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Touching Must Cause “Emotional Distress”
*Add at the end of CJ 16.141:
However, a touching which does not cause pain or bodily harm must cause emotional distress to the victim. The term “emotional distress” means mental distress, mental suffering or mental anguish. It includes all highly unpleasant mental reactions, such as fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation and indignity, as well as physical pain.
Points and Authorities
It is settled that the statutory requirement of “force or violence” does not require bodily harm. (People v. Bradbury (07) 151 C 675, 676.) However, it is necessary that “the feelings of [the victim] are injured by the act.” (Ibid; see also, People v. Colantuono (94) 7 C4th 206, 214, n 4 [26 CR2d 908].) Hence, when the prosecution is relying upon a touching which did not result in bodily injury, the jury should be required to find that the victim suffered emotional distress. The above definition of emotional distress is taken from BAJI 12.72 (1989 Revision).
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]