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Psychological Harm

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Starling

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Harm is not the basis for our rights, however it often plays a role in legal matters. Everyone's favorite tort, "intentional infliction of emotional distress," is but one example of psychological harm under the law. In an Objectivist theory of law, would psychological harm play any role? Can psychological harm be objectively defined for the purposes of the law? Is psychological harm even a valid concept?

It seems unlikely that one could inflict objective psychological harm without also initiating physical force, such as locking someone up in a white room for weeks. However, would the addition of psychological harm warrant additional punishment? What about something really bizarre, that isn't forced on you but is utterly unexpected, for example you show up to work and your boss has filled the office with wax sculptures of concentration camp victims? Suppose further you were such a victim and your boss knew that and deliberately attempted to drive you to a psychological break? Do you have any recourse under the law? Is your boss's intent relevant?

Further complications arise in the case of children. Should the state interfere with parenting on the basis of psychological harm? We might start with prosecuting parents who sleep naked with their children and end with outlawing the teaching of different political affiliations or philosophies. Could we avoid ending up with Plato's republic?

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As I understand it, the tort of "intentional infliction of emotional distress" is actually disfavored in the law, precisely because it is so hard to objectively prove. Furthermore it is difficult to see how the victim in such cases (excluding children) is not in a certain key respect directly responsible for the harm to themselves by failing to responsibly process the allegedly hurtful cognitive inputs. For example, the proper reaction to the wax sculptures would not be distress but contempt. This is how a confident, upright, rational person deals with irrationalities of all sorts. "Letting it get to you", to use the vernacular phrase, is a choice, and in this respect the harm is essentially self-inflicted; it is the proximate cause of harm. Since the person could have chosen to process the cognitive inputs responsibly and correctly, the concept of the tort as such is, it seems to me, quite invalid as applied to normal, functioning adults.

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In an Objectivist theory of law, would psychological harm play any role? Can psychological harm be objectively defined for the purposes of the law? Is psychological harm even a valid concept?
Yes (to the last); an example is rape. Physical harm can but need not result from rape. Assault (as distinct from battery) is fundamentally about psychological harm.
It seems unlikely that one could inflict objective psychological harm without also initiating physical force, such as locking someone up in a white room for weeks.
A person can be legally responsible for their actions (or inactions), in the form of ordinary tort, like when your tree falls on your neighbor's house you are responsible even though you did not initiate force against him. If you perform a wrongful act and cause harm, you are responsible for that harm, regardless of the nature of the harm. What I think is most problematic about "psychological harm" is that it's hard to provide concrete and objective proof that it exists. Thus if my neighbor willfully and wantonly tortured me psychologically by having a rickety old tree that I was afraid might fall onto my house, I might be psychologically damaged and hope to get an extra $50,000 for pain and suffering (the worry that I was subjected to for years). That's a case of bogus harm from the non-initiation of force.

Here are two borderline-type cases. In one, you have a stranger harrassing a person by calling them up at 3:00 in the morning on a regular basis. In the other, the pilot deliverately drops the plane 30,000 ft. to scare the shit out of you. In either case, there is no actual physical damage, but psychological harm. Now the question is whether there is a rights violation in either / both case. The case for trespassing in the first case may suggest itself, but it's not clear to me that calling a person on the phone is intrinsically trespassing. I don't see any obvious initiation of force in the 30,000 ft freefall case.

Legally speaking, I think the primary issue should be "when are you responsible for harm", and in the specific case, you can ask "Is this harm?". It seems to me that the difficulty with psychological harm is proving that it actually exists (and I suppose I should insert a repudiation of the eggshell skull doctrine -- the standard should be "Any reasonable man would know that the victim would be psychologically harmed").

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Ah. I just remembered that post I made bringing up eggshell skull in the other thread, and remembered I never actually explained the doctrine. Eggshell skull says that if you do a wrongful thing, you are liable for all the damages that ensue, even if the victim was especially sensitive. Thus, if you batter someone in a way that would not break a normal person's arm, but your victim, unbeknownst to you, had weak bones, you still pay for the broken bone, even if the extent of damage wasn't foreseeable before you battered the victim. Applied to psychological harm, the doctrine would hold a tortfeasor liable for the full extent of psychological harm, even if the tortfeasor had no idea the victim was so psychologically fragile. But only if the tortfeasor actually did something wrong that actually caused some injury.

~Q

Ooh, and I meant to add: negligent infliction of emotional distress also exists as a cause of action, and is even less favored than IIED. I'll see if I can look up some stuff on it, since it is really quite rare and I don't remember much about it from first semester torts.

Edited by Qwertz
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Harm should not be the basis of any criminal law. The rights violation is based on initiation of force, not harm. Whether or not the force results in significant physical damage is irrelevant on the criminal side. Your example of the pilot is a crime: dropping the plane threatens the passengers with physical force. Dropping 30,000 feet would almost definitely cause physical damage, as does all rape (even consensual sex results in "wear and tear"). Similarly, an obviously dangerous tree overhanging your property is a threat. When it falls, that is physical force. However a tree that is perfectly safe under ordinary circumstances falls onto your neighbor's property during a hurricane is no threat and no liability. Your neighbor's rights weren't violated by you nor was he harmed by you. You were both harmed by the hurricane, but a hurricane has no volition and can't be blamed.

The purpose of civil law is to provide material retribution for a violation of rights. That means physical force must have been initiated. Criminal punishment (incarceration, etc.) need not be involved, as in a dispute over contract violation. However violating a contract IS initiation of force.

The act of rape (or any other criminal act) is no more a rights violation and no worse when committed against a psychologically weak person who experiences more mental harm versus an exceptionally psychologically strong person who experiences no (or less) mental harm.

Economically, if you punish the same crime differently for different victims, i.e. if the rapist has to pay for lost work time due to psychological distress, you are creating an incentive to target certain victims, such as poor or psychologically strong people. Are such concerns relevant in questions of law? The law is not meant as a deterrent. It is supposed to dispense justice. I'll have to think more about justice in order to answer this.

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Harm should not be the basis of any criminal law.
I agree: wrongful act is the basis. Harm is relevant only in determining the consequences, for example the extent of an award to the victim in a suit. (Law suit, not pinstriped).
The rights violation is based on initiation of force, not harm.
Yes, and there are those criminal acts involving initiation of force which violate rights. I thought we had set aside the obvious fact that rape can result in serious psychological harm, and the remaining question regards non-criminal wrong.
Your example of the pilot is a crime: dropping the plane threatens the passengers with physical force.
No, it is not (or, would not be in a proper society -- all sorts of stuff is against the law these days). I should have anticipated this response. Not every wrongful act is an initiation of force, and to attempt to declare all wrongs as being "initiation of force" trivializes and subjectivizes the concept of initiation of force. As does the suggestion that even consensual sex is the initiation of force. You have to examine your understanding of "initiation of force", so that you avoid the absurd consequence that no man may rightfully interact with another man for fear of "initiating force without permission".

The general idea behind civil law is that actions have consequences and that actors are responsible for those consequences. However, because crap happens, sometimes you just have to say "it was an accident", thus absolute liability should be severely limited. The purpose of civil law is to provide material compensation for wrongful acts by another person, which includes errors of knowledge. This will include the mistaken belief that such and such tree is perfectly safe and sound and does not endanger another man's property, the mistaken belief that a contract clause requires delivery of a crate of widgets by noon on July 12, not July 10, and so on. Most decidedly, violating of a term of a contract is not initiation of force, and only becomes so when the person in breach has been ordered by the court which determines that there is a breach to provide a certain remedy, yet refuses.

Economically, if you punish the same crime differently for different victims, i.e. if the rapist has to pay for lost work time due to psychological distress, you are creating an incentive to target certain victims, such as poor or psychologically strong people.
For crimes, I see no validity to variable punishments which take into consideration effect on victim. The closest one can get to that in criminal law relates to the extent of evil of the criminal, so that the punishment for torturing a child should be more severe than the punishment for popping someone in the snoot during a bar fight not because of an intrinsic relationship between harm and punishment, but because of the extreme depravity of the torturer.

For civil torts, the question is simply, what harm was done? The reason why this question has to be asked is because there is otherwise no consequence attached to torts (given that they are not crimes with specified fines or jail sentences). However, as I say, the eggshell skull doctrine is a problem, though not just for psychological harm. I'm still working on integrating that doctrine with other concepts of justice. The problem I see with it is that it presupposes that there is a clear understanding of wrongful acts which is not defined by the consequences of the act. So patting a person on the back is not something that should be considered a wrongful act, it is a friendly act. However, the guy with an eggshell spine may be crippled for life if you touch him. Unquestionably, if you know of this condition, then patting the guy on the back is a wrongful act because it requires acceptance (or evasion) of the consequence of the act, harm -- that's the essence of a wrongful act. I hope it doesn't get to the stage where omniscience is required and we find successful legal arguments of the form "should have known that this damage could result, because this damage did result".

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Psychological harm done to someone intentionally is definitely evil, since it might take him years to recover. I think if it can be shown that it was intentional and that the perpetrator knew harm could result -- and did the act for that reason or motivation -- then he has to be held accountable for that action. Whether or not this holding accountable ought to be legal or moral would depend on the initiation of force. In some cases, significant psychological harm can result from continuous harassment, and a man has the right not to be harassed; that is, he has the right to decide who to associate with and who not to. So, for something like harassment that leads to psychological harm -- fear of going out of the house or walking around a mall, for example -- I think the initiation of force is involved in that it is almost impossible to ignore someone who is continuously following you around and harassing you. Harassment and stalking is illegal, and ought to be, for that reason.

When it comes to psychological harm in general, I agree that an individual is responsible for his own psychological condition, provided no force or fraud was involved, but sometimes it is certainly possible that someone was harmed psychologically without that being the intent of the accused. Such a case might be that if someone reads a novel that triggers him on some psychological condition -- like happens from time to time with war veterans -- then the harm done was not intentional at all, and no force or fraud was involved, and therefore that person is responsible for his own psychological health.

In the case of the airplane pilot deliberately trying to scare the hell out of you, yes, I think he can be held legally responsible for his actions and the fear of flying that might result from his actions. Unless one is signing up for a stunt flight, one expects the pilot to keep control of the airplane even in emergencies; one does not expect him to drop out of the air just because he felt like it. In this case, I would say that the pilot or the company could be held accountable for therapy that the passengers would have to get. But, it is true that the extent of the damage could be hard to determine. However, the fact that it is difficult to determine the extent of the harm would not imply that the perpetrator ought to have to pay out three trillion dollars, as is what happens these days in court. I don't think it is always possible to specify what the psychological harm done was, but if the person harmed can show that he developed a medical condition due to someone else's actions that were deliberate to cause psychological harm -- say he develops a life-long mental illness due to someone's deliberate actions -- then he can be compensated in a just manner.

In short, psychological harm is real, and if the initiation of force was involved in doing that harm, then I think it needs to be taken into account, at least insofar as a court assigned damages to be paid. But that would depend on finding out what the deliberate actions where and if the perpetrator knew that harm could result, and kept doing it even though he was told to stop by the victim or continued even knowing that psychological harm would result. But I think the issue of initiation of force is the root of a proper legal system, and if no force was involved, then the person complaining about psychological harm done really has no legal grounds on which to take legal action. For example, if he knew he had problems with reading certain books or seeing certain movies, then it is up to him to deal with those at least until he can overcome his psychological condition. In other words, a second-hander who reads The Fountainhead and discovers his moral dis-worth and claims psychological damages would have no grounds whatsoever.

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Mr. Moivas, you just elegantly summarized my views! To check my understanding, here is my bullet-point summary:

-All legal matters, criminal or civil, must stem from an initiation of force.

-In criminal law, the specific nature of the act is relevant to determine the proper punishment. Note: I am undecided as to the relevance of intent, but perhaps on another thread...

-In civil law, the force-initiator must pay the damage caused to the victim, objectively determined by the court, including costs of treatment for psychological harm because that harm resulted from an illegal action (initiation of force).

-Any kind of harm resulting from non-force-initiating action should not be a illegal issue, neither criminal nor civil.

-And obviously, actions that are immoral but not illegal should have non-force-based consequences like social isolation, but without any government/legal involvement in the matter.

Mr. Odden, I will respond shortly, however our disagreement seems to stem from a fundamental disagreement about the moral basis for law, so we might not get very far. I will at least attempt to clarify my earlier comments and perhaps to convince you that your moral basis for the law is not the same as Ayn Rand's. Either that, or I will discover that I'm wrong!

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So it would seem! I hope it's not a problem that I didn't use the quote function. I wrote this elsewhere and pasted it in.

Quoting DavidOdden: "If you perform a wrongful act and cause harm, you are responsible for that harm, regardless of the nature of the harm."

You use this term "wrongful act" many times. Are you using that term to mean initiation of force (or force/fraud)? If so, you should use the term initiation of force. Wrongful act means an act that is wrong universally, that is, morally wrong. If you mean to say an illegal act, then I agree that the nature of the harm caused is not relevant to your responsibility, only to how much you have to pay. If you in fact mean that the law should hold you responsible for harm caused by -any- immoral action, then I strongly disagree. Can you clarify, please, which is your position? I'm sure you don't want to hear me argue against something you aren't meaning to say! However, the rest of your comments are more consistent with the latter view.

Quoting DavidOdden: "Legally speaking, I think the primary issue should be "when are you responsible for harm""

Agreed. My answer is that one should be legally responsible when the action that caused the harm was 1. provably yours and 2. illegal (initiation of force).

Quoting DavidOdden: "Yes, and there are those criminal acts involving initiation of force which violate rights."

I don't understand this statement. ONLY initiation of force CAN violate rights. The ONLY purpose of the law, criminal and civil, is to protect rights. Therefore ALL illegal actions must not merely involve but actually BE initiation of force. Perhaps you are treating criminal law as an instrument of rights-protection and civil law as a way to enforce broader morality? That is not consistent with Rand's idea of the purpose of government.

Quoting DavidOdden: "Not every wrongful act is an initiation of force, and to attempt to declare all wrongs as being "initiation of force" trivializes and subjectivizes the concept of initiation of force. As does the suggestion that even consensual sex is the initiation of force. You have to examine your understanding of "initiation of force", so that you avoid the absurd consequence that no man may rightfully interact with another man for fear of "initiating force without permission"."

Again, what do you mean by wrongful act? Of course not every immoral action (or most, even) involve initiation of force, but ALL illegal actions MUST. As for sex, here is what I actually said:

Quoting myself: "Dropping 30,000 feet would almost definitely cause physical damage, as does all rape (even consensual sex results in "wear and tear")."

I was disputing your claim that

Quoting DavidOdden: "Physical harm can but need not result from rape."

by pointing out that all sex causes physical damage. The concept harm does not entail lack-of-consent, so it does not follow that I was claiming all sex is the initiation of force. So: all sex causes physical harm, but only rape can (and all rape must) involve the initiation of physical force. Additionally, I intended to dispute that

Quoting DavidOdden: "Assault (as distinct from battery) is fundamentally about psychological harm."

It is in fact about the initiation of force and the resulting rights-violation. Treatment for any resulting psychological harm should be mandated, but the fundamental reason why assault should be illegal and therefore open to criminal punishment and civil suit is that it is a type of initiation of force. Harm is equally irrelevant to the questions "should X be illegal" and "should X be open for civil suit."

Quoting DavidOdden: "The general idea behind civil law is that actions have consequences and that actors are responsible for those consequences."

No, the general idea is that when ILLEGAL actions cause harm (damage) to a victim (innocent), the perpetrator of the illegal act must repair the damage as part of justice.

Quoting DavidOdden: "However, because crap happens, sometimes you just have to say "it was an accident", thus absolute liability should be severely limited."

"Crap happens" does not refer to human actions. There can be no liability in such cases.

Quoting DavidOdden: " The purpose of civil law is to provide material compensation for wrongful acts by another person, "

Again, wrongful acts? Only illegal acts qualify.

Quoting DavidOdden: " ...which includes errors of knowledge. This will include the mistaken belief that such and such tree is perfectly safe and sound and does not endanger another man's property, the mistaken belief that a contract clause requires delivery of a crate of widgets by noon on July 12, not July 10, and so on."

Again, if the tree falls in a storm, there is no initiation of force and no fault, but if the tree falls on a perfectly normal day, intent or not, one man's property hit another man's property with no cause beyond gravity and that IS initiation of force. It may not be something for criminal court, but that does not mean it was not initiation of force. As for the widget question, if you can't read a contract, you shouldn't make it.

Quoting DavidOdden: "Most decidedly, violating of a term of a contract is not initiation of force, and only becomes so when the person in breach has been ordered by the court which determines that there is a breach to provide a certain remedy, yet refuses."

Contract violation is blatantly initiation of force, however not necessarily something you should be locked up for. I can't imagine a contract where the delivery date is ambiguous. Promising X at a certain time if I give you Y, and then not providing X at the agreed upon time is initiating force. It's stealing. You took something under condition, then violated the condition. You therefore no longer possess the other person's property legitimately and are keeping it by force.

A proper court can't force you to do anything unless you have initiated force. If you dispute the terms of the contract, fine, get it determined by the court. If they rule against you, you don't go to jail, you just do what they say. But the contract meaning doesn't magically change when the court rules. The meaning was ALWAYS that, and you violated those terms which IS initiation of force. Don't forget that contracts in our "perfect Objectivist legal system" will have objective meaning, will use language objectively, and will be determined objectively.

Any holes, or places where I mistook your meaning?

Edited by Starling
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On a related note -

Lawsuit against Nancy Grace, CNN moves ahead

A federal judge has refused to dismiss a lawsuit that claims CNN's Nancy Grace pushed the mother of a missing toddler to suicide through aggressive questioning. ...

The family claims Grace's intense questioning caused severe emotional distress that led to the suicide. The lawsuit also claims that the decision to air the interview after her suicide caused the family to suffer severe emotional distress and media and public harassment. They are seeking a jury trial, unspecified damages more than $15,000 and punitive damages.

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For those who are really interested, I downloaded the judge's opinion refusing to dismiss the case from PACER and posted it to my blog. Enjoy!

Duckett vs. CNN

Without going into the whole history of the cases mentioned in the decision, it seems as if Florida has some reasonable laws regarding psychological harm. One thing that really bothers me about this case, if I read it correctly, is that the contents of the show itself will not be entered into the court record. How in the world can a court decide if a legal wrong was done if the facts of the confrontation cannot be entered into the record? But, I'm not a lawyer, and maybe I misread the legalese.

Of course, part of the philosophic issue is the initiation of force or fraud on the part of CNN during this show, which the Ducketts are claiming happened -- fraud in the sense that CNN represented the show would be of one nature and it was of another nature once Mrs. Duckett decided to participate.

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One thing that really bothers me about this case, if I read it correctly, is that the contents of the show itself will not be entered into the court record. How in the world can a court decide if a legal wrong was done if the facts of the confrontation cannot be entered into the record? But, I'm not a lawyer, and maybe I misread the legalese.

As I read the order (also not being a lawyer), the show itself will eventually become part of the record. At this stage of the proceedings (this is where it gets tricky) the Defendants tried to introduce the show as evidence, though the Plaintiffs had not, which would have changed the issue from the sufficiency of Plaintiff's pleadings to a summary judgment. Later stages will include discovery, motions for summary judgment, trial and so on. Most certainly these will include the contents of the show. See, e.g. note 8 ("While there is no doubt that the broadcast of the “Nancy Grace” show will be a crucial piece of evidence going forward in this case...").

Unfortunately, these cases seem to move at a snail's pace so it will be months before we have something more to chew on.

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Yes, under Rule 12(B) of the Federal Rules of Civil Procedure, the court may not consider evidence beyond the pleadings when ruling on a motion to dismiss for failure to state a claim upon which relief may be granted. If one party or another attaches additional evidence to a memorandum in support of or in opposition to a motion to dismiss, the court may consider it (discretionary), but if the court chooses to consider it, it must (mandatory) convert the motion to one for summary judgment under Rule 56(B), which is a different standard and has a different effect on the case. Courts are very reluctant to convert 12(B)(6) motions into 56(B) motions before discovery is complete. The show will be evidence later, for substantive motions or for trial, but not for this procedural matter relating to the sufficiency of the pleadings.

~Q

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You use this term "wrongful act" many times. Are you using that term to mean initiation of force (or force/fraud)?
No, I use it to refer to crimes, torts and contract breaches in general. That would be an accurate description of a crime, but not negligence and contract breach. Additionally, one fact that I hope you don’t lose sight of is that you are indeed responsible for the consequences of your actions, ionly a small part of of which will involves harm to others. Presumably nobody here is going to be denying causality. You cannot leap from the fact of responsibility fact to the conclusion that all harm should be compensated under the law. Some harm should be compensated under the law: responsibility and legal obligation to compensate are different.
If you in fact mean that the law should hold you responsible for harm caused by -any- immoral action, then I strongly disagree.
As I said, you are responsible for your actions, but not necessarily legally liable. If you inject yourself with heroin and damage your body, you are responsible for that damage. If you smoke cigarettes and damage your lungs, even if you are ignorant of the dangers of smoking, you are responsible for that harm. If you leave a window open and a bat flies in and breaks a lamp, you are responsible for that harm. There are a number of things that also have to be true for your immoral acts to create legal liability. Obviously it must be harm to another party. You must deliberately perform the act, for which reason being accidentally in possession of another person’s property is not a wrongful act. The nature of the act must be objectively forseeable by a reasonable man (a gentle pat on the back of a man with an eggshell spine may harm the man, but such harm cannot be forseen). You must, of course, freely choose the act which caused harm (you were not coerced). There are many other things that could be added, for example if you only intent to aid in a robbery but it ends up being a murder, you have still deliberately choses an immoral act which forseeably does damage to another person.
My answer is that one should be legally responsible when the action that caused the harm was 1. provably yours and 2. illegal (initiation of force).
Breech of contract and negligence can’t be subsumed under initiation of force, but they are circumstances where you can (rightly) be held legally responsible for your actions.
ONLY initiation of force CAN violate rights. The ONLY purpose of the law, criminal and civil, is to protect rights. Therefore ALL illegal actions must not merely involve but actually BE initiation of force.
If you are redefining the concept of “force” so that it simply means “any act which a proper court would find to be wrongful”, then I don’t see that there is any further discussion necessary; I reject that definition as being counter to fact in terms of what force actually refers to, but if you want to stipulate that definition, you can. It would simply mean that when you say “force”, you mean something totally different. I am trying to imagine what you mean by “force” especially in such a way that it directly leads to the conclusion “all things addressable by law involve force”, and I’m not getting anywhere. What is your objective definition of “force” so that a man can know that he is initiating force?
Perhaps you are treating criminal law as an instrument of rights-protection and civil law as a way to enforce broader morality?
No, I am assuming “individual rights are the means of subordinating society to moral law”. Criminal law is the implementation of one broad moral concept, that certain acts are so immoral that they can be prohibited, regardless of damage, and they are very well described in advance. Civil law pertains to those matters which are not so clearly described independent of knowledge context and which can require expert and independent reasoning, for example determining the scope of “not” in a contract. When an insurance company declines to pay a claim on the grounds that, under their construction of the contract they have no obligation to pay the customer, that is not an initiation of force. When the court finds that the company’s construction is mistaken, it will hold that the company has an obligation to pay the claim, which the company will of course do, once that objective determination has been make in court. Similarly with matters of disputed property and supposed negligence: perfectly moral, reasonable, rights-respecting individuals disagree as to the facts and how they bear on the conclusion as to responsibility or ownership. A court will make a determination, and then the property will either stay with the person holding it or be returned to the other party, accordingly.

Implicit in the notion of criminal act is the judgment of evil, so that punishment attaches to the commission of the act. Lack of factual knowledge is not evil, so punitive damages are not assessed when one’s actions cause unintended harm.

I hope you can clarify your definition of “force” (it seems to me that a lot of your comments hang on that one point). I recognise that some of the distinctions I’m drawing are subtle, for example the difference between responsibility and a legal obligation to compensate; the nature of “harm” (why sexual intercourse, properly done, is the opposite of harm); the broad role of law in achieving justice in relations between men versus the restricted role of the governments monopoly on retaliatory force as a means of obtaining such justice, indeed the very relationship between law and government.

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Of course, part of the philosophic issue is the initiation of force or fraud on the part of CNN during this show, which the Ducketts are claiming happened -- fraud in the sense that CNN represented the show would be of one nature and it was of another nature once Mrs. Duckett decided to participate.

I agree that this is important, even essential. An important concept that has barely been touched-upon here is that of consent. I think that consent, especially given expectations in a particular social context, should make a difference regarding liability. There should be no liability if consent for the otherwise-wrongful act was given. I think that this has enormous implications in the area of psychological harm and actually obviates the eggshell skull problem significantly. If it can be shown that the victim should have expected the act that resulted in harm given the social context and chose to participate anyway (thereby granting consent), the other party should not be held liable even if they knew of the victim's weakened condition.

Edited by Seeker
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I think that consent, especially given expectations in a particular social context, should make a difference regarding liability. There should be no liability if consent for the otherwise-wrongful act was given.
This is extremely true, but probably not as helpful as you might think in resolving such cases. The reason is that explicit consent is usually directed at a certain goal, such as "Drive me to Missoula", and not the steps reasonably required to do so. There is never a complete statement of everything that you have consented to and what the business is obligated to. Therefore, if the bus staff forces me to submit to a cavity search, I would not conclude that I've consented to that requirement (it was never explictly stated and not reasonably inferrable from the nature of driving customers to Missoula) but I would conclude that I have agreed to a requirement to wear a seat belt, since it is a good idea from a safety perspective and I do know that it is something that a bus company could require.

The question in the Grace case should be whether her conduct was so unexpectedly outrageous that Duckett could not have forseen such questioning. (Which could arise if Grace actually represented the interview as a cuddly lovie-dovie sympathy session). Enough people have seen The Daily Show, 60 Minutes, Michael Moore, and Bullshit, not to mention Jerry Springer and similar shows, that I don't think anone can reasonably expect much from a media interview, and thus, consent was implicitly given.

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Enough people have seen The Daily Show, 60 Minutes, Michael Moore, and Bullshit, not to mention Jerry Springer and similar shows, that I don't think anyone can reasonably expect much from a media interview, and thus, consent was implicitly given.

I don't think it is a reasonable expectation that all TV shows are like the Jerry Springer Show, as at least some of them are less confrontational, such as the Ophra Show, and some of the shows I have seen Objectivists interviewed on. I, for one, have never heard of the Nancy Grace Show, and so I would not expect it to be like the Jerry Springer Show or other hostile shows. Although, given the case so far, I think part of the motivation of Nancy Grace was to expose a murderer right in front of God and everyone. And under that sort of harsh questioning, I wonder if it would even have been prudent to just hang up or walk off the show interview, leaving the impression that one doesn't want to be interviewed because one is guilty of murder. Some shows focus too much on making scandalous headlines, and if the woman who committed suicide thought the show would help her to find her son, and then gets grilled as guilty until proven innocent, she would definitely have been put under further psychological stress.

And I have to wonder about shows such as Fear Factor, and their liabilities if someone has a heart attack. Sure, one might have to sign a waver of some sort, but they literally try to scare the begeezies out of their guests. I wonder how much the guests know about that before the fact?

The "eggshell skull" scenario is interesting in that one can have a reasonable expectation of how to treat people, and doesn't ordinarily expect someone to freak out psychologically or get broken bones due to normal activities. But certainly, if someone notices someone freaking out or complaining about bone fractures, the person doing that ought to back off take some responsibility for his actions, as Dr. Peikoff talked about in a recent podcast. He most definitely ought not to keep at it like a sadist drooling over the fact that he is harming someone else with little effort.

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I don't think it is a reasonable expectation that all TV shows are like the Jerry Springer Show, as at least some of them are less confrontational, such as the Ophra Show, and some of the shows I have seen Objectivists interviewed on.
Certainly not, but what would matter would be if none are like that. It's well known that this is a sufficiently common kind of infotainment show, that you simply cannot reasonably say "I never imagined such questions could be asked!". And that is how you have to judge the consent issue: a reasonable man would conclude that that treatment is possible, and if one is not capable of withstanding such questioning, then one should not agree to the interview in the first place. This negates any liability in this case (barring a finding that there was actual severe misrepresentation, which I feel confident that a professional attorney would not engage in).
And under that sort of harsh questioning, I wonder if it would even have been prudent to just hang up or walk off the show interview, leaving the impression that one doesn't want to be interviewed because one is guilty of murder.
The prudent thing to do would be to only agree to such an interview under circumstances that will not put you at risk. If you are not willing to answer difficult questions with courage and honesty, then you should not put yourself in that kind of situation.

I have not seen the interview so I can't judge Grace's conduct from a moral perspective. I have seen enough Michael Moore to know that he is an evil, disgusting slimebag, unquestionably deserving of moral condemnation. However, Moore's antics do not rise to the level of legally actionable (at least, nothing that I have seen), and the written evidence tells me that Grace too has no legal culpability.

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If you are not willing to answer difficult questions with courage and honesty, then you should not put yourself in that kind of situation.

I agree, and I haven't seen any of The Nancy Grace Show especially the one in question. So a moral or a legal determination is not possible for me at this time.

I do know that I recently agreed that a woman I loved could have a chaperon, and that it got way out of hand without me ever seeing or communicating with the woman in question. It's like the chaperons took over and harassed me nearly to the point of insanity, if that was even what was going on. So, it is possible to reach an agreement in principle, and to have either side have a totally different understanding of the ground rules.

And I tell you one thing from that episode, I will not reply to anonymous emails or make agreements via the Internet without having a means of fleshing out exactly what it means with someone who is willing to identify himself to me. In retrospect, I did a lot of stupid things that summer of 2005, but I didn't deserve to be harassed or stalked that way. And it is hard for me to believe that they didn't know they were doing that to me. Similarly, I can understand why a bereaved woman might have fallen for a show that was out to dig into her without understanding that was what she was getting herself into.

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