Tuesday, May 31, 2016

Seibert v. City of San Jose (Cal. Ct. App. - May 31, 2016)

Read this opinion and see what you think.

Personally, I have a plethora of different emotions about it.  All of which conflict.

On the one hand, I see no need for a 35-year old man (the opinion doesn't mention his age, but that's what he apparently was) to exchange fairly graphic flirty e-mails with a 16-year old.  No need at all.

Much less do I see a need for him to do so when he's a firefighter/paramedic who's on duty and who met the girl when she toured the fire station.  Just it keep professional.  Seriously.

On the other hand, maybe he didn't know she was 16.  She was almost 17.  Maybe (so he says) she told him she was 18.  Plus, as the Court of Appeal explains, even though he knew she was in high school, most people turn 18 their senior year.  And, at 18, everything would be totally legal, right?

(Parenthetically, the Court of Appeal says that "Most students reach the age of majority sometime in their senior year," and I assume that's right, but tried and failed to find any actual proof of that fact.  I turned 18 after I graduated,  So did my younger brother.  So will my eldest son.  But my three other kids will turn 18 before.  It all depends on birth dates, starting early, etc.  I also wonder if there are any demographic or sociological differences: do some groups start earlier/later?  Anyway, the point is, I think the Court of Appeal is right, but am not totally sure, and can't prove it one way or another, at least after a brief search.)

Yet, still, the guy met her at work.  And sent the e-mails while at work.  Seems sleazy.

But he's a firefighter.  They do -- and are allowed to do -- tons of personal stuff (pretty much anything) while they're waiting for a call.  So why not flirting?  Again, if she was over 18, no one would really complain.  Much less, as here, fire the guy.

Yet, even if she was 18, or he thought she was 18, she's still in high school.  He definitely knew that.  And that mere fact alone makes it feel wrong.  Something we shouldn't want.  Something that we can validly sanction.  Maybe not criminally, but we can validly expect more from our public servants than trolling for high school booty while on the job.

But, on the other side, there wasn't an actual policy here, at least at the time, that prohibited this.  Doesn't that matter?  Unless you tell someone that X is impermissible, surely you shouldn't be able to fire them for it, right?

Except that isn't it obvious that a 35-year old shouldn't be doing this?

Except wouldn't it have been okay if she was, in fact, 18?

These, and other, conflicting thoughts arise.

I'm profoundly attuned to the problem of older adults doing things with younger people that they shouldn't.  And I don't think that there's a big social downside to saying that thirty-something men shouldn't be trying to pick up high school students.  Eighteen or not.

Though I also understand the other side.  Eighteen means they're adults.  They can do whatever they want.

But don't we want to be careful here?  Sure, some eighteen year olds are sophisticated.  (In this area, anyway.)  Maybe.  And maybe even some people under eighteen can be sophisticated-ish, at least not totally naive, in the sexual arena.  Maybe even this particular person.  (When you read the entire e-mail exchange at pages 3 through 7 of the opinion, one gets a sense that there may be at least a little bit of mutuality in the flirty interest here; e.g., the girl's last message, which reads "[A]nd how big is your thermometer? cuz i think i can open my mouth pretty wide to make sure we get the correct reading..but it may take a few tries.. and how else can we take my temperature?"  She clearly gets and participates in the double entendres generated by the firefighter's role as a paramedic.)

Anyway, I don't know.  I'd personally be just fine with -- indeed, almost certainly prefer -- a rule that says that no matter how hold a high school student is (or at least one under, say, 30), they're off limits to flirting, or anything else.  Period.  At least for someone, say, in their 30s or above; and then we can chat about what to do with 19-, 21-, 25-, and 29-year olds who may want to flirt etc. with an above-18 high school student.

And yet there isn't such a policy.  Or at least wasn't one here.  Yet.

But, again, presumably lots of things that are total common sense aren't written down.

Anyway, read the opinion.  Or at least the first ten pages or so.  See what you think.