My recent appearance on NPR about the new law in France banning psychological violence in marriage and my post about it on this website seem to have caused controversy. Much of it is based on confusion about the moral function and purpose of law vs. problems in execution of laws. More alarmingly, my comments have prompted in the minds of some a conflation of real human suffering with normal marital conflict, personal unhappiness, and trivial rules about political correctness.
Moral Function of the Law
If you oppose a law against emotional abuse of family members, by logical necessity, you believe that it should be legal to emotionally abuse family members. Opposing the law doesn't mean that you favor emotional abuse; it means that you think it should be legal to do it. It becomes a simple issue of equal protection of the law if it is legal to emotionally abuse family members but illegal to emotionally abuse strangers, acquaintances, employees, and co-workers.
Public morality, as reflected in our laws, changes over time. Forty years ago, most people in this country thought it should be legal to beat up one's spouse and children. Sixty years ago, most thought it should be legal to emotionally abuse anyone who attended a school or ate in a restaurant or moved into a neighborhood to the displeasure of the abuser. One hundred years ago, it was legal to beat up one's servants.
I suspect that most of the people who thought those behaviors should be legal found them personally reprehensible, just as many who offer similar arguments to keep emotional abuse in families legal find that reprehensible. But the empirical fact remains that significant declines in those reprehensible behaviors did not occur until the laws were changed to prohibit them, i.e., until the society codified its moral stance.
Reasonable and moral people can disagree about various definitions of emotional abuse. The law has worked out those disagreements, however imperfectly, in regard to non-family members. Its failure to do so in regard to family members unavoidably raises the issue of equal protection of the law.
What the Law Addresses
Current domestic violence laws are a precedent for laws against emotional abuse. Many years ago I was on three large committees charged with formulating models for domestic violence laws. It was a productive, though arduous process. Having evolved over time, most domestic violence laws now have a criminal component to prosecute cases involving serious injury or grave endangerment. (Following that model, criminal prosecution of emotional abuse offenders would be rare, occurring in extreme cases of emotional torture, subjugation, and humiliation.) Though morally necessary, criminal prosecution of domestic violence offenders did little to reduce the rate of domestic violence.
What has been successful in preventing serious violence is the civil component of domestic violence laws, which prohibit any unwanted touching, threats of harm, and acts of intimidation - behaviors that are highly likely to escalate over time into serious domestic violence. In these civil actions, the alleged victim, not the state, is the complainant. The cases are almost always resolved by ordering education courses or specialized counseling, where offenders learn skills that help them avoid more serious breaches of the law. In some jurisdictions a court appearance can be avoided by entering into education courses or specialized counseling before a certain date, similar to traffic citations.
The civil component of emotional abuse laws, which I'm sure would have an equal preventive effect, would prohibit a pattern - repeated over time - of verbal aggression and other behaviors that frighten, demean, devalue, or coerce a partner into doing what the perpetrator wants or punish the partner for not doing what the perpetrator wants.
Obviously the law would not be applicable to "passive-aggressive husbands" or "nagging wives" or irrational behavior in infrequent arguments. It would prohibit harmful behaviors, not unpleasant ones. It would address human suffering, not unhappiness. It would finally recognize the fact that emotionally abusive relationships are profoundly damaging to perpetrators and victims alike and especially to the children of victims and perpetrators. The legal standard would be the same applied in most social laws: what reasonable people (not paranoid or vengeful spouses) would regard as harmful, demeaning, humiliating, or fear-invoking.
Execution of the Law
My experience of working for a quarter century in the area of abusive relationships suggests that it will not be hard for the legal system to distinguish isolated acts of emotional abuse from patterns of coercion. (The legal system looks for patterns of conduct in virtually all cases of any kind, as decisive, aggravating, or mitigating factors.) For the most part, emotional abusers do not deny that they scream at their partners, insult them, call names, devalue, and punish to get behavior change, because they feel they have the right to do those things. (Sadly, the law now gives them the right.) Some feel that they have a "duty to the truth" to inform their partners that they are stupid, inferior, repulsive, crazy, emotionally disordered, or just too damn sensitive. The vast majority feel justified in what they do, though a few are simply clueless that what they do is harmful. In either case, education and/or counseling will help.
The primary purpose of the law is not to punish but to prevent continued harm.
Because most abusers feel entitled to abuse, emotional abuse in families is progressive and hardly ever abates on its own. The abuser of loved ones needs education or counseling to understand how the drive to attach functions in human brain. Attachment activates an instinct to protect. (That's why you experience more anger and a stronger aggressive impulse when you witness a loved one attacked than when you are personally attacked.) Attachment also stimulates a powerful shame for failure to protect. Though abusers feel entitled to abuse, they don't grasp how they begin to hate themselves for continuing to do it. Abuse gets progressively worse because the devalued self is more likely to abuse than the devalued self. They get stuck on a retaliation treadmill by blaming the shame of violating their deepest values on their partners.
The tragedy is that most emotional abuse can be corrected in counseling, if it is caught in early stages. Many emotionally abusive relationships become respectful and satisfying for both parties after effective intervention. Those who choose to divorce become better co-parents once counseling has broken the cycle of abuse.
Fewer Divorce and Custody Nightmares
A law against emotional abuse would help keep people from harming each other to the point that they are driven to highly destructive divorce and custody disputes out of revenge. For those who do engage in divorce and custody disputes, a law banning emotional abuse would establish a standard of a prior finding of abuse for the topic to be introduced in proceedings. So long as the law remains silent on the issue, anyone can allege emotional abuse at anytime, which has created the nightmare "he-said/she-said" divorce and custody battles that cause irreparable harm to families, especially children.
I regret that so many people still believe that emotional abuse of loved ones should be legal and that falling in love exempts one from equal protection of the law against emotional abuse. Anyone who works with families can attest that emotional abuse is on a steep increase in our age of entitlement. One day the pervasiveness of emotional abuse will reach a tipping point in the law, as occurred in civil rights and in physical abuse of children and spouses. For now all we can do is pray for those who will be harmed before history passes its inevitable judgment on us.