From Graham v. T.T., decided Nov. 26, by D.C. high court Justice Catharine Friend Easterly, joined by Justices Joshua Deahl and Vijay Shanker:
T.T. was the sole witness who testified at the hearing on her motion for an anti-stalking order. She and Mr. Graham were neighbors; they lived in the same apartment building on 13th Street NW, on the ground floor. Of particular relevance, T.T.’s bedroom window was at the front of the building and was directly accessible from the street.
Prior to the four alleged incidents that gave rise to her motion, T.T. had had very little interaction with Mr. Graham and had seen him only a few times around the building. Then, on September 13, 2023, and November 30, 2023, Mr. Graham took food that had been delivered to the front door of her apartment. T.T. did not witness these incidents first-hand; rather, when she inquired with the building management about the stolen food, they told her Mr. Graham was the culprit and provided her with video footage from the hallway camera, which she played in court.
In December of the same year, Mr. Graham knocked on T.T.’s bedroom window and crudely propositioned her for sex on two separate occasions. On the first occasion on December 28, 2023, Mr. Graham came to her window at 6:00 a.m., knocked three times, and said, “come here; I got something for you[.] I want you … I want to eat your pussy.” She “told him to get away” and that she was “going to call the cops” and Mr. Graham “ran away.” She reported the incident to the police. Two days later, on December 30, Mr. Graham again came to her window at 4:00 a.m. and “banged” or “knocked” and “repeated the same thing that he said the first time he came,” “come here, let me eat your privacy part.” When she told him to leave, he repeated, “ma’am, I’m trying to eat your privacy part.”
T.T. then said she was going to call the police, and he ran away. She filed a petition for a temporary anti-stalking order the next day. She explained to the court that she filed the petition “because, not only that I’m afraid [for] my life, I am a victim of getting molested. Also, I’m scared for my life because he is registered as a sex offender and has history as that.” { T.T. testified that when the police came, they told her that Mr. Graham was a sex offender, and she also “look[ed] it up.”} {It is unclear if T.T. was asserting that she had previously been molested or that she considered Mr. Graham’s propositions for sex to be “molestation.” Because of this lack of clarity and in an abundance of caution, we refer to T.T. by her initials.} …
A trial court may issue an anti-stalking order if it “finds by a preponderance of the evidence that the respondent stalked the petitioner, with at least one occasion of the course of conduct occurring within the 90 days prior to the date of petitioning.” The crime of stalking, in turn, requires proof that an alleged perpetrator “purposefully engaged in a course of conduct” defined as two or more occasions, “directed at a specific individual” that the perpetrator intended, knew, or at least should have known “would cause a reasonable person in the individual’s circumstances to … fear for his or her safety or the safety of another person; feel seriously alarmed, disturbed, or frightened; or suffer emotional distress.” …
The court concluded that the food-stealing incidents didn’t qualify as stalking:
First, there is no indication in the record that Mr. Graham “directed” his food-stealing specifically at T.T., or even that he wanted anyone to know that the food had been stolen. As T.T. acknowledged, Mr. Graham did not take the deliveries “out of [her] hands,” but rather took them “[i]n front of [her] door.” And videos of the thefts indicate that Mr. Graham acted quickly so as not to draw anyone’s, much less T.T.’s, attention. The trial court’s finding that he “knows it’s her apartment,” is unsupported by the record. The court inferred this knowledge “because he lives just down the hall,” but T.T. did not testify that Mr. Graham had ever seen her in the hall, and the video evidence she introduced shows that Mr. Graham could not see her doorway from his own because he had to turn a corner in the hallway to get to T.T.’s food. In short, T.T. failed to present evidence that these incidents were anything other than crimes of opportunity for the purpose of Mr. Graham obtaining free food.
Second, these facts preclude a determination that Mr. Graham should have known that his conduct would “cause a reasonable person in [T.T.’s] circumstances to fear for … her safety,” “feel seriously alarmed, disturbed, or frightened,” or “suffer emotional distress.” … “[t]o trigger criminal liability, the level of fear, alarm, or emotional distress” to support a stalking incident “must rise significantly above that which is commonly experienced in day to day living … and must involve ‘a severe[ ] intrusion on the victim’s privacy and autonomy.'” “Ordinary uneasiness, nervousness, [and] unhappiness are insufficient.” Specifically with respect to “fear for safety,” there must be proof of “fear of significant injury or a comparable harm” because the stalking statute is “meant to prohibit seriously troubling conduct, not mere unpleasant or mildly worrying encounters that occur on a regular basis in any community.”
Similarly, “emotional distress” must be “high, reaching a level that would possibly lead to seeking professional treatment.” And “alarm” likewise requires a showing of “mental harm[ ] comparable to fear for one’s safety or significant emotional distress.” On the record before us, no court could determine that Mr. Graham should have known that his surreptitious food stealing from a person with whom he had no relationship would cause the level of mental harm required by the stalking statute.
And the court concluded the same as to the window-knocking incidents:
As this court explained in Mashaud v. Boone (D.C. 2023), … to avoid running afoul of the First Amendment, the crime of stalking may not be proved by incidents of protected speech. To follow Mashaud, the trial court was obligated to consider whether each of the two sets of statements that it found amounted to “propositioning [another adult] for sexual acts” fell within any of the well-established categories for constitutionally unprotected speech, namely, “threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct.” …
Mr. Graham’s statements were manifestly not defamatory, fraudulent, or a call to incitement. His statements cannot be classified as obscenity, despite their sexual nature. “[S]ex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest.” We know of no court that has held that an adult’s verbal request to engage in sexual activity with another adult—even an unwanted and crude request—can be considered “obscene material” within the meaning of the First Amendment and we decline to be the first.
Nor were Mr. Graham’s statements “integral to criminal conduct,” unless that conduct is stalking; but we rejected such an argument as “fatally circular” in Mashaud (explaining that to fall under this exception, “the speech must be integral to conduct that constitutes another offense that does not involve protected speech,” because “it makes no sense as an exception if the speech both constitutes the crime itself and thereby avoids First Amendment protections by being integral to its own commission”).
This leaves threats. True threats are “serious expression[s] conveying that a speaker means to commit an act of unlawful violence,” and a defendant must have a “subjective” understanding of his statements’ threatening character. Because the First Amendment protects the “clueless speaker [who] fails to grasp his expression’s nature and consequence,” it is not enough that Mr. Graham spoke negligently, i.e., that a reasonable person would have known that his expression of interest in sexual activity with T.T. would put her in fear of a sexual assault. Rather, we must be able to conclude that Mr. Graham spoke recklessly—he must have been subjectively “aware that [T.T.] could regard his statements as threatening violence and deliver[ed] them anyway.”
The evidence does not support such a conclusion. As the trial court found and as the record supports, Mr. Graham simply “propositioned [T.T.] for sexual acts” (“I want to … “); he never suggested that he would proceed forcibly or attempt to hurt her. To the contrary, he left when she told him to go away and said that she was calling the police. And speaking to T.T. from a location outside the building, where others could possibly hear and see him from the street, further weighs against inferring that he was aware that his statements might be perceived as threatening sexual assault. In short, as distasteful as his conduct was, there is nothing in the record to suggest that he wanted to use force or violence to engage in nonconsensual sexual activity with T.T. or was aware that T.T. might fear that was his aim. Mashaud (explaining that “it is a foundational principle of the First Amendment that speech cannot be restricted simply because it is upsetting or arouses contempt”; “the First Amendment protects lots of speech that is substantially emotionally distressing”; and “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”).
With the understanding that Mr. Graham’s constitutionally protected speech on December 28 cannot be punished as stalking, we look to his conduct on that date, namely his act of knocking on T.T.’s bedroom window at 6 a.m. See Mashaud (explaining how the court can consider the act of communicating, provided that “we [ ] ignore the content of [any] communications”). Here, we cannot say with confidence that the trial court would have ruled that Mr. Graham’s window-knocking on that date, without consideration of his speech, constituted an incident of stalking, i.e., that it was “a severe[ ] intrusion on [T.T.’s] privacy and autonomy,” such that Mr. Graham should have known that it would cause a reasonable person the requisite “fear, alarm, or emotional distress,” discussed above. We note that the trial court found that Mr. Graham knocked at T.T.’s window—not that he attempted to break the glass; there are a number of innocuous-perhaps-rising-to-annoying reasons someone might knock on a person’s window; there is no evidence that, at least on December 28, Mr. Graham knew he was knocking on T.T.’s bedroom window; and, as the trial court also found, once T.T. told Mr. Graham to leave, he ran away. In short, based on the record and the court’s findings, we cannot say it is “highly probable that [that] error did not contribute to the verdict.” …
The court therefore reversed and remanded, noting “that T.T. or Mr. Graham will, on remand, seek to reopen the record to present new evidence in support of or in opposition to an anti-stalking order.”
The caption lists the respondent as “Antwan K. Graham,” and I found a D.C. sex offender registry for an “Antwan Kitrell Graham” (though the home address listed in the sex offender entry is in Connecticut). The offense of conviction is listed as having been a “Sexual Offense in the Third Degree” in Maryland, in 2018.
Claudia Benz represents Graham.
reason.com (Article Sourced Website)
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