Considering the infliction of emotional harm within the context of criminal law

• Published date: 06 July 2020
• Citation: (2020) 33 SACJ 192
• Pages: 192-209
• Date: 06 July 2020
• Author: van der Bijl, C.

Considering the iniction of

emotional harm within the

context of criminal law

CHARNELLE VAN DER BIJL*

ABSTRACT

There is an emerging t rend towards the recognition of the crimi nalisation of

the iniction of e motional harm in it s own right. The cri minalisation of t he

iniction of emot ional distress i n countries such as the United K ingdom,

United States as well as the Aust ralian state of Tasman ia, has been the

subject of rigorous academic debate. T his article ex amines emotional h arm

from a comparative crim inal law context. The common law position in S outh

Africa relati ng to crimen iniuria is c ritically evaluated. L egislative reform

and academic views in the United K ingdom, United States and Tasmani a

are investigated. Critici sm regarding the creation of a c rime of inic ting

emotional harm is h ighlighted throughout . The intentional in iction of

emotional distres s statute under tort law i n the United States of Ame rica

is reviewed by analogy. A possible stand-alone mo del denition for the

iniction of emot ional harm is cr itically considered.

1 Introduction

The traditional approach in cri minal law whereby there has been a

marginalisation of emotiona l harm, with emphasis placed on physical

violence, has been criticised by researchers.1 Despite the judicial

reluctance to treat emotional harm as equiva lent to physical harm,

there is nevertheless an emergence of scholarly views that put forth

* BLC, LLB, LL D (University of Pretor ia), Research Fellow in the Depar tment of

Crimina l and Procedural Law, University of South Afr ica.

1 M McMahon & P McGorre ry ‘Crimi nalising emot ional abuse, inti midation and

economic abuse in the cont ext of family violenc e: the Tasmanian exper ience’

(2016) 35 U Tas L Rev 1 at 2 and n6 (Tasmania); JE Sta nnard ‘Stick s, stones and

words: Emotional har m and the English crimin al law’ (2010) 74 J Crim L 533 (United

Kingdom); FX Shen ‘Mi nd, body, and the criminal law’ (2013) 97 Minn L Rev 2036 at

2038 and n4 (United State s). The author also discusses t he options that legislatures

are faced with, such as expl icitly including mental inju ry within denit ions of bodily

injury; explicit ly excluding mental inju ries from den itions of bodily i njury; doing

nothing and allowi ng the courts to evoke st atutory inter pretations; doing away

with the bodi ly injury categor y and focusing instead on the severity of t he injuries

or offender conduct (such as the ca se with harassm ent or stalking ) or proposing

‘crime-speci c criteria’ for bodily injuries (at 2042).

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(2020) 33 SACJ 192

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arguments for the crimi nalisation of the in iction of emotional harm.2

McMahon and McGorrery st ate that:3

‘… the categorical distinction between emotional and psychological harms

reects the historical reluctance of the criminal law to consider “mere”

emotional harm as serious enough to warrant the criminal law’s attention.

There are concerns that it could lead to over-criminalisation, overregulating

human interactions by trying to stop us from hurting each other’s feelings.

There are also associated concerns about the likely difculty in proving less

serious varieties of mental harm that are experienced purely subjectively’.

Mental harm can be inter preted broadly, or narrowly. In the case

of the former, mental harm may be dened to include emotional

harm, or in a narrow sense, it m ight only include psychological

harm.4 Comparatively, in the United Kingdom, there is acceptance

for psychological harms amounting to clinica l conditions that are

considered more consequential than emotional har ms, such as fear,

anger, distress or grief.5 In the state of Victoria, Australia, s 7 of the

2 For many different exa mples of emotional abuse t hat can cause emotion al

distress see n6 b elow. It should be noted from the outset th at academic authors

refer interchangeably to t he terms of emotiona l harm and emotion al distress

as synonyms. For examples o f the interchangeable us e of these terms, se e

MS Amendola ‘Intent ional iniction of emotional d istress: A workplace perspective’

(2018–2 019) 43 Vt L Rev 93; JA Davie s ‘Direct action s for emotional har m:

Is compromise possible’ (1992) 67 Wash L Rev 1; TW Ferrell ‘ Torts-outr age: Liability

for the intentional i niction of mental and emotional h arm’ (1978) 14 Wade Forest L

Rev 305; SB Eiche ‘The com mon law treatment in Wisconsin of the rig ht to recover

for emotional harm’ (1977) Wis L Rev 108 9; JY Villa ‘T he intentional i niction

of emotional har m: The tort of slumlor dism in New York’ (1973–1974) 38 Alb L

Rev 826; R Rosenfeld ‘Amaya v Home, Ice, Fuel, and Sup ply Co – negligent iniction

of emotional har m’ (1962–1963) 36 Sthn Cal L Rev 299. The meaning of emotiona l

harm in this a rticle i s the refer ral to the intention al inict ion of emotional har ms

caused to the victi m such as anger, fear, grief or dist ress that are not cl inical

conditions (see n5 and n44 below). The meaning a fforded to emotional d istress, as

dened by s3(b) of The Nation al Center for Victim s of Crime Model St alking Code

2007, is also useful and r efers to ‘signicant mental sufferi ng or distress that may, but

does not necessari ly, require medica l or other professional treatment or counsel ling’.

It should be noted that the negl igent inict ion of emotional har m also exists a nd

merits fur ther extensive discourse on its own, but a s the focus of this article is on t he

crimina lisation of the int entional in iction of emotional h arm, this p oint will not be

addressed fur ther here.

3 McMahon & McGorre ry op cit (n1) 17.

4 McMahon & McGorre ry op cit (n1) 16. Stannard op cit (n1) at 537 for discussion of

the Scots Law Comm ission where mental h arm refers to a perso n’s mental state or

wellbeing or mental f unction and includes distress, anger, grie f and anxiet y.

5 See C van der Bijl ‘“Psychological a ssault”: The crime of a ssault revisited’ (2012)

25 S ACJ 1 at 12–18. Examples of t his are the cri me of assault occasion ing actual

bodily har m and the crime of i niction of gr ievous bodily ha rm under English

Law in terms of ss 47 and 20 r espectively of the Of fences Against th e Person Act

1861, which has been interpre ted by case law as requi ring an ‘identi able clinical

condition’ as opposed to ‘mere emo tions’. R v Dhaliwal [2006] EWCA Cr im 1139 at

Considering the iniction of emotional harm

within the context of criminal law 193

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