Opinion
18-P-1340
11-06-2019
G.P. v. S.P.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, S.P., appeals from the extension of an abuse prevention order issued pursuant to G. L. c. 209A after an evidentiary hearing in the District Court. Discerning no error in the judge's conclusion that the abuse prevention order was needed to protect the plaintiff from the impact of serious and protracted past physical and sexual abuse where the defendant was now facing criminal prosecution for the abuse and did not appear to rebut the plaintiff's fears of retaliation, we affirm.
1. Standard of review. We review the extension of an abuse prevention order "for an abuse of discretion or other error of law." E.C.O. v. Compton, 464 Mass. 558, 562 (2013). "A plaintiff seeking the extension of an abuse prevention order must prove ‘by a preponderance of the evidence ... that the defendant has caused or attempted to cause physical harm, committed a sexual assault, or placed the plaintiff in reasonable fear of imminent serious physical harm." G.B. v. C.A., 94 Mass. App. Ct. 389, 393 (2018), quoting MacDonald v. Caruso, 467 Mass. 382, 386 (2014). Where the plaintiff has already suffered serious physical harm, the judge must determine whether "there is a continued need for the order because the damage resulting from that physical harm affects the victim even when further physical attack is not reasonably imminent." Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). "[I]n such a circumstance, the judge must make a discerning appraisal of the continued need for an abuse prevention order to protect the plaintiff from the impact of the violence already inflicted." Id.
"We accord the credibility determinations of the judge who ‘heard the testimony of the parties ... [and] observed their demeanor’ ... the utmost deference." E.C.O., 464 Mass. at 562, quoting Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140 n.3 (2006). "[W]e will not substitute our judgment for that of the trier of fact. We do, however, scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004).
2. Need for an abuse prevention order to protect the plaintiff. The plaintiff testified that the defendant, her step-brother, repeatedly sexually and physically abused her when they lived in the same household in Canada. The abuse included blackmailing the plaintiff to allow the defendant to touch her under her shirt on a weekly basis, assaulting the plaintiff if she fought back, and forcing the plaintiff to touch the defendant. The plaintiff testified that the abuse began when she was approximately six years old and lasted until she was approximately seventeen years old. The judge evaluated the plaintiff's demeanor during her testimony and found her credible. See E.C.O., 464 Mass. at 562. The fact that this abuse happened when she was a child does not vitiate the continuing impact on the plaintiff of the abuse she suffered. See Vittone v. Clairmont, 64 Mass. App. Ct. 479, 489 (2005) ("The infliction of some wounds may be so traumatic that the passage of time alone does not mitigate the victim's fear of the perpetrator"). Indeed, the egregious nature of the prior abuse is a significant factor supporting the need for protection despite the passage of time. See Doe v. Keller, 57 Mass. App. Ct. 776, 779 (2003).
In determining the need for an abuse prevention order to protect the plaintiff from the impact of violence already suffered, a judge properly considers any "significant changes in the circumstances of the parties." S.V. v. R.V., 94 Mass. App. Ct. 811, 813 (2019), quoting Iamele, 444 Mass. at 740. Although the last incident of abuse here occurred in 1993 or 1994, the plaintiff recently pressed criminal charges. For the first time, the defendant is now facing criminal charges and potential lengthy incarceration for sexual assault, sexual touching of a minor, and sexual interference. We discern no error in the judge's consideration of how the pending criminal litigation is "likely to engender hostility." Id.
Through counsel, the plaintiff indicated her present fear of retaliation for exposing the defendant. Counsel stated,
"She has finally come forward, and she is concerned that now he will take action to retaliate against her. He'd never had any reason to contact her in the past because she was silent. Now that she has come forward, she is very concerned."
The judge was entitled to consider this evidence, as strict compliance with the rules of evidence is not required in abuse prevention proceedings, "provided that there is fairness in what evidence is admitted and relied on." M.B. v. J.B., 86 Mass. App. Ct. 108, 110 n. 5 (2014), quoting Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). The defendant's counsel did not object to the consideration of plaintiff's counsel's representations and had a full opportunity to cross-examine the plaintiff on these matters. See Vittone, 64 Mass. App. Ct. at 481 n.4 (representations of counsel may be considered in absence of objection where defendant had fair opportunity of rebuttal).
To be sure, the plaintiff has the benefit of the bail order from the Canadian criminal court prohibiting the defendant from contacting the plaintiff or possessing weapons, and requiring him to stay away from the plaintiff. Protection orders from other States must be "enforced as if [they] were issued in the commonwealth." Commonwealth v. Shea, 467 Mass. 788, 789 (2014), quoting G. L. c. 209A, § 5A. Here, the local police department advised the plaintiff that a Canadian bail order was not enforceable in Massachusetts. Without deciding whether that advice was correct, we recognize that the plaintiff reasonably feared that the police would not enforce it and thus sought an abuse protection order three days after the defendant was released on bail. See McIsaac v. Porter, 90 Mass. App. Ct. 730, 734 (2016) ("The fact that the defendant here was at liberty on probation at the time of the extension, if anything, heightens the need to protect the victim from the impact of the violence already inflicted"). Although the defendant lives out-of-State, the plaintiff testified that she knows the defendant came to Massachusetts several times in the past year. The judge could properly consider the Canadian restraining order, and its limited enforceability, in assessing the need for an abuse prevention order to protect the plaintiff from the impact of prior violence. See Iamele, 444 Mass. at 740 ("In evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship").
Similarly, the judge properly considered that the pending criminal charges may create hostility on the part of the defendant. The judge may make an "adverse inference when a defendant in a civil abuse prevention matter, who also faces criminal charges, declines to testify." Singh v. Capuano, 468 Mass. 328, 333 (2014). Here, the defendant did not attend the hearing, and his counsel stated that, even if present, the defendant would not have testified in light of the pending criminal charges. The defendant's absence from the hearing, and his consequent failure to testify regarding his mindset and potential for retaliation, supported the conclusion that the order was needed to protect the plaintiff. See Frizado, 420 Mass. at 596 ("An inference adverse to a defendant may properly be drawn, however, from his or her failure to testify in a civil matter such as this, even if criminal proceedings are pending or might be brought against the defendant"). The judge determined that, given the credible witness, the serious charges in a foreign country, the risk of possible lengthy incarceration, and the Canadian restraining order, it was appropriate to extend the order for a year. See McIsaac, 90 Mass. App. Ct. at 733 (affirming order pursuant to G. L. c. 209A, § 1 [a ], and distinguishing Dollan v. Dollan, 55 Mass. App. Ct. 905 [2002] ). Contrast Dollan supra at 906 (where abuse prevention order was justified only on basis of G. L. c. 209A, § 1 [b ], placing another in fear of imminent serious physical harm, failure to present evidence that prior abuse may resume required denial of order). Accordingly, the judge acted within his discretion in extending the abuse prevention order.
Because "concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause," United States v. Balsys, 524 U.S. 666, 669 (1998), and a plaintiff in an abuse prevention case has the right to call the defendant as a witness, S.T. v. E.M., 80 Mass. App. Ct. 423, 429 (2011), the defendant's absence was the only way to protect himself from being required to testify.
Order dated August 2, 2018, affirmed.