I recently spent a great deal of time studying for my state’s bar exam.  While it was certainly a stressful exercise and one I don’t care to repeat in the near future, some rather interesting thoughts arose from it.  The one that struck me as most problematic stemmed from a discussion of the common law tort of battery.

Image credit: Ken Lund

For those who don’t know, a battery consists of: an intent to touch the victim, harm them by doing so, and actually touch them and cause harm.  The lecturer emphasized that “harm” isn’t necessarily a physical injury.  As an example, he discussed a scenario in which a man sat down at a coffeeshop across from a woman he vaguely knew, like a co-worker he hadn’t spoken much to. In the process of starting a conversation, the man casually stroked her hair.  According to the lecturer, this was battery.  His explanation was that reasonable people would consider such a touch quite offensive, even if it was not physically harmful, and the conduct was therefore tortious.

I realize that in the general population this is not a controversial statement.  But, in my social circle, the actor’s behavior is a perfectly acceptable greeting, even among people who don’t know each other especially well.  At the social events I attend and among the people I spend time with, a stroke of the hair or a scritch of the head is a not only common, but oftentimes expected.  There’s nothing wrong with either opinion on the question of head-scritching, it’s just a different set of cultural precepts.

Unfortunately, this sort of relativism has its limits in our society.  Let’s suppose Naive Nancy, who is unfamiliar with these customs, attends a private event and McPheely, without knowing Nancy wasn’t ‘one of us’, rubs the top of her head.  Now there are criminal charges pending or some sort of civil suit in progress. By what standard do we judge McPheely’s conduct?  Do we consider what the in-group values and customs dictate are proper behavior?  Or do we hold McPheely to some universal standard of conduct and not allow this group to alter that standard any?

This seems like an academic problem, but this one rears its head more often than you might think.  Take for example the recent obscenity trial of pornographer “Ray Guhn” in Florida.   Guhn stood accused of publishing materials the community would deem indecent.  In response, Guhn’s defense attorneys submitted data collected by Google Trends on relative frequency of pornographic search terms submitted to Google.  The ideas was that this data would convince jurors that the “community standards” were much laxer about pornography than what the jurors otherwise might have thought.  But when you get down to it, which “community’s” standards do we use to judge defendants in these types of cases?

Clearly there’s a market for their products somewhere, as Guhn’s website made $10 million in 5 years of business.  But that “community” might be so dispersed and isolated from mainstream society that calling it a “community” defies common sense.  One could also rely on the Google Trends data for the geographic area, but this also eliminates people from the community, since not all people in the area use the Internet, and some of those who do might not use Google.  One could also use a strict geographic definition of the community standards and hope the jury is a representational cross-section of the community’s values.  But this presents a similar problem to the McPheely and Naive Nancy scenario: at what point does a collection of people become a community of its own, and become entitled to deference to its own customs separate from those around it?

The irony of all this is that using community standards was supposed to create a more flexible standard so that communities could stay isolated or progress as they felt they needed to.  But now that a person can be an active member of a community they are geographically isolated from, the idea of community standards seems to be holding us back from allowing individuals or groups to set their own standards for acceptable behavior.  Refusing any meaningful contact with out-groupers might help you avoid their behaviors, but your behavior is still subject to their judgment.  Even if there is a group of people out there who consider your behavior acceptable, that’s not enough unless you live among those people.  Maybe it’s the best solution that we can pull off, but I’d like to think that there’s a better way to handle these problems.