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14-P-758                                         Appeals Court

                         F.A.P.   vs.   J.E.S.


                            No. 14-P-758.

        Middlesex.       February 5, 2015. - June 30, 2015.

              Present:   Vuono, Milkey, & Blake, JJ.


Civil Harassment. Harassment Prevention. Protective Order.
     Rape. Minor. Child Abuse. Witness, Cross-examination.
     Evidence, Hearsay. Practice, Civil, Hearsay.



     Complaint for protection from harassment filed in the
Middlesex County Division of the Juvenile Court Department on
March 21, 2013.

    The case was heard by Gwendolyn R. Tyre, J.


    Dennis R. Brown for the defendant.
    Kimberly Ann Parr for the plaintiff.


    MILKEY, J.   At an ex parte hearing, a Juvenile Court judge

issued a temporary harassment prevention order against the

defendant, an eleven year old boy.      See G. L. c. 258E, § 5.   The

order was issued based on allegations that the defendant had

digitally raped the plaintiff, the seven year old girl on whose
                                                                    2


behalf the harassment complaint was filed.    Following an

evidentiary hearing, the judge extended the order for one year.1

On appeal of the order issued after hearing,2 the defendant

argues that the evidence of "harassment" was legally

insufficient, and that the judge erred in multiple additional

respects:    by applying an erroneous interpretation of the

statute, by improperly admitting hearsay testimony, and by

unduly constraining his ability to cross-examine the plaintiff's

witnesses.   Although we are unpersuaded by most of the

defendant's arguments, we agree that the judge applied an

incorrect view of the law.    We therefore remand this matter for

further consideration.

     1.   Background.3   The parents of the two children were close

family friends, and their families spent a considerable amount


     1
       The hearing took place some seven months after the
complaint was filed. In the interim, the judge issued multiple
orders extending the original ex parte order (apparently by
agreement).
     2
       At oral argument, the parties represented that the order
since has been extended again (without the judge's taking any
new evidence), and that the extended order remains in effect.
An appeal of the most recent extension order is not before us,
but, in any event, the current appeal has not become moot. See
Seney v. Morhy, 467 Mass. 58, 61-62 (2014).
     3
       "The facts are drawn from the judge's findings,
'supplemented by the background purposes by uncontested
testimony found in the record. . . .'" Prenaveau v. Prenaveau,
75 Mass. App. Ct. 131, 132 n.1 (2009), quoting from A.Z. v.
B.Z., 431 Mass. 150, 151 (2000).
                                                                    3


of time together.    During the afternoon of January 25, 2013, a

Friday, the defendant and his mother arrived at the plaintiff's

home where they spent the next several hours.    At one point, the

defendant and girl were unsupervised together on the second

floor.4   This caused the plaintiff's mother some concern because

the children had, on one occasion in the past, engaged in some

inappropriate touching.5    A few minutes after the plaintiff's

mother called for the children to come downstairs, the plaintiff

reported that she was bleeding from her vaginal area.    Both

mothers examined her in a bathroom and confirmed that she was in

fact bleeding.   The plaintiff's mother called a doctor to

discuss the matter, and eventually brought the plaintiff in for

an appointment the following Monday.    The remainder of the

evening was unremarkable.

     When initially questioned by her mother, the plaintiff said

she was unaware of anything that might have caused the bleeding.

The plaintiff reported the same to her doctor, who found a small

tear on her labia.   On further questioning, the plaintiff

suggested to her mother that the injury might have been caused

     4
       The defendant's mother testified that the two children
were never alone together that day, but the judge expressly
declined to credit that testimony.
     5
       In the prior incident, the defendant and the plaintiff
(together with their younger siblings) had participated in what
was characterized as the "bum drum," in which the participants
"drummed" the others' bare behinds.
                                                                     4


by an incident on the school playground during recess.    After

the plaintiff's mother learned from the school that there had

been no recess during the applicable time period due to

inclement weather, she began more intensively questioning the

plaintiff about what might have caused the injury.   During such

questioning, she implored the plaintiff to tell the truth, while

threatening punishment if she did not.   According to her mother,

the plaintiff finally "cracked" and informed her that just

before the bleeding started, the defendant had "shoved his

fingers up there" and then told her not to tell anyone or they

both would get in trouble.   The plaintiff's mother reported her

daughter's allegation to the local police, and a delinquency

complaint was ultimately filed against the defendant.     On March

21, 2013, the plaintiff's mother filed the current harassment

action on her daughter's behalf.

     The plaintiff herself did not testify.   Through her

attorney, she notified the defendant of her intent to have her

out-of-court statements introduced through her mother's

testimony.   The defendant countered with a motion in limine

seeking to exclude such testimony except through invocation of

G. L. c. 233, § 82(a), inserted by St. 1990, c. 339.6    The judge


     6
       Subject to various provisos and exceptions, that statute
allows the introduction of "out-of-court statements of a child
under the age of ten describing any act of sexual contact
performed on or with the child, the circumstances under which it
                                                                   5


agreed with the defendant's position that this statute applied

if the plaintiff's statements were to be admitted for their

truth.    She nevertheless denied the defendant's motion on the

grounds that she was not going to admit the statements for their

truth.7   The judge's position remained constant throughout the

trial, and in her findings and rulings, she explained her views

as follows:

     "The procedural requirements of [G. L. c.] 233, § 82 are
     required when child hearsay is offered for its truth.
     Here, the Court made it clear to the parties throughout the
     proceedings that the [girl's] statements were not admitted
     for their truth, but were instead admitted for the purpose
     of establishing her state of mind and generally that [she]
     made an allegation of sexual abuse against the [boy], which
     served as the basis for the [G. L. c.] 258E complaint."

The judge went on to explain why she believed that her ruling

was in accord with the purpose of the statute.    In the judge's

view, all that the plaintiff needed to show to obtain a

harassment order was that she feared the defendant based on her

allegation that he had committed an act (here a rape) that fit


occurred, or which identifies the perpetrator . . . as
substantive evidence in any civil proceeding." One critical
proviso is that the child be demonstrated to be "unavailable."
In turn, "unavailability" is broadly defined to include, inter
alia, a showing that "testifying would be likely to cause severe
psychological or emotional trauma to the child."
     7
       Because the judge did not consider the out-of-court
statements for their truth, the defendant's argument that the
judge improperly admitted hearsay evidence fails. However, we
have considered the defendant's hearsay arguments in evaluating
whether, on remand, the out-of-court statements could be used
for their truth.
                                                                        6


within the statutory definition of "harassment."     According to

the judge, whether the defendant actually committed the alleged

rape was not properly before her; instead, that was for the

parallel delinquency proceeding.    Citing to O'Brien v. Borowski,

461 Mass. 415, 427 (2012), the judge stated that "[t]he standard

in M.G.L. ch. 258E cases is one of fear."

    2.    Discussion.   We begin by addressing what a plaintiff

must establish to obtain a harassment prevention order.       Such an

order can be sought by anyone "suffering from harassment."

G. L. c. 258E, § 3, inserted by St. 2010, c. 112, § 30.       The

statute sets forth two definitions of "harassment."     The first,

which does not apply to the facts of this case, defines

"harassment" as "3 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 does in

fact cause fear, intimidation, abuse or damage to property."

G. L. c. 258E, § 1, inserted by St. 2010, c. 23 (definition of

"harassment," subsection [i]).     See generally O'Brien v.

Borowski, supra at 419-420; Seney v. Morhy, 467 Mass. 58, 63

(2014).

    The second definition of "harassment" applies to situations

where, as here, a defendant allegedly committed one or more acts

of sexual misconduct.   G. L. c. 258E, § 1 (definition of
                                                                   7


"harassment," subsection [ii]).8   Under this definition, a

plaintiff can establish the need for a harassment prevention

order in either of two ways that largely overlap.   First, a

plaintiff can show that a defendant "by force, threat or duress

cause[d the plaintiff] to involuntarily engage in sexual

relations."9   Second, a plaintiff can prove that a defendant

committed any of twelve specifically enumerated sex crimes,

including -- as relevant here -- rape of a child, G. L. c. 265,

§ 22A.

     If the defendant digitally raped the plaintiff, this would

constitute a violation of G. L. c. 265, § 22A, and that, by

definition, would amount to "harassment."   Proof that the

defendant intended to instill fear, and in fact did so, would be

wholly unnecessary.10   Thus, by focusing on whether the defendant


     8
       This portion of the statutory definition reads in full as
follows:

     "(ii) an act that: (A) by force, threat or duress causes
     another to involuntarily engage in sexual relations; or (B)
     constitutes a violation of section 13B, 13F, 13H, 22, 22A,
     23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of
     chapter 272."

The O'Brien court referred to this as an "alternative
definition" of harassment. See 461 Mass. at 419 n.4.
     9
       This is identical to form of "abuse" defined in G. L.
c. 209A, § 1(c).
     10
       Proof of rape of a child requires no showing of "force,
threat or duress." The presence or absence of fear could play a
role in other circumstances where a plaintiff separately was
                                                                     8


intended and caused fear, the judge added elements that the

plaintiff had no burden to prove under the theory of harassment

under which she was proceeding.     In addition, the judge erred by

avoiding the question of whether she believed the alleged rape

actually occurred (that is, whether there was proof of the

second definition of harassment).    To be sure, whether the

defendant committed the rape beyond a reasonable doubt will be

resolved in the delinquency proceeding.     However, where, as

here, a claim of harassment is based on an allegation that the

defendant committed one of the enumerated sex crimes, the judge

is not free to avoid addressing whether the plaintiff had

proven, by a preponderance of the evidence, that the defendant

in fact committed that crime.     Before turning to what remedy is

appropriate to address the judge's having applied an incorrect

legal standard, and decided the case under the wrong theory, we

examine the defendant's other claims of error.

    3.   Sufficiency.   The defendant argues that there was

insufficient admitted evidence to support the issuance of a

harassment order under a proper reading of the statute.     The

most compelling evidence that the defendant raped the plaintiff

was, of course, the plaintiff's out-of-court statements that he


alleging that a defendant "by force, threat or duress cause[d
the plaintiff] to involuntarily engage in sexual relations," or
was trying to prove a violation of one of the other enumerated
sex crimes.
                                                                       9


did.    However, because the judge did not admit those statements

for their truth, we do not consider them for sufficiency

purposes.11    Apart from the out-of-court statements, there was

evidence that a seven year old girl suffered a labial tear

directly after having been alone with a defendant who had

previously engaged in an indecent touching of her.      That

evidence was sufficient to support a finding, by a preponderance

of the evidence, that the defendant raped the plaintiff.

       4.   Limitations on cross-examination.   There is no merit to

the defendant's argument that the judge unduly constrained his

right to cross-examine the plaintiff's witnesses.      Despite the

straightforward nature of the plaintiff's allegations, the

evidentiary hearing stretched on for three days.      Throughout the

proceedings, the defendant was afforded extensive opportunities

to press the plaintiff's witnesses on the details of their

testimony and to explore their credibility.     Although the judge

did tell the defendant's counsel to "move on" to another topic

on multiple occasions, this generally was only after the

defendant was given an exhaustive opportunity to explore the


       11
       We do not mean to suggest that if the admitted evidence
were insufficient, then this necessarily would be the end of the
matter. As discussed below, we disagree with the judge's ruling
that G. L. c. 233, § 82, barred the plaintiff's out-of-court
statements from being admitted for their truth. In addition, we
note that this is a civil proceeding in which principles of
double jeopardy do not apply.
                                                                  10


subject.12   Especially in light of the nature of the proceedings

at issue, the judge acted well within her discretion in limiting

cross-examination.   In short, the defendant was given a

"meaningful opportunity to challenge the other's evidence," C.O.

v. M.M., 442 Mass. 648, 657 (2004), and that is all that is

ultimately required.13   Moreover, the judge appropriately was

concerned that the defendant was in fact attempting to use

cross-examination for an improper purpose.   See Guidelines for

Judicial Practice: Abuse Prevention Proceedings § 5:01 (2011)

     12
       The defendant highlights that when the judge told the
defendant's counsel to move on, she sometimes did so while
commenting that counsel had made his point. The judge
ultimately found the plaintiff's mother credible on the key
point that the defendant and girl had been together upstairs
directly before the plaintiff came down to report her bleeding.
The judge was free to accept the testimony of the witness on
that point, regardless of whether she credited every aspect of
her testimony. The determinative question is whether the
defendant was given a fair opportunity to explore the witness's
credibility.
     13
        The one subject area in which the judge denied the
defendant any opportunity to explore is whether the plaintiff's
mother had made prior false allegations of sexual misconduct
against others (either on behalf of herself or on behalf of the
plaintiff). See generally Commonwealth v. Bohannon, 376 Mass.
90, 93-95 (1978) (recognizing a limited exception to the general
rule barring evidence of prior false accusations). There was no
error in the judge's shutting off this line of questioning.
Putting aside the question of whether the exception recognized
in Bohannon has any role in the context of an harassment action,
for several reasons, the defendant has not demonstrated any
"special circumstances" warranting the invocation of that
exception here (especially where consent was not at issue and
where the defendant offered no "independent third party records"
to demonstrate the manifest falsity of any prior allegations).
See Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979).
                                                                    11


("Both parties have a general right to cross-examine witnesses,

but the judge should not permit cross-examination to be used for

harassment or intimidation or for discovery purposes").14

     5.   Remedy.   Because we have concluded that there was

sufficient evidence of harassment to support the judge's order,

but that the judge applied an incorrect view of the law, the

case must be remanded for further proceedings.15   The "final

determination" of whether or not harassment in fact occurred

will be for the judge, "who has heard the evidence and can best

determine its credibility" on remand.   See Schrottman v.

Barnicle, 386 Mass. 627, 640 (1982) (finding sufficient evidence

of negligence but ordering a remand for findings by the trial

judge on whether there was negligence).    The only question that

     14
       The Supreme Judicial Court repeatedly has cited these
guidelines as an authoritative source for proceedings and orders
pursuant to G. L. c. 209A. See Frizado v. Frizado, 420 Mass.
592, 598 n.5 (1995); C.O. v. M.M., 442 Mass. at 653; MacDonald
v. Caruso, 467 Mass. at 387, 388 n.8 (2014); Singh v. Capualo,
468 Mass. 328, 330-331 (2014). Harassment orders under G. L.
c. 258E were "intended to protect victims who could not legally
seek protection under G. L. c. 209A." Seney v. Morhy, 467 Mass.
at 60 (2014). See also O'Brien v. Borowski, 461 Mass. at 418.
As the court noted in both cases, the procedures under the two
statutes are very similar; as a result, we see no reason why the
Guidelines for Judicial Practice: Abuse Prevention Proceedings
should not apply equally in harassment order proceedings, absent
some issue particular to harassment orders.
     15
       There are some intimations in the judge's findings and
rulings that she believed that the alleged rape likely occurred.
However, given her forceful statements eschewing any role in
making such a determination, we conclude that a remand is
necessary.
                                                                    12


remains is whether the judge on remand may consider the

plaintiff's out-of-court statements for their truth.

     6.   Hearsay.   By definition, a child's out-of-court

statements describing sexual contact in child abuse cases cannot

be admitted pursuant to G. L. c. 233, § 82, inserted by St.

1990, c. 339 unless the dictates of that statute have been

satisfied (including the requirement that the child be shown to

be "unavailable").   However, by that statute's explicit terms,

"[a]n out-of-court statement admissible by common law or by

[other] statute shall remain admissible notwithstanding the

provisions of this statute."   G. L. c. 233, § 82(d).   Thus, if a

child's out-of-court statements are otherwise admissible, the

preconditions to admissibility set forth in G. L. c. 233, § 82,

do not apply.

     To determine the norms and procedures applicable to

harassment prevention orders issued pursuant to G. L. c. 258E,

the Supreme Judicial Court has looked to those applicable to

abuse prevention orders issued pursuant to G. L. c. 209A.     See

O'Brien v. Borowski, 461 Mass. at 417-418.    In such proceedings,

"the rules of evidence need not be followed, provided that there

is fairness in what evidence is admitted and relied on."

Frizado v. Frizado, 420 Mass. 592, 597-598 (1995).16    See also


     16
       "Because a c. 209A proceeding is a civil and not a
criminal proceeding, the constitutional right to confront
                                                                  13


Guidelines for Judicial Practice: Abuse Prevention Proceedings,

§ 5:03 (2011) ("The common law rules of evidence, e.g., those

regarding hearsay, authentication, and best evidence, should be

applied with flexibility, subject to considerations of

fundamental fairness").   Of course, this does not mean that out-

of-court statements by alleged child victims automatically

qualify for admission in abuse prevention or harassment

prevention proceedings.   Rather, due process requires that such

statements be considered for their truth only if the judge

determines that they carry sufficient indicia of reliability.

See Brantley v. Hampden Div. of the Probate & Family Court

Department, 457 Mass. 172, 184-188 (2010) (containing an

extensive discussion, in the context of care and protection

proceedings, of what sorts of out-of-court statements can be

admitted consistent with due process).

    Based on these considerations, we conclude that the judge

erred in concluding that the plaintiff's out-of-court statements

categorically could not be considered for their truth unless the

conditions set forth in G. L. c. 233, § 82, had been met.

Therefore, on remand the judge is free to consider such

statements for their truth in the event that she were to



witnesses and to cross-examine them set forth in art. 12 of the
Declaration of Rights has no application. . . ." Id. at 596
n.3.
                                                                  14


determine that they carried sufficient indicia of reliability.17

The parties should be given an opportunity to present argument

on that point, but we otherwise leave it to the judge to assess

what additional process is appropriate.

     7.    Conclusion.   For the reasons set forth above, we remand

this matter for further proceedings consistent with this

opinion.   The current harassment order is to remain in effect in

the interim.18

                                      So ordered.




     17
       Because the judge agreed with the defendant that G. L.
c. 233, § 82, prevented her from considering the plaintiff's
out-of-court statements for their truth, she did not
specifically consider whether the statements carried sufficient
indicia of reliability. At the same time, however, the judge
did observe that the particular language attributed to the
plaintiff (the statement that the defendant "shoved his fingers
up there") was "both age appropriate and consistent with the
sexual experiences of a seven (7) year old alleging sexual
abuse, further supporting the credibility of her allegations."
     18
       As noted, the harassment order was extended while this
appeal was pending, see n.2, supra, and no appeal of that
extension order is before us. In the event that the judge on
remand were to determine that the harassment order that is the
subject of this appeal should not have issued, we leave it to
the defendant to seek appropriate relief from the trial court
with regard to the further extension order and with regard to
vacating the order that was before us.
