When does someone cross the line from forwardness to harassment? According to one recent California opinion “[i]t is far from normal, socially acceptable dating behavior to (1) send sexually explicit, anonymous text messages to someone and to refuse to reveal your identity when asked; and (2) write a long extremely graphic Facebook message describing an imagined sexual encounter with a person you have only met for 15 minutes in a professional setting and with whom you otherwise have no personal relationship.”
This came up in a rather bizarre U.S. Navy attorney-client relationship. The Defendant, a Navy Lieutenant, met briefly with the Plaintiff (a Navy JAG) to obtain legal advice in 2011. He sent her a fairly harmless Facebook message afterwards, saying “I didn’t want to say it at the time, but you’re gorgeous” and she responded with “a very-overdue thanks for the compliment.” Then, he sent her a friend request on Facebook, which she accepted (and probably later regretted). He then sent three short innocuous Facebook messages to which she did not respond.
So far, a typical (albeit somewhat awkward) friend-zoning. Then came the eleven, presumably late-night, text messages. The first stated “dtf?” Whilst you may be unfamiliar with the expression, the Plaintiff “understood [this] as an abbreviation for ‘down to f***”" (note to readers: curse words have, and will be, *’ed for the remainder of the article).
Then it got worse.
The second text message stated, “I want to ** **** on you.” Some of the other text messages referenced oral sex, and another asked, “Do you want a *** ***?” [The Plaintiff] asked who was sending the texts, and received a reply, “You don’t know me to [sic] well, but i really want to hook up with you. are you dtf?” [The Plaintiff responded], “not if I don’t know who you are and not if you can’t spell.”
If you want to read the *’ed out part check out the opinion, because we sure ain’t printing that here. A few days later, the Plaintiff woke up to see a very long, very explicit (and understandably frightening) explicit Facebook message. We don’t even want to know what that one said.
As a result of [the Defendants'] conduct, [the Plaintiff] became upset and scared. [The Plaintiff] stated that her fear was caused by the “highly graphic nature of the message coupled with the fact that I have had very limited interaction with [the Defendant] prior to receipt of these messages (and that nearly all that interaction was on a professional, not personal, level).” According to [the Plaintiff's] declaration, [Defendant's] texts and Facebook messages “seem like erratic and unstable behavior, particularly for someone I met in a professional and highly limited context.”
The trial Court held a TRO hearing, and issued a restraining order against the Defendant prohibiting him from coming withing 100 yards of the Plaintiff, contacting her, or (likely problematic for someone in the military) possessing firearms.
The really interesting part of the case revolves around the Defendant’s argument that his conduct was reasonable. What is reasonable certainly varies from group to group, and may be changing in the era of social media.
The crux of [Defendant's] argument is that his conduct was nothing more than “crude behavior” in the context of asking [Plaintiff] to “date” him. He contends that “these types of contacts between men and women are not at all uncommon” and that [Defendant] was merely a typical woman who received “unwanted attention” from a “Casanova cad.” According to [Defendant], his conduct had the legitimate purpose of trying to ask [Plaintiff] to date him, a reasonable person would not suffer substantial emotional distress at being pursued for a date, and [Defendant] should not have continued to fear him, as he ceased contacting her.
You saw at the opening of the article how the Court reacted to this argument, but to reiterate the Court held that the characterization of his conduct as harmless dating activity was not supported by the evidence- and was way off base.
The opinion raises interesting issues about when you cross a line between Casanova Cad to Terrifying Ted, and societal baseline standards of decency and profanity. The Defendant here was a naval officer. ”Curse like a sailor” is an idiom, perhaps for a reason. While profanity may slide a bit more in Navy, certainly there was “conduct unbecoming an officer and a gentleman“ occurring in this case.