I’m reading an English landmark legal case called R v Ireland. It involves whether or not “words” amounts to actions and, therefore, assault.
In the case, the defendant made a series of silent telephone calls over a period of time to three different women. One of the women pressed charges. She suffered from stress, inability to sleep etc …
In English law, an assault is an act causing the victim to fear an immediate application of force.
I have two questions I think are interesting:
(1) Does psychological harm constitute actual bodily harm – if it manifested in a psychiatric illness verified by the medical profession?
(2) Is direct personal physical violence required to “inflict” that fear/harm? In other words, can words or gestures suffice in a given context?
This is not merely a question of restricting free speech on the basis of offensiveness, but causing psychological harm.
You can always hang up a phone and you can always walk away. I suggest that people let themselves get psychologically harmed by other people by a refusal to ignore other people. Being Schizoid, this is a very bizarre phenomenon that I see people do. Extroverts seem to have almost an eccentric compulsion to hear other people.
Most establishments, especially private ones, will not tolerate shouting matches or harrassment because it deters potential business.
So basically, it seems to me there’s no case to be had for “psychological harm”. What a person chooses to hear is entirely within their power to control.
As already mentioned, you can always just hang up a phone. To be assault there must be some dimension of immediacy and inescapability. If someone calls your phone and says, “I’m on my way to your house and I’m going to kill you” this is not considered assault but if someone is standing directly in front of you screaming “I’m going to kill you right now!” that’s assault and you are likely justified in using physical violence to defend yourself.
A silent phone call has neither immediacy nor inescapability. The recipient would not be justified to trace the call and go use physical violence against the dialler. The recipient would be perfectly justified in calling a bodyguard but the costs incurred as a result of receiving a silent phone call would not constitute a tort, that is, the recipient couldn’t sue the silent caller for the costs of calling the bodyguard.
“causing psychological harm” - I have no idea what psychological harm is. I can’t touch it, see it, measure it, reason about it, or establish any reasonable limits to it. Hence, psychological harm cannot be a basis for tort claims, else torts would be unlimited. My not smiling at you as we walk past each other on the side walk could have caused you “psychological harm” for which you could sue me. If you claim that some of my property belongs to you (as a tort award) then you need to show how and why that property is not mine but yours. So, you have to show what I did that was an implicit theft or “unilateral reassignment of property boundaries” on my part.
Brief responses to your questions (see above for explanation):
(1) No.
(2) No but the victim’s psychological state of mind is not the tort. Yes.
There was intent to harrass and intimidate. He purposedly set out to cause distress to his victims. His chosen method was to try to convince them they were under threat of physical assault from him. Seems like a clear cut case to me.
I didn’t know making people feel a certain way was a punishable offense. Why not replace that with embarrasment or grief? Maybe we should lobotomize people so that they never feel those nasty emotions that make them all frownie-face every day.
Why on Earth would you call up an attorney if you feel threatened? I mean of all the people in the world, an attorney? You might as well call up your local veteranarian and tell them of your woes. At least maybe they could give you half off your animals vaccinations as consolation.
Yes, I suppose if you’re willing to punish thought-crimes it’s very clear.
I agree with you about the pschologicial harm aspect, but what about tying up someone’s phone lines? After all, it is my phone line, and if I don’t want someone to use it, I have the right to restrict them from that. I can always hang up the phone, but if the person were persistent, I imagine I would have to do something about it. I can always shut my door, but eventually I have to lock it. In some areas that may not be enough - I may have to buy a gun and bar my windows. Or if I own a jewelry store I may need to hire a security guard.
Is it not the same with phone lines? I can hang up the phone, but eventually caller ID helps me not answer calls I don’t want. But some people may be persistent, and at that point they are causing me a problem, but it is not pschological. They are tying up my phone lines and I can’t answer calls or make calls out while they are using my lines.
I’m not sure I see a difference between tying up someone’s lines and say, sending someone a computer virus. In either case, someone is using another’s property in a way that the owner does not permit.
The answer is very simple, and of course is based in property rights. The phone line connecting to your home is your property, or at least you have control over it. You simply deny the caller the right to invade your phone line anymore by indicating when they call it’s a trespass and you deny them further entry. Anything further calls would be a violation and thus give you credence to press charges.
He intended to cause harm. (Intent is important proceduraly, proving intent is as good as admission by the perpetrator.)
He suceeded in causing harm. (Therefore it was not victimless.)
He used a threat of illegal action (physical assault) to do so. (Kind of like the taxman.)
Open and shut case. This was not a case of him causing distress by flaunting a particularly outrageous bumper sticker or clothing in a certain manner. He did it by transgressing against his victim’s property rights. Physical assault is an attack on property rights as is threatening physical assault.
Are you acting dumb? What, he made “a series of silent phone calls over a period of time to three different women” by accident? Maybe he was testing his phone line? Why do you make a series of silent phone calls?
That is a great point. But I would position that even the first unwanted call is trespassing. Just like with spam e-mail. The first unwanted e-mail you get is no less spam than the subsequent spam.
Of course there is trespassing and then there is trespassing. Imagine a grown man who makes a habbit of going around your house in circles with an axe on his shoulder. His punishment should be more than a child who makes a habbit of cutting a shortcut across your property on the way to the conveniance store.
Similarly unwanted calls by telephone pollsters and salesmen aren’t as bad as serial silent calls.
No, I don’t think this is the right answer. The problem is that phone service is just a service. If phone technology had not be so heavily riddled with State intervention, the quality of your phone service would simply be a matter between you and your phone service provider. Stalking and prank calls have always been a problem but it would be the service provider, not the customer, who would be primarily concerned with stopping these. Potential solutions are many - if you become the victim of a phone-stalker, just call your phone provider and provide them whatever details you have on the stalking then ask them to put a temporary redirect on your phone line (temporary ph # change) and update your familiy, friends and business contacts with the temporary change. The stalker can then be tracked down by the phone service provider. That’s just off the top of my head, who knows what people would think up to deal with the problem and in a free market in phone service, providers could not afford to be behind the state of the art in stopping phone stalking. In any case, your right “not to be called” is certainly not a property right any more than you have a right not to be approached at a restaurant or your right not to be photographed while walking down a public thoroughfare. The phone is connected to a network where anyone can call anyone. It’s just a device. Its use doesn’t create any sort of new legal rights or powers or property rights on your part.
Even Statist law does not define phone stalking as an assault. There are “stalking orders” you can put in place - at least, where I’m from - and these would then make further phone calls an arrestable offense … but you have to know who is stalking you so you can file the stalking order against them. Stalking orders are socialistic, just like restraining orders, but in a free market of law and security, you could hire a body guard to accomplish the same purpose.
Am I in the twilight zone? Someone makes a few phone calls and doesn’t say anything, and it’s
an “assault by words”
empirical fact that he was “intending to cause harm”
empirical fact that he “succeeded in causing harm”
he “used threat of physical force”
Silent phone calls. As in, dialing a number and not saying anything. That’s not only an “assault by words” and a “threat of physical force”, it’s a threat that “causes harm”. And I’m playing dumb? Seriously am I summarizing this accurately?
I was never expecting to be so amused by this topic.
As for the whole argument that “My phone is my personal property!” and that you can tell people not to call you and they should listen. Look, the whole assumption when you get a phone line is that you’re going to get calls from people you know, and people you don’t know. There’s going to be sounds that come from your phone that you like, and some that you don’t like.
If you’re house is down-river, you’re going to get other people’s shit. Sorry.
You can’t get retribution for the fact that a device that’s designed to make noise is making noises that you don’t approve of (or lack thereof in this case.) Unless there’s some stipulation in a contract, a person can use the service that they purchased as they damn well please.
Why didn’t this lady call this evil person back and “silent call” him, but twice as hard!
Edit: Just noticed noticed Clayton had a similar argument, except his was much more eloquent. Oh well.
Yes, you know you’re on the right track when you’re using terms that normal people would use completely differently - i.e. when you’re talking in code. That’s how lawyers roll. What purpose would we have if the mundanes could simply understand the law that’s meant to apply to them?
“Assault by words” is obviously an abridged term which might include non-verbal communication. Whether or not there is communication - explicit or otherwise - is the key. e.g. X walks up to a bank teller, pulls aside his jacket slightly to reveal that he’s carrying a firearm and is wired with an explosive vest, and hands the teller a note simply requesting that he hand over a sum of money and remain quiet.
X hasn’t explicitly threatened the teller or bank in his spoken or written words. Nevertheless, it’s clearly an implicit threat from the surrounding circumstances, and liability for a violent offense such as assault or armed robbery could be established from this premise.
Where there’s implicit communication, an arbitrator has to look at surrounding circumstances to establish its existence and contents, which is what the House of Lords did in R v Ireland. They may have made a questionable finding of fact concerning psychiatric harm, but their finding of law in regards to an implicit form of communicated assault appears to be sound.
Do the surrounding circumstances in R v Ireland justify the characterisation of the silent phonecalls as an implicit threat? Would it be reasonable for the plaintiffs to interpret the defendant’s actions as a threat?
I think it’s a close call, but that issue is being distorted by the question of psychiatric/psychological harm, because once one alleges such a thing, they are essentially saying that it should not be expected that their actions or viewpoints be reasonable. Indeed, the court seems unconcerned with the defendant’s intention, which is a material requirement of making a “threat” - you can’t make a threat negligently, after all - and overly concerned with the subjective viewpoint of the plaintiff, which by her own admission is distorted, since that is the underlying basis for an alleged psychiatric malady.
Do you?
Psychiatric harm, as a simple matter of fact, cannot be empirically established the same way “other” medical maladies and diseases can, because there is no pathological basis in the body for the maladies and illnesses psychiatrists diagnose. They can’t point to a specific lesion, or produce any sort of empirical test which physicians who are complete strangers to the patient can appreciate as genuine, objective evidence of a medical malady. As any respectable psychiatrist or psychologist will attest, they can’t make a diagnosis of psychiatric harm without an intimate, personal, long-term therapeutic relationship with the patient, the minutes of which are not something that can be hauled before a court of law as if it were a pathologist’s report or the results of a blood test, or a similar piece of hard medical evidence.
While a psychiatrist might like to think that he’s coming to an objective diagnosis of his patient that any other competant psychiatrist would come to, given the same information, the methodology involved in acquiring this information precludes this optimistic assumption from being tested in reality. It’s not so easy to just go out and get a second opinion from another psychiatrist after you’ve been in therapy for three or four years. If it were a pathological medical problem, one could achieve this fairly easily. The methodology of psychiatry is terribly subjective.
Besides, even if the simple fact of psychiatric harm is accepted, there is the question of calculating damages, from a private law perspective. If someone breaks your leg, it’s easy to send them all your medical bills and charge them for income you lost while recuperating etc. It’s easy for objective observers to see whether or not a particular string of hospital bills arose from that broken leg, even if additional medical complications also arise, and it’s fairly easy to see that the injury might prevent one from working until it heals. Finally, and perhaps most importantly, it’s easy to see when the broken leg is healed.
How does one do these things with psychiatric harm? When the plaintiff walks into a psychiatrist’s office, is the psychiatrist only going to treat them for psychiatric damage that arose from the defendant’s actions? Presumably not. Is he going to be able to demonstrate that some of the harm he is treating is due to early childhood traumas, for example, and other parts are due to the harm the defendant caused? If the patient continues to require therapy and/or psychotropic medication for years and years, is the defendant liable for all of it, even if no mentally healthy person could possibly have been disturbed to such an extent by his actions alone?
To what extent did the defendant actually cause the specific psychiatric harm suffered by the plaintiff? Surely he shouldn’t be liable for harm that he did not cause? How do you establish, empirically, on a balance of probabilities, that a given aberrational behaviour or subjective sense of unease felt by the plaintiff - a psychiatric disturbance - is due to the defendant’s actions, even if it is accepted that harm in general may have resulted?
If someone is a ticking timb bomb of psychiatric disturbances waiting to be unleashed, surely it is not the straw which inadvertantly breaks their back that should be held entirely liable? Shouldn’t some harm fall upon the plaintiff for walking around in such a state? I think this is point Seraiah was getting it.
Okay, so again, I just want to make sure I’m reading this correctly. Someone picks up a phone, dials a number, and then doesn’t say anything. That’s an “assault by words”, a “threat of physical force”, and it “causes harm.” Is this your assessment?
Psychiatric harm, as a simple matter of fact, cannot be empirically established the same way “other” medical maladies and diseases can, because there is no pathological basis in the body for the maladies and illnesses psychiatrists diagnose.
Quite. Then Seraiahs theory regarding the causes of mental illness is just made-up nonsense informed by absolutely nothing. Maybe I misunderstood what Seraiah was trying to say, but from where I am sitting it looked like he/she was just blaming mental illness on the mentally ill. As if all that is needed is for people to ‘snap out of it’ or ‘pull themselves together’.
But I do think that there might be surrounding circumstances which would allow a silent phonecall to be considered a threat. For example, if someone had prior foreknowledge of credible threats against their life, they might suspect that such a phonecall was to verify their presence at home, and that their life were in immediate danger.
I don’t personally see a threat having been communicated in Ireland… The premise rests too subjectively on the plaintiff, who is alleged to have mental disturbances which make her extraordinarily sensitive to perceiving threats which aren’t there at all.
