Microaggression

Sugar Babies, Sexual Assault Claims, Takedown Demands, and Microaggressions

All together, in a Minnesota Court of Appeals decision handed down today.

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From Kiani v. Huha:

Self-described "sugar baby" Shawdy Kiani initiated a four-month sexual relationship with "sugar daddy" John Huha, exchanging "companionship" for lavishments. Kiani spurned Huha's attempt to elevate the arrangement into a real romance, and the relationship ended.

When Huha refused to remove from his social-media page photographs of Kiani and Huha as a couple and an image of Kiani's text message describing herself as his "prostitute," Kiani moved for a harassment restraining order claiming that she had been too intoxicated to consent and was therefore sexually assaulted during their first sexual rendezvous. The district court rejected Kiani's sexual-assault claim as incredible and only partially granted her motion.

Kiani argues that the district court was biased and erroneously found her incredible, erroneously admitted evidence, erroneously defined "sexual assault," and erroneously decided that Huha's social-media postingwas not harassment. Because the district court was not biased and did not clearly err by rejecting Kiani's sex-assault claim as a lie, because no erroneously admitted evidence prejudiced Kiani's motion, because the definition of sexual assault was immaterial, and because the district court reasonably concluded that the posting was not harassment, we affirm.

Here's the court's summary of the facts, the factual dispute, and the proceedings in the trial court:

In early 2017, twenty-year-old Shawdy Kiani visited the "Seeking Arrangements" online service, where, according to Kiani, "You can find a 'sugar daddy.' " The website promises a young woman (a "sugar baby") the opportunity to meet an older man (a "sugar daddy") for "companionship." The district court described the resulting arrangement candidly: "This 'sugar baby – sugar daddy' relationship is replete with euphemisms. In fact, realistically it is an exchange of primarily sexual services by the woman in return for large financial payments from the man."

Kiani met John Huha, a man in his mid-thirties, through the website. The two began a sexual relationship that lasted roughly four months (but the precise length is unclear). An episode during their first sexual liaison is a central event in this appeal.

Kiani and Huha communicated online and by text messaging for several weeks before their first liaison. They arranged to meet for a weekend in Pittsburgh, where Huha lived, specifically to engage in sexual intercourse. Kiani flew to Pittsburgh on a Friday afternoon. She met Huha in person for the first time. The two engaged in sexual intercourse at least once that Friday and several times the next morning and afternoon before they went out to dinner. Kiani drank alcoholic beverages steadily over dinner, and, according to her, she became quite drunk.

Kiani claims to remember only returning to their hotel room that Saturday evening before vomiting and passing out. She says that the next thing she remembers is waking up Sunday morning in bed with Huha. She asked him if they had had sex after dinner, and Huha said they had. They ate brunch together. Later that day Kiani boarded her scheduled flight and returned to Minnesota.

The sugar baby – sugar daddy relationship continued for months. Within two weeks of the Pittsburgh encounter, Huha flew to Minneapolis to meet with Kiani. Then they met in Miami, and then in Minneapolis, and finally Ohio. The district court found that, during this period, Kiani perceived that Huha "wanted their relationship to become more romantic" while Kiani "wanted to keep their relationship as it started—money from him in return for companionship and sex from her."

The disagreement came to a head during their Florida encounter, after which Kiani says she first tried to end the relationship. But she apparently had second thoughts, because the arrangement continued. Kiani wanted to impose some restrictions, however, so she told Huha expressly, "[I]f you want to see me like it has to be a real sugar baby/sugar daddy relationship, and so I said we can meet two weekends a month and then you would like help me out financially." She then met with Huha again in Minnesota and Ohio. Huha funded all of their escapades, each involving sex.

Sometime after the Ohio trip, Huha posted photographs of himself and Kiani together on social media. The photographs are not sexually graphic; they are headshots of the two together, smiling, like a typical couple.

But at some point the arrangement ended, and Kiani took issue with Huha's characterization of it as typically romantic. Kiani sent Huha a text message complaining about the posted photos, adding, "I am not [your] ex." When Huha responded asking Kiani what, then, she had been to him, Kiani replied, "Your prostitute." Huha captured the image of this text-message exchange and added it to the photos on his Instagram profile.

Kiani demanded that Huha remove the post. He refused. During an angry text-message exchange over several days, Huha complained that he had given Kiani $30,000 during their relationship, which the district court found to have been entirely "based upon consensual sex for financial reward."

Kiani's attorney sent Huha a letter demanding that he cease all contact with Kiani and remove all social-media posts depicting her. Huha again refused. Kiani petitioned for an ex-parte harassment restraining order, asserting for the first time that Huha had sexually assaulted her during their initial encounter in Pittsburgh. She asked the district court to order Huha to remove the photographs. Relying only on Kiani's allegations, the district court issued a restraining order pending an evidentiary hearing.

Only Kiani testified at the hearing. She testified to the account just described and claimed that the Saturday-evening sexual encounter during the initial liaison constituted sexual assault. Over the objection of Kiani's attorney, Huha's attorney offered into evidence the demand letter in which Kiani complained about the social-media photographs but said nothing of any alleged assault.

The district court found that Kiani was generally not credible, that her assault allegation was particularly incredible, that no sexual assault occurred, and that Huha's posting of the photographs on Facebook did not constitute "harassment" under Minnesota Statutes, section 609.748 (2017).

But the district court did find that the lengthy text-message exchange between the parties about the Instagram posting was "hostile in tone and somewhat threatening." It observed that neither party "expresses any desire to communicate with the other by any means" and that they live far apart in different states. It concluded that a "minor degree of harassment" in the text messages justified extending the restraining order two months, with no requirement to remove any internet post.

Kiani appealed; one of her arguments was that the district court erred in finding her incredible; the court of appeals disagreed:

We review a district court's credibility determination for clear error. In doing so, we accord the district court great deference. As the supreme court has long established, "the trial court is in a far better position than we are to evaluate the various factors bearing on the credibility of the witnesses, such as their demeanor, disposition, and character." …

In exceptional fashion, the district court thoroughly and reasonably explained its credibility determination based both on logic and witness demeanor. The district court observed, for example, that "[t]here was no corroboration at all" to support Kiani's claim of being sexually assaulted during the parties' first rendezvous. It considered that Kiani only recently came to claim that the after-dinner sexual contact was an assault. It highlighted that she had never reported an assault to any authority. It recognized that she had never behaved as if the episode was an assault.

The court said that it had observed Kiani's "demeanor and attitude carefully and listened to her testimony diligently, through both direct and cross examinations." Based on this, it found that "[h]er credibility was quite poor. Her testimony was vague, approaching flippant at times, and contained numerous evasions and omissions. She did not display great concern for factual truth overall. Significant events and actions were often bypassed or glossed over …. [Kiani] simply was not a credible witness."

It reasoned that the only way to believe Kiani's claim that she was intoxicated and helpless would be to take her at her word, but it found that "[she] had little credibility overall, and less as to this claim." It concluded frankly, "Her testimony on the point was not believable." This vivid description by Referee Richard Trachy explaining why he was rejecting Kiani's allegation is a model of thoughtful scrutiny, and the district court's factually supported decision to disbelieve Kiani is therefore certainly not clearly erroneous.

Kiani would have us hold otherwise based on three theories: Kiani's testimony was not challenged by any other testimony; the district court referee was biased against Kiani; and the credibility determination is logically inconsistent with the district court's two-month restraining-order extension. None of these theories is convincing.

We reject Kiani's contention that the district court clearly erred by finding her incredible on the theory that, as the sole witness, Kiani must be believed. A district court sitting as fact-finder "is the sole judge of the credibility of witnesses and may accept all or only part of any witness'[s] testimony." The fact-finder "is not compelled to believe any witness merely because [her] testimony is uncontradicted." …

The court also rejected Kiani's claim that the district court manifested bias against her, as shown by its supposed "microaggressions":

Kiani maintains that the referee's bias was manifested in the referee's words because he interrupted her testimony and stated, "I'm sorry, I'm having a little trouble understanding you. If you could try … to speak either a little louder or a little slower. … There is a slight accent. Try again."

Kiani labels these comments "microaggressions," which, she proclaims, "have no place in our justice system." Kiani does not define the term "microaggression." The term does not appear in any Minnesota statute or rule of court, any published or unpublished Minnesota appellate decision, or any federal appellate decision, so it carries no established meaning in law.

According to Scott O. Lilienfeld, Microaggressions: Strong Claims, Inadequate Evidence, 12 Perspectives on Psychological Science, 138, 141 (2017), "[t]he term microaggression was coined by Harvard University psychiatrist Chester Pierce in 1970 to describe seemingly minor but damaging put-downs and indignities" based on ethnicity. Lilienfeld explains that a "microaggression" is, by definition, one of several "indignities, whether intentional or unintentional, that communicate hostile, derogatory, or negative racial slights and insults."

The term "began to filter into the academic mainstream" in 2007. At that time, Professor Derald Wing Sue had similarly described the "nature of microaggressions" as "often unintentional and unconscious." Derald Wing Sue, et al., Racial Microaggressions in Everyday Life: Implications for Clinical Practice, American Psychologist, 271, 280 (May–June 2007).

A judge who calls attention to his difficulty comprehending a litigant's testimony because of the dialect, speed, or volume of the litigant's speech has not expressed a hostile, derogatory, or negative racial slight or insult against the litigant unless the judge intends the remarks to constitute a racial slight or insult. Merely labeling the request with the nebulous term "microaggression," which can involve purely unintentional communication, adds nothing to Kiani's unsupported accusation of bias. And nothing in the record hints that the referee's comments veiled some sort of ethnic or other partiality against Kiani. We hold that the referee's comments fall far short of manifesting bias….

And, finally, the court of appeals rejected Kiani's argument that "Huha's posting of the photographs on social media constituted harassment":

Harassment includes "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another." "[W]hether certain conduct constitutes harassment may be judged from both an objective standard, when assessing the effect the conduct has on the typical victim, and a subjective standard, to the extent the court may determine the harasser's intent." We review the district court's determination that the photographs did not constitute harassment for an abuse of discretion.

Kiani cites no published opinion to support her proposition that Huha's posting of the apparently inoffensive headshots of Kiani and Huha posing together constitutes harassment. She argues vaguely that the posting of the photographs, "in conjunction with other contacts," constitutes harassment. But the district court remedied the mildly harassing "other contacts" by restraining Huha from contacting Kiani for two months.

Kiani argues that the photographs separately constitute harassment because they "were damaging to [her] relationships with her family and substantially interfered with her privacy." She does not explain how the photographs damaged her relationship with anyone or otherwise interfered with her privacy. The photographs imply only that she and Huha were once a couple. And although the image of Kiani's text message describing herself as Huha's "prostitute" may be embarrassing, she fails to establish that the harassment statute, in the context of the First Amendment, authorizes the district court to prevent damaging or embarrassing self descriptions from being publicly disclosed.

Kiani does not convince us to overturn the district court's finding that "[n]othing about [the photos' placement on Huha's Instagram profile] created a substantial adverse effect upon [Kiani's] safety, security or privacy." …