Idris I. v. Hazel H. ( 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-633
IDRIS I.
vs.
HAZEL H.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2021, the plaintiff obtained an abuse prevention order
against the defendant, his former girlfriend, in District Court.
On the defendant's appeal, we vacated that order on the grounds
that she was not afforded due process at the hearing after
notice. See Idris I. v. Hazel H., 100 Mass. App. 784, 791
(2022). On remand, a different judge denied the plaintiff's
petition for an abuse protection order, and the plaintiff now
appeals. We affirm.
Background. The parties met online in March 2017 and dated
for a few months. They subsequently resumed a sexual
relationship that lasted, on and off, until March 2020. The
plaintiff alleges that the defendant raped him approximately
twenty times beginning in March of 2018 and continuing for the
next two years. According to him, the defendant frequently made
threats to harm herself or him, and he engaged in sexual
intercourse with her only because of those threats. He also
alleges that she physically abused him by shoving him in the
back once and by intentionally scratching him with her toenails
during sex.
The parties last saw each other in person on March 10,
2020. There was some slight contact between them by electronic
means for the next month, at which time the contact ended with
only limited exceptions. In May and June 2020, the plaintiff
made multiple entreaties to the defendant; the defendant
responded on only one occasion and did so with a simple direct
message: "I don't want to be with you." Then in July 2020,
after the plaintiff again reached out to the defendant, the
defendant let the plaintiff know that she had been admitted to
McLean's Hospital. The only subsequent contact the parties had
was on March 1, 2021, when the defendant sent the plaintiff an
e-mail about their past relationship. Although that e-mail
perhaps can best be described as one seeking closure (as the
defendant herself explained at the initial hearing after
notice), it had a triggering effect on the plaintiff. According
to him, it brought back the trauma he had suffered from the past
alleged rapes, and as a result, he "live[s] with a constant and
overwhelming sense of dread, and anxiety, and fear and
powerlessness, that eats away at [him], and makes it difficult
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to relax and enjoy [his] daily life." On this basis, he sought
an abuse prevention order pursuant to G. L. c. 209A.
Having directly been accused of rape, the defendant chose
to invoke her rights under the Fifth Amendment to the United
States Constitution not to testify at the hearing on remand. As
a result, the record consists of the plaintiff's testimony and
documentary evidence of various communications between the
parties (such as e-mails and text messages).
Discussion. The thrust of the plaintiff's appeal is that
the judge necessarily abused his discretion in declining to
issue a 209A order, because there was overwhelming, uncontested
evidence that the plaintiff suffered extensive sexual abuse,
physical abuse, and threats by the defendant. The central flaw
in the plaintiff's argument is that the judge was not required
to credit the plaintiff's allegations. See Commonwealth v.
Gordon, 87 Mass. App. Ct. 322, 328 n.10 (2015) ("The absence of
a conflict in the evidence does not mean that the [hearing]
judge is required to credit the testimony"). Moreover, our
review of the record reveals that the judge had a solid basis
for his apparent rejection of the plaintiff's view of the facts.
The following examples will suffice.
Contrary to suggestions from the plaintiff that the
defendant was relentlessly pursuing sex with him, the record is
replete with instances where he was the one seeking to convince
3
the defendant not to cut off contact with him. In addition,
there are many examples throughout the period in question in
which he was imploring her, sometimes in graphic terms, to
continue to have sex with him. There was also evidence of his
efforts to control her to an extreme degree. For example, he
sent her a text message in 2019 stating his desire for her
"[t]otal sexual obedience at all times, including domestic
servitude, and having me make decisions about your appearance
and eating. With reasonable allowances for physical discomfort,
work, family, etc." The record also includes admissions by the
plaintiff that he mentally abused the defendant by telling her
that her "life doesn't matter" (while knowing that she suffered
from mental health issues), and that he physically abused her by
grabbing her arm and pulling her hair.1 Finally, the evidence
includes text messages in which the plaintiff implored the
defendant to "come over and 'rape' [him]," and in which he
expressed his fantasies about her "just barging in to take [him]
sexually" because he would "LOVE it."
None of this is to say that the defendant was faultless in
the relationship; she plainly was not. As the plaintiff
highlights, the documentary record establishes that the
1 Counterintuitively, the plaintiff claimed that in physically
abusing the defendant in this manner, his "purpose was precisely
to show [the defendant] that there would be no real violence."
4
defendant made some threats of physical harm to him. For
example, most disturbingly, in February of 2020, she sent him a
text message in which she expressed the "right to stab [him] in
the eye." But even that threat takes on a different appearance
when viewed in the context of the mutually toxic relationship
that the parties had forged. Notably, on the very same day the
defendant sent that message, the plaintiff e-mailed her: "I
love you . . . . Please stop putting obstacles in our path" and
requested that she "stop blocking" his attempts to reach out to
her. Then, the following day, the plaintiff wrote to the
defendant: "I think we can both agree you were out-of-pocket
last night. I still miss you, though."2
Even with the plaintiff's having documented that the
defendant had made some threats of physical violence, nothing
required the judge to find that the defendant used those threats
to rape the plaintiff.3 See Vanna V. v. Tanner T., 102 Mass.
2 The plaintiff sought to have the defendant criminally
prosecuted for the alleged rapes, physical assaults, and
threats. Although the Commonwealth initially had applied for a
criminal complaint with respect to three text messages,
including the one about the plaintiff's eye, it abandoned that
effort after further investigation.
3 For this reason, the plaintiff cannot rely on cases that
recognize that once a party seeking an abuse prevention order
has demonstrated that he or she has been the victim of actual
physical harm or of a sexual offense, reasonable fear of
imminent serious physical harm need not be also established.
See, e.g., Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-374
(2014).
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App. Ct. 549, 554 (2023) ("Any dispute as to the history of
abuse and the incidents of violence was for the judge to
resolve"). Nor was the judge required to accept the plaintiff's
testimony that any threats that were made placed him in
objectively reasonable fear of imminent serious physical harm.
See Iamele v. Asselin, 444 Mass. 734, 740-741 & n.3 (2005)
(discussing what party seeking abuse prevention order must prove
when the abuse alleged is based on threats and finding that "had
the judge chosen not to credit [the plaintiff's] testimony" as
to the "reasonableness or imminence of her fear[,] . . . he
might have properly decided not to extend the order"). The
hearing judge was in the best position to assess whether, in the
totality of the circumstances, an abuse prevention order was
warranted. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140
n.3 (2006) ("We accord the credibility determinations of the
judge who heard the testimony of the part[y] . . . [and]
observed [his] demeanor, the utmost deference" [quotation and
citation omitted]). Especially where the parties had not seen
each other in over two years, and had engaged in only very
limited contact during that time, the judge did not abuse his
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discretion when he declined to issue the requested order in May
of 2022.4
Order denying abuse
prevention order affirmed.
By the Court (Milkey, Walsh &
Smyth, JJ.5),
Clerk
Entered: June 1, 2023.
4 In passing, the plaintiff claims that the judge abused his
discretion by not allowing his counsel to pose specific
questions to the defendant after she indicated her intention to
invoke her Fifth Amendment rights. Where it was up to the
judge, as fact finder, whether to draw any negative inferences
against the defendant based on her invoking her Fifth Amendment
rights, see Baxter v. Palmigiano, 425 U.S. 308, 318-320 (1976),
the judge did not abuse his discretion in not subjecting the
defendant to such interrogation. To the extent the plaintiff
makes other arguments, they do not warrant further discussion.
See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
5 The panelists are listed in order of seniority.
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