A.S.R. v.

92 Mass.App.Ct. 270

84 N.E.3d 1276

A.S.R.

v.

A.K.A.

No. 17-P-1109.

Appeals Court of Massachusetts, Middlesex..

Argued November 15, 2016.

Decided September 22, 2017.

Ruth O'Meara-Costello, Boston, for the defendant.

Martin F. Kane, II, Cambridge, & Joan E. Kolligian, Boston, for the plaintiff, submitted a brief.

Present: Trainor, Meade, & Hanlon, JJ.

HANLON, J.

After a hearing, a judge of the District Court extended a harassment prevention order, pursuant to G.L.c. 258E, against the defendant, A.K.A.¹ She appeals, arguing, among other things, that the judge failed to identify three acts as the basis for the order, failed to make findings supporting A.K.A.'s intent in contacting the plaintiff, A.S.R., and, based on A.S.R.'s testimony that he was not placed in fear of physical harm or property damage as a result of the contact, there was insufficient evidence to extend the order. Finally, she argues that, even if issuing the order was warranted under the statute, the order was unconstitutional because it penalized constitutionally protected speech. We affirm.

Background. At the beginning of the extension hearing, the judge carefully reviewed A.S.R.'s initial affidavit and copies of various voice mail, text, and electronic mail (e-mail) messages admitted as an exhibit packet by agreement of the parties.²

He then heard testimony from A.S.R. and A.K.A.; both were represented by counsel.

The parties were in a dating relationship for a little more than one year until September, 2013. They continued to have contact until January, 2014, because A.S.R. "tried to help [A.K.A.] for a while," but then A.S.R. cut off contact and "made it very clear that [he] didn't want any contact from her." Afterwards, A.K.A. began sending A.S.R. "lots of e-mails, phone calls, [and] appearing in person in an attempt to get [him] to resume contact in a way that made [him] feel very afraid and hurt and abused." Although in March, 2014, A.S.R. threatened to obtain a restraining order, he resumed contact with A.K.A. for a short time in June, 2014, "in an attempt to make things right," because she had sent him images of her having cut herself "and a lot of desperate pleas."³ Eventually, however, A.S.R. cut off communications again. At the time of the hearing, on June 5, 2015, A.S.R. had not responded to any of A.K.A.'s written communications since June, 2014.

A.S.R. was aware that in July, 2014, A.K.A. had left the country; he learned that she was back in Boston in January, 2015, when she attended a programming event where he was working. However, even while A.K.A. was living out of the country, A.S.R. was receiving "a pretty steady stream" of e-mails from her, despite the fact that he had blocked her e-mail accounts and telephone numbers. He testified that "she would find ways around it."⁴ A.K.A. was able to skirt A.S.R.'s e-mail filters by sending messages from new e-mail addresses, and she would also call from unlisted telephone numbers so that her calls would not be blocked. A.S.R. testified that, after he broke off contact with A.K.A., he received "hundreds" of e-mails, text messages, and voice messages from her. Some of the messages purported to be from an imaginary friend; many were rambling and only barely coherent.⁵ Sometimes, there would be a series of e-mails with the message only in the title or subject line, thus defeating any effort by A.S.R. to avoid them by not opening the e-mail.⁶

In March, 2015, A.K.A. appeared at a choral ensemble concert where A.S.R. was singing; a few days later, she was at a Cambridge restaurant where A.S.R. was meeting his new girl friend and her parents for the first time. A.K.A. was seated at a table by the window so he saw her immediately when he approached the restaurant; she came outside and they had "a short confrontation." A.S.R. "implored her to stop trying to contact [him] and she implored [him] to resume contact with her." The messages continued. A.K.A. also appeared at a Quaker meeting she knew that A.S.R. sometimes attended.

A.S.R. testified that A.K.A.'s continuous contact made him "extremely afraid a lot of times" to open his e-mails and text messages, or to listen to his voice mail messages and, also, afraid that A.K.A. was going to appear at places where he was going to be. The constant contact caused him, and his family when he talked to them about it, emotional distress, fear, and anger. In many of her messages, A.K.A. spoke of killing herself or said that she was "going to die" (e.g., an e-mail from "throwaway account," "Subject: I want nothing more than to stick a knife in the back of my neck"). The last communication A.S.R. received from A.K.A. prior to the hearing was on May 12, 2015, an e-mail invitation to A.K.A.'s birthday party sent to a group of people including him.

A.K.A. also testified. She stated that, in early 2014, she was severely depressed; she agreed that she sent each of the e-mails contained in the exhibit packet, including the images of her having cut herself. She sent those e-mails and images to A.S.R. because she "wanted his empathy and his help"; she stated that she never threatened A.S.R. with physical harm or threatened to damage his property. She never threatened to hurt anyone other than herself. A.K.A. testified that, at the time of the hearing, she was "doing much better" and was no longer depressed; her continued attempts at contact with A.S.R. were "much calmer and conciliatory," and her intention in sending those communications was that they could "reach a resolution between [them] that feels satisfactory." She stated that between January and June, 2014, she did not actively seek out physical contact with A.S.R.

During her testimony, A.K.A. further stated that she had appeared at the Quaker meeting, the choral concert, and the programming event for reasons that had nothing to do with A.S.R. She did not know that A.S.R. was going to be at the Cambridge restaurant where she saw him; she had made plans with a friend to meet for lunch, and the friend had suggested that restaurant.

A.K.A. testified that, as to the phrase appearing in the April 24, 2015, transcript of an audio file she sent to A.S.R., which read, "I've been thinking a lot about whether I can find it in my heart to forgive you, or just thinking about an alternative to violence that feels true," she was "referring to the Quaker tradition of resolving conflicts through means other than physical or spiritual violence"; it did not refer to physical violence. She stated that the phrase, "I want it to be something other than violence that you've done to me," referred to "the fact that [A.S.R.] cut [her] off and tried to force [her] into silence." She testified that the "violence" that she was guilty of was her continued contact attempts with A.S.R. after he specifically had asked her to stop. A.K.A. stated that no matter the outcome of the hearing, she did not intend to contact A.S.R. again.

During cross-examination, A.K.A. did not agree that she continued to contact A.S.R. in an attempt to have him return to a relationship with her; she stated that her intent was to work out a "peaceful resolution" with him. She said that she was not trying to make A.S.R. uncomfortable; she acknowledged that she understood that, since June, 2014, A.S.R. did not want to have any contact with her. However, after seeing A.S.R. at the Cambridge restaurant, she sent an e-mail to his new girl friend; she (A.K.A.) had obtained his girl friend's e-mail address by checking A.S.R.'s OKCupid Internet dating account. She also admitted that, at the time of the hearing, she was still monitoring A.S.R.'s account.

At the conclusion of the hearing, the judge stated in oral findings that he did not find A.K.A.'s testimony to be credible, and that, although he found it a close question whether the e-mails fell within A.K.A.'s rights under the First Amendment to the United States Constitution, in his view the communications were "very violent"; he extended the harassment prevention order that had been issued ex parte.⁷

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 acts that constituted one of the enumerated forms of harassment. See O'Brien v. Borowski, 461 Mass. 415, 420, 961 N.E.2d 547 (2012) ; Seney v. Morhy, 467 Mass. 58, 60, 3 N.E.3d 577 (2014).

"Harassment" is defined in G.L.c. 258E, § 1, in several ways, and a plaintiff who proves any one of the various forms of harassment qualifies for an order prohibiting the harassment.⁸ The first definition is "(i) [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 does in fact cause fear, intimidation, abuse or damage to property." G.L.c. 258E, § 1 (definition of "harassment," subsection [i] ) (hereinafter, the first definition). This is the form of harassment most discussed in recent case law. See, e.g., O'Brien v. Borowski, 461 Mass. at 425-428, 961 N.E.2d 547 ; Seney v. Morhy, 467 Mass. at 63-64, 3 N.E.3d 577 ; Smith v. Mastalerz, 467 Mass. 1001, 1001-1002, 3 N.E.3d 576 (2014) ; A.T. v. C.R., 88 Mass.App.Ct. 532, 535-536, 39 N.E.3d 744 (2015) ; Gassman v. Reason, 90 Mass.App.Ct. 1, 7-8, 55 N.E.3d 997 (2016) ; V.J. v. N.J., 91 Mass.App.Ct. 22, 25-27, 68 N.E.3d 1195 (2017) ; C.E.R. v. P.C., 91 Mass.App.Ct. 124, 125-129, 71 N.E.3d 915 (2017).

This court, in F.A.P. v. J.E.S., 87 Mass.App.Ct. 595, 598-599, 33 N.E.3d 1245 (2015), discussed subsection (ii) of the definition of harassment under G.L.c. 258E, § 1 (hereinafter, the second definition). "Under this definition [of harassment], a plaintiff can establish the need for a harassment prevention order in either of two ways that largely overlap. First, a plaintiff can show that a defendant 'by force, threat or duress cause [d the plaintiff] to involuntarily engage in...