FACTS:
1. At the time of the incidents, the defendant was 11 years old and in the 6th grade at a small private school. There were only 12 students in his class, and the plaintiff was one of them.
2. The parties had been friends for two years and had become "boyfriend and girlfriend" within the week preceding the events at issue.
3. On March 21, 2014, the defendant contacted the plaintiff through a telephone video chat program called "FaceTime." The tone of the conversation initially was friendly, but it changed when the defendant said to the plaintiff, "Sometimes in math when I act like I'm staring at nothing, I'm actually staring at your big jugs of milk." This made her "[s]ad and afraid," "angry" and "embarrassed," and she hung up the telephone. In addition, she later learned that one of the defendant's friends had been present with the defendant during the conversation and that the friend had made a video recording of it. The friend sent her the recording a short time afterwards; she showed it to her mother, who immediately deleted it.
4. The day after the conversation, when both parties were walking back from physical education class, the defendant told the plaintiff that, if she showed the video recording to anyone, he would "make her life a living hell." The plaintiff testified that she was then "very scared that [the defendant] was going to do something."
5. The plaintiff also testified that, soon afterwards, while the class was eating lunch in the school cafeteria, she heard the defendant "telling his sexual fantasy about [her]." On cross-examination, she clarified that the defendant's friend was relating the defendant's fantasy, with the defendant interrupting and correcting him about details, "to make sure it was correct because it was his fantasy." While she did not remember the details about the fantasy, she explicitly described it as a "sexual fantasy" and agreed with her lawyer that '[i]t had something to do with her body." "[A]lmost [their] whole class" was seated around the table, and the "other kids [were] overhearing and saying, 'Whoa.'"
6. Following these incidents, the parties parents communicated with each other, the school, and the local police department. Unhappy with the school's proposed plan for the situation, the defendant's parents voluntarily withdrew him from school and homeschooled him for the remainder of the school year. The defendant also sent, at his parents' request, a letter of apology to the plaintiff and her parents.
7. Afterwards, on May 21 ,2014, the defendant attended a school play with his mother; the plaintiff also attended, as did her mother and sisters. After the play was over, all of the students gathered outside and the defendant told one of the plaintiff's friends that "he wanted to punch [the plaintiff] in the titties." The friend repeated the statement to the plaintiff, and then the defendant said it again, directly to the plaintiff. She walked away and "ran to [her] mom, and [they] drove home." At the hearing, the defendant admitted that he had expected the plaintiff to hear what he said. The plaintiff also testified that, on more than one occasion, the defendant referred to her as "...bitch," a play on her name. This made her "angry and mad, upset and afraid."
8. Two days later, the plaintiff applied for and received an ex parte harassment order against the defendant under the civil statute, G.L. c. 258E, following an evidentiary hearing at which both parties testified, the judge extended teh order for one year. In response, the defendant moved for a new trial and alternative relief, supported by affidavits from his mother and rabbi. The motion was denied without a hearing. This appeal follows.
PROCEDURAL HISTORY:
1. After a hearing, a judge of the Juvenile Court extended a harassment prevention order against the juvenile defendant.
2. The defendant appeals, arguing, among other things, that the plaintiff did not present sufficient evidence of harassment under the statute and that the Legislature did not intend for the harassment prevention statute to apply in circumstances as these.
ISSUE 1:
1. Was there sufficient evidence for the judge to make a finding of harassment under the statute?
HOLDING 1:
1. Yes. Because the judge found three or more incidents of willful and malicious conduct aimed at the plaintiff 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.
RULE 1:
1. In reviewing a civil harassment order under G.L. c. 258E, the Appeals Court considers whether the Lower Court Judge could find, by a preponderance of the evidence, together with all permissible inferences, that the defendant 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 that [did] in fact cause fear, intimidation, abuse or damage to property." G.L. c. 258E, section 1, definition of "Harassment," inserted by ST. 2010, section 23. See O'Brien v. Borowski, 461 Mass. 415, 420 (2012); Seney v. Morhy, 467 Mass. 58, 60 (2014).
2. The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G.L. c. 258, section 1, as being "characterized by cruelty, hostility or revenge," and that each act was intended by the defendant to place the plaintiff in "fear of physical harm or fear of physical damage to property." O'Brien, supra at 427.
3. In the determination of whether the three acts "did in fact cause fear, intimidation, abuse or damage to property," it is "the entire course of harassment, rather than each individual act, that must cause fear of intimidation." Id. at 426 n.8.
4. The "true threat" standard enunciated in O'Brien requires that the plaintiff must have actually suffered fear, abuse, intimidation, or damage to property. There is "no...reasonable person element." O'Brien, 461 Mass. at 420. That is, we do not ask whether a reasonable person would have been afraid in these circumstances, but whether this plaintiff actually was afraid and/or intimidated.
5. "An essential element of civil harassment is intent...The conduct must have been intended to cause ...abuse..., intimidation, fear of personal injury, or damage to property." Seney v. Morhy, 478 Mass. at 63, quoting from O'Brien, 461 Mass. at 427. In most cases, because it is impossible to look into someone's mind to determine his intent, fact-finders are instructed to examine the defendant's actions and all of the surrounding circumstances to determine his intent. See e.g., Commonwealth v. Blake, 490 Mass. 146, 150 (1991).
ANALYSIS 1:
1. Three Incidents of Harassment: In finding sufficient evidence for the extension of the order, the judge found that "there [were] clearly three distinct acts of harassment. Specifically, the judge noted the following three acts: (1) the sexual comment made during the FaceTime video chat; (2) the threat to "make your life a living hell" if she showed the video to anyone; and (3) the expressed desire to punch the plaintiff in her breasts. The Appeals Court agrees that each of these was an act of harassment, and they noted that the public recounting of the sexual fantasy could reasonably have been determined to be a fourth.
A. First Incident: If the first incident, the FaceTime video with the sexually explicit comment, had been an isolated one, and if it had occurred in a private conversation between the parties, it is unlikely that it would have been seen as an act of harassment. However, given that the comment was made in the presence of a classmate, who was videotaping the conversation, it becomes something very different -- a humiliating and intimidating moment, capable of repetition on social media indefinitely, and a part of a larger pattern of harassment that continued in the following days.
B. Second Incident/Intent to Intimidate: The threat to make the plaintiff's life a living hell clearly was intimidating. The word "intimidation" has not been addressed specifically in earlier harassment cases. However, it appears in the statute, and we note "the well-established rule of statutory construction that 'none of the words [of the statute...] should be regarded as superfluous.'" Lee v. Board of Appeals of Harwich, 11 Mass.App.Ct. 148, 154 (1981), quoting from Robin Hope Indus., Inc. v. J.A. Sullivan Corp., 6 Mass. App. Ct. 481, 486 (1978). It is clear, therefore, that "intimidation" has a meaning other than "fear" and should be separately addressed. In so doing, the definitions supplied by the courts in other contexts are useful. See Commonwealth v. Gordon, 44 Mass. App. Ct. 233, 235 (1988)("Webster's Third New International Dictionary 1184 [3d ed. 1993] defines intimidate as "to make timid or fearful: inspire or affect with fear'"). In Gordon, supra, quoting Planned Parenthood League, Inc. v. Blake, 417 Mass. 467, 474, cert. denied, 513 U.S. 868 (1994), we explained that, '[w]ithin the context of G.L. c. 12, section 11H, the Massachusetts Supreme Judicial Court has similarly defined the concept of intimidation as 'putting in fear for the purpose of compelling or deterring conduct.'... Neither definition includes the requirement that to intimidate another, an individual must somehow place that person in fear or apprehension of actual harm."
C. Second Incident/True Threat: In this case, however, the defendant's threat to make the plaintiff's life a living hell also falls within the court's definition of a "true threat" as described in O'Brien, 461 Mass. at 424. Specifically, the court explained, "A true threat does not require an 'explicit statement of intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.' [Commonwealth v. Cho, 433 Mass.229], 234 ([2001]). See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997) ('use of ambiguous language does not preclude a statement from being a threat'). Nor need a true threat threaten imminent harm; sexually explicit or aggressive language 'directed at and received by an identified victim may be threatening, notwithstanding the lack of evidence that the threat will be immediately followed by actual violence or the use of physical force.' Chou, supra at 235. See Virginia v. Black, 538 U.S. 343, 359-360 (2003) (defining true threats without imminence requirement); Doe v. Pulaski County Special Sch. Dist., 360 F.3d 616, 622 (8th Cir. 2002)('serious expression of an intent to cause a present or future harm' is true threat)."
D. Third Incident: The third act of harassment, a threat to punch the plaintiff in the breasts, is clearly an act of harassment, and it is significant in evaluating the pattern of harassment as a whole that this third act took place after the defendant had sent the plaintiff some kind of letter of apology.
E. Fourth Incident: Finally, the cafeteria incident provides further evidence that the FaceTime incident was not just a dumb remark by a clueless 11 year old boy, but part of a pattern of conduct intended to isolate and intimidate this 11 year old girl.
2. Plaintiff's Subjective Fear: The "true threat" standard enunciated in O'Brien requires that the plaintiff must have actually suffered fear, abuse, intimidation, or damage to property. There is "no...reasonable person element." O'Brien, 461 Mass. at 420. That is, we do not ask whether a reasonable person would have been afraid in these circumstances, but whether this plaintiff actually was afraid and/or intimidated. Her testimony, credited by the judge, was that she wanted the order extended "[b]ecause without it, [she] [felt] unsafe and afraid of him. The affidavit also received that the plaintiff's father had "fear for her safety from this boy."
3. Intent: "An essential element of civil harassment is intent...The conduct must have been intended to cause ...abuse..., intimidation, fear of personal injury, or damage to property." Seney v. Morhy, 478 Mass. at 63, quoting from O'Brien, 461 Mass. at 427. In most cases, because it is impossible to look into someone's mind to determine his intent, fact-finders are instructed to examine the defendant's actions and all of the surrounding circumstances to determine his intent. See e.g., Commonwealth v. Blake, 490 Mass. 146, 150 (1991). In this case, the defendant's repeated and escalating harassment of the plaintiff, each time involving additional classmates, and then persisting after adult intervention, would reasonably support an inference that he intended to cause the plaintiff fear and intimidation. However, there is no need to draw inferences here, because the defendant said explicitly what his intent was -- to make the plaintiff's life a living hell. He also explained, on more than one occasion, his motive for doing so. The plaintiff's affidavit recited that the defendant had told the plaintiff's younger brother the night before the play that "he was 'fucking with [the plaintiff] because she ruined his life." The night of the play, he told the plaintiff that he wanted to punch her because "she ruined his life." Both of these statements support the conclusion that the defendant, in fact, intended to cause fear and intimidation and that he was motivated by hostility and revenge. See O'Brien, 461 Mass. at 426 ("To establish harassment, a [plaintiff] must prove that the defendant, motivated by cruelty, hostility, or revenge, willfully committed three or more acts aimed at a specific person, each with teh intent to cause that person to experience fear or intimidation, or to cause abuse or damage to property, which, considered together, did in fact cause fear, intimidation, abuse, or damage to property. G.L.c. 258E, section 1.")
CONCLUSION 1:
1. The appeals court affirms the lower court decision to extend the harassment prevention order against the juvenile defendant.
ISSUE 2:
1. Did the Legislature intend for the harassment prevention statute to apply to juveniles under the age of 18?
HOLDING 2:
1. Yes, the harassment prevention statute intended to apply to juveniles under the age of 18.
RULE 2:
1. The defendant's age certainly is a factor in determining his intent, but the Legislature provided specifically for such a determination to be an informed one by awarding to the Juvenile Court exclusive jurisdiction over G.L. c. 258E orders directed at juveniles. G.L. c. 258, section 2. As a result, it is fair to conclude that, when the Legislature deliberately entrusted to the trial court department most experienced with juveniles exclusive authority to issue harassment orders against them, it had young people's limitations and abilities particularly in mind.
2. It is also a fair inference that, had the members of the Legislature intended to put minors beyond the reach of G.L. c. 258E, they would have done so.
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