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Saturday, January 09, 2010

The Law Against Hurt Feelings

You think Ezra Levant had it hard. The French are going one step further on the road to thought control:

If you insult your wife or husband repeatedly, you could soon find yourself in court if you live in France.

The charge? Psychological violence.

That's what the new offence will be called if a bill backed by the government is passed by parliament.

Once considered a purely private domain, rows between married or cohabiting couples could now prompt intervention from the state.

The French government wants to take the controversial step of introducing a new law banning "psychological violence" between married couples or partners living together.

Posted by Richard Anderson on January 9, 2010 | Permalink

Comments

It's what happens when too many professional busybodies become social workers and given the power of the state.

Posted by: peterj | 2010-01-09 12:34:55 PM


Wouldn't that promote physical violence?

Posted by: Agha Ali Arkhan | 2010-01-09 12:41:02 PM


Good job, now my wife wants to move to France so I can't call her a cunt anymore. I guess I will have to learn the french word for it so as to make me remember the joys of free speech.
I guess the strategy is to change up the words so a pattern is not developed, and therefore charges cannot be laid if its more conversational abuse than what can be defined in the laws parameters for interpretation of what psychological violence is.

Other than me, who doesn't need to be told they are a fucken cunt sometimes? :))

Posted by: Vegan Philosopher | 2010-01-09 12:56:19 PM


Allow me to play Devil's advocate for a moment. While there are legitimate concerns about what could count as evidence for such an offense and there are legitimate concerns about how severe the verbal abuse would have to be to constitute an offense, the idea that verbal abuse can be as harmful as physical abuse is well documented. In extreme cases, parents who are never physically abusive, but extremely verbally abusive can (and should) lose custody of their children. Psychological research has shown that while cuts and bruises can heal quickly, emotional harm can last a lifetime. So if even the most minor physical harms are deemed worthy of legal prohibition, it is not outrageous in principle to legally prohibit the most extreme emotional harms.

One response I anticipate to this is the argument that while kids don't have the option to just leave parents who are verbally abusive, adults can. So if a person is being hurt by the verbal abuse of someone they are living with, they can just leave. The problem, however, with this argument is that we do not use the same standard with physical abuse. The first time someone is hit by a domestic partner, they could leave. But if they do not, however unwise that decision might be, it does not give their partner a license to hit them again. Each subsequent act of physical abuse is still wrong and still harmful, and thus still criminal. Similarly, if someone says to me "if you don't leave immediately I'll beat the shit out of you," it might be wise to leave (if I believe the threat and also believe I am likely to lose any fight that happens), but the one threatening still has committed a crime if I don't leave and he does follow through on the threat.

There is good reason to think that this law will end up being applied in cases where the harm is not very severe or where the evidence for the abuse is just hearsay (and thus quite unreliable), but in principle there is nothing wrong with this law. So in the end I would have to say I oppose this law for the same reason that I oppose the death penalty: It's a good idea in principle, but a practical nightmare.

One more point: Calling it a "thought crime" is idiotic. The law places no restrictions on you thinking the most hateful things about others. It just restricts your freedom to inflict devastating harms on another person.

Posted by: Fact Check | 2010-01-09 2:05:22 PM


What constitues as Psychological violence, well according to spvm.qc.ca/en/service/1_3_1_1_violpsycho.asp imtimidation qualifies as Psychological violence.

I suggest that the propaganda the majority of you believe regarding US might, our own might, terrorism, etc., amounts to Psychological violence peddling.
I think any sytematic misinformation campaign to create fear and uncertainty in anything amounts to Psychological violence, why stop at the spouse? Who determines the line? Certainly any misinformation which leads to the conclusion where war is the only alternative would have to require some form of imtimidation if a threat does not exist, so would this not qualify?
Harrasment is psychological violence. Is the USA media harrasing our sensibilty regarding, Iran and does the subsequent pounding of the war drums not constitute as Psychological violence. Nothing you know about Iran is true, yet most of you are on a very destructive path because of media harrasment through misinformation. You fear Iran in many ways, and all the concerns for our safety is unfounded and irrational. Isn't the fact the media is responsible for this feeling, when it has an effect that can only result in violence qualify as intimidation, or psychological violence? The media keeps relaying that you have to react, and soon or it will be too late, they will have the bomb, is this not psychological violence, intimidation which equally screws with one's sense of self worth and importance due to reduced security from phantom menace?
Believing in superiority, and being forced to act on invasion, on a constantly ongoing basis is Psychological violence in the broadest sense.

Posted by: Vegan Philosopher | 2010-01-09 3:26:22 PM


I was once under a court order not to make insulting remarks about my in-laws, in the presence of my children. The problem was, I didn't bother to have reciprocal orders against my ex. As a result, my kids were subjected to non-stop negative comments about me, until they were old enough to put a stop to it, themselves.

There is such a thing as psychological violence, that is for certain. How to control it, in a fair way, is something more complicated. Maybe this law will raise awareness to the lasting damage this bad habit really causes.

Posted by: dp | 2010-01-09 3:50:17 PM


Well there you are Fact Check. Such a long time. Still missing the point, even when playing the Devil. Look up pedantic in the dictionary sometime. Your intention, as usual, is not to debate the point, but try to "bring me down a peg." Keep trying. You might even succeed. Thus my tone. I do believe you raise some common objections, so I'll take the bait, for now.

Leaving aside the amateur psychologizing - I know from personal experience what verbal abuse is like and need no lectures - you have missed the essential point. This is a law that is criminalizing speech. It is a form of thought control if you can't express your thoughts, however vile.

There is something very wrong about being punished for saying a word or string of words, which others might or might not find offensive or abusive. In theory it blurs the distinction between words and actions. The law traditionally, for good reason, has focused on action, things which can be objectively determined in court.

Hurt feelings cannot be objectively determined, they are thus not a proper subject of legislation. Harm itself is not sufficient as a valid standard for legislation. I am harmed by my girlfriend breaking up with me. I am harmed by being made unemployed. Indeed these forms of harm are often far greater than mere physical violence. Shall we pass a law against being fired? And can no one be dumped, or divorced? Where does the law, and the state stop? On the pretext of fighting evil (great and small) it cannot be stopped. There is no shortage of evil and the state is almost always a poor remedy.

One of the perversions of the modern world is a belief that human beings can be made decent and humane, if you pass the right laws. You cannot force people to be decent, which is essentially what this law aims to do. Soon enough the standard of abuse will drop. Even an inadvertent comment can be interpreted as abusive. Anything can. In theory and practice it is an obscene law and idea being espoused.

Your attempt to conflate this law, which is a form of speech and thought control, with laws long established against threats, is below even your low standards. There is a great difference in saying "I will kill you" and "I think you are stupid." The first implies an action, the second is merely an opinion.

Within a context one can objectively determine, or at least make a reasonable attempt, if a threat is real. I've been called all sorts of things on this and other blogs, much of which is abusive. Heck you've written quite a few of those things. Can I have you charged? You called one of my comments "idiotic" just a moment ago. Perhaps you object to this specific law, but maybe another law could be drafted that would meet your standards. You've conceded the principle that "abuse" can be criminalized, the rest is a matter degrees and time.


Posted by: Publius | 2010-01-09 4:26:57 PM


Posted by: dp | 2010-01-09 3:50:17 PM

Good points. Most people reading this will presume that the male is the villain, where in reality it takes two to argue and both escalate the arguement past rational thought. So, when the cops come in it will be "he said , she said " and I can guess who they will drag away.
Mens feelings are never part of the equation.

Posted by: peterj | 2010-01-09 4:42:08 PM


Actually I am happy about this proposed law. The more of these kinds of laws, the sooner more of people will wake up and take responsibility for their own lives and demand that the state keep out.

Posted by: TM | 2010-01-09 5:01:15 PM


I agree with TM, no expression of ones feelings at all no matter how f'n stupid she can be.:))
Everybody has to toe the line, civil society is defined as everybody exactly the same with the same moral compass fabricated by those who know best.
If we don't live in a everybody wins world then everybody doesn't win. We don't need acheivers and diversity, we need laws, and more legislation to mould humanity into what it should be.

The prospects down the road arent looking good for anyone, so therefore dreamers will become more dangerous because they inspire vision, therefore legislation to insure concepts outside of what we already know should never be discussed.
I advocate that a new federal department be set up to think tank to new laws so as to help us become the people we should be, and natural progression be damned.

Posted by: Reagan Philosopher | 2010-01-09 5:23:50 PM


"I was once under a court order not to make insulting remarks about my in-laws, in the presence of my children...."

Priceless!


Posted by: Reagan Philosopher | 2010-01-09 5:32:51 PM


advocate that a new federal department be set up to think tank to new laws so as to help us become the people we should be, and natural progression be damned.

Posted by: Reagan Philosopher | 2010-01-09 5:23:50 PM

Vegan
What kind of people should we be ? Please explain.

Posted by: peterj | 2010-01-09 5:37:44 PM


Actually I am happy about this proposed law. The more of these kinds of laws, the sooner more of people will wake up and take responsibility for their own lives and demand that the state keep out.

Posted by: TM | 2010-01-09 5:01:15 PM

(Rhetorical)

He wants more laws,and apparently from the tone, he wants them enforced, but it also appears he wants the state to keep out as well, did I miss something?

Posted by: Vegan Philosopher | 2010-01-09 5:47:15 PM


@peterj

Whatever we evolve into, without being steered, I am the leader nor follower of no one.
I obviously have much more confidence in a humanity guided by truth than you do.
I don't fear the unknown, I hunger for it, and a new society would be wonderous, even a demolished one. Of course I don't hope for literal destruction, and hope destruction can be avoided for the world, but the premise of what everything is built may be correct, but the foundation was not layed properly all the way back to the greeks. Many ideal are sound, but the flaws started at inception.
Therefore like any practical man, you work with what you have and reshape the pile of shit into something you can live with, and what ever that pile turns into is truly fine with me, as long as its progression is truly natural. .. oh ya and jesus has to be part of it too

Posted by: Vegan Philosopher | 2010-01-09 5:58:45 PM


Pubis,

"This is a law that is criminalizing speech."

Yes, just as shouting "fire!" in a crowded theatre that is not on fire criminalizes speech. Just as fraud committed only by one's words criminalizes speech. Just as perjury criminalizes speech. The fact that a law criminalizes speech is not the final word on whether or not it is a good law.


"It is a form of thought control if you can't express your thoughts, however vile."

No, it is a form of speech control. Thought control would be to prevent you from having those thoughts, even if unexpressed. "Thought crimes" are when you punish someone for the thoughts they have, even when unexpressed.


"There is something very wrong about being punished for saying a word or string of words, which others might or might not find offensive or abusive."

This law is not about whether or not anyone "finds" the words to be anything. It's about whether or not they actually inflict real harm.


"In theory it blurs the distinction between words and actions."

Yes. Like perjury laws, fraud laws, public endangerment laws, etc. do as well.


"The law traditionally, for good reason, has focused on action, things which can be objectively determined in court."

Yes. And I already said that problems of evidence and proof make this an bad law, But the fact remains that saying something to someone is an action and it can have harmful consequences, sometimes far more harmful than a punch can.


"Hurt feelings cannot be objectively determined"

So what? The law is not about "hurt feelings". The words "hurt feelings" are only your spin on the issue. The law is about psychological harm.


"Harm itself is not sufficient as a valid standard for legislation. I am harmed by my girlfriend breaking up with me."

Now you're just being obtuse. What you are unable to explain is why inflicting physical harm with fists is not ok, but inflicting psychological harm with words is. Talking about whether women should refuse to go out with you, no matter how wise a decision that would be, is not the point.


"You cannot force people to be decent, which is essentially what this law aims to do."

No, you can't and no, the law doesn't aim for that. Laws against punching people do not aim at making people not want to punch each other. They just aim at stopping bad people from doing significantly bad things to others. This law does not aim at making people not want to psychologically abuse others. It just aims at stopping bad people from doing significantly bad things to others.


"Soon enough the standard of abuse will drop."

No shit, Sherlock. If you read again, you will see that this is a reason I oppose the law.


"Your attempt to conflate this law, which is a form of speech and thought control, with laws long established against threats, is below even your low standards."

I said nothing at all about laws against threats, dumb-dumb. But it's nice to see that your reading ability is as low as ever.

Pubis, the bottom line is that you have given no reason to distinguish in principle intentionally inflicting significant physical harm on people from intentionally inflicting significant psychological harm on them. I used the example before of how verbal abuse of children, when it is particularly extreme, can (and should) be grounds for removing children from their home. If you agree with that, then you have already agreed that at least sometimes significant psychological harm is a reason for intervention by the state. So you have already conceded the principle. But maybe you disagree. Maybe you think kids should be forced to live with parents who are the most extremely verbally abusive imaginable because they are "just words" or "just opinions".

Posted by: Fact Check | 2010-01-09 6:12:07 PM


Vegan, the proposed law is ridiculous. If it passes then perhaps complacent citizens will wake up and defend their freedoms rather than seeing the state continually erode them. The same state that thinks it knows what vitamins you should be able to take also think it knows how you should talk. Or maybe, just maybe, they don't.

Posted by: TM | 2010-01-09 6:16:29 PM


Vegan, the proposed law is ridiculous. If it passes then perhaps complacent citizens will wake up and defend their freedoms rather than seeing the state continually erode them. The same state that thinks it knows what vitamins you should be able to take also think it knows how you should talk. Or maybe, just maybe, they don't.

Posted by: TM | 2010-01-09 6:16:29 PM

Agreed!

Posted by: Vegan Philosopher | 2010-01-09 6:25:58 PM


Get him Pubilius.:)

Posted by: Vegan Philosopher | 2010-01-09 6:32:32 PM


ha ha ha If more people actually listened to the suggestions of how to live with people of your parents, relatives and heck, religious leaders- we wouldn't perhaps grow up into such assholes where the state would even notice-- then such laws would never hav germinated.

I am pretty sure people have been dissin' their mates, in laws etc for millemia and the state took no interest in any of it = the church however reminded us to do onto others etc = till we evolved past that moral management trip man " = well now the state is spanking people,for misbehaving and there will likely be more of that intervention with uniforms as time goes on.

Now none of this applies to anybody who self directs with any success, in fact they can live an entire human life with almost no interference from anybody

Stupid ? yes indeed.
maybe ponder why it got to this point

Posted by: 419 | 2010-01-09 7:14:36 PM


An additional point in support of fact check would be that where speech is likely or certain to cause harm it is already illegal- ie, it is illegal to yell "fire!" in a crowded theater. If we accept the idea that psychological abuse can cause real legitimate harm (and the law does recognize this- you are able to sue for emotional and psychological damage as well as physical harm), the an act of speech which may cause severe psychological harm should be prohibited by the same standard. I realize that some libertarians might think that speech which is likely or certain to cause harm shouldn't not be prohibited, but this seems to me as impractical a position as the law proposed in the article posted.

In short the law is prepared to limit free speech in cases where it is substantially likely to lead to more substantive violations of rights. If we accept, as I think we must, that psychological harm is real, then it would seem to follow that restricting speech where it is likely to cause significant harm would be legitimate.

Posted by: i saw dasein | 2010-01-09 7:43:39 PM



"Pubis, the bottom line is that you have given no reason to distinguish in principle intentionally inflicting significant physical harm on people from intentionally inflicting significant psychological harm on them."

If you can't tell the difference between words and physical violence, then I have nothing to discuss with you. This is something which even small children can grasp. Sticks and stones.

You base your arguments on something as old and hoary as yelling fire in a crowded theatre. How long have you been reading this blog not figure out the basic rebuttal? A theatre is private property, you use it upon the terms of the owner. If you violate those terms you can be ejected. If your reckless actions cause panic, you are liable for civil damages. Yelling Fire in a theatre has nothing to do with free speech. It's a bait and switch argument.

Your leaps of logic are absurd. Opinion is the same as perjury and fraud? Lying is the same thing as an insult? I can prove you are lying. How can I prove someone's feelings are hurt? Are you capable of basic differentiation? For perjury you undertake an oath, a legal commitment. The breaking of that commitment is an illegal act. Fraud is lying where consideration is involved. You've broken a formal or implied contract with me, that act too is illegal as it should be. Me calling you a slow witted statist clown would be neither here nor there. The whole of your argument boils down to "the law should stop bad things." Where does it stop? The answer is that it doesn't.

You said:

"This law is not about whether or not anyone "finds" the words to be anything. It's about whether or not they actually inflict real harm."

Yes it's exactly about that. The harm is how people "feel." It's subjective! Even if you could concretize the harm, someone would still have to "find" the words to be illegal. It's two subjective judgements. I say my feelings are hurt. Someone else agrees with me. You go to jail. Can you not see where this is headed?

The same words in the same context will be interpreted in completely different ways by different people. On that you're going to base a legal principle? It's a law to fight hurt feelings.

Then to top it off you conflate children with grown adults? Parents act as custodians of children, that obliges them to a standard of care. Being verbally abusive can be construed as evidence that a parent was violating that standard of care. You don't need to pass a law making a form of speech a criminal offence to remove children from dangerous parents. This law would make the speech itself a crime. There is no shortage of laws to allow dangerously unfit parents to be relieved of custody of their children. Verbal abuse counts as evidence in those cases, but itself should not be a crime.

"So what? The law is not about "hurt feelings". The words "hurt feelings" are only your spin on the issue. The law is about psychological harm."

Six of one, half a dozen of the other.

"I said nothing at all about laws against threats, dumb-dumb. But it's nice to see that your reading ability is as low as ever."

I asked whether I could have you charged for insults like that, based on your own standards. You didn't answer. I can claim as much psychological harm from that comment as I can get away with, and you have no real defense against it. Here's my plea in court:

"Your honour, Fact Check's rants have left me a shattered wreck. I can't eat or sleep, his brilliant and incisive commentary, matched with his original puts downs have overwhelmed me! Help Your Honour! Stop Fact Check! Put him away! Take away his computer! It will take me years to recover. He calls me Pubis. How disrespectful! It's Publius your Honour, just plain old, poor and very sad Publius. "

All I need is some psychologists to agree with me, two or three should do, and you'll be in the clink for sometime. How about it FC? Willing to practice what you preach? My feelings will be hurt if you say no. Oh, sorry. I shall suffer grave psychological harm.

Posted by: Publius | 2010-01-09 8:44:02 PM


Publius, you're completely off base.

Intentional infliction of emotional/mental distress is ALREADY a cause of civil action in Canada, the US, and elsewhere. The court is already dealing with the issues involved with measuring the extent of mental distress. Psychological harm is already recognized in the common law, so it's sort of silly to pretend that it's impossible or absurd for the court to recognize it.

The courts have developed several ways of assessing the degree of mental distress, and it's important to note that the test is objective: it's not enough that you yourself are upset- you have to show that a reasonable person in your position would suffer severe psychological harm. A reasonable person would not suffer severe psychological harm by misuse of their name, thus the court would not recognize that as causing objective harm.

You also have to show actual emotional harm. If the court did not believe you were actually upset, your action would fail.

So in short you have to establish both that you honestly experienced psychological damage, and that a reasonable person in your position would experience that damage.

There are also normal intentional tort elements like the requirement that the insult be intentional, that the insult be the actual cause of the damages, and so on.

Together these things ensure that there can be few or no frivolous claims of mental distress.

Posted by: i saw dasein | 2010-01-09 9:00:33 PM


Posted by: Publius | 2010-01-09 8:44:02 PM

Bravo Publius, and that is exactly where we a heading. We are turning into a nation of weenies, whiners and wingnuts,begging state intervention on all the problems that common sense dominated not all that long ago.

Posted by: peterj | 2010-01-09 9:03:44 PM


Pubis,

"Parents act as custodians of children, that obliges them to a standard of care. Being verbally abusive can be construed as evidence that a parent was violating that standard of care."

Your use of the word "evidence" is weaseling. Either the verbal abuse constitutes violating the standard of care, or it is merely an indicator that parents might be doing something else that violates the standard. If you mean the latter, then you are saying that so long as children are subjected to nothing more than extreme and repeated verbal abuse, you think they should be left with their parents. Just tell them that their parents are merely expressing opinions and send them home. Sticks and stones, right? But if you are saying the former, then you admit that verbal abuse alone can be sufficient to warrant state intervention. Which is exactly what my argument about such intervention being in principle justified is all about.


"If you can't tell the difference between words and physical violence, then I have nothing to discuss with you."

If you can't understand that psychological abuse can and often is much more devastating than physical abuse, then we really do have nothing to discuss.

Posted by: Fact Check | 2010-01-09 9:09:03 PM


The only way of denying psychological damage exists is to complete deny empirical evidence, given the depth of research into the area at this point. There is no question that psychological damage can have profound and lasting effects.

In addition, physical assault in Canada has no "consequence" element, meaning it is a crime whether or not any actual harm can be shown. So you could have a situation where one person psychologically batters a person into a severely traumatized state and really completely ruining their life without committing a criminal act; but push them and you've committed a indictable offence, which seems a bit absurd.

Posted by: i saw dasein | 2010-01-09 9:30:14 PM


I saw,

"The courts have developed several ways of assessing the degree of mental distress, and it's important to note that the test is objective: it's not enough that you yourself are upset- you have to show that a reasonable person in your position would suffer severe psychological harm. A reasonable person would not suffer severe psychological harm by misuse of their name, thus the court would not recognize that as causing objective harm."

Says you. Ever been in a school yard? Or an office? Deliberately mispronouncing someone's name is a form of abuse. My own surname is very difficult to pronounce, people who don't like me - imagine someone not liking me - often mispronounce it on purpose. There have been lawsuits based on exactly that kind of behaviour. I'm not the litigious kind, so I either let it pass, or let 'em have a taste of their own medicine.

Reasonable person is a useful standard in many areas, but not all encompassing. The issue being raised here is that psychological harm is as bad, or worse than physical harm, therefore legislation is required.

Yet one of the problems is that a reasonable person might not be distressed by certain words or conduct, but that doesn't mean real psychological harm isn't caused. It can be argued that a neurotic isn't a reasonable person, yet being called names can drive him to despair (even suicide) in a way a reasonable person wouldn't be. As I said, it's subjective. The reasonable person standards doesn't work in this situation. I'm sure courts do take into account psychological harm, I don't think they should for the reasons above.

---


Only you, FC, would regard "evidence" as a weaselling word. Violation of standard of care is not the same as a criminal offence. This law is not talking about removing children from parents, it's about criminalizing speech between grown ups. Neither here nor there. A parent who has failed to do their job has a child removed from their custody. Very simple FC. Has nothing to do with calling your wife fat and ugly. No weasel, just keeping things in context. Follow the yellow lines on your way out.

BTW, you keep avoiding my question. Can I charge you?

As a reasonable person, I'm suffering great psychological harm from the continued use of the word "Pubis." As has been well established in modern legal theory and practice, the refusal to address people by their name - even if it's an arbitrarily chosen pseudonym borrowed from a two hundred year old book - can be quite damaging.

"If you can't understand that psychological abuse can and often is much more devastating than physical abuse, then we really do have nothing to discuss."

Which, again, is neither here nor there. I'm not disputing that psychological harm can be worse than physical harm, I'm disputing you're wanting to make a law out of that possibility. It's fine enough to make, an implicit, appeal to emotions with the image of the profanity spewing parent tormenting a small child. We all know that is morally obscene. We know such people deserve a wide variety of social - not state - sanctions. The law is a very blunt instrument. Using extremes to justify state action causes more harm that good. Whatever the phrasing, people's feelings are not a sound basis for criminal law.


Posted by: Publius | 2010-01-09 10:00:43 PM


"If you can't understand that psychological abuse can and often is much more devastating than physical abuse" pure Fallacy!

Fallacy indoctrination regarding children is clearly psychological abuse, they have no choice.
This is the most common type, where children and spouses will forced to indure an minimum of one hour of psychological abuse tommorow, all over North America.
What about telling someone if you don't do well in school you won't succeed in life. Not to discount education but clearly there are many exceptions to the rule, Richard Branson to name one.
fallacies we are told to keep us from lying regardless of what the moral intention, or how it personally sits with one's personal ideals,it constitutes psychological abuse. It is a fallacy that it is better to tell the truth than to lie, pure fallacy yet most of us believe this,One has to wonder how damage has this belief has caused us?
God is watching, pure fallacy, but children are told this, and the indoctrination never stops all the way through life.
Wouldn't any repeated anything be psychological abuse if it isn't true?

You can't yell fags in a Homosexual establishment unless its at a pack of cigs, so the trick is to be able to prove another human being is stupid, retarded, or a slut to avoid prosecution.

Posted by: Reagan Philosopher | 2010-01-09 10:07:11 PM


I saw,

"The only way of denying psychological damage exists is to complete deny empirical evidence, given the depth of research into the area at this point. There is no question that psychological damage can have profound and lasting effects."

I'm not denying that. I'm denying that it's a basis for legislation.

"So you could have a situation where one person psychologically batters a person into a severely traumatized state and really completely ruining their life without committing a criminal act; but push them and you've committed a indictable offence, which seems a bit absurd."

Let's try reductio ad absurdum. Being fired from a job can cause people far more harm than being physically assaulted. Should, then, laws be passed preventing people from being fired? One of the most stressful things anyone can experience is divorce. Should divorce be banned? It would be a little absurd to punish thieves, who steal only a few dollars, while that bitch of an ex-wife runs off with the stock broker. Surely the home-wrecker deserve to be punished? Divorce can be traumatizing too.

As you said, consequence alone is not a standard for law. Being traumatized is subjective. The same words can have very different impacts on different people, even the same person in different contexts.

Posted by: Publius | 2010-01-09 10:10:27 PM


I don't think that reductio ad absurdum holds, actually. Assault and indeed most true crimes require that the action be intentional. If you are just waving your hands around wildly and you hit someone, completely by accident, you have not committed assualt. In order to commit assault you must intend that your actions violate that persons physical self. A crime of emotional assault would also require that the assault be intentional. If you fire someone it may hurt their feelings, but unless you actually intend that their feelings be hurt, it would presumably not qualify as an emotional or psychological assault. As a crime the onus of proof would rest on the state, so the Crown would have to prove beyond a reasonable doubt that you fired that person only to damage their psyche, a high enough bar that frivolous cases should be excluded.

What I think the law should be trying to prevent is not hurt feelings or indeed psychological damage per se. What it should be concerned with is the intentional infliction of psychological damage. I think the mind is every bit as much of a person's private space as is their body, and when that mind is deliberately and violently assaulted that strikes me as a crime on the same level, and for the same reasons, as physical assault.

It also seems critical to me that the court take into account psychological damage in terms of civil actions. Otherwise people put in horribly stressful, even horrific situations, but are nonetheless physically unharmed, would have no case for damages. Say that you and your husband are on a roller coaster that has been negligently maintained. Due to this negligence your husband is decapitated before your eyes. However, you yourself suffer no physical harm. Should you be able to sue for the psychological trauma you unquestionably experienced? If not, you may not be able to sue at all, because negligence actions require damages, and you were physically unharmed.

Posted by: i saw dasein | 2010-01-09 10:38:38 PM


"What it should be concerned with is the intentional infliction of psychological damage"
Hard to prove intent.

"I think the mind is every bit as much of a person's private space as is their body and when that mind is deliberately and violently assaulted that strikes me as a crime on the same level, and for the same reasons, as physical assault.

If the so called victim listened, then did they not let the so called assailant into their "private space"? Isn't is easy for anybody to take the position for purpose of debate but most likely say" what ever" , or f-off all the time and tune people out like the vast majirity do? Does every sneer and jeer effect anybody to the point where there self esteem is affected? My wife yells back at me if we have a fight, don't most?
What I am saying is the so called private space can not be attacked as effectively as the physical or violence approach, which of course I much prefer.

Posted by: Vegan Philosopher | 2010-01-09 11:00:48 PM


Vegan, first all "true" crimes (as opposed to crimes of negligence) require that intent be proven. It can be hard to prove intent, but nonetheless it is required in all criminal charges. So there is nothing exceptional about requiring it to be shown in a future crime of emotional assault.

I don't think this law would lead to every sneer or jeer being criminalized. The Crown would have to make the judgement as to whether there was sufficient evidence to make a conviction significantly likely. If as in civil law, emotional distress required that harm be both actual and reasonable, then "sneering and jeering" would not lead to a charge of emotional assault. Since actual harm would have to be shown, if indeed our private spaces are harder to attack, it would be more difficult to show actual harm. So I don't see a problem in that particular capacity.

Posted by: i saw dasein | 2010-01-10 9:40:01 AM


I understand your perspective and logic but am not onboard at all.

What would be the standard to determine what a person was before the word violence, and how would damage be assessed after the supposed word violence? There isn't anything tangible in an emotional scar to measure, combine this with how people "ham it up" in court setting and this leaves so much room for error that a judge could never adjudicate fairly,based on impartiallity.
I think your way makes it all about assumption and this is not what is considered "fair".

Posted by: Vegan Philosopher | 2010-01-10 10:02:58 AM


Posted by: Vegan Philosopher | 2010-01-10 10:02:58 AM

Good post. Good point.

Posted by: peterj | 2010-01-10 8:29:30 PM


Vegan Philosopher: "What would be the standard to determine what a person was before the word violence, and how would damage be assessed after the supposed word violence? There isn't anything tangible in an emotional scar to measure, combine this with how people "ham it up" in court setting and this leaves so much room for error that a judge could never adjudicate fairly,based on impartiallity.
I think your way makes it all about assumption and this is not what is considered "fair"."

Exactly so. It is this point that makes this whole idea irrational.
Good post Vegan.

Posted by: Ed Ellison | 2010-01-10 10:10:47 PM


Thank you both I guess.

Posted by: Vegan Philosopher | 2010-01-10 10:14:03 PM


Posted by: Ed Ellison | 2010-01-10 10:10:47 PM

certainly makes one wonder what France will use for a yardstick if the upcoming vote becomes law.
Anyone want to take a guess ?

Posted by: peterj | 2010-01-10 10:17:09 PM


I don't think in the criminal context it would be hard to determine fairly whether trauma occurred. This is because rather the court would probably use a subjective-objective model.

Subjective assessment would require the victim to have actually genuinely have experienced psychological trauma. Evidence supporting this element of the crime could be things like expert testimony (medical or psychological professionals), demonstration of actual impact (say lost employment, deterioration of relationships, and so on), as well as past case law. These are the kinds of yard-sticks the court uses in assessing psychological damages in civil cases. It shouldn't be hard to show actual concrete evidence where psychological trauma is substantial to the degree it would qualify as violence. In the context of the French law where it appears the target is non-physical domestic violence, that kind of systematic abuse does indeed leave demonstrable harm in many cases. If the defence does not believe that evidence is credible, they could attack it, and as a crime they would simply need to raise a reasonable doubt of the truth of the evidence and testimony.

Second, the requirement for objective harm would require the Crown to show that a reasonable person in the victims place would have experienced emotional trauma. This further reduces the range of irrational or frivolous claims.

Assessing with precision the amount of psychological damage is probably not necessary in the criminal context since no compensation is awarded to the victim. Severity would have some impact on sentencing presumably, but beyond that it would simply need to be shown that the damage and activity meets a threshold qualifying for criminalization.

Anyways those are the kinds of measures I would guess the common law jurisdictions would use but I have no idea about Civil Law jurisdictions like France.

Posted by: i saw dasein | 2010-01-11 7:55:23 AM


Anyways those are the kinds of measures I would guess the common law jurisdictions would use but I have no idea about Civil Law jurisdictions like France.

Posted by: i saw dasein | 2010-01-11 7:55:23 AM

I am hopping to read about the first case tried in Court when and if this becomes law. My personal view is that the best actor/actress will win because it is so difficult to prove or disprove emotional state. That is why lie detector results are inadmissable in court. Some people are really good liers. Emotionaly void.

Posted by: peterj | 2010-01-11 8:30:00 PM



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