View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Cleveland-Marshall College of Law Cleveland State University EngagedScholarship@CSU Cleveland State Law Review Law Journals 1971 Threats as Criminal Assault Ranelle A. Gamble Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Criminal Law Commons How does access to this work benefit oy u? Let us know! Recommended Citation Ranelle A. Gamble, Threats as Criminal Assault, 20 Clev. St. L. Rev. 75 (1971) available at https://engagedscholarship.csuohio.edu/clevstlrev/vol20/iss1/61 This Article is brought to you for free and open access by the Law Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. Threats as Criminal Assault Ranelle A. Gamble* T HE MORES, GROUP SANCTIONS and religious ethics of a society attempt to regulate interactions between humans as harmoniously as pos- sible. But it sometimes requires the intervention of formal legal au- thority to maintain a semblance of peace in the community by punish- ing disapproved conduct. All too frequently, social interaction leads to conduct that is tortious or criminal. Early in its history, the common law found it imperative to acknowledge and define an individual's in- terest in his personal integrity, physical safety and mental tranquility. The law formulated the legal rules of assault to protect this particular interest when it is wrongfully interfered with by another.' In this latter half of a nerve-wracking twentieth century, it is becoming nec- essary to revive the early concepts of common law assault, and under certain circumstances, 2 to redress abusive and insulting language. Any principle of common law, particularly one concerned with the control of human behavior, has social implications, and such principle, whether dealing with a tort or a crime, must advance or retreat ac- cording to the social need.3 Outrageous behavior, encompassing overt antisocial acts and abusive language, is once again being recognized by the authorities to be a legal as well as a social problem. Assault as a Tort and a Crime Assault can be a tort, a crime, or both simultaneously if the de- fendant's act falls within the scope of liability for both. Manslaughter, as a form of homicide, is, of course, punished as a crime. Manslaughter is the result, or harm, of an act defined by statute or common law as criminal, or as otherwise unlawful. The following questions then arise: Can manslaughter be the result of a mere tort?; Is the death of the victim limited to the legal liability for wrongful death, essentially * B.A., New York University; Second-year student at Cleveland State University College of Law. 1 See Prosser, Law of Torts, § 3, "Social Engineering" (3d ed. 1964). 2 Wade, Tort Liability for Abusive and Insulting Language, 4 Vand. L. Rev. 63, 101 (1950): "A rule to this effect would merely be restating a condition which existed in the days of the very beginning of the common law, when certain vituperative names were treated in the same way as assaults and when the law of defamation sought to redress insults as well as to protect reputation. It may seem retrogressive, a return to more barbaric times, to restore the rules of the middle ages. Instead, it has been called a mark of a more advanced civilization that tort liability affords protection against abusive language." 3 Reckless, The Crime Problem, C. 2 at 19 (3d. ed. 1961). "It is the scheme of social values current in any society that dictates the importance or unimportance or the sacredness or profanity of any activity in society .... The social values assigned to different kinds of behavior vary in time and place, and this is true of behavior that becomes defined as criminal in our criminal laws." Published by EngagedScholarship@CSU, 1971 1 20 CLEV. ST. L. R. (1) Jan. 1971 a tortious effect?; Does conduct defined as tortious come within criminal liability as unlawful? The answers are vital since imprisonment is the punishment for manslaughter, and only monetary damages are the compensation awarded for wrongful death in tort. If the defendant's act has been defined by statute or common law as criminal, and the direct and proximate harm resulting from such act has also been described in criminal law with a proper sanction against the wrongdoer, then the consideration whether or not the same act can also be redressed in tort does not ameliorate the criminal nature 4 of the act, or avoid the criminal liability. There has not yet been a successful codification of the law of torts as there has been for criminal law, and the definitions are not always clear-cut. Nonetheless, torts are defined as acts which invade or inter- fere with another's rights created or recognized by law.5 Such tortious acts are, therefore, unlawful, in violation of interests protected by law, and may create criminal liability if the injury resulting is defined in the criminal statute. The Restatement of Torts describes tortious conduct as acts which are ... intended to cause an invasion of an interest legally protected against intentional invasion, or conduct which is negligent as cre- ating an unreasonable risk of invasion of such a interest, but also conduct which is carried on at the risk that the actor shall be sub- ject to liability for harm caused thereby, although no such harm is intended . 6 Criminal conduct is defined by statute or by the principles of com- mon law.7 Both types of wrongful conduct are concerned with the field of intentional invasions of rights; the legal difference is that tortious conduct violates private law and the civil rights of an individual, and criminal conduct violates the public law as declared by statute, and in- 8 fringes upon the public rights. The crucial distinction between tortious and criminal conduct is the difference in the effects, the "substantive harms." 9 A text on crim- inal law defines harm: Harm, then, is the violation of the intangible, legally protected in- terest (sometimes interests) which, in those crimes calling for a 4 Prosser, op. cit. supra n. 1, § 7. 5 Id. at § 1. 6 Restatement of Torts 2d (1965), § 6. 7 Reckless, op. cit. supra n. 3, at 17: "Any act which by omission or commission runs counter to the criminal law could be defined as a crime or criminal behavior in the legal sense." 8 Blackstone, Commentaries on the Laws of England, Bk. III, 2; Bk. IV, 5. (Baker, Voorhis & Co. ed., N.Y.C., 1938.) 9 Ibid. https://engagedscholarship.csuohio.edu/clevstlrev/vol20/iss1/61 2 THREATS AS CRIME physically ascertainable effect of conduct . is identical with such a physical effect . .. The Restatement contrasts the terms "harm" and "injury" in con- templation of tort: ...harm implies the existence of loss or detriment in fact, which may not necessarily be the invasion of a legally protected interest. The most usual form of injury is the infliction of some harm, but there may be an injury although no harm is done .. "I Blackstone distinguished the effects of tort and crime: "Crimes ... strike at the very being of society, which cannot possibly subsist when actions of this sort are suffered to escape with impunity . ," whereas, 12 civil injuries are "immaterial to the public.' The same facts of a situation may constitute both a tort and a crime, but such facts must be carefully analyzed from the two distinct view- points of tort law and criminal law. Injury to the individual is the con- cern of tort law in viewing the disapproved conduct, but social harm 14 has no monetary value in the view of criminal conduct. Underlying the definitions of both tortious and criminal conduct is the social morality upon which the tort injury and the criminal harm is based. 15 Professor Hall states: The relevant ethical standards postulate the autonomy of the in- dividual and his "right" to be made whole. So too, the above postulates, re-enforced by moral attitudes, give a designated "so- cial harm," which, though nonmeasurable in money, are as "real" as is the damage to a particular individual. Thus the damage re- quirement in tort law serves to select and limit the "facts" to those that constitute harm to particular persons. It follows that moral culpability is of secondary importance in tort law. But in penal law . the immorality of the actor's conduct is essential whereas pecuniary damage is irrelevant. 16 In the recent Ohio case of State v. Nosis, 17 a criminal conviction for manslaughter in the first degree was affirmed by the Court of Appeals, which held that the evidence was sufficient to sustain a judgment by the court that the defendant assaulted the deceased, which assault di- 1o Hall & Mueller, Criminal Law and Procedure, C. 3, p. 90. (2d ed. 1965). 11 Restatement of Torts, § 7. 12 Blackstone, op. cit. supra n. 4, at Bk. IV, 5. 14 Hall, Interrelation of Criminal Law and Torts, 43 Col. L. Rev. 753, 976 (1943). 15 Prosser, op. cit. supra n. 1, Sec. 4 at 16: "In a very vague general way, the law of torts reflects current ideas of morality, and when such ideas have changed, the law has kept pace with them." And at 17: "It is now more or less generally recognized that the 'fault' upon which liability may rest is social fault, which may but does not necessarily coincide with personal immorality." 16 Hall, op. cit.