Should it be recognized as a tort in Texas?
Written by Carlos R. Soltero and Kayla Carrick Kelly
The common law tradition is based on experience, not logic.1 Though we live in an era when busy legislatures keep enacting statutes for specific claims and causes of action in response to general cries that “there ought to be a law against this or that,” the common law has not yet been formally abolished in Texas.2
Although the Texas Supreme Court has been reluctant in the past two decades to expand tort common law claims,3 the common law has been the traditional method where courts recognize evolving legal norms over time.4 Over time, available common law tort claims and the names of various injurious acts visited upon people have been transformed, morphed, or abandoned.5 According to the Texas Supreme Court, “[w]hen recognizing a new cause of action and the accompanying expansion of duty, we must perform something akin to a cost-benefit analysis to assure that this expansion of liability is justified.”6
Is it time for the common law tort of gaslighting? Gaslighting refers to a particular species of manipulation or psychological abuse preying on the vulnerability of another to suggest to them that something that is not in fact true, is in fact true. Gaslighting has been described by a psychologist in a Texas case as:
manipulative behavior used to confuse people into questioning their reactions to events, so much so that the victims of gaslighting begin to question their own sanity. . . . [g]aslighting is often referred to as “crazy-making” as it makes otherwise ordinary functioning individuals act “crazy” in the face of such discrepant pieces of information.7
The term originates from a psychological thriller play and movie from
the early 20th century called Gaslight,8 but the
term and concept still permeates pop culture today9.
While somewhat akin to causes of action we are familiar with like fraud, invasion of privacy, and intentional infliction of emotional distress, gaslighting does not exactly match any of these and appears to be a concern in the internet era with its “deepfakes,” “ghosting,” and other forms of truth manipulation. It may be more difficult to uncover and detect than existing causes of action, even by a person using reasonable diligence.
Gaslighting is different from fraud because it often flows from a campaign of activity rather than specific statements, omissions, or representations. It may consist of a series of minor, seemingly harmless acts that combine to create an alternate reality leading to psychological abuse. Gaslighting is often—by design—equivocal or stated in the form of “opinions” or “questions,” which may not constitute actionable fraud and may not be material. While it does involve false representations made so that a person relies on the untruth, the harms that flow from relying on gaslighting are not completely captured by the fraud cause of action: It can cause emotional and mental anguish rather than the pure financial or economic damages more commonly associated with fraud.
Gaslighting also is not covered by defamation because it is not a reputational tort. In other words, the core function of defamation is to protect or restore the reputation, honor, character, or good standing of a plaintiff who has been maligned publicly by false statements.10 By contrast, a gaslighting claim can stand without the defendant having “published” a false statement to any third party.11 The harm inflicted on the plaintiff does not arise (primarily or perhaps at all) from what third-party members of the community may think about the plaintiff, but rather from the plaintiff’s own cognitive existential crisis or damage in processing the manipulative behavior.
Gaslighting is also not fully captured by the three Texas privacy torts (public disclosure of private facts, intrusion on seclusion, and appropriation of name or likeness)12 because the conduct goes beyond merely invading a person’s privacy or right to be left alone, although it is closely related to these claims. Finally, intentional infliction of emotional distress13—a gap-filler tort that can only be used where other causes of action do not provide for recovery—by definition does not provide for redress when the harm suffered is not just emotional but financial as well.
Opinions in caselaw have generally mentioned gaslighting with increasing frequency in the past few years in various contexts.14 Additionally, murmurs of gaslighting as a potential cause of action have recently appeared in a range of contexts across the country, without much detailed discussion as to the elements of what an independent cause of action may require by way of pleading and proof.15
Texas could recognize the gaslighting tort in appropriate cases because it would provide for the recovery of both general types of damages or harms (economic and emotional). Arising injuries are often psychological,16 suggesting that this tort would allow for the recovery of damages for either mental anguish or emotional distress proximately caused.17 Apart from psychological harm, gaslighting may also result in financial or economic harms. Finally, equitable relief in the form of protective orders should also be available to stop harassment.
Apart from damages and causation, tort theories generally require a duty and standard of applicable culpability.18 If gaslighting were a recognized tort, what would be the required standard for culpability: intentional, negligent, or strict liability? For a gaslighting tort, requiring intentional conduct would be the most appropriate. Apart from wanting to discourage claims based solely on inadvertent or even negligent acts, the nature of gaslighting rests on intentional manipulation of the victim’s ability to perceive and react to the gaslighting conduct. Having an intentional-conduct requirement is also consistent with the three invasion of privacy torts that Texas currently recognizes,19 as well as the intentional-conduct standards that the Legislature adopted in recent statutory-based claims.20 Additionally, the intentional standard is consistent with Texas’ general law limiting the recovery of mental anguish and emotional distress, which disfavors the recovery of these types of damages without a physical injury with rare exceptions.21
In sum, a gaslighting tort would likely require a plaintiff to show that the defendant intentionally gaslighted the plaintiff, resulting in the plaintiff sustaining damages or injuries. Perhaps the time has come to recognize this tort to deter this type of destructive, manipulative behavior.TBJ ?
Opinions expressed on the Texas Bar Blog and in the Texas Bar Journal are solely those of the authors. Have an opinion to share? Email us your letters to the editor or articles for consideration at firstname.lastname@example.org. View our submission guidelines at texasbar.com/submissions.
CARLOS R. SOLTERO,
a partner in Soltero Sapire Murrell, represents plaintiffs and defendants in civil litigation matters including commercial disputes, trade secrets/non-competes, malpractice, constitutional litigation, personal injury, and wrongful death cases. He is certified in personal injury trial law by the Texas Board of Legal Specialization. Soltero has served on the State Bar of Texas Court Rules Committee and the Pattern Jury Charge Committee’s Business Volume.
counsel to Soltero Sapire Murrell, is an experienced advocate who litigates complex commercial matters in state and federal courts. She draws on her experience clerking for the Texas Supreme Court and the U.S. District Court for the Southern District of Texas to effectively represent clients.