Here’s another fun Steven Hayne case. Hayne determined a woman died of stab wounds to the face and neck even though the body he examined had no head. Note his explanation, which refers to witness testimony. It’s a good example showing why a medical examiner shouldn’t be given that kind of information before he conducts an autopsy.
One issue I sometimes get confused on is how we are so quick to defend physical rights but ignore emotional and mental rights. Libertarians (and most others) are quick to denounce physical violence. But emotional or psychological violence is oft ignored. Now, I realize the difficulties of attempting to assess emotional or psychological violence. But I do think there ought to be a limit, where one’s speech is so harmful to another as to be illegal. I’m not talking about a guy on a pulpit offending people or one kid calling another a booger head. I’m talking about extended and unabated harassment. Do we feel that speech rights are so untouchable that we must let this type of violence go unchecked? Or is there a point where the harm done unto another warrants limitations?
It’s interesting in that Nashville DUI policing article how the author goes everywhere in describing why maybe alcohol related deaths don’t go up (awareness, education), but never makes any mention of the idea that maybe the reason deaths didn’t go up with reduced policing is because the policing is worthless. Hell, the anecdote they use in the story is basically saying “Hey, the cops are out there to be crashed into.” While it’s too bad that cop was hit by a drunk driver, I don’t think that can really count as a policing success.
I don’t know if verbal or other non-violent actions that are called ‘bullying’ do rise to the level of criminal matters. A civil action? Perhaps. But people don’t literally ‘die of embarrassment’. There is always another action, like committing suicide. Is that tragic? Yes. But is it criminal? That’s a REALLY hard call to make.
Where’s the line? That’s the problem. For instance, the Tyler Clementi case (named in the article and the law) was a kid filmed doing something somewhat private and then released to the public. There was another video around the same time where a guy and his girlfriend were getting it on somewhere and he butt-dialed his friends and they recorded it and put it on the internet. Now in that case, nobody got despondent and took their own life, but if they had is there a difference? Is the difference because Clementi was in a narrow-interest group? That’s what it seems to be, since argumentation for the law is ‘homosexuals aren’t protected by federal law’. Thinking that through, it’s a call for special rights for yet another group.
New laws for bullying? From what I saw and experienced in school, bullying was implicitly (and sometimes explicitly) permitted by many teachers and administrators. It’s easier to turn a blind eye, or to just declare everyone involved equally guilty if there is a fight or other incident. New law? Any new law should just hold school personnel accountable for failing to do their jobs – but good luck with that.
It’s a good example showing why a medical examiner shouldn’t be given that kind of information before he conducts an autopsy.
I don’t know of any medical examiner who doesn’t incorporate scene information, witness accounts and police/field investigator reports in making a determination of manner of death. In a medical examiner system, the examiner not only determines the cause of death (say, gunshot wound of head), but also the manner of death (natural, homicide, suicide, accident, unknown). This latter determination may require more information than is present solely in examination of the body (for example, in a homicide by motor vehicle).
I guess my question is, if I receive repeated phone calls, texts, emails, etc. and am constantly confronted and verbally attacked (be it for sexual orientation or something else), are my rights violated? Or is there no harm because I can’t demonstrate harm in the same way that I can if I were punched? Perhaps there are existing “harassment” laws that simply need to be better enforced. I’m really not very knowledgeable on the situation. So my question is really that… not necessarily a call for criminalizing every nasty thing ever said.
I just don’t understand why we delineate so strongly between physical harm/rights and emotional harm/rights.
Many claim that we don’t have a right to freedom from feeling sad or upset or what have you. But we also don’t have a right to freedom from physical harm or pain… there are no guarantees you won’t trip over your own two feet and eat it down the stairs. But we DO presume a right to freedom from physical harm inflicted by others. So why not emotional harm? Perhaps the difference is entirely practical… there simply is no or only incredibly difficult ways to demonstrate emotional harm. But sometimes, ideologically, there seems to be a mindset, particularly among libertarians but by no means not unique to them of “Sticks and stones may break my bones but words will never hurt me.” And I wonder why…
@BSK – We differentiate between physical harm and rights and emotional harm and rights because the line drawing is easy. You either punched me or you didn’t. You trespassed or you didn’t. Whether I hurt your feelings, however, depends entirely on your self-reporting of your internal state. I think this is the only reasonable position to take (and for this reason I don’t think there should be IIED torts, for example). Overt threats of violence are already punishable as assault, and I am not sure we can go much beyond that and maintain any objectivity at all.
[To be fair, I am one of the hardline libertarians you describe because I don’t think emotional or psychological harms should be compensable because you choose your mental responses, whereas you don’t choose whether to be damaged by physical assaults.]
Re: Prescription drug monitoring. I find this very interesting. My understanding is that the DEA already does this for Schedule II drugs, which is how they build their cases against pain-management specialists, and in that case they are claiming the high abuse potential for the drugs makes it necessary (which is nonsense, but at least they have an articulable reason). I am not sure whether that database breaks down by individuals (i.e., I think they have to get a warrant to review a particular doctor’s records to get that information). I am not sure how they square that program with Griswold and its progeny, to be honest, and I don’t know how the Georgia proposal is possibly consistent with Griswold. I wonder whether there is some kind of “chilling effect” analysis you could do under the Fourth Amendment, where you say that these laws would coerce the doctor or patient to pursue a non-optimal treatment to avoid government scrutiny. It seems to me that’s a powerful argument against these sorts of laws, but I don’t do constitutional litigation.
I suspect there are two reasons we delineate between physical and emotional harms. The first has already been articulated: it’s far more difficult to calculate. Consider the can of worms that “pain and suffering” damages have opened with respect to physical injuries. Now multiply that times one thousand for emotional injuries. Even where civil torts recognize emotional injuries (I’m thinking mainly of intentional infliction of emotional distress) your chances of success depend largely on being able to prove injury through psychiatrist’s bills or other evidence of objective treatment. It sort of reminds me of the issue of emotional damages for killing somebody’s pet: it makes complete sense in theory (especially for someone like myself who’s a lifelong dog owner) but do you want to open yourself up to expensive legal bills should you accidentally run over the neighbor’s cat?
The second issue may be that the harassment you describe is a pretty modern phenomenon; in say the 1700s, when common law was being developed, if you wanted to harass somebody I suppose you could stand in front of their house and yell at them but the social implications would be obvious. You could, in the alternative, print pamphlets defaming them but then you subject yourself to libel laws. You didn’t have the opportunity to continuously and systematically (and, quasi-anonymously) harass somebody via electronic media. With that in mind, I see your point that the harms are higher and it makes sense to look into methods of protection. Unfortunately, you still have to deal with the above issue of where you draw the line.
One final comment (and I know, I’m rambling here): while freedom of speech protects the actual content of the speech, it wouldn’t protect somebody from the ACTION of calling one’s house one hundred times a day. And likewise it obviously doesn’t protect one from libel or slander, so I’m not sure to what extent the First Amendment becomes an issue with respect to your concerns.
Even though I’m an atheist, I have to give mad props to those Muslims who are protecting the Coptic Christians’ right to worship safely. That’s the kind of religious activism I can support.
And in a few weeks, the status quo will return. My family has had dealings with the Coptic community. You probably have no idea how badly they’re persecuted by the Muslim majority. It is at least as bad as what blacks went through in the darkest corners of the South during Jim Crow.
If the majority of Muslims really wanted to end the violence against the Copts, the Egyptian government could end it in a matter of weeks.
Thanks for weighing in. You offer interesting perspectives and perhaps have convinced me that the distinction is real and legitimate.
Just to clarify, I am in no way advocating on behalf of continuing the nonsense that has become “pain and suffering”. Rather, I was attempting to ascertain if there was a legitimate philosophical justification for treating the situations differently. My hunch is that there are still instances where verbal or other non-physical attacks could rise to the point of violating rights and be punishable… they are likely rare, but my feeling is they probably still do exist. How to identify them and, more importantly, how to prevent, prohibit, or punish them are two questions still left unanswered. But I don’t think, despite a freedom of speech, that we enjoy an unfettered right to harass.
JJ, I will say that I do disagree strongly that we choose our mental responses but not our physical responses. I may choose how I handle the feelings derived from a verbal attack, but I can do little to control the emergence of those feelings. I can’t just decide to not get angry. I may decide to channel that anger productively or lash out or bottle it up… but I can’t just turn off the “anger button”. To analogize, I could argue that you control your physical response… a guy might cut you, but you could just man up and wait for it to heal.
“We differentiate between physical harm and rights and emotional harm and rights because the line drawing is easy. You either punched me or you didn’t. You trespassed or you didn’t.”
Well, physical harm is easy enough to spot, but the guilty party in a physical altercation can be extremely difficult to figure out. Once it goes down to violence, people are lashing out in fear and rage (or just fighting cold-bloodedly, it really doesn’t matter) – the innocent party (if there is one) as well as the guilty party are doing whatever they can to hurt the other person(s) and not get hurt themselves, and in a fight the mere seconds it takes to rationally think through long-term consequences is a damned long time (time enough to recieve unpleasant or even life-changing injuries). Sorting out who bears the most responsibility for escalating the situation to that level of confusion and danger isn’t always easy.
“To be fair, I am one of the hardline libertarians you describe because I don’t think emotional or psychological harms should be compensable because you choose your mental responses, whereas you don’t choose whether to be damaged by physical assaults.”
Well, you can’t really choose your emotional responses any more than you can choose your physical responses. Sure, you can condition yourself ahead of time to not give a shit if your girlfriend cheats on you or your teacher berates you or your local SWAT team kills your dogs/spouse/kids or whatever. But you can condition yourself to take a punch, too. And no matter the conditioning, there are hard limits to what the human body (and mind) can take. We don’t blame gunshot victims for not having solid neutronium skin, and we shouldn’t blame the bereaved or harrassed or bullied for not being reptiles or libertoids.
All that given, I don’t think emotional harm should be legally prohibited. It’s appropriate to deal with physical threats by means of physical force, and with emotional threats by means of intellectual or emotional force. Attacking emotional aggressors by means of physical violence is disproportionate.
I have not entirely taken of my “teacher hat” in this discussion and am largely thinking of children being bullied and harassed, not necessarily adults (though I think there is pertinence there, as well). Children (and I mean real children, not 20-year-old college students) are less emotionally mature and more emotionally malleable; emotional violence can have a far graver impact on them than on adults. So, do children deserve increased protections? If so, does this justify the converse, that children (or sick minded adults) have further restrictions on their rights to prevent harassment and bullying?
W/r/t schools, I would argue that schools are charged with protecting not just the physical security of children, but also their emotional and psychological well being. I think that rules regarding harassment and bullying in schools are more than justified. Of course, rules and laws are very different things.
I don’t think that analogy quite works because, on the one hand you have no choice in whether a knife cuts you (that’s entirely governed by physical laws), whereas you do choose how what someone says to you makes you feel (you choose how much significance to give to the person’s words. If someone walks up to me and calls me fat, I can be hurt, or I could take account the source and ignore it, but either way I choose).
Perhaps you have the ability to do that but not necessarily everyone does. The fact is, you will hear it and it will impact you, even if only so far as making the mental effort to ignore it. Now, we should not be free of impact by others. But to act as if we can insulate ourselves from it through sheer force of mind seems a bit absurd.
I’d be curious if anyone who works in mental health or psychology could weigh in.
(Really enjoying the conversation, by the way, even though not necessarily agreeing. I appreciate the thoughtful responses and engaging the whims of my mental musings.)
I think I’d turn that around and say, what is it about what someone else saying something to you, no matter how terrible, that NECESSITATES a particular reaction from you?
There might be understandable reactions, or reactions that you think you would have in that situation, but there is absolutely nothing that mandates a certain reaction. Contrast that with physical attacks where there are necessary physical consequences (e.g., cuts and bruises).
You can choose how you react to a knife attacker, whether you let him cut you (or more importantly, stab you) or not, etc. Of course if he does hurt you, nobody would blame you for not being a one-in-a-million martial arts genius. I agree it’s easier (at least for some people) to condition themselves to fend off (some) emotional harm, but it’s not really a person’s choice in a particular situation how they’re affected (they do have more control over how it affects them in the long term, and they have control over how they condition themselves to react ahead of time – just like people have far more control over how they condition themselves to react to violent threats and how they deal with the long term affects of pain or injuries than they do over how they react in a given situation).
So it really comes down to a matter of what we expect people to be able to brush off and what we expect people to reasonably expect safety from. We don’t expect people to be able to fend off determined knife attacks – that’s extremely difficult, and nobody has any legitimate business going after another person with a knife unless lethal force is otherwise justified. We do expect people to not crumble over and crack their head open every time someone breathes in their direction, and we expect that they’ll accept responsibility for pain and injuries they incur as fair and proportionate responses to their own actions. Likewise we should expect people to not emotionally crumble over silly slights or offenses or misunderstandings, but there’s still an obligation on everyone’s parts to not be deliberate assholes or bullies.
“Interesting take. But how does one stop emotional threats through intellectual or emotional force? I can think of some examples, but they all have their limits.”
I agree they have their limits. So do violent responses to physical force. You can’t, for instance, bring a murder victim back to life. And you probably can’t put an end to rape, robbery, murder, and all the rest of it – there’s a point at which all possible continued effort in that direction is itself immoral or harmful, at which point you can’t fight evil without destroying good.
We live in a finite universe in which entropy is the only ultimate victor. We can’t eradicate assholery (or predatory violence, or institutional injustice, or. . . ), but we can “strive ever more boldly against it”.
@JOR- I don’t think you understand the distinction I am drawing and I think I’ve sufficiently explained it, so I don’t know what else to say on that matter. Even if you are a martial arts master, if a knife blade hits you with sufficient force it will cut you. That’s what’s unavoidable, not the knife strike itself, and that’s the distinction I am drawing.
As to physical fragility, the law in general is different than you are implying. At common law, and in most U.S. jurisdictions, when it comes to physical injuries, you take your victim as you find him and you are responsible for the direct consequences of your actions. The classic case is the thin skull where someone strikes another person with his fist, that person has an (unapparent) think skull and dies. You’re responsible, but here you are talking about direct, necessary consequences of your actions (necessary in the sense of causation, if A then B, rather than existentially necessary).
You choose your reaction? Your body produces a number of measurable biological reactions to stress, with demonstrable effects on health. Other issues aside, it let’s not pretend bullying is all in people’s heads.
“I don’t think you understand the distinction I am drawing and I think I’ve sufficiently explained it, so I don’t know what else to say on that matter. Even if you are a martial arts master, if a knife blade hits you with sufficient force it will cut you. That’s what’s unavoidable, not the knife strike itself, and that’s the distinction I am drawing.”
Sure. And if something emotionally distressing “hits you” it will affect you. Some people are just better than others at not getting “hit”*.
Emotional and intellectual responses are governed by the laws of physics, same as anything else that happens.
*There are many emotional/intellectual defense techniques, just like there are many physical defense techniques. Self-deception is probably the most common form, particularly the exact technique you mentioned earlier: dismissing something that is said because of the source (convincing yourself that the source of something that is said has anything to do with whether it is true or not and whether, if true, it should be hurtful).
“At common law, and in most U.S. jurisdictions, when it comes to physical injuries, you take your victim as you find him and you are responsible for the direct consequences of your actions.”
Well, sure. And you’re responsible for any emotional distress you (unfairly) cause someone. It’s true they could “toughen up” and just brush it off, but as has been pointed out, the same is true in terms of physical violence. The real thing of import is that people who go around physically assaulting people are countered with force because they shouldn’t be doing that, and the fact that they shouldn’t be doing that isn’t reducible to physics. You shouldn’t go swinging a knife around at a guy even if you think he can “take it” (or indeed, even if he really can), at least not without his explicit consent. Likewise people who go around emotionally molesting or abusing or harrassing or deceiving or betraying other people shouldn’t be doing that, and it’s perfectly fine to use their tools against them (within reasonable proportion). Sometimes that won’t lead to a perfectly just solution; sometimes a bully might be a completely emotionally stunted, shameless sociopath who can’t be affected by anything. And occasionally you’ll get a suicidally fearless murderer who honestly doesn’t give a shit if you kill him. Such is life.
The Muslim Brotherhood is an extremely powerful organization in Egypt. Russia has no faction both with such popular support and with such long reach into government that it leaves Putin genuinely afraid of getting assassinated if he really crosses it.
It doesn’t really matter whether or not Egypt meets the same standard as we apply to our own system or that of our democratic allies. The fact is that states reflect the nature of the people. A state is corrupt because the people are corrupt. A state violently persecutes minorities because that is something which is part of the cultural views of the majority of people. Governments are formed from the general public. There’s never a people better than their government or a government better than its people.
Who is going to enforce laws against bullying? Most school administrators and teachers are anything but our best and brightest. In my experience, even when bullying reached the point of actual assault, the principal was far more likely to protect the bullies from retribution than to do anything effective about the bullying. To give them power to enforce rules as against something as nebulous as psychological harassment would just make things worse.
Police? Many of them are just grownup bullies. Prosecutors are often *smart* grownup bullies.
Hire better teachers and principals. I’m a teacher myself and won’t tolerate any form of harassment or bullying. Even if I overhear something in the halls by students I have no direct contact or relationship with, I will step in. Am I the exception? Probably. But that doesn’t mean it can’t be done well. Or shouldn’t be done. You are right that far too often far too little is done. Or, if anything is done, it is counterproductive to the stated aims. That is a problem in and of itself which also needs immediate and immense fixing.
I’m emotionally harmed when people say the Detroit Lions suck. Some even say I’m a fucking idiot for supporting them and that hurts me emotionally just as much as getting punched in the gut would harm me physically.
The fact is that states reflect the nature of the people. A state is corrupt because the people are corrupt. A state violently persecutes minorities because that is something which is part of the cultural views of the majority of people. Governments are formed from the general public.
This seems true on the surface, but doesn’t apply well in the real world. Take, for a counterexample, the two Koreas, which were literally formed by an arbitrary line through a homogenous population, and the radically different courses they have taken subsequently under different leadership. While people can have a role in shaping the state, Orwell emphasize over and over that the reverse is also the case. The world is full of examples where large majorities were effectively dominated by small minorities: the Aztec empire, the antebellum American south. the Mongol empire, Saddam-era Iraq, the British Raj… In fact, it’s often the status quo in non-democratic nations that the majority ethnic or cultural group is powerless and disenfranchised.
//Naming a proposed law after a dead person is a pretty reliable indicator that it’s going to be a crappy law.//
I don’t know about that. Applying Sturgeon’s Revelation, I’m sure 90% of such laws are garbage, but that’s probably because 90% of all legislation is garbage.
//Whether I hurt your feelings, however, depends entirely on your self-reporting of your internal state. I think this is the only reasonable position to take (and for this reason I don’t think there should be IIED torts, for example). Overt threats of violence are already punishable as assault, and I am not sure we can go much beyond that and maintain any objectivity at all.//
In the case of intentional infliction of emotional distress, the line wouldn’t seem all that hard. Would a jury find that the defendant’s conduct was such that (1) a reasonable person in the defendant’s shoes would have expected it to cause distress which could have been avoided, (2) a reasonable person in the plaintiff’s shoes would have suffered distress from it, and (3) it seems that the distress that would have been suffered by a reasonable person was in fact suffered by the defendant.
The standard isn’t entirely unlike that for tangible torts. Someone who is wronged has a duty, before suing, to mitigate damages. Suppose, for example, that a plumber installs a sink improperly and it leaks so as to create a visible puddle on the floor, but the homeowner simply ignores the problem until the floor is rotted away and collapses under its own weight. In such a case, the plumber should only be held liable for the amount of damage that a jury would expect to have occurred had the homeowner acted reasonably.