Hinkson v. Stevens
|07 August 2020
|Vermont Supreme Court
|C. Paige HINKSON v. Stuart STEVENS
Andrew D. Manitsky and Barbara R. Blackman of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Plaintiff-Appellee.
Craig S. Nolan and Owen J. McClain of Sheehey Furlong & Behm P.C., Burlington, for Defendant-Appellant.
PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Skoglund, J. (Ret.) and Howard, Supr. J. (Ret.), Specially Assigned
¶ 1. Defendant appeals a final stalking order requiring him to stay 300 feet away from plaintiff. He argues that his conduct of (1) calling plaintiff's cell phone repeatedly from a number with no caller ID, (2) sending three shipments of books addressed to her husband to the house she and her husband shared, including primarily books about rape, and (3) watching her in a coffee shop for an unspecified period of time, could not be considered stalking under the civil stalking statute, 12 V.S.A. § 5131. Construing the terms of § 5131 narrowly because it mirrors the criminal stalking statute, we conclude that defendant's conduct in this case does not rise to the level of stalking, and therefore reverse.
¶ 2. On June 21, 2018, plaintiff filed a Complaint for Order Against Stalking against defendant under 12 V.S.A. § 5133. The court granted a temporary protective order, which through numerous extensions remained in place until the two-day hearing on November 8 and 9. The superior court found the following facts by a preponderance of the evidence.
¶ 3. Plaintiff lives in Stowe, Vermont with her husband C.D. and their teenage daughter. Plaintiff and C.D. co-founded a business, Transegy, LLC, that provides leadership development and executive coaching. Plaintiff's office is in her home, and her personal cell phone number is listed as the contact number for the business. C.D. previously worked at a company called Inntopia.
¶ 4. Defendant lives in Stowe, Vermont. He is a writer, political strategist and media consultant who has a "reputation as an aggressive operator in his professional pursuits." He is in a romantic relationship with L.S., who also lives in Stowe and has a teenage son who attends high school in the same class as plaintiff's daughter.
¶ 5. In February 2017, plaintiff's husband C.D. had a sexual encounter with defendant's romantic partner L.S., who had been exploring potential employment opportunities with Inntopia. Whether this was a consensual encounter or an act of sexual assault is in dispute. Shortly after the incident, L.S. reported to defendant that C.D. sexually assaulted her. Defendant testified that it was "extraordinarily difficult" for him to see the pain L.S. was in. He saw a therapist to help him understand the experiences of victims of sexual violence and read many books addressing the subject. L.S. filed a sexual-harassment lawsuit against C.D. and Inntopia, which settled in May 2017. As part of the settlement, L.S. signed a nondisclosure agreement. Plaintiff was unaware of L.S.'s allegations and her husband's infidelity until the lawsuit settled.
¶ 6. In April, before the settlement, plaintiff began receiving numerous calls from a number with no caller ID; the caller hung up if she answered the phone. She installed a program on her cell phone that can "unmask" telephone calls. The evidence at trial showed that between April 2017 and March 2018, defendant called her cell phone twenty-six times from a masked number. Defendant also called C.D.'s cell phone repeatedly during this period. In total, he called or texted plaintiff's and C.D.'s cell phones a total of 151 times. Many of the phone calls took place in the evening, including calls after ten or eleven p.m. Defendant testified that he thought he was calling the Transegy business line, not a personal cell phone, and that he was trying to reach C.D. to tell him that defendant and L.S. were not involved in a new sexual-harassment claim being asserted against Inntopia and C.D. by another person. The court did not find this explanation to be credible.
¶ 7. In May 2017, plaintiff and C.D. hosted a pre-prom party for their daughter, their daughter's classmates, and the classmates' parents. Before learning of C.D.'s sexual encounter with L.S., plaintiff had invited L.S. to the party. After learning of the incident, plaintiff asked a mutual friend to tell L.S. not to attend. Defendant called C.D. regarding the party, and the two had a thirty-minute conversation that defendant described as "civil." Following the telephone conversation, defendant sent C.D. an email criticizing C.D.'s character, lack of honesty with his wife, and conduct with respect to L.S. He accused C.D. of "continuing to victimize an innocent woman and her child." Neither defendant nor L.S. attended the party.
¶ 8. In June 2017, defendant sent three shipments of books, addressed to C.D., to plaintiff and C.D.'s home address. The first shipment contained a book defendant had written about his father called The Last Season; Missoula: Rape and the Justice System in a College Town by Jon Krakauer; and I Never Called It Rape by Robin Warshaw. The second shipment contained Rape is Rape: How Denial, Distortion, and Victim Blaming Are Fueling a Hidden Acquaintance Rape Crisis by Jody Raphael and a note that read "Hi [C.D.], Enjoy your gift! From [defendant]." The third shipment contained Asking For It: The Alarming Rise of Rape Culture – and What We Can Do About It by Kate Harding. Plaintiff opened the packages and was disturbed and upset to receive books on the topic of rape and with the word prominently displayed on the covers. Defendant testified that he sent the books because he thought they would be helpful to C.D., but the court did not find his explanation credible.
¶ 9. At some time during this period, plaintiff visited a coffee shop in Stowe to meet a friend who was running late. Plaintiff noticed defendant at the coffee shop with two to-go cups and a pastry bag. Rather than leaving, defendant remained in the store and sat two tables away, facing where she was sitting and staring at her. He did not drink the coffee or eat the food he had purchased. Plaintiff estimated that the encounter lasted for many minutes, presumably until her friend arrived.
¶ 10. Numerous articles were published about the sexual-assault allegations, including several by L.S. and defendant himself. In November 2017—when the masked calls to plaintiff's phone were at their peak—defendant emailed plaintiff an article he had written for the Stowe Reporter entitled "What To Do With Bad Men: Shun Them." The article was written in the wake of the #MeToo movement. Defendant wrote that he had "seen it in action recently where a man who prominently held himself out as a feminist and
community leader has been quietly exposed as a serial assaulter of women." He argued:
[W]hat is the right way to react to a man in the community whom you know has hurt women? ...
My view is that the answer is a simple one: Shun these men. Do not allow them to return to normalcy, which is the great sanctuary they seek. Sadly, many spouses are drawn into this deception, used to try to gain sympathy or proof the man must not be ‘that bad.’ This is the path Bill Cosby's wife has taken and it is not a rare one.
Shortly after the third party filed the other sexual harassment lawsuit against Inntopia and C.D., L.S. published an article on the Daily Beast website entitled, "The NDA [Non-Disclosure Agreement] Protected Our Predator. I'm Breaking My Silence, Because Women Deserve Better." The article discusses L.S.'s own lawsuit against C.D. and her support of the third party. Additional articles about both lawsuits followed. The Stowe Reporter has also published several articles about this stalking action.
¶ 11. On June 12, 2018, defendant sent an email to B.A., a friend of plaintiff's family. The email questioned why B.A. continued to be friends with C.D. in light of the allegations against him. Defendant wrote that he was disappointed that B.A. was going to spend vacation time with C.D. over the summer. Defendant called C.D. a "master manipulator," a "pathological liar," and a "predator." B.A. forwarded the email to plaintiff and C.D. Plaintiff filed the stalking complaint on June 21, 2018, shortly after receiving the forwarded email.
¶ 12. Based on plaintiff's and B.A.'s testimony, as well as its own observations of plaintiff, the court found that "there can be little doubt as to the emotional distress experienced by [plaintiff]" as a result of defendant's conduct. Plaintiff told B.A. that she did not feel safe in her home and community, and she testified that she did not eat or sleep well and that her routines had changed. She was emotionally distressed during the hearing and exhibited symptoms of panic during her deposition after being led to believe that defendant had moved closer to her home.
¶ 13. The court found that defendant's behavior constituted stalking under 12 V.S.A. § 5131. Under this statute, stalking means:
to engage purposefully in a course of conduct directed at a specific person that the person engaging in the conduct knows or should know would cause a reasonable person to:
(A) fear for his or her safety or the safety of a family member; or
(B) suffer substantial emotional distress as evidenced by:
(i) a fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death; or
(ii) significant modifications in the person's actions or routines ....
Id. § 5131(6). A course of conduct means "two or more acts over a period of time, however short, in which a person follows, monitors, surveils, threatens, or makes threats about another person, or interferes with another person's property." Id. § 5131(1)(A).
¶ 14. The court found by a preponderance of the evidence that defendant engaged in a course of conduct directed at plaintiff by making numerous masked calls to her cell phone, sending multiple books on rape culture to plaintiff's home, and watching...
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