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):
- Missouri Prosecution for Emotionally Distressing a Minor:
- Maliciously Cheating on One's Lover = Soon-to-Be Felony in Missouri?
- A Crime to Emotionally Distress People?
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.
So cheating for revenge is out, I take it - even if the jerk cheated on you first.
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.
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.
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.
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.
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.
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.
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.
But Your Honor, I was only negligently cheating, not maliciously.
Try reading the statutory definitions of "wire and mail fraud" sometime. The literal behavior described is pretty damn normal.
Another word: Texas Child Protective Services
After all, elected officials wrote this mess of a law.
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.")
It passed the lower house 106-23, and the state Senate was unanimous. Where do you get 'conservatism' from that?
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.
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.
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.
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.
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
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.
Now you get to sue.
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.
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!!!!!
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?
Cornellian,
Good question.
Adam J wrote:
Examples, please?
Eugene, you missed the very first qualifier:
Your Honor, she rejected me that morning, so I had sex with Wendy instead.
That debate must be interesting. I'd sure like to know in detail what arguments were brought for and against.
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.
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.
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.
I figured "extreme emotional distress that resulted in bodily harm" was at least as bad as severe.