Why Laws Criminalizing Hurt Feelings Must Fail

First, there was bullying. Then, cyberbullying. Next up was revenge porn. Now, it’s street harassment. The common thread between these wrongs that have generated calls for criminalization is that the harm to be ended isn’t objectively observable, quantifiable, provable, but ephemeral and personal.  They seek redress for hurt feelings.

Before anyone blows a gasket, this isn’t to say that hurt feelings aren’t real, or that they can’t also produce objective cognizable harms, such as public ridicule or loss of employment opportunity.  And some people whose feelings are deeply hurt harm themselves, to the point of committing suicide. This is a tragedy, as is any needless taking of life.

But the sticking point isn’t so much about whether hurt feelings are sufficiently serious as to warrant a criminal law, but rather how a law, an expression of elements of an offense in words, can be drawn in such a way as to clarify what is prohibited so that it is limited to the offensive conduct without giving rise to ambiguity.  It’s the ambiguity that opens the door to unconstitutional impacts, whether facial or as applied.

Non-lawyers, understandably, have a difficult time understanding why this is so.  They read the words of proposed laws and clearly understand what is intended. They lack the experience with the law, with the execution of the law, to see beyond their certainty that they know what a law means.  The problem isn’t what they are certain it means; the problem is what it says.

I’ve invoked the Rule of Lenity here in the past, often to be met with a certain amount of confusion.  Walter Olson at Overlawyered posts about it, offering a far more detailed explanation of why it exists and its critical importance. He starts with a quote from the beloved Nino Scalia:

Justice Scalia on the rule of lenity in U.S. v. Santos, 2008:

This venerable rule not only vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed. It also places the weight of inertia upon the party that can best induce Congress to speak more clearly and keeps courts from making criminal law in Congress’s stead.

Putting aside the whole activist aspect, the Rule of Lenity is a rule of statutory construction, that ambiguity in a law is resolved in favor of the defendant, as “no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.”  In other words, before anyone can be held accountable for a crime, he must know with certainty what conduct is prohibited.

When laws are crafted to prohibit conduct that produces the outcome of hurt feelings, the nature of the hurt becomes an element of the offense.  It’s hard, if not impossible, to assess in advance the feelings that conduct will produce in another person. The delicate flower will be hurt by almost anything.  The indelicate will not be hurt by much of anything.  Each of us assumes that our level of hurt-iosity is the normal level that normal people would find hurtful.  It’s a facile self-delusion, but we believe it, and so it must be.

There is a secondary, constitutional dimension aspect to this problem, that has been discussed here at great length, about the right to say things that hurt other people’s feelings.  If someone says something you think is stupid, you have a right to tell them that what they said is stupid. And they have a right to respond that you’re stupid too, plus you suck.

The issues of statutory construction and constitutional impairment are separate, but dovetail. Courts could narrow the application of a statute that says it prohibits constitutionally protected speech by holding that it can’t and doesn’t, but is otherwise fine as to the conduct it is intended to prohibit.  Yes, this is the activism that Scalia derides, but it appears from legislative sloppiness and compromise, lawmakers figure the courts will clean up their mess when the times comes, saving them from the hard work of crafting clear laws.

But more likely is the push of advocates to pander to their interest groups that the inability to craft unambiguous laws is less important than their need to end the horror of hurt and criminalize the conduct they hate.  It’s not that they figure a court will clean up the mess later, but that they couldn’t care less how badly a law is crafted, or the unintended consequences of their cries for justice.  Take one for the team is the rallying cry of those who demand that no feelings ever be hurt again.  The feelings of those who are expected to take one for the team, well, never quite get the same concern.

Vikrant Reddy has written a thoughtful homage to the importance of the Rule of Lenity at Texas Policy, noting that the rule is eroding.

Although this understanding should be perfectly ordinary, the application of the rule of lenity has in fact begun to erode dramatically in recent years. This has happened in concert with a troubling phenomenon: the dramatic growth of criminal law in a variety of non-traditional arenas, generally involving freely agreed-upon exchanges between adults.

He writes in the context of regulatory crimes, malum prohibitum, as a means of enforcing conduct through criminal sanction that is otherwise wholly lacking in any moral culpability.  As the disconnect between wrongs that should be stopped and the ability to express them with sufficient clarity that criminal laws say exactly, and only, what they mean, without reliance on the vague Potter Stewart punt, the Rule of Lenity dies a little bit.

Whenever someone says “there ought to be a law,” the response should be “prohibiting what?”  What any honest person will grasp is that crafting a law that only criminalizes the evil they think needs eradicating, without impinging on other conduct or rights, is very hard.  And when an aspect of the law is the harm done to someone else’s feelings, it’s essentially impossible.

16 thoughts on “Why Laws Criminalizing Hurt Feelings Must Fail

  1. Patrick Maupin

    Hurt feelings have seen the special treatment that scared feelings get, and are demanding parity. The opprobrium you heap on hurt feelings leads me to the inescapable conclusion that you are feelingist.

      1. Wheeze the People™

        A feelingist, yes. But a cunning feelingist and, dare I say, a cunning linguist?? . . . There, I said it . . .

    1. SHG Post author

      You have an intellectual disability.

      As someone who has advocated for a long time for the intellectually challenged, I’ve found the forced removal of the word “retarded” hugely problematic when it’s necessary to describe a person’s IQ. In particular, in discussing whether a person with an IQ of 70 (with a standard dev of 5) can be executed, the issue isn’t whether he’s intellectually challenged, but whether he is mentally retarded. The former may make him feel better, but the latter will save his life.

      I don’t care for people using the word “retarded” as a pejorative, but to remove it from the lexicon because it’s been misused deprives us of a word that served its medical purpose very well. And that’s a problem.

      And besides, that’s not the stupidest HuffPo of the day. This is.

      1. david

        I’d like to think that poor young outraged Jordan was taking the piss, but sadly I can feel the power of his sincerity in every sentence

      2. ShelbyC

        From the HuffPo piece: “particularly the joint views from both the white and colored representatives of the Social Justice & Equity Committee ”

        Are we saying “colored” again?

      3. Patrick Maupin

        > And besides, that’s not the stupidest HuffPo of the day. This is.

        Umm, yeah, well, I do have to admit that yours looks bigger.

        But up until you showed it to me, mine was the most intellectually disabled — no, wait, can’t do that or they’ll come up with something even more, uhh, uhh — say, are there enough “brain-dead” people out there to be a constituency? (Hey, you used “stupidist” and that can’t be politically correct because the stupid really do seem to have all the power.)

        In my defense, I wasn’t going out of my way to read the puffington host — google’s esteemed algorithm somehow figured out I wanted to see the propaganda I shared with the class. What’s your excuse?

  2. Wheeze the People™

    If I may be so bold, I believe this appetite for destruction began long ago, maybe first starting with the criminalization of “Disturbing the Peace of Another” — a vague, and overbroad law which seems to cater to the feelings of an individual in the context of their own namby-pamby world-view. And yet, when I reflect on your criticisms of feeling-oriented criminal laws, I often find you disturbing my peace (by withholding a well-timed and necessary tummy rub), or perhaps it is you who are just inherently disturbed, IDK?? . . . If we ever have cake together, please do not touch, molest, annoy, or otherwise disturb my piece of cake, because that would make me feel bad and I don’t want to see you arrested and tased for disturbing my piece, at least in my presence, as that would definitely disturb my other peace!! . . .

    When I say I am truly OUTRAGED by your attack on my and society’s feelings, I really mean that at times (like when you don’t give me a tummy rub), your conduct is so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society. Capisce?? . .

    So, on this morning, in the spirit of reconciliation, I must sing to you:

    Nothing more than feelings,
    Trying to forget my feelings of love

    Rolling down on, my face
    Trying to forget my, feelings of love

    For all my life I’ll feel it
    I’ll wish I’ve never met you, girl
    You’ll never come again

    Wo-o-o feelings
    Wo-o-o feelings
    Again in my heart

    Feelings like I’ve lost you
    And feelings like I’ve never have you
    Again in my heart.

    For all my life I’ll feel it
    I wish I’ve never met you, girl
    You’ll never come again

    Feelings like I’ve lost you
    And feelings like I’ve never have you
    Again in my life.

    Wo-o-o feelings
    Wo-o-o feelings
    Again in my heart

    Wo-o-o feelings
    Wo-o-o feelings

    With all apologies to Albert Morris and Kurt Cobain . . .

  3. Fubar

    From legislative findings for a new statute to right all wrongs and wrong all rights:

    Souls whose feelings have taken a drubbing,
    Due to spite or to mean social snubbing,
    Need a legal procedure
    To rule “Yes, indeed, you’re
    Entitled to warm tummy rubbing.”

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