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Hair Petting Game:

Reader Tina points to this video, which purports to show young women walking down the street touching strangers' hair, video-recording the process throughout. For a likely higher degree of annoyance to others, and a certainly much higher degree of danger to the petters, see two young men doing the same.

(1) Real or fake? I'll assume real for purposes of the question. I'll also assume that it's in New York, as accounts suggest.

(2) Is it a crime, asks the reader? Oddly enough, I don't think so. It's not assault or attempted assault under New York law, because it involves no actual or attempted physical injury. It's not a sex crime, because it doesn't involve the touching of "sexual or other intimate parts" (hair can be intimate in some senses, but not, I think, in the sense contemplated in that phrase). It's not menacing, because it's not likely to create a fear of "physical injury" (or at least not enough such fear, I'd guess). It's not criminal harassment, because it doesn't involve placing some in reasonable fear of physical injury, repeatedly following the person, or action done with the intent to harass, annoy, or alarm.

Some states seem to have laws banning "offensive touching" (see, e.g., 11 Delaware Code § 601(a)(1), barring "[i]ntentionally touch[ing] another person either with a member of his or her body or with any instrument, knowing that the person is thereby likely to cause offense or alarm to such other person") or "offensive physical contact" (see, e.g., Alaska Statute § 11.61.120). Under these laws, we'd have to figure out whether having one's hair touched for fun (as opposed to having one's hair touched by someone who's trying to brush off a fly, or by someone who's simply trying to make room for himself on a crowded subway) is "offensive" enough; I suspect it would be, but I'd have to do more research to figure this out.

There may well be other statutes that my quick research hasn't found -- please do let me know if you can find some. But for now I can't see a New York law that makes this hair petting illegal.

(3) Is this the tort of "battery"? Yes, if it's "offensive bodily contact," which is to say contact "that a reasonable person would find offensive," because it "offends a reasonable sense of personal dignity." (See above.)

(4) Could this also involve the tortious use of another's likeness for commercial purposes? (The Petting Game people seem to have some commercial motivations, though I'm a little hazy on their business model.) I doubt it, for complex reasons, especially under the New York law of right of publicity, which is relatively narrow.

(5) Do I recommend such behavior to thrill-seeking New Yorkers? No, I don't.

Tracy Johnson (www):
What if they're Reapers as in the Sci-Fi show "Dead Like Me?"
1.11.2007 6:10pm
Anderson (mail) (www):
Here's my question: if a woman caresses a stranger's hair, and he responds by caressing her breast, has he committed a tort?

I am intrigued by the possibility that he has not, inasmuch as he's making a reasonable response -- upping the intimacy level, but then, that's how the woman started off the encounter.
1.11.2007 6:18pm
MSG:
Oregon's Criminal Harrassment statute (ORS 166.065) reads, in relevant part: (1) A person commits the crime of harassment if the person intentionally:
(a) Harasses or annoys another person by:
(A) Subjecting such other person to offensive physical contact; or
(B) Publicly insulting such other person by abusive words or gestures in a manner intended and likely to provoke a violent response;

Patting someone on the head would fall into the general category of activity that is commonly cited as harassment (offensive physical contact), though is almost certainly not what was intended when the statute was written.
1.11.2007 6:19pm
Lev:
Public petting. Not just for dogs.
1.11.2007 6:36pm
Eugene Volokh (www):
MSG: (1) You're giving me a headache. (2) Would the Oregon statute, as you quote it, require a purpose to harass or annoy (something that seems not to be present here), or would Oregon statutory construction rules prevent that from being required?
1.11.2007 6:41pm
MSG:
1) Sorry about that . . . it's purely unintentional.

2) To the best of my knowledge, there's no purpose or intent requirement other than the rather circular purpose of harassment or annoyance under the offensive physical contact section.
1.11.2007 6:54pm
A Northwestern Law Student:
Isn't this 2d degree harassment?

A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: ... [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same....

N.Y. Penal. Code § 240.26. "Intent to harass, annoy or alarm" may be problematic, but I imagine this is a general-intent statute anyway. If it's not harassment, it's still probably disorderly conduct:

A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
* * *
7. He creates a hazardous or physically offensive condition by any act which serves no legitimate purpose.

§ 240.20. This conduct certainly "recklessly creat[es] a risk" of annoyance or alarm, and probably also "creates a hazardous or physically offensive condition," in that a stranger who who touches someone's head in New York City seems likely to get a fist to the jaw.
1.11.2007 7:23pm
Guest12345:
I see many many things wrong with this. Just from an offensiveness standpoint.

First, we pet small furry animals that we feel dominant to, not wolves or tigers which we know could eat us if they were hungry. So petting someone's hair could be considered a way of saying, "I'm superior to you and can touch you in a way that I want."

Second, I brush or play with my girlfriend's hair when we are cuddled up watching television or reading a book together. It's an act of love. I would consider it a bit creepy for a stranger to come up to me and profess their love (and not in a peace on earth sort of way.)

Third, the two gay dudes were running people down in order to wipe their hands in someone's hair. Again, a bit on the bark at the moon side of mental.

Finally, the entire surreptitious manner in which they fondle their victims tells me that they expect it to alarm or annoy.

And finally finally, if the petter were a fifty-five year old man and the pettee an eighteen year old young woman would this be ok?
1.11.2007 7:25pm
Dave Hardy (mail) (www):
The petters look rather attractive, so I suppose I wouldn't protest that the contact was offensive. On the other hand, they would have to be content to pet my scalp, as there is little enough hair available.
1.11.2007 7:37pm
Eugene Volokh (www):
A Northwestern Law Student: Aha! You might have found something with the recklessness prong of the disorderly conduct provision. (Harassment expressly requires intent to harass, annoy, or alarm, which likely isn't present here.) I'll try to look into this and perhaps update the post accordingly. Thanks.
1.11.2007 8:08pm
Ivan (mail) (www):
Most tort claims (and some criminal statutes) include 'knowing' in the requirement of intent, so knowledge to a substantial certainty that they would harass, annoy, or alarm someone could be sufficient as well. Just thought I'd throw that out there.
1.11.2007 8:11pm
Sam Heldman (mail):
Under "rule of lenity"/"fair warning" principles that require a pretty good degree of clarity in criminal prohibitions, any criminal prosecution of somebody for patting another's head for fun, under the statutes quoted here, would be absurd.
1.11.2007 8:12pm
JR (mail) (www):
In Illinois, I charge misdemeanor battery on a regular basis. A battery occurs when someone "intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." 720 ILCS 5/12-3(a).
1.11.2007 8:24pm
Richard Aubrey (mail):
What happens when the pettee "flinches" and the petter is injured?
1.11.2007 9:05pm
CEB:
A much more interesting question (to me) is whether it is battery if the pettee swings a fist or purse at the petter in reaction (or retaliation) to the petting, and what defenses are available (suppose the petter gets a chipped tooth or a broken nose) Self-defense? Consent?
1.11.2007 9:21pm
Brooks Lyman (mail):
Yes, legal issues aside (people don't always stop to think in such situations), someone petting (in any way) a stranger without permission runs the risk of getting decked. The pettee may face charges or suit, but it's a bit hard to blame them
1.11.2007 9:59pm
arbitraryaardvark (mail) (www):
The Indiana statute defines battery as any touching that is "rude insolent or angry." I consider this definition hopelessly vague, unconstitutionally so. I know of at least one case where a prosecutor mischarged someone under the statute, and how do you defend against it? Case law has created a narrow exception for consent in sporting events, but I still am troubled by the vagueness. IC 35-42
1.11.2007 10:20pm
Joel B. (mail):
I'm pretty confident the described behavior would be a battery in California.
1.11.2007 10:31pm
Ricardo (mail):
I find it quite difficult to believe that a jury would ever side against the petters in a criminal or civil action just from watching the video (which would, of course, be shown in an actual trial). Remember that New York is a very crowded city and people have to expect some amount of incidental contact with their fellow citizens. Intent does change things but, again, how offended can someone really be?

Now watch the video and imagine that one of the women responded by punching the petter in the face. In contrast, how do you suppose that would play out before a jury or judge? Even by New York standards, such a person would have to have an extremely dangerous hair-trigger temper -- not to mention lightening fast reaction time. I wouldn't want to accidentally brush up against such a person on the subway.
1.11.2007 10:50pm
elChato (mail):
It reminded me of the Borat movie, when he kept trying to kiss guys on the subway and street.

These girls, or whoever imitates them, are cruising for some kind of beatdown.
1.11.2007 11:01pm
Mike Keenan:
This is very rude and dangerous behavior.

What if a third pary steps in and physically stops the petter by throwing a punch (or more). That seems a reasonable response. You have no idea why someone may be touching your wife's head. It can't be for a good reason. I think a physical response could be justified to prevent what may be an attack. To prevent what would certainly looks like an attack.
1.11.2007 11:10pm
Sarah (mail) (www):
I share the curiosity regarding retaliation. Is "he patted me on the head" sufficient provocation to excuse hitting someone, in NY courts? Or, perhaps, "I'm sorry, judge, I thought I was swatting at a wasp!"?
1.11.2007 11:20pm
Lev:

A much more interesting question (to me) is whether it is battery if the pettee swings a fist or purse at the petter in reaction (or retaliation) to the petting, and what defenses are available (suppose the petter gets a chipped tooth or a broken nose) Self-defense? Consent?


What if the pettee then grabs the petter in a full body contact hug and french kiss?
1.12.2007 12:13am
luagha:
Doesn't the fact that the petter has an accomplice taking video of the petting act indicate clearly to any reasonable person that the petter knowingly intends to harass or annoy?

After all, they are monitoring the subject's responses and recording them for posterity.

If they simply wanted to record the hair petting itself and not the response of the target, they would have to be very careful indeed as to what their camera recorded.
1.12.2007 2:32am
Visitor Again:
Some are taking a very narrow view of the intent required under harrassment laws. It's true these women's primary motive is not to harass, annoy or alarm but to make a film for entertainment purposes. The problem is that to serve that end they are willing to and do engage in conduct that will harass, annoy or alarm others. Reasonable people know such conduct will harass, annoy or alarm others. That's all the intent these misdemeanor statutes require.

Try touching the hair of someone under 18 in California, and you may end up with a misdemeanor conviction for annoying a child and mandatory lifetime registration as a sex offender.
1.12.2007 2:39am
Visitor Again:
Compare the Japanese TV shows where someone goes up to a passer-by and shrieks at them, scaring the bejesus out of them, some of the victims collapsing and even fainting. If someone did that here, would the fact that it was done for entertainment purposes cancel out criminal intent? I think not.
1.12.2007 2:49am
Anderson (mail) (www):
I'm pretty confident the described behavior would be a battery in California.

I thought uninvited *looking* was battery in California.
1.12.2007 8:59am
Anderson (mail) (www):
It also suddenly occurs to me that, were I the subject of this prank, Mrs. Anderson would not be ready to take "but I don't even *know* that girl!" as an answer ...
1.12.2007 10:06am
C. Gray (mail):
The entire point of making the videos is to observe the harassed, annoyed or alarmed reactions of some of the targets. So the "petting game" participants _ARE_ committing an act "with intent to harass, annoy or alarm" their victims.

Hmm. It seems to me that the real law school exam question should be whether the "petters" and video grips are guilty of conspiracy to commit criminal harassment.
1.12.2007 10:23am
David Chesler (mail) (www):
EV says: (5) Do I recommend such behavior to thrill-seeking New Yorkers? No, I don't.

VA says: Compare the Japanese TV shows where someone goes up to a passer-by and shrieks at them, scaring the bejesus out of them

I've heard that the screamer tried to film an episode in New York. He went up to a cabbie waiting at a taxi stand and screamed at him. The cabbie, without looking up from his sub, decked him.

Does this thread have anything to do with the pettin' parties (to which I'm never invited) referenced here?
1.12.2007 10:51am
Eugene Volokh (www):
Anderson: Uninvited looking is a sacrament in California.
1.12.2007 11:04am
Visitor Again:
Hmm. It seems to me that the real law school exam question should be whether the "petters" and video grips are guilty of conspiracy to commit criminal harassment.

And if they are guilty of conspiracy to commit a misdemeanor, why that's a felony. Hee, hee.
1.12.2007 11:06am
H. Tuttle:
Living in NYC I'd say these guys would be seriously asking for a decking, and if they did it to my daughters while I was within arm's distance would like get an elbow in the face following by "oh, I'm so sorry, didn't see you there."
1.12.2007 11:17am
s:
There is a clear intent to harrass or annoy. Isn't that the whole point of doing this and filming it. For their and others amusement. There is a clear civil case and possible criminal case here.
1.12.2007 11:24am
JohnAnnArbor (www):
I agree with Mr. Keenan. I would likely strike someone who tried that with me or someone I was with, assuming it was a prelude to assault.
1.12.2007 11:25am
s:
The New York County DA should send a couple subpeanas over for the tapes. Scare the shit out of these privliged assholes
1.12.2007 11:36am
John M. Perkins (mail):
See, Jarrett v. Butts, 190 Ga. App. 703, 379 S.E.2d 583(1989).
1.12.2007 4:46pm
Visitor Again:
I thought uninvited *looking* was battery in California.

Not yet, but in Texas it can get you in trouble as a peeping Tom.


(Dallas-AP) January 11, 2007 - A Texas high school teacher has been charged under the state's peeping-tom law for allegedly videotaping girls' wrestling matches for his sexual enjoyment.

Police it appeared he'd purposely zoomed in for close-ups of genital areas. The video was examined after a coach complained.


Another AP story excerpt:


His attorney, Scott Palmer, said Ware was simply interested in wrestling. But he said the larger issue is a wide-ranging law that, if fully enforced, would jail Dallas Cowboys fans for taking pictures of the team's sultry cheerleaders from the stands.

"How do you draw the line?" said Palmer, adding he has not seen the video. "If you go to a Cowboys game and take a close-up shot of their cleavage, are you committing the same offense because you think that has sex appeal? Apparently you are under this statute."

Under the law, filming people without their consent for sexual arousal is a state jail felony. The statute makes no definition of age or distinguishes between filming in public or private.
1.12.2007 8:05pm
msk (mail):
The thing about strangers is that if you wait until you have lots of evidence of their intentions, you may be injured in a way you could easily have avoided.

Examples: Celebrities have had locks of their hair snipped off when fans were allowed within arm's reach. In the mid-1960s, Philadelphia schools halted night ball games because kids were taping razor blades between their fingers and slashing the clothing, and sometimes faces, of people in crowded areas.

Pickpockets touch a target person two places at once to distract them. The petters could intend to steal wigs, hats or jewelry, or might be dabbing on hair remover or trying provoke a turned head so they can squirt someone's eyes. You can't always assume the person sneaking up behind you is a fun-loving friend with a cream pie. Picture yourself drenched with skunk essence on your way to a job interview, and then you're unwelcome on public transport even to try to go home, and everyone laughs.

We tell kids not to sweat the small stuff on the playground (where perps and vics know each other), and you always have the option of ignoring what seems to be childish or accidental. OTOH, no psychology class experiment can be permitted to use threatening or insulting gestures randomly, or to team-up in premeditated hostilities to "test" specific targets.

It's like speeding (i.e., not OK everywhere just because some offenses go unpunished when unapprehended).

Regardless of what the petters say, cops cannot allow a dangerous atmosphere to develop, as if nothing worse than embarrassment would ever follow a grope. You presume suspects innocent during official proceedings, not while they are attacking. That's another reason to keep your hands to yourself -- the petter may have had weeks to plan, but a self-defender's startled reaction may be more violent than pranksters imagine.
1.13.2007 4:41pm