A.T. v. C.R.

• Decision Date: 16 October 2015
• Docket Number: No. 14–P–1408.,14–P–1408.
• Citation: 39 N.E.3d 744,88 Mass.App.Ct. 532
• Parties: A.T. v. C.R.
• Court: Appeals Court of Massachusetts

88 Mass.App.Ct. 532

39 N.E.3d 744

A.T.

v.C.R.

No. 14–P–1408.

Appeals Court of Massachusetts, Essex.

Argued June 3, 2015.

Decided Oct. 16, 2015.

Janice Bassil, Boston (John E. Oh with her) for the defendant.

Charlene A. Caldeira (Stephen MacKenzie with her), Lexington, for the plaintiff.

Present: CYPHER, BERRY, MEADE, HANLON, & BLAKE, JJ.¹

Opinion

HANLON

, J.

After a hearing, a judge of the Juvenile Court extended a harassment prevention order against the juvenile defendant. See G.L. c. 258E, §§ 2

–4. The defendant appeals, arguing, among other things, that the plaintiff did not present sufficient evidence of harassment under the statute and that the

Legislature did not intend for the harassment prevention statute to apply in circumstances such as these. We affirm.

Background. The judge stated at the beginning of the hearing that he had reviewed the affidavit filed by the plaintiff and her father at the time of an earlier, ex parte hearing.² G.L. c. 258E, § 5

. He then heard testimony from both the plaintiff and the defendant. He made it clear in his findings that he found the plaintiff credible; the essential underlying facts are not in dispute.

At the time of the incidents, the defendant was eleven years old and in the sixth grade at a small private school; there were only twelve students in his class, and the plaintiff was one of them. The parties had been friends for two years and had become “boyfriend and girlfriend” within the week preceding the events at issue. On March 21, 2014, the defendant contacted the plaintiff through a telephone video chat program called “FaceTime.” The tone of the conversation initially was friendly, but it changed when the defendant said to the plaintiff, “Sometimes in math when I act like I'm staring at nothing I'm actually staring at your big jugs of milk.” This made her “[s]ad and afraid,” “angry,” and “embarrassed,” and she hung up the telephone. In addition, she later learned that one of the defendant's friends had been present with the defendant during the conversation and that the friend had made a video recording of it. The friend sent her the recording a short time afterwards; she showed it to her mother, who immediately deleted it.

The day after the conversation, when both parties were walking back from physical education class, the defendant told the plaintiff that, if she showed the video recording to anyone, he would “make her life a living hell.”³ The plaintiff testified that she was then “very scared that [the defendant] was going to do something.”

The plaintiff also testified that, soon afterwards, while the class was eating lunch in the school cafeteria, she heard the defendant “telling his sexual fantasy about [her].” On cross-examination, she clarified that the defendant's friend was relating the defendant's fantasy, with the defendant interrupting and correcting him

about details, “to make sure it was correct because it was his fantasy.” While she did not remember details about the fantasy, she explicitly described it as a “sexual fantasy” and agreed with her lawyer that “[i]t had something to do with [her] body.”⁴ “[A]lmost [their] whole class” was seated around the table, and the “other kids [were] overhearing and saying, ‘Whoa.’ ”

Following these incidents, the parties' parents communicated with each other, the school, and the local police department. Unhappy with the school's proposed plan for the situation, the defendant's parents voluntarily withdrew him from school and homeschooled him for the remainder of the school year. The defendant also sent, at his parents' request, a letter of apology to the plaintiff and her parents.⁵

Afterwards, on May 21, 2014, the defendant attended a school play with his mother; the plaintiff also attended, as did her mother and sisters. After the play was over, all of the students gathered outside and the defendant told one of the plaintiff's friends that “he wanted to punch [the plaintiff] in the titties.” The friend repeated the statement to the plaintiff, and then the defendant said it again, directly to the plaintiff. She walked away and “ran to [her] mom, and [they] drove home.” At the hearing, the defendant admitted that he had expected the plaintiff to hear what he said. The plaintiff also testified that, on more than one occasion, the defendant referred to her as “... bitch,” a play on her name.⁶ This made her “angry and mad, upset, afraid.”

Two days later, the plaintiff applied for and received an ex parte harassment prevention order against the defendant under the civil statute, G.L. c. 258E, ordering him not to abuse, harass, or contact her, and to remain away from her residence.⁷ On June 20, 2014, following an evidentiary hearing at which both parties testified, the judge extended the order for one year. In response, the defendant moved for a new trial and alternative relief, supported by affidavits from his mother and rabbi. The motion was

denied without a hearing.⁸ This appeal followed.

Discussion. In reviewing a civil harassment order under G.L. c. 258E, we consider whether the judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant committed “[three] or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property.” G.L. c. 258E, § 1

, definition of “Harassment,” inserted by St. 2010, § 23. See O'Brien v. Borowski, 461 Mass. 415, 420, 961 N.E.2d 547 (2012) (O'Brien ); Seney v. Morhy, 467 Mass. 58, 60, 3 N.E.3d 577 (2014). The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G.L. c. 258E, § 1, as being “characterized by cruelty, hostility or revenge,” and that each act was intended by the defendant to place the plaintiff in “fear of physical harm or fear of physical damage to property.” O'Brien, supra at 427, 961 N.E.2d 547. In the determination of whether the three acts “did in fact cause fear, intimidation, abuse or damage to property,” it is “the entire course of harassment, rather than each individual act, that must cause fear or intimidation.” Id. at 426 n. 8, 961 N.E.2d 547.

In finding sufficient evidence for the extension of the order, the judge found that “there [were] clearly three distinct acts of harassment. Additionally, the defendant's description of his sexual fantasy regarding the plaintiff (with his friend's ... help) in the presence of the plaintiff and their other classmates, as well as the defendant's name calling of the plaintiff (... bitch), are indicative of a cumulative pattern of harassment. It is entirely reasonable for the plaintiff to fear continued acts of harassment at the hands of the defendant without appropriate Court intervention.” Specifically, the judge noted the following three acts: (1) the sexual comment made during the FaceTime video chat; (2) the threat to “make your life a living hell” if she showed the video to anyone; and (3) the expressed desire to punch the plaintiff in her breasts. We agree that each of these was an act of harassment, and we note that the public recounting of the sexual

fantasy could reasonably have been determined to be a fourth.

If the first incident, the FaceTime video with the sexually explicit comment, had been an isolated one, and if it had occurred in a private conversation between the parties, it is unlikely that it would be seen as an act of harassment. However, given that the comment was made in the presence of a classmate, who was videotaping the conversation, it becomes something very different—a humiliating and intimidating moment, capable of repetition on social media indefinitely, and part of a larger pattern of harassment that continued in the following days.

The threat to make the plaintiff's life a living hell clearly was intimidation. The word “intimidation” has not been addressed specifically in earlier harassment cases. However, it appears in the statute and we note “the well-established rule of statutory construction that ‘none of the words [of the statute ...] should be regarded as superfluous.’ ” Lee v. Board of Appeals of Harwich, 11 Mass.App.Ct. 148, 154, 414 N.E.2d 619 (1981)

, quoting from Roblin Hope Indus., Inc. v. J.A. Sullivan Corp., 6 Mass.App.Ct. 481, 486, 377 N.E.2d 962 (1978). It is clear, therefore, that “intimidation” has a meaning other than “fear” and should be separately addressed. In so doing, the definitions supplied by the courts in other contexts are useful. See Commonwealth v. Gordon, 44 Mass.App.Ct. 233, 235, 694 N.E.2d 2 (1998) ( Gordon ) (“Webster's Third New International Dictionary 1184 [3d ed. 1993] defines intimidate as ‘to make timid or fearful: inspire or affect with fear’ ”). In Gordon, supra, quoting from Planned Parenthood League, Inc. v. Blake, 417 Mass. 467, 474, 631 N.E.2d 985, cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 122 (1994), we explained that, “[w]ithin the context of G.L. c. 12, § 11H, the Massachusetts Civil Rights Act, our Supreme Judicial Court has similarly defined the concept of intimidation as ‘putting in fear for the purpose of compelling or deterring conduct.’ ... Neither definition includes the requirement that to intimidate another, an individual must somehow place that person in fear or apprehension of actual harm.”

In this case, however, the defendant's threat to make the plaintiff's life a living hell also falls within the court's definition of a “true threat” as described in O'Brien, 461 Mass. at 424, 961 N.E.2d 547

. Specifically, the court explained,

“A true threat does not require ‘an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.’ [ Commonwealth v. Chou, 433 Mass. 229,] 234, 741 N.E.2d 17

[ (2001) (Chou ) ]. See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir.1997) (‘use of...