Opinion
18-P-1252
05-31-2019
L.F. v. K.W.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On June 27, 2018, L.F. applied for an order for protection from abuse from K.W., her former boyfriend. See G. L. c. 209A. In an affidavit in support of the application, L.F. stated that, since 2016, K.W. had harassed and stalked her. She alleged that K.W. (1) broke into her laptop, stole information belonging to her and her family, and posted it online, (2) obtained nude pictures of her while she was "[incapacitated]" and sent them to her husband, and (3) "is contacting anyone [L.F.] speak[s] to on social media [and] spreading vicious lies [and] slander." L.F. further stated that K.W.'s behavior was causing her "continued fear [and] anxiety."
At a hearing on L.F.'s application for the abuse prevention order, L.F. also told the judge that K.W. had physically prevented her from exiting a vehicle or "leaving certain places." L.F. explained that while K.W. had not been near her in almost one year, he "[had] been harassing [her] and [her] family online" and "is stalking [her] nonstop." L.F. further stated that K.W. had used her identity online and had threatened to negatively impact her nursing license.
The judge suggested that the evidence did not support an abuse prevention order under G. L. c. 209A, and adjourned the hearing to allow L.F. to "fill out an application for a harassment prevention order." See G. L. c. 258E, § 3 (a). L.F. did so. When the case was recalled later that day the judge asked L.F. to describe "three acts that were considered harassment in the last let's say six months or so." L.F. responded that K.W. had been harassing her directly, through friends, and through "anybody I talk to on social media" by stating that L.F. suffers from bipolar and borderline personality disorders. L.F. further stated that K.W. has accused her children of not knowing who their father is, sent nude pictures of her to her husband, threatened her nursing license, posed as her online, and posted private information online that he had taken from her laptop.
The judge concluded that K.W.'s actions, as described by L.F., constituted three acts of harassment and issued a harassment prevention order requiring K.W. not to contact or abuse L.F. The judge did not identify the three acts of harassment and he made no further findings. On appeal, K.W. claims that the evidence was insufficient to establish that he had engaged in three acts of harassment as defined in G. L. c. 258E. We agree and vacate the order.
Discussion. "In reviewing a civil harassment prevention order, 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 and that [did] in fact cause fear, intimidation, abuse or damage to property.'" Petriello v. Indresano, 87 Mass. App. Ct. 438, 444 (2015), quoting G. L. c. 258E, § 1. Fear in this context means "fear of physical harm or fear of physical damage to property." O'Brien v. Borowski, 461 Mass. 415, 427 (2012). See A.R. v. L.C., 93 Mass. App. Ct. 758, 760 (2018) ("only a threat intended to cause fear of physical harm [or physical property damage] can qualify as one of the three predicate acts for purposes of c. 258E"). Fear of economic harm is insufficient. See O'Brien, supra. The Supreme Judicial Court has further confined the meaning of harassment in this context to "either fighting words or 'true threats.'" Id. at 425. True threats are "not only . . . direct threats of imminent physical harm, but [also] words or actions that -- taking into account the context in which they arise -- cause the victim to fear such harm now or in the future and evince intent on the part of the speaker or actor to cause such fear." Id. Fighting words are direct insults to a person that are "inherently likely to provoke violence." Id. at 423.
Our review is hampered by the absence of any findings identifying three acts of harassment. As best we can discern, the judge credited evidence that K.W. (1) posed as L.F. online, (2) posted L.F.'s personal information online, (3) sent nude photographs of L.F. to her husband, and (4) threatened L.F.'s nursing license. Even assuming these facts to be true, the evidence was insufficient to support a finding of three acts of harassment under G. L. c. 258E.
While L.F. testified that K.W.'s actions caused her fear in a general sense, the evidence was not sufficient to support a conclusion that K.W.'s conduct caused fear of physical harm or physical damage to property. There was no evidence that K.W. used fighting words or engaged in true threats online. Even assuming that K.W.'s online comments, which were not introduced in evidence, were insulting and embarrassing to L.F., the record does not support an inference that the insults were "inherently likely to provoke violence," or that K.W. threatened or caused L.F. to fear "physical harm." O'Brien, 461 Mass. at 423, 425. See Gassman v. Reason, 90 Mass. App. Ct. 1, 9 (2016) (vacating [harassment prevention order absent "evidence of a true threat or of fighting words").
In short, we cannot reasonably say "on this record, whether [L.F.] suffered actual fear for her physical safety or her property, or, instead, embarrassment at the allegations and distress about the invasion of her privacy." Petriello, 87 Mass. App. Ct. at 447. While K.W.'s conduct as described by L.F. is unquestionably troubling, we are constrained to conclude that is not enough to prove harassment under the statute. See A.R., 93 Mass. App. Ct. at 761 ("our appellate courts have repeatedly held . . . that conduct that might be considered harassing, intimidating, or abusive in the colloquial sense . . . [i]s not adequate to meet the standard spelled out in O'Brien[, 461 Mass. 415]"). Because the evidence adduced at the hearing "failed to satisfy the threshold requirement of G. L. c. 258E, § 1," the civil harassment prevention order should not have issued and must be vacated. F.K. v. S.C., 481 Mass. 325, 334 (2019). "Moreover, 'if a judge vacates a harassment prevention order, law enforcement officials shall destroy 'all record' concerning such order.'" Id. at 335, quoting Seney v. Morhy, 467 Mass. 58, 60-61 (2014). The case is remanded "to the District Court for entry of an order vacating and setting aside the harassment prevention order[], and for further actions required by G. L. c. 258E, § 9." Id. at 335.
Harassment prevention order dated June 27, 2018, vacated.
By the Court (Wolohojian, Kinder & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 31, 2019.