The Anglo-American legal tradition includes a civil tort known as false imprisonment, whereby one who acts intending to confine another without justification within fixed boundaries may be held liable, so long as the other is conscious of or harmed by the confinement. This cause of action is distinct from the criminal and constitutional law framework that governs the authority of the state to detain, investigate, or imprison. The false imprisonment tort encompasses such concerns regarding government overreach, but also extends to confinement that is wrongfully, i.e. “falsely,” imposed by non-governmental actors. This Chapter examines the evolution of the false imprisonment tort with a specific focus on the victim’s required showing of either subjective awareness of confinement or bodily harm. The bodily harm alternative acknowledges the basic wrongfulness of depriving actors of their liberty, irrespective of whether they are conscious of the confinement. Once recognized, however, the bodily harm alternative casts light on yet another possibility, in which an actor might be involuntarily confined but neither aware of nor harmed by the confinement. Such a case seems to slip through the cracks of the false imprisonment tort, but still gives pause when dwelled upon. To shed light on the false imprisonment tort and the particular case of the involuntary but unaware prisoner, this Chapter looks by analogy to the case of nonhuman animal confinement. Because nonhuman animals have often been presumed to lack consciousness, they may offer a useful vehicle for cataloguing the kinds of harms inflicted by confinement, not only in terms of demonstrable welfare impacts, but also in terms of foreclosed opportunities to thrive, loss of dignity, or other such less tangible but nontrivial impairments.

This chapter considers three different torts: battery (unlawful physical touching); assault (an apprehension or threat of unlawful touching); and false imprisonment (unlawful confinement or constraint). While their common aim is to protect the integrity of C’s person, the ingredients of each tort are quite disparate.

As a preliminary matter of terminology: trespass to the person is a form of action, but assault, battery, and false imprisonment are causes of action.