Criminalizing Awful

It was awful. Disgusting. Repugnant. But was it assault?

A Florida woman who was seen in a widely watched video intentionally coughing on a shopper at a Pier 1 home-goods store last summer, as fears about the pandemic raged, was sentenced on Thursday to 30 days in jail, court records show.

The woman, Debra Hunter, 53, had been charged with misdemeanor assault in June after she walked up and coughed on the shopper, Heather Sprague, who had been recording video of Ms. Hunter’s dispute with employees at the store, in Jacksonville.

Watching Hunter engaged in a dispute about a return with store employees, Sprague decided to video the interaction, as people do. Hunter, already angry, saw Sprague taking the video and chose poorly.

The video went viral and Hunter went to court, where things did not go well for her.

Ms. Sprague said she had undergone surgery to remove a brain tumor 10 months earlier and was still undergoing treatment when Ms. Hunter saw that she was recording and made an obscene gesture.

Sprague’s sensitivity, a product of her surgery, wasn’t merely opportunistic. She had good reason to have heightened fear of COVID, Some might also contend that given Sprague’s reasonable concerns, getting embroiled in a customer’s beef at Pier 1 by being that woman who had to take a video might not have been her best decision either.

“The defendant’s act of coughing in my face at the height of a pandemic was an act that was calculated to attack me at my weakest point, physically and psychologically,” Ms. Sprague told Judge James A. Ruth of Duval County Court, according to a recording of an online sentencing hearing that was posted by First Coast News. “I was stunned in the moment and increasingly fearful in the aftermath.”

There is, of course, no way Hunter would have known of Sprague’s brain tumor surgery, her ongoing treatment, or her peculiar sensitivity. Just because it was Sprague’s “weakest point” doesn’t mean Hunter would have had the ability to “calculate” her attack. How could Hunter have known?

After the encounter, Ms. Sprague said, she struggled to find a Covid test, as diagnostics were not widely available at the time, and ultimately tested negative.

This is not to excuse Hunter’s behavior, which was absolutely awful. But Sprague tested negative. No disease was inflicted. What was inflicted was fear and dread, and perhaps a little spittle. Was this a misdemeanor assault under Florida law?

784.011 Assault.—

(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Hunter didn’t just threaten to cough on Sprague, but coughed, contrived though it was. But was a cough “violence”?  While it might have given rise to a “well-founded” fear in Sprague that the cough might have given her COVID, it was not based on any evidence that Hunter had COVID to spread, but rather than absence of knowledge that she didn’t. And as the subsequent test showed, Hunter did not spread it and Sprague did not get it.

Florida law distinguishes assault and battery, with simple assault being a second degree misdemeanor and battery being a first degree misdemeanor, which can be accomplished by “Actually and intentionally touches or strikes another person against the will of the other.” Whoever wrote this law has never been in a New York City subway. Assault is the intentional threat of violence that doesn’t happen. Battery is the intentional touching against the other person’s will.

Hunter coughed. There’s no doubt from the video that Hunter’s cough was intentional. There’s no doubt that she was invoking fear of Covid by coughing in Sprague’s face, though it similarly appears that Hunter was ridiculing what she believed to be a hyper-sensitivity to COVID rather than a real threat. Was it violence?

Had Hunter, after her very mature reaction of giving Sprague the dreaded double finger, yelled “stop recording me or I’ll punch you in the nose,” that would have been a threat of violence. Had she then not punched Sprague in the nose, but left as she did, would this have escalated to a criminal prosecution or been written off as another Angry Karen in a Store?

Had Sprague not recorded the interaction, the situation would not have occurred. But Sprague did and not only did Hunter react as she did, but the video went viral and likely precipitated the subsequent prosecution, which might not have occurred but for the video having generated a public reaction. Few things motivate the police and prosecution like public reactions.

At sentence, Hunter explained how this viral video impacted her and her family.

Ms. Hunter said she felt remorse and guilt from “one very poor decision” that had cost her three children nearly all of their friends and had made her feel like a pariah in her community. She said her children had been greatly affected by the hundreds of text messages, emails, phone calls, social media threats and even hand-delivered letters she had received after the video of her coughing on Ms. Sprague gained widespread attention.

“The reality is that my family has been permanently scarred,” Ms. Hunter told the judge. “And although that scar might fade over time, it will never completely disappear. My kids should not have to pay the price for my mistake.”

But this reflected Hunter’s concern for her family’s suffering more than the harm done to Sprague, to whom she gave a cursory apology.

Judge Ruth took issue with Ms. Hunter’s testimony, saying she had expressed more concern for her family than for Ms. Sprague.

“She talked about how it changed her world and, you know, she’s getting the nastygrams on Facebook and things of that nature, and they can’t go to the country club or wherever, and can’t play soccer,” he said. “I get that. But I’ve yet to see any expression — or a significant expression — on her regret about the impact it had on the victim in this case.”

As Sprague’s medical condition gave rise to a greater sensitivity toward being infected with COVID, it’s understandable that this cough would inflict more significant psychological harm than it might otherwise. Hunter’s apology was, indeed, not a particularly significant expression of regret. And Hunter’s behavior was, without a doubt, awful. But people behaving badly happens all the time without rising to the level of criminality or being characterized as “violence.” No physical harm was done to Sprague. Wasn’t public condemnation sufficient punishment for Hunter’s awful behavior? Was it really a crime?