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SJC-12452

F.K. vs. S.C. (and a consolidated case1).

Essex. October 4, 2018. - January 31, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

Civil Harassment. Harassment Prevention. Protective Order.

Complaints for protection from harassment filed in the Lawrence Division of the District Court Department on March 17 and 20, 2017.

A hearing to extend harassment prevention orders was heard by Sarah Weyland Ellis, J., and a motion for reconsideration was heard by her.

The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

Lisa S. Core for S.C.

GAZIANO, J. The plaintiffs and the defendant were seniors

at the same high school when the defendant created a rap song in

which he improvised lyrics pertaining to the plaintiffs. Some

1 M.D. vs. S.C. 2

of the lyrics referenced violence that the defendant stated that

he wanted to inflict on M.D., whose name was mentioned in the

song. Other lyrics described acts of sexual violence that the

defendant stated he wanted to inflict on an unnamed woman; in

context, F.K. understood that the lyrics referred to her. The

defendant posted the song on a public Internet website, and then

posted a link to the song on a social media website. The

plaintiffs ultimately sought harassment prevention orders,

pursuant to G. L. c. 258E, § 3 (a), against the defendant, and a

District Court judge issued the requested orders.

A harassment prevention order may issue under G. L.

c. 258E, when a defendant has committed "[three] or more acts"

of "[h]arassment." See, e.g., G. L. c. 258E, § 1. The judge

found that, in posting the song, the defendant had committed at

least three individual acts of harassment against M.D. and F.K.

Because we conclude that the defendant's conduct amounted to

only one act of harassment, the harassment prevention orders

must be vacated and set aside.

We note, however, that a single act of harassment may be

sufficient for a civil injunctive order issued pursuant to a

court's equity jurisdiction. The plaintiffs here did not seek

such relief. 3

1. Background. a. Facts. The facts are essentially

undisputed, and were described in detail in the District Court

judge's memorandum of decision.

Although the parties were seniors at the same high school,

the defendant "barely" knew the plaintiffs. During their junior

year, the defendant and M.D. were in one class together, but

rarely spoke to each other and had no contact outside of class.

Thereafter, until the defendant posted the song almost a year

later, M.D. and the defendant had not interacted with one

another. They had no friends in common, and they moved in

different social circles. Indeed, M.D. asserted that the

defendant had no reason to harbor any ill will against him.

During their sophomore year, the defendant had been in one class

with F.K. According to F.K., she had had no other contact, or

history of conflict, with the defendant over the almost two

years before the defendant posted the song at issue here.

On an evening in March 2017, the defendant posted a song to

"SoundCloud." SoundCloud is a public Internet website on which

members can post songs and albums; the postings then become

accessible to other SoundCloud members.2 The song at issue

consisted of an instrumental track overlaid by the defendant's

"freestyle" rap, i.e., unwritten lyrics that the defendant

2 See https://soundcloud.com. 4

improvised as he sang. Also that evening, the defendant

"linked" the song from SoundCloud to his "Snapchat" account.

Snapchat is a social media website on which a member may share

information with a network of "friends."3 The defendant shared

the song with at least six other high school classmates, who

were members of the defendant's Snapchat "friend" network. He

did not share the song directly with M.D. or F.K.

The defendant's song was titled "Callin' Out Pussies in the

School." It contained many innocuous lyrics, such as, "I'm

happy now and all you can do is frown, ya"; "I'm gonna soar like

a bird, I'm go high it's time for me to roar, ya"; "Maybe go

fly, pack my bag and set up into the world, ya"; and "'bout to

go to college and explore the world, ya." The song also

contained negative references to M.D. by name: "You're a pussy

just like [M.D.], ya, ya." Although not explicitly naming M.D.,

other sections of the song also appeared to reference M.D.

Rather than simply insulting remarks, some of those lyrics

appeared to contain direct threats. For example, the defendant

sang, "I don't know what you are talkin' about, talking shit

in . . . class"; "I'm gonna fuck you up soon"; "I'm gonna blow

your fuckin' brains out soon"; and "I'm takin' your family down

one by one, boom." The song also contained references to an

3 See https://www.snapchat.com. 5

unnamed woman described as "your girlfriend" and "your bitch."

These lyrics appear to have been references to M.D.'s girl

friend, F.K., and both of the plaintiffs understood them as

such.4 The lyrics also contained profane and violent language

that appeared to suggest rape or sexual assault. In particular,

several stanzas included the following: "Makin' your bitch

sittin' and stayin' on her knees, ya I like bitches on her

knees"; "Then she gonna suck my D until she bleeds, ya"; and

"Soon to be I'm gonna sit your bitch down in the fuckin' lobby."

On the same evening that the song was posted to Snapchat, a

number of M.D.'s friends, all students at the same high school,

informed him about the existence of the song. They sent M.D.

electronic text messages that instructed him to listen to the

song on SoundCloud. M.D. did so. Shortly thereafter, his

father listened to the song, as did F.K.5

4 The motion judge heard testimony from M.D. and F.K. that a high school resource officer informed F.K. that the defendant previously had told that officer that the song's lyrics pertained to F.K. The defendant did not object to the introduction of this testimony. See Frizado v. Frizado,

(1995), abrogated on another ground by Zullo v. Goguen,

(1996) (in context of abuse prevention order sought under G. L. c. 209A, "[the] rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on"). Nor has the defendant contested that F.K. was one of the subjects of the song.

5 Although the defendant did not share the song with M.D. directly, the judge found that listening to the song placed M.D. "in fear of imminent serious physical harm." The judge also 6

After receiving threats of physical violence from members

of the high school hockey team (of which M.D. was a member), the

defendant removed the song from the Internet approximately two

hours after initially posting it.6

The following morning, M.D. and his parents met with the

high school's principal, an assistant principal, and a resource

officer. On the same day, F.K. also met with the resource

officer and an assistant principal.

Also that day, the defendant met with the resource officer

and an assistant principal. The defendant said that M.D. had

made derogatory comments about him (had "shaded" him) during the

junior year class. The defendant could not recall, however,

specifically what M.D. had said. As to the song, the defendant

explained that he had been freestyling, and had wanted to sound

like a rapper. The defendant remembered while rapping that M.D.

previously had said negative things about him in the junior year

class, and then got "caught up" in the moment. The defendant

acknowledged that he had "messed up," and said that he had had

no intention of hurting M.D. or M.D.'s family. The defendant

found that the song caused both F.K. and M.D.'s father to fear for their physical safety.

6 The judge credited F.K.'s testimony that the song remained accessible on the Internet. F.K. stated, however, that the song remained accessible only to a small group of SoundCloud members, as the result of an apparent flaw in the SoundCloud application or website, not because of any act or omission by the defendant. 7

asserted that he had not realized that the song would be

"seriously received."

The defendant was suspended for three days and was removed

from his position as captain of the school's tennis team. Based

on testimony provided by an assistant principal, the judge

allowed the defendant to return to school, so long as he did not

initiate contact with and stayed away from the plaintiffs. The

school allowed the defendant to leave class five minutes early

to help him avoid contact with the plaintiffs between classes.

Ultimately, however, after an "incidental" encounter in which

the defendant and F.K. passed each other, without any

conversation, in a stairwell of the school, the defendant

stopped going to school for the remainder of his senior year; he

opted to complete his coursework from home in order to avoid any

possible contact with the plaintiffs.

b. Prior proceedings. On Friday, March 17, 2017, M.D. and

his father sought and obtained temporary civil harassment

prevention orders from the District Court, pursuant to G. L.

c. 258E, § 5. The defendant was not present at the hearing.

Among other things, the order as to M.D. required the defendant

to stay away from the school. The defendant complied with the

terms of M.D.'s order, which was to expire on March 28, 2017.

On March 18, F.K. went to a police station with her mother and 8

obtained an emergency harassment prevention order, pursuant to

G. L. c. 258E, § 6, from an on-call judge.

On March 20, 2017, the defendant filed a motion to vacate

the harassment prevention orders. The plaintiffs were present

at the hearing on the motion to vacate, and they opposed the

motion; the motion was denied. In addition, the judge issued

F.K. a temporary harassment prevention order, pursuant to G. L.

c. 258E, § 5. The order required, among other things, that the

defendant "remain away" from the school. This order also was

set to expire on March 28, 2017. The defendant complied with

the orders.

On March 28, 2017, a hearing on a motion to extend the

temporary harassment prevention orders of F.K., M.D., and M.D.'s

father, pursuant to G. L. c. 258E, § 3 (a), was held before a

different District Court judge. All parties were present. The

parties submitted exhibits, and several witnesses testified.

The judge concluded that "the individual statements within

the song" constituted "separate acts" of harassment within the

meaning of G. L. c. 258E, § 1, and that those lyrics were

directed at M.D. and F.K. In addition, she found that the

defendant's posting of the song on two Internet websites and the

fact that "at least six separate individuals" had heard the song

each constituted separate acts of harassment. Accordingly, the

judge extended the harassment prevention orders until March 27, 9

2018. She modified the orders, however, to allow the defendant

to attend school, so long as he remained fifty yards away from

M.D. and F.K. Because the song did not contain three or more

lyrics concerning M.D.'s father, the judge declined to extend

the order pertaining to him.

The defendant filed a timely notice of appeal. Thereafter,

he filed a motion for reconsideration or for a stay pending

appeal.7 The defendant argued that, because he had not committed

three or more acts of harassment, the temporary harassment

prevention orders had been improperly extended under G. L.

c. 258E, § 1. In May 2017, a hearing was held on the

defendant's motion for reconsideration; the plaintiffs each

opposed the motion.

Following the hearing on the motion for reconsideration,

the judge again concluded that the defendant had committed three

or more separate acts of harassment against F.K. and M.D. She

again parsed the "one song" into "individual lyrics," and found

that those individual lyrics constituted at least three separate

acts of harassment against F.K. and M.D. The judge also found

that the defendant "engaged in a series of separate acts

necessary to create," "post," and "distribute the song." In

7 In the alternative, the defendant requested that the harassment prevention orders be modified to allow him to attend his high school graduation ceremony. The judge denied this request. 10

addition, she found that the song reached "more than three

recipients" when the defendant posted it on the Internet and

that M.D. received "notice of the song from at least six

separate individuals." On these bases, the judge denied the

defendant's motion. The defendant then sought an emergency

motion for a stay under Mass. R. A. P. 6 (a), as appearing in

(2009); he requested that a single justice of the

Appeals Court briefly stay the harassment prevention orders so

that he would be able to attend his high school graduation

ceremony.8 Neither M.D. nor F.K. filed an opposition.

Following a hearing at which all parties were present, the

single justice determined that the plaintiffs had not

demonstrated a likelihood of success that they would be able to

prove three or more acts of harassment at trial, as required

under G. L. c. 258E, § 1. The single justice was "of the view

that the defendant [had] demonstrated a substantial likelihood

of success on the merits of his appeal, as the record [did] not

suggest that the statutory requirement of 'three acts' [had]

been met." Accordingly, the single justice concluded that the

defendant had demonstrated a substantial likelihood of success

on the merits.

8 Pursuant to O'Brien v. Borowski,

(2012), appeals from harassment prevention orders obtained under G. L. c. 258E, § 1, must be filed in the Appeals Court. 11

The defendant ultimately filed his appeal in the Appeals

Court, and we transferred the matter to this court on our own

motion.

2. Discussion. The defendant contends that performing the

song and posting it on the Internet constituted "[o]ne

continuous act," which "cannot be parsed into individual acts in

order to satisfy" the requirements of G. L. c. 258E, §§ 1

and 3 (a). Neither plaintiff has filed a brief or otherwise

appeared for the purpose of this appeal. Having carefully

reviewed the record, we conclude that the facts of this case do

not support the issuance of civil harassment prevention orders,

pursuant to G. L. c. 258E, §§ 1 and 3 (a).

a. Statutory framework. In 2010, the Legislature enacted

St. 2010, c. 23, entitled, "An Act relative to harassment

prevention orders," see G. L. c. 258E, "to allow individuals to

obtain civil restraining orders against persons who are not

family or household members, and to make the violation of those

orders punishable as a crime" (citation omitted). O'Brien v.

Borowski,

(2012), abrogated on another ground

by Seney v. Morhy,

(2014).9

9 Although harassment prevention orders are civil in nature, violation of a harassment prevention order is a criminal offense. See, e.g., G. L. c. 258E, § 4; Seney v. Morhy,

(2014). Criminal sanctions imposed under G. L. c. 258E may include "a fine of not more than $5,000"; "imprisonment for not more than [two and one-half] years in a 12

Under certain circumstances, a plaintiff may obtain an

emergency harassment prevention order pursuant to G. L. c. 258E,

§ 6, without first filing a complaint. When "the court is

closed for business or the plaintiff is unable to appear in

court because of severe hardship due to the plaintiff's physical

condition," a plaintiff may obtain a temporary emergency order

if the plaintiff "demonstrates a substantial likelihood of

immediate danger of harassment." If physically able, the

plaintiff "appear[s] in court on the next available business day

to file a complaint." G. L. c. 258E, § 6. Notice then must be

provided to the defendant. G. L. c. 258E, § 9.

A plaintiff also may file a complaint under G. L. c. 258E

to seek one of two types of orders. See, e.g., G. L. c. 258E,

§§ 3 (a), 5. First, when "the plaintiff demonstrates a

substantial likelihood of immediate danger of harassment," the

court may issue a temporary harassment prevention order without

giving prior notice to the defendant. See G. L. c. 258E, § 5.

The "appropriate law enforcement agency" then must serve the

defendant with two certified copies of the temporary harassment

prevention order, a copy of the complaint, and a copy of the

house of correction"; payment of additional fees and assessments; or completion of "an appropriate treatment program based on the offense." See G. L. c. 258E, § 9. A judge also may order that a defendant pay certain damages to the plaintiff, including attorney's fees. Id. 13

summons. See G. L. c. 258E, § 9. No later than "[ten] court

business days after such orders are entered," a defendant must

have an "opportunity to be heard on the question of continuing

the temporary order" and a plaintiff shall have an opportunity

to seek "other relief," including an extension of the temporary

harassment prevention order. See G. L. c. 258E, § 5. Second,

under G. L. c. 258E, § 3 (a), a plaintiff may file a complaint

seeking a harassment prevention order that "shall not extend for

a period exceeding [one] year." See G. L. c. 258E, § 3 (d).10

To obtain a civil harassment prevention order under G. L.

c. 258E, § 3 (a), a plaintiff must demonstrate, by a

preponderance of the evidence,11 that the defendant committed

"[three] or more acts" of "[h]arassment" within the meaning of

G. L. c. 258E, § 1. See Van Liew v. Stansfield,

(2016).

In relevant part, an act constitutes "[h]arassment" under

G. L. c. 258E, § 1, when it is "aimed at a specific person";

10A court may later extend a harassment prevention order upon motion of the plaintiff, consistent with the requirements of G. L. c. 258E, § 3 (d).

11Although not expressly stated in G. L. c. 258E, our prior jurisprudence indicates that a plaintiff who seeks a harassment prevention order under G. L. c. 258E, § 3 (a), must demonstrate by a preponderance of the evidence that the order is warranted. See, e.g., Frizado,

(plaintiff seeking civil abuse prevention order under G. L. c. 209A, "must make a case for relief by a preponderance of the evidence"). See also MacDonald v. Caruso,

(2014). 14

consists of "willful and malicious conduct" that is "committed

with the intent to cause fear, intimidation, abuse or damage to

property," and "does in fact cause fear, intimidation, abuse or

damage to property."12 See G. L. c. 258E, § 1.

b. At least three acts "aimed at a specific person." As a

threshold matter, a plaintiff must demonstrate that a defendant

engaged in "[three] or more acts," each "aimed at a specific

person." See, e.g., O'Brien,

. One continuous

act cannot be parsed into its constituent parts so as to satisfy

G. L. c. 258E, § 1. See, e.g., Smith v. Mastalerz,

(2014).

In

, the defendant drove his vehicle

past the plaintiff, who was standing outside her house, turned

around and drove by the plaintiff again, and, only a few moments

later, drove past the plaintiff a third time. The plaintiff

obtained a civil harassment prevention order under G. L.

c. 258E, § 3 (a), which was extended approximately one year

later, pursuant to G. L. c. 258E, § 3 (d). See

at

1001 & n.1. Without deciding whether the defendant's conduct

rose to the level of "[h]arassment" under G. L. c. 258E, § 1,

12General Laws c. 258E, § 1, provides another definition of "harassment," not applicable to this case: "an act that . . . (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of [G. L. c. 265, § 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A,] or [G. L. c. 272, § 3]." 15

this court determined that "where there was no evidence refuting

the defendant's claim that he lived down the street from the

plaintiff, . . . driving by the plaintiff's home within a very

short period of time was one continuous act."

. We therefore concluded that the plaintiff in Smith had

presented insufficient evidence to warrant a harassment

prevention order under G. L. c. 258E, §§ 1 and 3 (a).

Of course, even where the record demonstrates three or more

acts aimed at a specific person, see O'Brien,

,

those acts also must constitute "[h]arassment." See G. L.

c. 258E, § 1. See, e.g., Seney,

(defendant

"must willfully commit[] three or more acts aimed at a specific

person, each with the intent to cause fear, intimidation, abuse,

or damage to property" [emphasis in original; quotation

omitted]).

c. Analysis. The defendant apparently concedes that

posting the song on the Internet constituted harassment. We

therefore assume without deciding that posting the song on the

Internet rose to the level of "[h]arassment" within the meaning

of G. L. c. 258E, § 1. The question before us, then, is whether

the defendant committed three or more separate acts of

harassment. The defendant argues that he did not, and that the

judge erred in issuing the civil harassment prevention orders 16

against him, pursuant to G. L. c. 258E, §§ 1 and 3 (a). We

agree.

i. Individual lyrics. To begin, we conclude, as the

single justice of the Appeals Court suggested, that dividing the

defendant's "one song" into many "individual lyrics" for the

purpose of finding separate acts of harassment is impermissible

under G. L. c. 258E, § 1. As stated, in Smith,

,

we held that one continuous act cannot be divided into multiple

discrete acts in order to satisfy the requirements of G. L.

c. 258E, § 1. We reiterate that a harassment prevention order

may issue under G. L. c. 258E, § 3 (a), only on a finding of

three or more separate acts of harassment. See G. L. c. 258E,

§ 1. See also Seney,

.

ii. Distribution. Because a song recorded in private,

without more, cannot "in fact cause" intimidation, abuse, damage

to property, or fear of physical harm or damage to property,

G. L. c. 258E, § 1, the defendant did not perform a separate act

of harassment merely by singing or recording the song. A

recorded song may constitute an act of harassment, for the

purposes of G. L. c. 258E, § 1, only when it is distributed to

others.

Here, the defendant posted a single song to SoundCloud,

then linked the same song from SoundCloud to Snapchat. He did

not post different songs on the Internet. 17

By posting the song to SoundCloud, the defendant made it

available to SoundCloud members. When he linked the song to his

Snapchat account, he merely reshared it with SoundCloud members

who were also members of the defendant's specific Snapchat

network of "friends." He accomplished the two acts in close

succession, and removed the song from the Internet within two

hours of initially posting it. We are satisfied that when the

defendant posted the song to Soundcloud and linked it to his

Snapchat account, he engaged in one continuous act. See Smith,

.

iii. Witnesses to the song. The fact that several people

accessed the song on the Internet does not transform that single

song into more than one act of harassment. Of course, the

number of witnesses to an act properly may be considered in the

context of determining the extent to which a defendant's actions

were "aimed at a specific person" or did "in fact cause fear,

intimidation, abuse or damage to property." G. L. c. 258E, § 1.

In the context of G. L. c. 258E, however, a single act is not

multiplied by the number of witnesses to that act. Cf.

Commonwealth v. Quinn,

(2003) (in context of

G. L. c. 272, § 16, act of openly and intentionally exposing

oneself to multiple people constitutes single act of open and

gross lewdness). 18

Nor did the fact that M.D. received notice of the song from

multiple people constitute additional acts of harassment

perpetrated by the defendant. The record contains no indication

that the defendant directed anyone to notify M.D. of the song.

Rather, M.D. was informed about the song by his friends, acting

of their own volition. Indeed, the defendant removed the song

from the Internet two hours after posting it because M.D.'s

friends were threatening "to beat him up." The actions of the

individuals who notified M.D. about the song are not

attributable to the defendant.

The defendant's conduct, troubling and offensive as it was,

failed to satisfy the threshold requirement of G. L. c. 258E,

§ 1, that a defendant commit at least three acts of harassment,

without which a civil harassment prevention order cannot issue

under G. L. c. 258E, § 3 (a). Vacatur of the orders in this

case therefore is required. Moreover, "if a judge vacates a

harassment prevention order, law enforcement officials shall

destroy 'all record' concerning such order." Seney,

, quoting G. L. c. 258E, § 9.

We therefore remand the case to the District Court for

entry of an order vacating and setting aside the harassment

prevention orders, and for further actions required by G. L.

c. 258E, § 9.

So ordered.