Eggplant Emoji 🍆 Means What You Think It Means–State v. Farley

A jury convicted Farley of sexual abuse of a minor. On appeal, the court addresses this online conversation between Farley and the victim:

Farley: “10:30 good boy 11 bad boy”

Victim: “Me bad boy”

Farley: “11 tomorrow night bud”

Victim: “No” plus “three emojis, which the victim testified were ‘a pointer at — like closing their finger meaning small [I assume 🤏] and an eggplant emoji [🍆]'”

[The court then includes more of the conversation in a footnote, but treats this part as irrelevant:]

Farley: “Please bud, u know why”

Victim: “N9” [meant to be “no”]

Victim: “Plz 11” [the opinion says this message came from the victim, but I wonder if it actually came from Farley?]

The victim testified that the eggplant emoji referred to a penis and that he was making a joke that Farley had a small penis. A detective testified “that because of his training and experience he knew that the eggplant emoji meant a penis” (I wonder what training covered this topic?), that the parties were talking about future sexual contact, and the victim was saying that he didn’t want the sexual contact. In closing arguments, the prosecutor said:

A fair reading of those texts, especially in the context of the relationship described by [the victim] and described by the defendant on the recording with [the detective][,] is that the defendant was implying that he wanted [the victim] to be a bad boy starting at around 11 o’clock at night when [the victim] went to bed in Corey Farley’s bed. That’s where [the victim] slept . . . . The implication is that he was going to do naughty things in bed with [the victim]. That’s what those emojis were about.

[The victim] was seemingly willing to be a bad boy, but couldn’t help commenting how small the defendant’s penis was using those emojis. Again, [the victim] couldn’t have known anything about this 29-year old man’s penis unless [the victim] had seen it. It is also too suspicious to ignore that reference to a penis being immediately connected to the talk about being a bad boy in the text, right.

On appeal, Farley protested that the prosecutor made a conclusion that wasn’t supported by the evidence (I assume this refers to how the prosecutor’s interpretation differed from the detective’s testimony…?). The court disagrees:

Although Farley is correct that the victim testified that the messages reflected a joke, exhibits containing the messages and emojis were admitted in evidence, the victim and detective both testified that the eggplant emoji meant a penis, and the detective also testified that he initially thought the messages indicated that Farley and the victim “were talking about a sexual exchange.” The prosecutor did not err in inferring from this testimony and from the exhibits that the messages had a sexual connotation, despite the testimony to the contrary that the messages did not mean this

The court upheld Farley’s conviction and sentence.

The opinion is confusing because the conversation, without additional context, could support multiple interpretations. It seems pretty obvious that the parties were discussing sexual contact, with or without the detective’s testimony or the prosecutor’s characterizations. It’s less obvious that the conversation indicates that the victim had actually seen Farley’s penis. Genitalia size jokes are a trope, even among younger children. It’s also unclear to me if the conversation indicates what the victim wanted to happen (especially the “plz 11” message), but consent is irrelevant when dealing with minors.

FWIW, I found 7 other references to the eggplant emoji in my caselaw dataset.

Case Citation: State v. Farley, 2024 ME 52 (Me. Sup. Ct. July 18, 2024)