Wounded Feelings: How to Sue for Emotional Distress (Review)

Katie Barclay

Eric H. Reiter, Wounded Feelings: Litigating Emotions in Quebec, 1870-1950 (Toronto: University of Toronto Press for the Osgood Society for Canadian Legal History, 2019), pp. 482 + xiii.

This week as I write this (much delayed – sorry editor) post, my university is running its consultation with staff about improving workplace culture about sexual harassment, my state parliament is reeling from the fall out of its own sexual harassment scandal, and the Attorney-General of Australia is defending himself against an accusation of rape. Many of us feel quite emotional about this: the women who have experienced sexual harassment and sometimes much more serious sex-related crimes; the men who believe themselves to be falsely accused or vulnerable to such claims; the institutions who wish to protect their reputation and credibility against misbehaving staff whose actions, after all, went against policy. We might say our emotions arise from a sense of morality or expectation of justice that has been disturbed, but if that is the case, the arbitrator of such feeling is a framework of legal liability that determines whether our feelings are reasonable and if so, how seriously they should be taken. If a claim of harassment is pursued, and redress is not forthcoming, very often it is a law court that will make sense of the emotions involved – of prickly honour disturbed, of fear and doubt at being believed, of the sense of safety or security that can be reasonably expected in a workplace, and ultimately what compensation might be offered if an institution failed to protect its staff from hurt feelings (if not much worse).

There was a brief moment when people thought that emotions did not matter to the law, or if they did, they were more in the form of conventional emotional rhetoric than personal feeling. But as historians who work with legal records will tell you, much of what is captured in the paperwork of civil and criminal law are the emotions of those who felt compelled enough to take their problems, disputes, and sorrows into the legal domain. Going to the law, in some ways, was never an unemotional act – if it would be too much to call such an action ‘extreme’, it was nonetheless something that happened after other forms of reconciliation or redress had been exhausted. Going to the law, with all its financial costs, inconveniences, and labour, suggests something of the underlying care and concern of the litigants about what was litigated. Thus, the law has long had to manage emotion. Judges and juries had to disentangle points of law from those of feeling and morality; they had to read emotions on the body when trying to gauge the character and honesty of those giving evidence; they had to place themselves in the position of others when trying to decide what was reasonable within a given situation. Compensation for wrongdoing was often influenced by the seeming suffering of the victim, even when the law was not formally providing redress for such feelings.

This is somewhat different, however, from a court whose role it is to determine redress for emotional suffering, such as we might see in a modern sexual harassment suit. Here emotions are placed front and central to legal discussions as we explore what they mean, whether they were appropriate to the situation, and if validated, how much money might compensate for them. As Eric H. Reiter’s Wounded Feelings: Litigating Emotion in Quebec, 1870-1950 (Toronto: University of Toronto Press, 2019) explores, this is a branch of the law that was increasingly consolidated and extended during the nineteenth and early twentieth centuries, and in ways that gave particular legal shape to what feelings should look like and when they should come to matter.

The types of cases that give rise to claims to hurt feelings – breach of promise of marriage, seduction, defamation, reputational damage, negligence, wrongful death, and so forth – have all been subject to previous research, sometimes of significant scope. Yet, largely viewed independently, what has been at stake in such histories has been the development of law relating to particular types of suit, its social, economic, and political impacts, and what such cases tell us about society and culture. Emotions have been part of these histories – not least love – but usually this has focused on the social contexts that brought such feelings to court, rather than what happened to such feeling when they got here. Rather than looking at one type of civil suit, Wounded Feelings brings us a broad range of types of cases under the umbrella of ‘moral injury’, exploring how they cumulatively contributed to the development of the law for compensation for hurt feeling. The book focuses on Quebec, bringing its distinct amalgamation of English and French legal systems, to this question, and has two goals. The first is to provide a narrative of legal developments in this domain over the period 1870 to 1950 and to explain why the law took the shape that it did. The second goal is to highlight the prominent emotions that were at the root of these cases – shame, dishonour, the emotions that arise from sexual harassment and gender-based violations (here described as ‘bodily intrusions’), betrayal, grief, mourning, anger and fear – and what situating them at the heart of ‘moral injury’ can tell us about law and society during this period.

Most of the chapters revolve around a number of well-selected cases designed to highlight how particular emotions are deployed within them by different actors, reflecting especially on how different parties in a suit may wish to counter, deny, embrace, or otherwise complicate the narrative of what emotions should arise or might mean in a given context. The chapter on bodily intrusions, for example, looks at cases where an actor, like the state or medical personnel, breached the acceptable boundaries of respectable or legitimate touch or medical intervention, and how such cases brought together complex feelings of personal violation, shame, humiliation, and ongoing mental anguish, as well as infringement of burgeoning rights to bodily autonomy. Emotional suffering here is rarely a single or straightforward claim to a particular feeling (e.g. anger), but might more readily be understood as a cluster of related feelings that the individual and their community would agree are appropriate to a given situation. Court cases therefore explored events and the various feelings that arose within and following them. The developing law of compensation for such feeling was always highly contextual, rather than straightforwardly aligning a certain set of emotions with a particular compensation. In this it might be contrasted with developing law around physical injury, which in some jurisdictions ultimately led to schedules of compensation for particular hurts.

As well as exploring the various feelings that contributed to the law of moral injury, Wounded Feelings seeks to highlight how law in this area evolved over the period under study. This is most notably done in relation to the concepts of ‘wrongs’ and ‘rights’. Earlier cases tended to revolve around seeking compensation for a ‘wrong’ done by another party and which led to a moral injury. Increasingly, however, the idea of a violation of ‘rights’ became more central to legal discussion, so that individuals were assumed to hold certain rights that should not be breached. In practice both of these ideas tended to feature in most cases, and in some cases, both parties to a suit could bring a different set of rights and wrongs to each other, requiring the court to mediate on a complexity of competing claims. Reiter argues that the language of rights was to become increasingly prominent over the period, but that even at the end point of the study claims based around the logic of ‘wrongs’ continued.

Wounded Feelings is a very rich book that less seeks to provide a simple explanation of what emotional suffering was meant to be than to use discussions of such feeling as an access point to how people considered questions of self, reputation, bodily autonomy, and personal rights. As such, it provides insight into the social and cultural worlds that the law operated within, as well as how these worlds were mediated in a legal context. As one of the first works to attempt to map the various forms of moral injury alongside one another, it provides an important model for such scholarship that makes this work of value to a wide legal historical readership. For those of us considering similarly emotional topics today, Wounded Feelings offers a history of the importance of feeling – both that of individuals and societies – to interpreting and understanding moral injury.

 

Katie Barclay is ARC Deputy Director of the ARC Centre of Excellence in the History of Emotions and Associate Professor at the University of Adelaide. You can find her on Twitter at @KatieEBarclay

 

Continue the conversation ...

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s