E.T. v. J.U. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1002
E.T.
vs.
J.U.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On August 12, 2021, E.T. applied for a harassment
prevention order against J.U. See G. L. c. 258E. In an
affidavit in support of her application, E.T. stated that J.U.
had cropped photos from her Facebook account to create over
twenty lewd images and a video of her, some of which "involved
extremely sexual conduct." J.U. sent the photos to several of
E.T.'s coworkers, and made numerous comments about her work and
potentially reporting her because of her alleged incompetence.
E.T. also stated that some of her coworkers had informed her of
their concerns regarding J.U.'s obsession with her and E.T. did
"not feel safe" because of his obsession. Lastly, E.T. wrote
that J.U. had contacted her children's babysitter, inquiring
about what time the babysitter was watching the children and
why.
At the hearing, after notice, on E.T.'s application for the
order, E.T. and J.U. testified. E.T. and J.U. have known each
other for three years because of their employment as emergency
medical technicians for the same fire department. They have
never worked directly together, but interacted occasionally on
duty for emergency calls. E.T. testified that what she wrote in
her affidavit was true and showed the judge screenshots of the
video that J.U. sent around. J.U. did not send the video to
E.T., but E.T. received it from a co-worker. E.T. testified
that J.U. never threatened to harm her.
The judge concluded that the evidence was sufficient to
issue a harassment prevention order and ordered J.U. to stay
away from and have no contact with E.T. and "to take all photos
and videos of the plaintiff [offline] and not to post any photos
and videos of the plaintiff."
Discussion. On appeal, J.U. argues that the evidence was
insufficient to establish "harassment," as defined in G. L.
c. 258E, and thus the harassment prevention order was issued in
error. When reviewing harassment prevention orders, "we
consider whether the judge could find, by a preponderance of the
evidence, together with all permissible inferences, that the
defendant had 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
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and that [did] in fact cause fear, intimidation, abuse or damage
to property'" (citation omitted). Gassman v. Reason, 90 Mass.
App. Ct. 1, 7 (2016). See G. L. c. 258E, § 1. Where, as here,
some of the conduct involves speech, that speech must constitute
"true threats" or "fighting words" to qualify as an act of
harassment. Seney v. Morhy, 467 Mass. 58, 63 (2014). True
threats include "direct threats of imminent physical harm" and
"words or actions that -- taking into account the context in
which they arise -- cause the victim to fear such [imminent
physical] harm now or in the future." Van Liew v. Stansfield,
474 Mass. 31, 37 (2016), quoting O'Brien v. Borowksi, 461 Mass.
415, 425 (2012).
Because the judge here did not articulate which of J.U.'s
actions constituted the three acts, our review is based on the
entirety of the record. See Yasmin Y. v. Queshon Q., 101 Mass.
App. Ct. 252, 256 (2022).
We turn to the photos and the video. Although they may
have been crude and vulgar, they do not qualify as harassment
because there is no evidence that J.U. sent them with the intent
to cause fear, intimidation, abuse or damage to property or that
they in fact caused E.T. to experience fear, intimidation, abuse
or damage to property. Furthermore, they did not constitute "a
serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals,"
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Kareem K. v. Ida I., 100 Mass. App. Ct. 902, 904 (2022), quoting
Virginia v. Black, 538 U.S. 343, 359 (2003), or "face-to-face
personal insults that are so personally abusive that they are
plainly likely to provoke a violent reaction and cause a breach
of the peace." O'Brien, 461 Mass. 423, citing Cohen v.
California, 403 U.S. 15, 20 (1971). Thus, creating and
distributing the photos and video, as a matter of law, did not
constitute acts of harassment, particularly where E.T. informed
the judge that J.U. never threatened her with physical harm or
put her in fear of serious bodily injury. Cf. A.S.R. v. A.K.A.,
92 Mass. App. Ct. 270, 280 (2017) (though defendant did not
threaten immediate harm, communications that were "relentless,
carried on over a period of months, and frequently contained
explicit references to violence" satisfied definition of "true
threat").
Similarly, J.U.'s various statements that he was going to
report E.T. to supervisors for incompetence or that he was going
to get her in trouble at work, although upsetting to E.T., did
not amount to harassment or abuse within the meaning of G. L.
c. 258E, § 1. See O'Brien, 461 Mass. at 427 ("fear of economic
loss, [or] of unfavorable publicity" insufficient to establish
harassment for purposes of G. L. c. 258E).
The remaining allegation in E.T.'s affidavit -- that J.U.
contacted her children's babysitter to find out what time the
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babysitter was watching the children and why -- arguably could
have qualified as harassment. But even so, to obtain a
harassment prevention order, E.T. had the burden of proving that
J.U. committed at least three acts of harassment. For the
reasons we have stated, she did not meet that burden. While
J.U.'s conduct is troubling, we are constrained to conclude that
it is not enough to prove harassment under the statute. General
Laws c. 258E was not designed to protect against every type of
speech that can lead a reasonable person to be disgusted. See
Gassman, 90 Mass. App. Ct. at 8 ("the term 'harass' has a
specific definition in this context, derived from the statute
and case law, a definition much more exacting than common
usage").
Because the evidence adduced at the hearing failed to
satisfy the threshold requirements of G. L. c. 258E, § 1, the
harassment prevention order should not have issued and must be
vacated. Moreover, "if a judge vacates a harassment prevention
order, law enforcement officials shall destroy 'all record'
concerning such order." Seney, 467 Mass. at 60-61, quoting
G. L. c. 258E, § 9. The case is remanded to the District Court
for entry of an order vacating and setting aside the harassment
prevention order,
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and for further actions as required by G. L. c. 258E, § 9. See
F.K. v. S.C., 481 Mass. 325, 335 (2019).
So ordered.
By the Court (Sacks, Shin &
D'Angelo, JJ.1),
Clerk
Entered: June 28, 2023.
1 The panelists are listed in order of seniority.
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