Emotional Abuse and the Law

Abstract

Abstract Much intimate partner violence consists in emotional abuse and threats which the legal system does not address. Some reports suggest that emotional abuse can be more harmful than physical abuse. Beyond social policy, how should the law address emotional abuse? Criminalizing emotional abuse would serve the expressive function of expressing disapprobation and acknowledging the wrong to the victim. There are practical reasons not to criminalize emotional abuse—including the likely disproportionate impact on people of color. This chapter focuses on the theoretical question of whether emotional abuse wrongs the victim in the sense relevant to criminal law. A difficulty is that emotional abuse might involve only speech and apparently self-regarding behavior: how do these wrong, in the justice-relevant sense? This chapter considers two approaches. On the harm-based approach to criminal law, emotional abuse is the kind of non-consensual harm relevant to criminal law. On a Kantian approach to criminal law as intervening in certain restrictions on freedom, emotional abuse sometimes involves a justice-relevant wrong: coercion. The chapter argues that emotional abuse (even without physical abuse) coerces the victim by issuing a standing threat of severe emotional harm. Accounting for coercion requires positing a right against severe emotional harm which emotional abuse threatens to violate. This chapter shows how emotional abuse wrongs without implying that permissible self-regarding behavior which causes emotional harm (such as rejecting someone’s romantic advances) also wrongs.