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A Crime to Emotionally Distress People?

The Missouri Legislature just passed a bill that, among other things, makes it a crime whenever someone

(4) Knowingly communicates with another person who is, or who purports to be, seventeen years of age or younger and in so doing and without good cause recklessly frightens, intimidates, or causes emotional distress to such other person; or ...

(6) Without good cause engages in any other act with the purpose to frighten, intimidate, or cause emotional distress to another person, cause such person to be frightened, intimidated, or emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.

So ordinary teasing would be a crime, so long as it causes "emotional distress" and is "without good cause" (as much teasing would be). And a wide range of other speech and conduct is a potential crime, depending on whether a judge or jury concludes you had "good cause" for your actions. And if the action is done by someone 21 or over against someone who's 17 or younger, it's a felony.

So you're annoyed by a 16-year-old who's too loud, and you insult them in front of friends in a way that's "emotionally distressing" — under the new law, you'd be a felon. You're annoyed by what you see as poor service from a 16-year-old employee in a store, and you berate them in front of other customers in a way that's "emotionally distressing," and you'd be a felon if the judge or jury concludes that the public berating is "[w]ithout good cause." And whenever two 13-year-olds distress each other without good cause, they'd both be committing misdemeanors. I hope the governor vetoes the bill, but I have no reason to expect that.

Dan Solove has a lot more. Looks like an overreaction to the Megan Meier teasing-leading-to-suicide case, which is indeed a tragedy but which certainly doesn't justify a response as broad and vague as this one.

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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?
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Missouri Prosecution for Emotionally Distressing a Minor:

Elizabeth Ann Thrasher is being prosecuted under the Missouri felony harassment statute passed in the wake of the Lori Drew case. The St. Louis Post-Dispatch reports:

Elizabeth A. Thrasher, 40, [was involved in] online [bickering] with the 17-year-old daughter of a woman Thrasher's ex-husband was dating.... The teen [then] sent a MySpace message to Thrasher, telling her to grow up.

Thrasher ... then created a listing on Craigslist's Casual Encounters section, investigators said. The listing included the teen's picture, employer, e-mail address and cell phone number. Banas said the posting's language would lead people to believe it was an invitation to sexual contact.

Investigators said men called the girl and sent e-mails, text messages and pornography to her cell phone after Thrasher posted the listing....

Now this is bad behavior, and I'd see no First Amendment problem with criminalizing such deliberate lies about particular other people. They are in any event probably civilly actionable as libel or false light invasion of privacy, and there's no constitutional barrier to making them criminal as well. But the statute under which Thrasher is prosecuted isn't limited to false statements; rather, it provides (in relevant part, as revealed by the indictment),

1. A person commits the crime of harassment if he or she: ...

(3) Knowingly ... causes emotional distress to another person by anonymously making ... any electronic communication; or

(4) Knowingly communicates with another person who is ... seventeen years of age or younger and in so doing and without good cause recklessly ... causes emotional distress to such other person; or ...

(6) Without good cause engages in any other act with the purpose to ... cause emotional distress to another person, cause such person to be ... emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.

2. Harassment is a [class D felony if] ...:

(1) Committed by a person twenty-one years of age or older against a person seventeen years of age or younger ...

As I've noted before, this is an extremely vague and potentially broad statute. It's a crime (perhaps a felony) to purposefully "emotionally distress" someone "without good cause," with the jury deciding what's good cause -- imagine how much speech this can cover. Likewise, under subsection 4 (which doesn't seem to be in play in this particular prosecution, though it's not clear from the indictment) it's a crime to even recklessly cause emotional distress to a minor, under subsection 3 to do so knowingly cause emotional distress to anyone by an anonymous electronic communication, whether or not one has "good cause." And consider how broad "emotional distress" can be.

A great deal of speech, including anonymous speech, emotionally distresses people. That doesn't strip it of constitutional protection, and neither should constitutional protection turn to jury conclusions of which causes are good and which are bad.

So it seems to me that the statute is facially overbroad, and thus violates the First Amendment (at least unless a court can somehow interpret the statute narrowly, which is hard for me to imagine given the breadth of its terms, and the absence of any limitation to lies or other unprotected speech). It therefore can't be applied even to someone -- such as Thrasher -- who could indeed be constitutionally punished under a narrower statute.

Thanks to commenter PLR for the pointer.

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