E.C.O. v. Compton

• Decision Date: 13 March 2013
• Docket Number: SJC–11259.
• Citation: 984 N.E.2d 787,464 Mass. 558
• Parties: E.C.O. v. Gregory James COMPTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 558

984 N.E.2d 787

E.C.O.¹

v.Gregory James COMPTON.²

SJC–11259.

Supreme Judicial Court of Massachusetts,

Essex.

Submitted Nov. 8, 2012.

Decided March 13, 2013.

Mark D. Engel, Boston, for the defendant.

Robert F. Peck (Henry Porter with him) for the plaintiff.

Wendy M. Berg, Northampton, Christina L. Paradiso, Edward M. Ginsburg, Boston, Jessica Woodman–Hardy, & Jeff N. Sakol, for Community Legal Aid, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

IRELAND, C.J.

This case concerns whether a parent may seek an extension of an abuse prevention order under G.L. c. 209A to prevent his daughter, who was sixteen years of age, from voluntarily engaging in a sexual relationship with an adult.³ Following a hearing before a District Court judge, an ex parte abuse prevention order obtained pursuant to G.L. c. 209A, § 4, by a father on behalf of his daughter against the defendant, Gregory James Compton, was extended for one year pursuant to G.L. c. 209A, § 3. The defendant appealed to the Appeals Court. He asserts that the evidence was insufficient to support a finding of abuse and that the order should not have been extended because he and the plaintiff were not in a “ substantive dating relationship” as required by G.L. c. 209A, § 1 ( e ). We transferred the appeal to this court on our own initiative. Because there was no basis for the judge to conclude that the defendant's conduct rose to the level of “abuse” as defined by G.L. c. 209A, § 1, the extension order must be vacated.

1. Facts. We recite the facts based on the record before us. See Caplan v. Donovan, 450 Mass. 463, 464 n. 1, 879 N.E.2d 117, cert. denied, 553 U.S. 1018, 128 S.Ct. 2088, 170 L.Ed.2d 817 (2008). In July, 2011, while traveling in Europe with her mother and grandmother, the daughter, who was sixteen years of age, met the defendant, a citizen of the United Kingdom who was twenty-four years of age. In conversation with the defendant, the daughter falsely indicated that she was born in 1992, thus making her eighteen or nineteen years of age. They exchanged contact information. A few days later, the defendant took the daughter on a tour of the area surrounding London.

The daughter returned home and maintained communication with the defendant through various electronic means, including electronic mail messages (e-mail), instant messaging,⁴ Skype,⁵ and Facebook.⁶ The defendant does not dispute that the daughter, early in their communications, informed him that she was born in 1994, thus making her sixteen years of age.

Copies of various e-mails and instant messaging conversations demonstrated a mutual attraction between the daughter and the defendant and ongoing consensual electronic communications between them.⁷ In these communications, the defendant refers to the daughter as “babe,” “honey bee,” and “my love,” and ends communication by writing, “lov u: heart” and “xxx.” In addition to telling the plaintiff that she is “amazing,” the defendant talks about visiting her, their first lunch date, “a v gd hotel” where she could visit him, and engaging in conversation “with a glass of somthing gd in our hands.” The defendant's communications include many sexual innuendos. He also graphically and expressly made known to her his intentions to engage in sexual relations with her. In their electronic exchanges, they discussed the “age of consent” to engage in sexual intercourse (see note 3, supra), as well as the age difference and physical “distance” between them. Despite these “challenges,” the defendant stated, “i wouldnt even entertain this normally but with you it[ ] just makes sense.”

The defendant made plans to visit the Boston area in October and wrote to the daughter about how they would spend their time together on his arrival. The defendant indicated he wanted “a day spent in each others arms (make tht a few),” acknowledged her parents' disapproval of their “relationship,” ⁸ and noted that they would have to “sneak[ ] about.” He suggested a “sneaky sleepover” while he was in town and asked the daughter where she liked to be touched. The defendant reserved a room at an inn near her home and planned the trip during a time when her parents would be out of town.

On September 30, 2011, the father filed a complaint for protection under G.L. c. 209A against the defendant and obtained an ex parte order effective until the next hearing date of October 11.⁹,¹⁰ On October 4, the defendant, who was found in the town in which he had planned to reserve his room, was served with the order. On October 11, a hearing before a different District Court judge was held to determine whether the ex parte order should be extended. The father appeared pro se, and the defendant was present and was represented by counsel. The daughter did not appear or testify.

In addition to submitting his affidavit, the father provided the judge with copies of some of the electronic communications between the defendant and the daughter. During cross-examination by defense counsel, the father admitted that the defendant had not threatened physical harm to the daughter. Nor did the father have any evidence that the defendant “caused [the daughter] to engage involuntarily in sexual relations by force, threat, or duress.” In addition to filing an affidavit, the defendant testified. Much of his testimony was indiscernible by the court reporter because of noise, but the defendant testified that he “would never do anything that could possibly hurt [the daughter].” He testified that he told the mother that he would not have contact with the daughter and claimed that he “kept to that.” ¹¹

The judge rejected defense counsel's arguments that an abuse prevention order was inappropriate because there were no allegations of physical abuse or involuntary sexual conduct, and no evidence of a substantive dating relationship. The judge did not explain, however, on what basis he found abuse or the existence of a substantive dating relationship. He extended the abuse prevention order “in all respects” for one year. This appeal followed. ¹² The father is represented by counsel on appeal.

2. Discussion. We review the issuance of an order pursuant to G.L. c. 209A for an abuse of discretion or other error of law. Crenshaw v. Macklin, 430 Mass. 633, 636, 722 N.E.2d 458 (2000). “We accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor’ ... the utmost deference.” Ginsberg v. Blacker, 67 Mass.App.Ct. 139, 140 n. 3, 852 N.E.2d 679 (2006), quoting Pike v. Maguire, 47 Mass.App.Ct. 929, 929, 716 N.E.2d 686 (1999).

General Laws c. 209A enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from abuse or contact. G.L. c. 209A, § 3. Under G.L. c. 209A, § 1 ( e ), family or household members include persons who “are or have been in a substantive dating or engagement relationship.” “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: ( a ) attempting to cause or causing physical harm; ( b ) placing another in fear of imminent serious physical harm; ( c ) causing another to engage involuntarily in sexual relations by force, threat or duress.” G.L. c. 209A, § 1. The issuance of an abuse prevention order is a civil procedure, and abuse need only be proved by a preponderance of the evidence. See Jordan v. Clerk of the Westfield Div. of the Dist. Court Dep't, 425 Mass. 1016, 1017, 681 N.E.2d 276 (1997). A violation of an order to refrain from abuse or contact, however, is a crime, punishable by a fine or imprisonment in a house of correction, or both. G.L. c. 209A, § 7, fifth par. See Commonwealth v. Finase, 435 Mass. 310, 313–314, 757 N.E.2d 721 (2001).

Here, as conceded by the father, the defendant has neither physically harmed nor attempted physically to harm the daughter. In addition, because she is over the age of sixteen, she is legally capable of “consenting” to sexual intercourse, see note 3, supra, and as admitted by the father, the defendant has not caused the daughter to engage involuntarily in sexual relations by force, threat, or duress. Thus, there was no basis for the judge to issue the extension order under G.L. c. 209A, § 1 ( a ) or ( c ).

The father contends that the defendant's actions placed the daughter “in fear of imminent serious physical harm” under G.L. c. 209A, § 1 ( b ), because in suggesting that he was going to supply the plaintiff with alcohol, the defendant essentially offered to supply alcohol to a minor in violation of G.L. c. 138, § 34 (“whoever furnishes ... alcohol for a person under 21 years of age shall be punished by a fine ... or by imprisonment for not more than one year or both”). We disagree.

The definition of “abuse” under G.L. c. 209A, § 1 ( b ), closely approximates the common-law definition of the crime of assault, and we are guided by our definition in considering whether the defendant's conduct rose to such level of “abuse” under the statute. See Commonwealth v. Gordon, 407 Mass. 340, 349–350, 553 N.E.2d 915 (1990). We consider whether the defendant's conduct placed the daughter in “reasonable apprehension that [the defendant] might physically abuse her.” Id. at 350, 553 N.E.2d 915. The defendant's passing references in his electronic communications with the daughter implying that he might furnish her with alcohol, while understandably reprehensible to the father, is not evidence suggesting physical abuse or evidence that the defendant planned to give alcohol to her in order to have involuntary sexual relations with her, certainly a form of physical abuse. We conclude that this conduct does not meet the definition of “abuse” under G.L. c. 209A, § 1 ( b ), and thus fails to serve as a basis for issuing the extension order. ¹³ Because the judge had no basis...