Criminalizing emotional abuse will do more harm than good

Pamela Stubbart Advocate, Young Voices
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Within weeks, the U.K. Parliament is set to consider a bill criminalizing “emotional blackmail” and related forms of emotional abuse. As reported in the Telegraph, the bill would forbid persons to “make contact with a victim in an aggressive way” or to “intend to control or coerce” a partner, with penalties of up to 14 years in prison.

“Control” and “coercion” are to be interpreted widely, covering such actions as using the family finances to manipulate one’s partner or deploying psychological tactics to keep a partner fearful and in line. Proponents of this legislation, who span the three major parties, claim that it will give emotional abuse victims more confidence in coming forward regarding their circumstances, and that it will help to keep emotional abuse victims safe.

We have plenty of reason to want confidence and safety for victims of emotional abuse. But can legislation of this kind deliver it, in Britain or anywhere else? And if so, at what cost? Anti-emotional abuse legislation is at best redundant and at worst fraught with unintended consequences.

This particular anti-emotional abuse legislation contains language regarding the intent of the abuser, as any such legislation must. We wouldn’t want to outlaw mere rudeness, for instance, however abrasive it might be. Intent is sometimes readily apparent and legally relevant: for instance, degrees of murder and manslaughter are sometimes distinguished with respect to the intent (or lack thereof) of the perpetrator, which can be reasonably inferred from behaviors like obtaining weapons, making written or recorded claims about intending to kill someone, and using weapons in ways that are likely to be fatal.

However, establishing intent for emotional abuse is doubly difficult. First, the intent references the ambiguous and largely subjective goals of “control” and “coercion.” Second, even if we can agree on what constitutes “control” or “coercion,” do we really expect to see evidence of such intent, as in an intended murder? Rather, emotional abuse is in the eye of the beholder. Moreover, individual fear responses vary widely. Should a perpetrator really receive a harsher punishment for having incited more fear in a coincidentally fearful person than in someone less susceptible? The justice of allowing up to 14-year prison sentences to depend on personal emotional responses and the resulting testimony is dubious, to say the least.

Also, notice that the language in this legislation would actually criminalize plenty of conventional, non-abusive marital relations. Often, a family has a single breadwinner, male or female, while the other party takes care of the home and children. Or, often two partners have a large disparity in incomes. To the letter of the law, it seems that the breadwinner or wealthier partner could quite routinely be accused of depriving the other partner of his or her independence, or exerting financial control over his or her life. We can’t rely on prosecutorial discretion alone to pick out which of these morally unproblematic arrangements should be brought to court, perhaps punitively by one partner when something goes wrong or someone wants a divorce or custody of the children.

Determining which behaviors legitimately meet the criteria established by the anti-emotional abuse legislation without prosecuting false positives or ambiguous cases will be difficult. And for what?

Part of the bill is redundant, forbidding already-illegal physical and sexual abuse. The psychological control and coercion parts would be the legislation’s new contribution to the criminal code.

Retributive punishment and preventing recidivism seem to be the primary goals in criminal law, with rehabilitation of the offender often receiving lip service but taking the back seat in practice. Protracted he-said, she-said arguments in court over who felt what when, and why, are not really going to benefit emotional abuse victims very much at all. Even if some speech acts are not protected by the First Amendment (e.g., yelling “fire!” in a crowded theater), we must take care to leave as much room as possible for merely reprehensible speech. When not a part of other already-criminal offenses, like assault and rape, these speech acts are protected.

This particular anti-emotional abuse legislation and other attempts at it are bound to be simultaneously over-broad and under-specific. Its content may unjustifiably erode classes of protected speech, without delivering tangible benefits to the victims of emotional abuse. We could better improve the lot of these victims by making it easier for them to bring civil, not criminal, claims against their abusers – with outcomes that involve restitution instead of jail time. Making people feel bad, even deliberately and systematically, should not be a crime.

Pamela Stubbart is a Young Voices Advocate and an independent knowledge worker and philosopher based in New York City. She holds a BA in philosophy, magna cum laude, and has studied philosophy and education at Columbia University’s Teachers College.

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Pamela Stubbart