M.G. v. G.A.

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
17-P-584 Appeals Court
M.G. vs. G.A.
No. 17-P-584.
Middlesex. April 10, 2018. - September 28, 2018.
Present: Agnes, Massing, & Neyman, JJ.
Abuse Prevention. Practice, Civil, Dismissal. Rules of Civil
Procedure. District Court. Boston Municipal Court.
Words, "Abuse," "Sexual relations."
Civil action commenced in the Somerville Division of the
District Court Department on February 2, 2017.
The entry of an order dismissing the complaint was ordered
by Paul M. Yee, J.
Andrew W. Piltser Cowan for the plaintiff.
James J. Coviello (Danielle C. Chattin also present) for
the defendant.
AGNES, J. This appeal arises from the dismissal of a
complaint that sought a G. L. c. 209A abuse prevention order.
At the hearing conducted after notice had issued to the
2
defendant, the defendant moved "for a directed verdict"1 at the
close of the plaintiff's case on the ground that the evidence
presented by the plaintiff was not sufficient to support the
issuance of an order. After hearing argument from counsel, the
judge allowed the defendant's motion and dismissed the
complaint.
We conclude that the judge's order dismissing the complaint
must be vacated and the case must be remanded because the judge
interpreted the phrase "sexual relations," as it appears in the
definition of "abuse" set forth in G. L. c. 209A, § 1, too
narrowly. When the evidence is viewed in the light most
favorable to the plaintiff, the facts in this case are that
after the parties had begun to engage in consensual sexual
intercourse, the plaintiff withdrew her consent, but the
defendant remained on top of her and masturbated until he
ejaculated on her. As we explain below, this conduct involves
"inappropriate contact of a sexual nature," G. L. c. 268, § 21A,
1 Strictly speaking, the motion was mislabeled. "Motions
for directed verdicts are proper only when a jury have been
empanelled. Only juries reach verdicts; judges make findings"
(citations omitted). Kendall v. Selvaggio, 413 Mass. 619, 620
n.3 (1992). See Joseph Freedman Co. v. North Penn Transfer,
Inc., 388 Mass. 551, 554 n.4 (1983). In fact, prior to the 1996
merger of the District/Municipal Courts Rules of Civil Procedure
into the Massachusetts Rules of Civil Procedure, there was no
such thing as a motion for a "directed verdict" in District
Court practice. See Joseph Freedman Co., supra. The
appropriate motion at the close of the plaintiff's case in a
jury-waived trial would be a motion for a directed finding or a
required finding.
3
which we conclude is encompassed by the phrase "sexual
relations" as it appears in the definition of abuse in G. L.
c. 209A, § 1.
We also address the defendant's argument that the judge may
have dismissed the complaint at the close of the plaintiff's
case by not crediting the plaintiff's testimony. See Mass.
R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974) (second and third
sentences). Although on the record before us it is unclear
whether the judge did make credibility determinations as
permitted by rule 41 (b) (2) in certain cases tried without a
jury, we take this occasion to explain why rule 41 (b) (2) is
not applicable to G. L. c. 209A hearings in the District Court
and Boston Municipal Court.2 In such cases, as we explain below,
the judge has the discretion -- but not the duty -- to rule on
the sufficiency of the plaintiff's case at the close of the
plaintiff's evidence. If the judge exercises this discretion,
he must view the evidence in the light most favorable to the
plaintiff, drawing all reasonable and possible inferences in the
plaintiff's favor.
2 While this case was tried in the District Court, our
analysis applies equally to cases tried in the Boston Municipal
Court. See Mass. R. Civ. P. 1, as amended, 450 Mass. 1403
(2008) (explaining that "except when the context means something
to the contrary," District Court includes the Boston Municipal
Court).
4
Background. On February 2, 2017, the plaintiff, M.G.,
filed a complaint for an abuse prevention order against the
defendant, G.A., pursuant to G. L. c. 209A. The judge declined
to issue a temporary abuse prevention order after an ex parte
hearing on the complaint. An evidentiary hearing on the matter
was subsequently held at which both parties were present and
represented by counsel.
Viewing the evidence in the light most favorable to the
plaintiff, the judge could have found the following facts. The
plaintiff and the defendant began dating in August, 2012, and
purchased a condominium together by the end of 2013. In
October, 2015, the defendant moved out of the condominium, but
the parties continued to have sexual relations. In December,
2015, the defendant initiated a consensual sexual encounter with
the plaintiff. The parties engaged in "genital-to-genital
contact" as well as "finger-to-genital contact." At some point
during the sexual encounter, the plaintiff stated, "I'm done,
I'm tired" while the defendant was physically on top of her.
She told the defendant at least twice that she "did not want to
be doing this." The defendant stated "that he wanted to
finish." The defendant then masturbated to ejaculation while
remaining physically on top of the plaintiff.
The defendant moved for what he termed a "directed verdict"
at the close of the plaintiff's case. The judge allowed the
5
motion, concluding that the plaintiff failed to prove that the
defendant caused her to "engage involuntarily in sexual
relations by force, threat or duress," G. L. c. 209A, § 1 (c),
because the parties were no longer engaging in sexual
intercourse after the plaintiff said she was "done" and "tired."
Rather, the judge reasoned, "the most it could have been was an
assault and battery at that point in time."
Discussion. 1. Definition of "abuse" under G. L. c. 209A,
§ 1. In explaining the reasons for his ruling, the judge
indicated at one point that the plaintiff failed to prove that
the defendant caused her to engage in involuntary sexual
relations by force, threat, or duress as a matter of law because
the parties were no longer engaging in sexual intercourse after
the plaintiff said she was "done" and "tired." The plaintiff
argues on appeal that the term "sexual relations" as used in
G. L. c. 209A, § 1, should not be so narrowly construed. We
agree.
General Laws c. 209A, § 1, defines abuse as "the occurrence
of one or more of the following acts between family or household
members: (a) attempting to cause or causing physical harm; (b)
placing another in fear of imminent serious physical harm; [or]
(c) causing another to engage involuntarily in sexual relations
by force, threat or duress." Here, the plaintiff proceeded
under the third definition of "abuse." The term "sexual
6
relations" is not further defined in G. L. c. 209A, nor has it
been clearly defined by this court or the Supreme Judicial
Court. It is, however, broadly defined in G. L. c. 268, § 21A,
which criminalizes sexual relations between employees of
correctional institutions and inmates, as "intentional,
inappropriate contact of a sexual nature, including, but not
limited to conduct prohibited by [various enumerated criminal
sexual offenses]." In the context of G. L. c. 209A, we do not
believe that the Legislature intended to define "sexual
relations" so narrowly as to encompass only acts of sexual
intercourse, where the statute seeks to protect victims from
further sexual abuse and where it has been defined broadly in
another chapter of the General Laws. The plaintiff testified
that after she said, "I'm done, I'm tired," and communicated
that she wanted the defendant to stop, he remained physically on
top of her and continued to masturbate over her until he
ejaculated. In connection with conduct that is encompassed by
the phrase "sexual relations," no less than in the context of
"sexual intercourse" as used in the statutes proscribing rape, a
person's consent may be withdrawn prior to or during the act.
See Commonwealth v. Enimpah, 81 Mass. App. Ct. 657, 658-661
(2012). The evidence, taken in the light most favorable to the
plaintiff, was sufficient for the fact finder to conclude that
7
the defendant caused the plaintiff to engage involuntarily in
sexual relations.
We further conclude that sufficient evidence was introduced
to prove that the sexual relations between the parties were the
product of force. The term "force" is not further defined in
G. L. c. 209A, § 1, and has not been clearly defined by the case
law interpreting the statute. Force is an element of both the
offense of rape, G. L. c. 265, § 22,3 and of child rape, G. L.
c. 265, § 22A,4 and cases examining the sufficiency of the
evidence as it relates to the use of force in that context are
instructive. In Commonwealth v. Armstrong, 73 Mass. App. Ct.
245, 254 (2008), this court concluded that sufficient evidence
was presented to conclude that the defendant raped the victim, a
child, by physical force where "the defendant pulled the
victim's legs apart and positioned himself against her spread
legs while he engaged in oral sex." In Commonwealth v.
Stockhammer, 409 Mass. 867, 873 (1991), the Supreme Judicial
3 General Laws c. 265, § 22, provides, in pertinent part:
"Whoever has sexual intercourse or unnatural sexual intercourse
with a person, and compels such person to submit by force and
against his will . . . shall be punished by imprisonment in the
state prison for life or for any term of years."
4 General Laws c. 265, § 22A, states: "Whoever has sexual
intercourse or unnatural sexual intercourse with a child under
16, and compels such child to submit by force and against his
will or compels such child to submit by threat of bodily injury,
shall be punished by imprisonment in the state prison for life
or for any term of years."
8
Court concluded that sufficient evidence was presented to
overcome the defendant's motion for a required finding of not
guilty where the evidence indicated that the defendant
physically "forced the complainant onto her bed, removed and
disarranged her clothes while holding her down, and had
intercourse with her while the complainant pushed at him and
told him to stop." Using these cases as guidance, and taking
the evidence in the light most favorable to the plaintiff, we
conclude that the defendant's remaining physically on top of the
plaintiff and masturbating to ejaculation after she said, "I'm
done. I'm tired" was sufficient to establish the element of
force as it appears in G. L. c. 209A, § 1 (c).
2. Motion for a directed finding in a G. L. c. 209A case.
A party who seeks either an initial G. L. c. 209A order or an
extension of an order previously issued has the burden of
proving, by a preponderance of the evidence, that he or she is
"suffering from abuse." Iamele v. Asselin, 444 Mass. 734, 736
(2005), quoting G. L. c. 209A, § 3. See Frizado v. Frizado, 420
Mass. 592, 596, 597 (1995); Guidelines for Judicial Practice:
Abuse Prevention Proceedings § 5:04 (2011). The defendant is
not required to testify or present evidence, although the judge
may draw an adverse inference against a defendant who fails to
testify. Id. at 596. The drawing of an adverse inference alone
is insufficient to establish that the plaintiff has set forth an
9
adequate case for relief. See id. "Thus a defendant's failure
to testify cannot be used to justify the issuance of an abuse
prevention order until a case is presented on other evidence."
Id.
The defendant argues in the alternative that apart from his
rulings of law, the judge had independent grounds to dismiss the
plaintiff's complaint at the close of her evidence by exercising
his right as the finder of fact and simply choosing not to
believe the plaintiff's testimony in whole or in part. See
Mass. R. Civ. P. 41 (b) (2).5 See also Skowronski v. Sachs, 62
Mass. App. Ct. 630, 633 n.4 (2004); Ryan, Elliott & Co. v.
Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689-690
(1979). Generally, Mass. R. Civ. P. 41 (b) (2) allows a judge
to apply the directed verdict standard from Mass. R. Civ. P.
5Rule 41 (b) (2) of the Massachusetts Rules of Civil
Procedure provides as follows: "On motion of the defendant,
with notice, the court may, in its discretion, dismiss any
action for failure of the plaintiff to prosecute or to comply
with these rules or any order of court. After the plaintiff, in
an action tried by the court without a jury, has completed the
presentation of his evidence, the defendant, without waiving his
right to offer evidence in the event the motion is not granted,
may move for a dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief. The court
as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any
judgment until the close of all the evidence. If the court
renders judgment on the merits against the plaintiff the court
shall make findings as provided in [Mass. R. Civ. P. 52 (a), as
amended, 423 Mass. 1402 (1996)]."
10
50 (a), 365 Mass. 814 (1974),6 and, viewing the evidence in the
light most favorable to the plaintiff, determine whether from
anywhere in the evidence there are facts from which a rational
inference may be drawn in favor of the plaintiff. See Curtiss-
Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 3-4
(1980). Alternatively, Mass. R. Civ. P. 41 (b) (2) allows a
judge to exercise his or her discretion as the trier of fact,
"weigh[ing] the evidence and resolv[ing] all questions of
credibility, ambiguity, and contradiction in reaching a
decision." Ryan, Elliott & Co., 8 Mass. App. Ct. at 689.
Written factual findings supporting the judge's decision to
allow a motion for involuntary dismissal must be made pursuant
to Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996),
when the judge follows the second option and elects to act as a
trier of fact. See Mass. R. Civ. P. 41 (b) (2).
6 Rule 50 (a) of the Massachusetts Rules of Civil Procedure
provides as follows: "A party may move for a directed verdict
at the close of the evidence offered by an opponent, and may
offer evidence in the event that the motion is not granted,
without having reserved the right so to do and to the same
extent as if the motion had not been made. A party may also
move for a directed verdict at the close of all the evidence. A
motion for a directed verdict which is not granted is not a
waiver of trial by jury even though all parties to the action
have moved for directed verdicts. A motion for a directed
verdict shall state the specific grounds therefor. The order of
the court granting a motion for a directed verdict is effective
without any assent of the jury." Rule 50 (a) applies only to
cases tried to a jury. J.W. Smith & H.B. Zobel, Rules Practice
§ 50.2 (2d ed. 2007). See Wire & Textile Mach. v. Robinson, 332
Mass. 417, 418 (1955); Forbes v. Gordon & Gerber, Inc., 298
Mass. 91, 94-95 (1937).
11
The question therefore is whether Mass. R. Civ. P.
41 (b) (2) applies in G. L. c. 209A cases tried in the District
Court. The answer, we conclude, is "no." The Massachusetts
Rules of Civil Procedure apply "in the District Court and in the
Boston Municipal Court, in all suits of a civil nature whether
cognizable as cases at law or in equity, with the exceptions
stated in [Mass. R. Civ. P. 81, as amended, 423 Mass. 1412
(1996)]." Mass. R. Civ. P. 1, as amended, 450 Mass. 1403
(2008). In the District Court, "[t]hese rules apply to all
civil proceedings involved in cases traditionally considered
tort, contract, replevin, or equity actions . . . ." Mass.
R. Civ. P. 81 (a) (2).7 This was true even prior to the 1996
merger of the District/Municipal Courts Rules of Civil Procedure
into the Massachusetts Rules of Civil Procedure. See, e.g.,
Dist./Mun. Cts. R. Civ. P. 81 (a) (1995). General Laws c. 209A
7 Civil proceedings under G. L. c. 209A are commenced by
filing a complaint. G. L. c. 209A, § 3A. Throughout the
chapter, the parties are referred to as "plaintiff" and
"defendant." See, e.g., G. L. c. 209A, § 3. Although the
proceeding that occurs after notice to the defendant is referred
to as a "hearing," see G. L. c. 209A, § 3, "[p]roceedings held
pursuant to G. L. c. 209A are no different than any other
adversarial hearings in that each party has a right to present
evidence, and the moving party must satisfy the burden of proof
and subject its witnesses to cross-examination." C.O. v. M.M.,
442 Mass. 648, 657 (2004). See S.T. v. E.M., 80 Mass. App. Ct.
423, 429-431 (2011). Whether the G. L. c. 209A proceeding after
notice to the defendant is referred to as a "hearing" or a
"trial," we look to the Massachusetts Rules of Civil Procedure
because they apply to "all civil proceedings" unless noted
otherwise. See Mass. R. Civ. P. 81 (a) (1)-(3).
12
proceedings are purely statutory and, thus, are not among the
cases to which the Massachusetts Rules of Civil Procedure,
including in particular Mass. R. Civ. P. 41 (b) (2), apply in
the District Court. See Adoption of Paula, 420 Mass. 716, 732
n.17 (1995).
Guidance is supplied, however, by Mass. R. Civ. P.
81 (a) (3), which informs us that if a procedural question is
not governed by statute or another applicable rule, the practice
"shall follow the course of the common law, as near to these
rules as may be . . . ."8 As there is no provision in G. L.
c. 209A that provides a defendant with a right to challenge the
sufficiency of the evidence at the close of the plaintiff's
case, we look to the common law, i.e., the law in existence
prior to the adoption of the rules of civil procedure in 1973.
At common law, "[n]o pre-rule procedure existed in
Massachusetts for dismissal of a jury-waived or equity case,
after the plaintiff had rested, on the ground that upon the
8 Rule 81 (a) (3) of the Massachusetts Rules of Civil
Procedure provides as follows: "In respects not governed by
statute, or in the case of the District Court not governed by
other District Court rules, the practice in civil proceedings to
which these rules do not apply shall follow the course of the
common law, as near to these rules as may be, except that
depositions shall not be taken, nor interrogatories served, save
by order of the court on motion, with notice, for good cause
shown." See Mass. R. Civ. P. 81 (e), 365 Mass. 841 (1974)
("When no procedure is specifically prescribed, the court shall
proceed in any lawful manner not inconsistent with the
Constitution of this Commonwealth, these rules, or any
applicable statute").
13
facts and the law the plaintiff had shown no right to relief."
Reporter's Notes to Rule 41 (b) (2), Massachusetts Rules of
Court, Rules of Civil Procedure, at 65 (Thomson Reuters 2018).
See Hurley v. O'Sullivan, 137 Mass. 86, 86-87 (1884) ("The
respondent was not entitled to the two rulings requested at the
close of the petitioner's evidence. Without discussing them in
any other respect, he did not propose to submit the case finally
upon that evidence. Unless he did so, he could not require the
judge to express an opinion upon the weight and sufficiency of
the petitioner's evidence, or whether he had or not made out a
prima facie case. The refusal of the judge to rule in
accordance with his request, at this stage of the case, does not
afford him any ground of exception"); McMahon v. Tyng, 14 Allen
167, 169 (1867) ("The defendant was not entitled to a ruling
upon the plaintiff's case, reserving to himself the right to put
in his own case afterwards. No exception lies to this
refusal"). Nevertheless, while a judge was not required to
entertain such a motion at the close of the plaintiff's case, he
had discretion to do so. See Kingsford v. Hood, 105 Mass. 495,
498 (1870); Wetherbee v. Potter, 99 Mass. 354, 359-360 (1868);
Bradley v. Poole, 98 Mass. 169, 179 (1867). Because there was
discretion at common law to entertain a motion for a required or
directed finding challenging the sufficiency of the evidence at
the close of the plaintiff's case, Mass. R. Civ. P. 81 (a) (3)
14
preserves that option for judges sitting in the District Court.
However, Mass. R. Civ. P. 81 (a) (3) does not preserve the
option to make credibility determinations at this stage of the
proceedings. At common law, there was no practice like there is
under Mass. R. Civ. P. 41 (b) (2), whereby a judge in a jury-
waived proceeding could determine the credibility of the
plaintiff at the close of her case and dismiss a complaint on
that basis.
In determining whether to exercise discretion and entertain
a challenge to the sufficiency of the evidence presented by the
plaintiff at the close of her case in a G. L. c. 209A
proceeding, as judges do routinely in civil cases involving, for
example, tort or contract, judges should consider the nature and
purpose of G. L. c. 209A. In cases brought pursuant to G. L.
c. 209A, the focus of the proceeding must be on the plaintiff's
need for protection. Singh v. Capuano, 468 Mass. 328, 332
(2014). As we said in S.T. v. E.M., 80 Mass. App. Ct. 423, 430-
431 (2011), "each party should be given a fair opportunity to
present his case. While a judge surely may exclude irrelevant
or inadmissible evidence, or even interrupt an argument or a
witness examination that has become repetitious, he should not
terminate a hearing without ensuring that he has heard all the
relevant and admissible evidence once. [J]udicial discretion is
not unlimited, and each side must be given a meaningful
15
opportunity to challenge each other's evidence" (quotation and
citations omitted).
These considerations suggest that when presented with a
defendant's motion for a directed finding at the close of the
plaintiff's case on the ground that the evidence presented did
not support the issuance or extension of a G. L. c. 209A abuse
prevention order, there are advantages to first inquiring
whether the defendant intends to present evidence and, if so,
hearing any evidence that the defendant wishes to present before
acting on the motion. The judicial burden of hearing the
defendant's evidence is minimal, and hearing such evidence will
enable the judge to make a more informed decision in these
sensitive cases, in which the safety of the plaintiff is often
at issue. Because the majority of these cases involve self-
represented parties, inviting the defendant to present evidence,
which in turn gives the plaintiff the opportunity to cross-
examine the defendant or any witnesses he may call, may produce
relevant and probative evidence that otherwise would not be
presented. If the defendant does not wish to present any
evidence, the judge may, at that point, make credibility
determinations and adjudicate the case in the ordinary course.
16
See Frizado, 420 Mass. at 596 ("The plaintiff must make the case
for the awarding of relief").9
Here, based on the record before us, there are indications
that the judge, prior to the close of the evidence, may have
discredited portions of the plaintiff's testimony relating to
whether the sexual acts at issue were voluntary. Because, as we
explained above, Mass. R. Civ. P. 41 (b) (2) is not applicable
in G. L. c. 209A cases heard in the District Court,10 the judge
was not authorized to make credibility determinations at the
close of the plaintiff's case unless and until the defendant
rested.
Conclusion. We are mindful of the large volume of cases
under G. L. c. 209A that come before the District Court and
Boston Municipal Court week in and week out, and the careful
9 Of course, there may be cases in which the legal
insufficiency of the plaintiff's case is plain, such as when the
defendant is not a "family or household member" within the
meaning of G. L. c. 209A, § 1. In such a case, a judge sitting
in the District Court or Boston Municipal Court would be
authorized to allow a motion for a directed finding at the close
of the plaintiff's case and to enter judgment for the defendant.
10The limitation on the application of the rules of civil
procedure expressed in Mass. R. Civ. P. 81 (a) (2) does not
apply to proceedings brought in the Superior Court, see Mass. R.
Civ. P. 81 (a) (1), or in the Probate and Family Court. See
Mass. R. Dom. Rel. P. 41 (b) (2). Nonetheless, the advantages
in a G. L. c. 209A case associated with hearing both the
plaintiff's case and the defendant's case, if the defendant
wishes to testify or call witnesses, before making a decision
applies equally to judges in the Superior Court and Probate and
Family Court.
17
attention judges give to these sensitive and important cases.
Nothing we have said today should interfere with the efficient
disposition of these cases.11 Judges in those courts retain
their traditional, discretionary authority to dismiss a
complaint at the close of the plaintiff's case when the
evidence, if believed, would not entitle the plaintiff to
relief. Further, nothing in this opinion requires a defendant
who otherwise wishes not to testify or to present evidence to do
so. However, based on the Massachusetts Rules of Civil
Procedure, judges sitting in the District Court and Boston
Municipal Court hearing a complaint for relief under G. L. c.
209A, after notice to the defendant, are not authorized to
dismiss the complaint at the close of the plaintiff's case
Nothing we say in this opinion affects the settled law
11
that in a G. L. c. 209A hearing, after notice to the defendant,
"the moving party must satisfy the burden of proof and subject
its witnesses to cross-examination." C.O. v. M.M., 442 Mass.
648, 657 (2004). Thus, before the plaintiff rests, the
defendant has the right to cross-examine the plaintiff or any
witness called by the plaintiff to demonstrate inconsistencies,
contradictions, or ambiguities, if any, in the evidence.
Furthermore, the Supreme Judicial Court has repeatedly
emphasized that the "judge must be the directing and controlling
mind at the trial, and not a mere functionary to preserve order
and lend ceremonial dignity to the proceedings" (quotation
omitted). Commonwealth v. Carter, 475 Mass. 512, 526 (2016).
The judge thus "has discretion to exclude irrelevant evidence,
sua sponte, provided he does not exhibit bias in the process."
Commonwealth v. Lucien, 440 Mass. 658, 664 (2004). See
Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74 (2005) ("It is
well established that a judge in this Commonwealth may question
witnesses to clarify and develop evidence and to avert
perjury").
18
simply because they do not believe some or all of the
plaintiff's testimony. Instead, the resolution of questions of
credibility, ambiguity, and contradiction must await the close
of the evidence.
For the reasons set forth above, we vacate the order
dismissing the plaintiff's complaint and remand the matter for
further proceedings not inconsistent with this opinion.
So ordered.