The times, they are a’changing – at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication.  In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment.  Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.

As a refresher, harassment is defined by New Jersey statute as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted

The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.

Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of “texting” from www.netlingo.com as:

[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.

Providing it’s first extremely notable quotation that will likely be cited time and again as these cases become more frequent, the Appellate Division noted:

We conclude the evidence presented here shows only the convergence of modern technology and the foibles of human judgment.  Our ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions.  The ease and speed by which we transmit electronic messages has also created a commensurate expectation of an equally instantaneous response from the recipient.

In the case at issue, the parties utilized text messaging as a primary mode of communication about their children.  The Court acknowledged:

[T]exting provided an efficient means of exchanging information as parents, while avoiding the personal contact associated with a telephone call or a face-to-face encounter.  The limited number of words that can be sent at any one time in a text message also minimized the risk for extraneous matters to interfere with the primary dialogue of parenting.  Despite these qualities, texting is merely a tool, a means to an end.  Without reasonable cooperation, texting can lead to the frustration and misuse we witness here.  

Under such rationale, the Appellate Division found that the text messages were not sent with the requisite “purpose to harass” to establish the occurrence of harassment.  To that end, it found notable that the former wife responded only once to 18 messages sent by the husband inquiring as to the daughter’s SAT scores and that if she had “simply answered” his question, he would have stopped texting.  Instead, her decision to ignore him was found to have essentially exacerbated the situation.

The Appellate Division also found it was improper to consider texts by the husband’s current wife as evidence of harassment, since there was no evidence that the husband directed his current wife to act on his behalf.  In fact, the former wife even acknowledged that the husband’s only purpose in sending the texts was to inquire about the daughter, from whom he had become estranged, and that she was only “annoyed” by the texts after choosing to ignore them.  The Court even found the husband’s frustration reasonable, albeit misguided, but, since it was limited to inquiries about the children, it lacked the “purpose to harass.”

Suffice it to say, L.M.F. is a fantastically interesting decision for family lawyers, standing out in this area of the law for a variety of reasons, most notable of which is its foray into the use of electronic communications as a form of harassment.  The intelligent way in which the Appellate Division approaches this issue, especially in the context of divorced spouses trying to co-parent while keeping their emotions in check, provides great guidance for both litigants and legal counsel moving forward. While it may not be as simple, as a result, to establish an incident of harassment in such a case, the decision upon review seems to come at a perfect time in the crossroads of domestic violence law and electronic communications.

 

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