5.23.2008 1:25pm
theobromophile (www):
And it's hard to see any "good cause" for cheating, though I suppose the defendant could try to persuade the jury to the contrary.

Flip comment of the day: if the new lover is really, really hot, a jury won't need much convincing of "good cause" to cheat.

Okay, I was kidding about only one sarcastic comment.
And it's not just cheating, in the sense of illicit sex. The same could be if you have a not-yet-sexual romantic relationship with Alan, and then let yourself be caught kissing Bob in order to distress Alan. The touchstone, after all, is just the intentional infliction of emotional distress.

So cheating for revenge is out, I take it - even if the jerk cheated on you first.

But how much are you willing to trust prosecutors?

Not much. It does seem as if this type of case is one that leads an activist (?) court to make up new Constitutional rules to avoid the absurd result of throwing someone in jail for making someone else cry.
5.23.2008 1:30pm
The Unbeliever:
EIDE_Interface, a relevant quote:
"The third 'right'?—the 'pursuit of happiness'? It is indeed unalienable but it is not a right; it is simply a universal condition which tyrants cannot take away nor patriots restore. Cast me into a dungeon, burn me at the stake, crown me king of kings, I can 'pursue happiness' as long as my brain lives—but neither gods nor saints, wise men nor subtle drugs, can insure that I will catch it."
5.23.2008 1:33pm
Mac (mail):
This confirms my long held belief that we are rapidly approaching a time when we will not be able to roll out of bed in the morning in our own home without breaking some law.

I think we should institute a national referendum demanding that every city, county, state and the Federal government eliminate 25 to 50% of the laws currently on the books.

After that, any government legislative body or town council must eliminate one law for every new law that is passed.

This might bring some sanity back to our legal system. I don't know what else will.
5.23.2008 1:34pm
Smokey:
Puritans had enormous influence on America, most of it extremely beneficial [in contrast, the Pilgrims had almost no lasting influence].

But one of the character idiosyncrasies of Puritans was their need to regulate the social behavior of the community, including private behavior. We're still struggling to define where that line should be drawn today.
5.23.2008 1:49pm
Adam J:
This is a fine example of how conservatism is becoming unhinged- they'll attack private torts for emotionally distress as being unnecessary and needlessly expensive, and then they go and criminalize emotional distress...
5.23.2008 1:52pm
The Unbeliever:
Adam J: how is it inconsistent to insist that a system of laws should neither enable nor criminalize causing emotional distress? Where's the contradiction--or are you one of those who believe everything must have a law attached to it, either forbiding or encouraging the concept?
5.23.2008 1:57pm
Alan Gunn (mail):
This is just one more step in a process that began with RICO. We'll criminalize everything and trust to prosecutorial discretion to go after only the bad people. It is simply not possible to operate any business for more than a week or so without committing multiple federal crimes--wire fraud and mail fraud, if nothing else fits. So why should people's private lives be any different?
5.23.2008 2:04pm
Bama 1L:
Professor Volokh probably knows what he's talking about and I don't. That said, doesn't "emotional distress" mean something substantially more than simple hurt feelings? Don't you have to manifest physical symptoms, seek professional help, try to kill yourself, etc.? So would the victim of the scheme Professor Volokh imagines actually be able to show "emotional distress"?
5.23.2008 2:04pm
ReaderY:
North Carolina has declared adultury an inherently malicious act in the civil tort context and found proof of sexual intercourse with a person not ones spouse to be automatic proof of malice. While the criminal conversation tort had been held to make punitive damages automatically available for more than a century, it was only very recently that in alienation of affections cases, which can be proven without any sex having to be involved (one can alienate the affections of another's spouse in other ways), proof of adultery also automatically makes punitive damages available.
5.23.2008 2:08pm
GatoRat:
Why limit this to cheating? What if I'm mad at my wife, so I intentionally work late? In turn, she fixed a nice dinner and now is hurt because I missed it and she knows I did so on purpose.
5.23.2008 2:16pm
Anderson (mail):
I guess that in Missouri, there will now be only 49 ways to leave your lover.
5.23.2008 2:17pm
ithaqua (mail):
I support criminalizing any sexual relationship taking place outside marriage, but this Missouri law only touches on it in passing. Seriously, who cheats on their significant other for no other reason than to punish/distress that other? Adulterers have an excellent defense - "I just wanted to sleep with Y; I'm sorry if X was hurt, that wasn't my intention" seems like an ironclad alibi against "the purpose to frighten, intimidate, or cause emotional distress to another person".

Not that that law isn't extremely stupid - after all, it really does create a "right not to be offended" - but it seems far less applicable to sexual relations than it does to free speech in general, ie, a gay man and his pubescent boyfriend becoming emotionally distressed from hearing a sermon on the radio, and so on.
5.23.2008 2:22pm
Eugene Volokh (www):
Bama 1L: To my knowledge, "emotional distress" does not require physical symptoms or the seeking of professional help. Even the intentional infliction of emotional distress tort, which expressly requires severe emotional distress (a qualifier omitted in this law), doesn't require physical symptoms, see Restatement (Second) of Torts § 46 cmt. k &ills. 19-20. Nor do I know of any rules that require the seeking of professional help in such situations.

This having been said, wouldn't cheating often yield physical symptoms -- sleeplessness, depression, and the like -- and sometimes the seeking of professional help? Again, I don't see why those would have to be shown when the law calls only for a finding of "emotional distress," but I'd think they could clearly be shown.

ReaderY: What's striking about these laws is that they aren't even limited to adultery -- they could apply even to cheating on someone who isn't one's spouse.
5.23.2008 2:22pm
Snarky:
I think that this is all so much blather about nothing. Prosecutors are elected officials who will not bring crazy cases. Also, there is this thing called jury nullification.

Prosecutorial discretion matters. That is part of our democracy. Deal with it. If this law makes people aware that such discretion matters, so much the better. Maybe people will investigate more carefully in elections for DA.


It is simply not possible to operate any business for more than a week or so without committing multiple federal crimes--wire fraud and mail fraud, if nothing else fits.


If you are committing wire and mail fraud in the course of operating your business, you should be thrown in prison. That sort of behavior is NOT normal.
5.23.2008 2:30pm
Fub:
Snarky wrote at 5.23.2008 1:30pm:
I think that this is all so much blather about nothing. Prosecutors are elected officials who will not bring crazy cases.
One word: Nifong.
5.23.2008 2:35pm
A. Zarkov (mail):
Does it have to be a lover? Can I sue BHO, HRC, and McCain for causing me emotional distress? After all I see that they have set out to destroy the republic I live in and that's certainly a cause for distress.
5.23.2008 2:42pm
Cornellian (mail):
Maliciously Cheating on One's Lover

But Your Honor, I was only negligently cheating, not maliciously.
5.23.2008 2:44pm
Fitz (mail) (www):
Has anyone mentioned the "alienation of affection" tort. Seems a better way to handle such a legal impulse, and it is civil not criminal.
5.23.2008 2:48pm
More importantly...:

If you are committing wire and mail fraud in the course of operating your business, you should be thrown in prison. That sort of behavior is NOT normal.


Try reading the statutory definitions of "wire and mail fraud" sometime. The literal behavior described is pretty damn normal.
5.23.2008 2:49pm
Mark Butler (mail):
Snarky wrote at 5.23.2008 1:30pm:

I think that this is all so much blather about nothing. Prosecutors are elected officials who will not bring crazy cases.


Another word: Texas Child Protective Services
5.23.2008 2:54pm
The Unbeliever:
But Your Honor, I was only negligently cheating, not maliciously.
Cornellian wins the "Law &Order Legal Argument Plot Twist of the Week" award. Someone should e-mail the show writers to make a RIPPED FROM THE HEADLINES episode out of this law.
5.23.2008 3:04pm
pgepps (www):
...the notion that we should simply treat "elected" as a talisman warding off the evil spirits from "officials" is pretty well the definition of "One man, One vote, One time" democracy. Thank God for the tattered remnants of a constitutional republic!

After all, elected officials wrote this mess of a law.
5.23.2008 3:08pm
Bama 1L:
Missouri courts seem to have a higher standard for IIED than the Restatement:


Intentional infliction of emotional distress requires the defendant to act intentionally or recklessly, the conduct must be extreme and outrageous, and the conduct must be the cause of extreme emotional distress that results in bodily harm. Wrongful conduct alone cannot serve as a basis for the tort, but instead, the conduct must have been so outrageous and extreme as to go 'beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' In addition, it is essential that the conduct be intended only to cause emotional distress to the victim. Conway v. St. Louis County, ___ S.W.3d ___, 2008 WL 850091 (Mo. App. 2008) (citations omitted).


But I think Professor Volokh is right: the legislature is going for a lower standard under the new law. Note that, in the same bill, the legislature amends the stalking statute, R.S. Mo. § 565.225, changing harassment from causing substantial emotional distress" to simply causing "emotional distress." (The existing version of the harassment statute, R.S. Mo. § 565.090, only talks about frightening or disturbing the victim; the emotional distress business is new, as is "by other acts.")
5.23.2008 3:13pm
James Ellis (mail):
Look at the bright side--it's about time they declared Halloween illegal.
5.23.2008 3:32pm
justme2:
Great, just what we need, more criminal laws. For once, I'd just like to see the penal code get smaller... I can dream, can't I/
5.23.2008 3:33pm
one of many:
I hate this sort of backdoor censorship, the obvious purpose of this bill is to outlaw magazines like Cosmo. When was the last time Cosmo published an issue without advice to inflict emotional distress (e.g. the most recent issue advises women to flirt with men other than the one they are involved with in order to make the one they are involved with jealous/ Make Him Crave You). If intentional infliction of emotional distress is a crime, then a magazine advocating and inducing people to commit that crime most certainly can be banned.
5.23.2008 3:39pm
BGates:
This is a fine example of how conservatism is becoming unhinged
It passed the lower house 106-23, and the state Senate was unanimous. Where do you get 'conservatism' from that?
5.23.2008 3:39pm
Whadonna More:
In MO, they'd appear to prefer an ending to Sense and Sensibility where everyone is in jail.
5.23.2008 3:43pm
tjvm:
If I lived in Missouri, and this law passed, I'd be inclined to file charges against the state's legislators, for enacting this distressing law. And if the local prosecutor wouldn't pursue the case, I'd call him up and tell him that he's breaking the law by distressing me. And if that didn't work, and the local newspaper editor wouldn't run a story about my plight, he'd be distressing me as well, so...
5.23.2008 3:57pm
tjvm:
"I think that this is all so much blather about nothing. Prosecutors are elected officials who will not bring crazy cases."

I agree that 99.999% the time, instances of "distress" won't result in a criminal prosecution. But that's part of the problem -- when you have a law so broad that most people are (arguably) violating it in some way, it gives the government an easy way to harass people it doesn't like.
5.23.2008 4:00pm
Snarky:

One word: Nifong.


The man was disbarred. That case is an example of the system working.


In other news, the problem with that case had NOTHING to do with whether a prosecutor should bring a case or not because the activity that the accused was not serious. In fact, the allegations in the lacrosse case were very serious. What it had to do with was whether there was enough evidence and also the ethical obligation of the prosecutor to disclose exculpatory evidence.

The Nifong case goes to show that prosecutorial discretion MATTERS and we must be concerned about its exercise.

If in the absence of this law, prosecutors in Missouri can still screw up people's lives if they misuse their prosecutorial discretion. In North Carolina, Nifong may be gone, but prosecutorial discretion still remains.


Another word: Texas Child Protective Services


You may be eager to allow a cult (also known as the FLDS) to fuck over another generation of individuals, but I will take the side of Texas Child Protective Services any day of the week.
5.23.2008 4:10pm
Snarky:

I agree that 99.999% the time, instances of "distress" won't result in a criminal prosecution. But that's part of the problem -- when you have a law so broad that most people are (arguably) violating it in some way, it gives the government an easy way to harass people it doesn't like.


If you think that in the absence of this law that the government cannot harass you, then you are insane.

If you want to prevent the government from being able to harass you, you should be involved as an active citizen.

It seems we have developed a culture in this country where we take our liberties for granted, thinking we should not have to even lift a finger to defend them. That attitude is much more dangerous than this law, which really isn't very dangerous at all.
5.23.2008 4:16pm
George Weiss (mail) (www):
i wonder if anyone can come up with an example-in the last 20 years-of a legislature
a)decreasing a penalty for any crime
b) decriminalizing anything however slight

of course not-becuase its political suicide-and the courts are "always there to sort things out"

lets not pretend these policy issues are the will of the people and courts should just "follow the law" here
5.23.2008 4:32pm
Rochesterian (mail):
Let's assume spouse or partner is defined as one who vows to no other sexual partners during the relationship.

Am I the only one here who thinks of "malicious" cheating in terms of a partner recklessly exposing me to someone's pp-cooties w/o my knowledge or approval, tacit or otherwise?

I consider the prospect of my partner having sex with me after having sex with another person (in the relevant time frame), to be on the same level as shooting a gun into a crowd.
5.23.2008 4:42pm
luagha:
Back in the olden days if your woman done left you and done you wrong, all you got to do was to sing the blues.

Now you get to sue.
5.23.2008 4:43pm
Rochesterian (mail):
Laugha SAID:
Back in the olden days if your woman done left you and done you wrong, all you got to do was to sing the blues.

Now you get to sue.


Laugha, you fail to define "left you."
I believe this law refers to the psycho who mounts partner-A on Monday morning, mounts B Monday afternoon, then re-mounts partner-A monday night, w/o partner-A having a clue.
5.23.2008 4:53pm
Rochesterian (mail):
tjvm SAID:
If I lived in Missouri, and this law passed, I'd be inclined to file charges against the state's legislators, for enacting this distressing law. And if the local prosecutor wouldn't pursue the case, I'd call him up and tell him that he's breaking the law by distressing me.

tj, let's re-phrase you statement somewhat.

If this law passed, and I learned from my M.D. the problem I have is NOT bladder related but an STD I acquired from my partner who never told me wassup, I'd be inclined to file charges against the partner and then bring the mother-of-all-lawsuits from hell!!!!!
5.23.2008 5:08pm
Adam J:
The Unbeliever- you seem confused, this isn't about enabling or criminalizing behavior, its about disallowing a victim from being compensated through torts for being emotionally distressed, while simultanously criminalizing it. It's apparently so serious that it should be a felony, yet not serious enough to allow the victim to seek compensation. Conservatives seem to like playing these strange games with the law, that the state should felonize victimless crimes, yet simultaneously want to not allow or limit compensation to crimes that actually have victims (under the colorful label of tort reform).
5.23.2008 5:34pm
Cornellian (mail):
One word: Nifong.

The man was disbarred. That case is an example of the system working.


Or more precisely, the system working if you have affluent, well connected parents to go to bat for you. How many poor, uneducated people could have put up the fight that the Duke Lacrosse defendants did? How many people are in jail because they couldn't bring those kinds of resources to bear? How many other Nifongs are out there getting away with it?
5.23.2008 6:04pm
Mac (mail):
How many other Nifongs are out there getting away with it?

Cornellian,

Good question.


Adam J wrote:

Conservatives seem to like playing these strange games with the law, that the state should felonize victimless crimes, yet simultaneously want to not allow or limit compensation to crimes that actually have victims (under the colorful label of tort reform).



Examples, please?
5.23.2008 6:22pm
An Old Man:


[EV:] This having been said, wouldn't cheating often yield physical symptoms [...?]



Eugene, you missed the very first qualifier:



"Without good cause..."




Your Honor, she rejected me that morning, so I had sex with Wendy instead.
5.23.2008 6:30pm
RainerK:
I'm unable to locate a transcript of the debate(s) regarding this law int MO house and senate. Perhaps I'm missing the obvious, anyone have a link?

That debate must be interesting. I'd sure like to know in detail what arguments were brought for and against.
5.23.2008 8:49pm
PLR:
This is a fine example of how conservatism is becoming unhinged
[BGates]: It passed the lower house 106-23, and the state Senate was unanimous. Where do you get 'conservatism' from that?

In Missouri, the vast majority of elected legislators are conservative, even if they happen to be in the minority Democrats.

We have part time legislators, and a severe shortage of lawyers in the legislature to review everything. Regrettably, this piece of legislation probably did get vetted by the lawyers, but given the huge amount of publicity in the Myspace case I can understand why a state senator would vote yes for the measure.
5.24.2008 12:50pm
Isaac Tyroler (mail):

Missouri courts seem to have a higher standard for IIED than the Restatement:



Intentional infliction of emotional distress requires the defendant to act intentionally or recklessly, the conduct must be extreme and outrageous, and the conduct must be the cause of extreme emotional distress that results in bodily harm. Wrongful conduct alone cannot serve as a basis for the tort, but instead, the conduct must have been so outrageous and extreme as to go 'beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' In addition, it is essential that the conduct be intended only to cause emotional distress to the victim. Conway v. St. Louis County, ___ S.W.3d ___, 2008 WL 850091 (Mo. App. 2008) (citations omitted).


I'm not sure if this is actually a higher standard. It seems to require physical manifestations, but doesn't require the resulting distress to be severe.

Also, it seems contradictory that the conduct must be intended only to cause emotional distress, yet the first element is intentional or reckless conduct. Recklessness wouldn't seem to meet the standard requiring that the conduct be intended to cause emotional distress.
5.24.2008 3:27pm
Anon. Nitpicker (mail):
"emotionally distressing them?" Eugene! You know better than that. How about "causing them emotional distress"?
5.24.2008 6:49pm
ReaderY:
Regarding decreasing the penalty for a crime in the last 20 years --

In the 1990s the North Carolina legislature reduced the maximum penalty for the crime against nature twice, first from ten years to five years by reclassifying the crime from a Class H to a Class I felony, and then to three years by reducing the maximum penalty for all Class I felonies. It also reclassified attempted crime against nature (which doesn't require proof of penetration and can be much more easily established by circumstantial evidence) from a ten year felony to a misdemeanor.
5.24.2008 11:05pm
Bama 1L:
It seems to require physical manifestations, but doesn't require the resulting distress to be severe.

I figured "extreme emotional distress that resulted in bodily harm" was at least as bad as severe.
5.25.2008 3:34pm