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19-P-192                                              Appeals Court

                     YAHNA Y.   vs.   SYLVESTER S.1


                             No. 19-P-192.

        Middlesex.      December 11, 2019. - March 17, 2020.

            Present:    Massing, Henry, & McDonough, JJ.


               Abuse Prevention.      Protective Order.



     Complaint for protection from abuse filed in the Concord
Division of the District Court Department on December 10, 2018.

     The case was heard by Lynn C. Brendemuehl, J., and a motion
to extend the abuse prevention order was also heard by her.


    Robert H. D'Auria for the defendant.
    Mark W. Helwig for the plaintiff.


    MASSING, J.      This appeal concerns the showing necessary to

obtain a protective order under G. L. c. 209A based on the third

statutory definition of "abuse."      See G. L. c. 209A, § 1 (c)

("causing another to engage involuntarily in sexual relations by

force, threat or duress").      The defendant, Sylvester S., appeals


    1   The parties' names are pseudonyms.
                                                                    2


from an abuse prevention order requiring him to stay away from

the plaintiff, Yahna Y., and from the college campus where she

was a first-year student at the time the order was issued.2    We

affirm.

     Background.    "We review the issuance of an order pursuant

to G. L. c. 209A for an abuse of discretion or other error of

law."    E.C.O. v. Compton, 464 Mass. 558, 561-562 (2013).   "We

accord the credibility determinations of the judge who 'heard

the testimony of the parties . . . [and] observed their

demeanor' . . . the utmost deference."    Ginsberg v. Blacker, 67

Mass. App. Ct. 139, 140 n.3 (2006), quoting Pike v. Maguire, 47

Mass. App. Ct. 929, 929 (1999).   The plaintiff's testimony at

the hearing after notice, which the judge credited, was as

follows.

     The plaintiff and the defendant are first cousins (their

fathers are brothers); the defendant is one or two years older

than the plaintiff.    For a period of approximately two years,

when the plaintiff was in the sixth and seventh grades, the

defendant sexually abused her.    He asked her to masturbate in


     2 The defendant purports to appeal from both the ex parte
order issued on December 10, 2018, and from the one-year
extension of the order issued at the conclusion of the hearing
after notice on December 21, 2018. The defendant has no right
to challenge the ex parte order on appeal because it was
superseded by the order after notice. See C.R.S. v. J.M.S., 92
Mass. App. Ct. 561, 564-565 (2017). Accordingly, we focus
exclusively on the latter.
                                                                     3


front of him, and he masturbated in front of her.      He touched

her breasts and her genitals and "would pull out his penis" when

they were alone.    At "cousin sleepovers" he would try to get

into bed with her after everyone fell asleep.    Because the

defendant "completely instructed [her] not to tell anyone and

not to tell [her] parents," the plaintiff endured at least ten

such incidents.    The plaintiff finally reported the abuse to her

parents just before she entered the eighth grade.

    After telling her parents, the plaintiff began seeing a

mental health therapist, and she had been in therapy ever since.

She missed thirty days of school during the eighth grade, went

to school late nearly every day, showered three times a day, and

could not look in the mirror.    Meanwhile, the family intervened

and kept the plaintiff away from the defendant, except for one

meeting at their grandmother's funeral, where the defendant, who

was then sixteen or seventeen, approached the then fifteen year

old plaintiff despite having been told to leave her alone.

    The plaintiff began attending the University of

Massachusetts-Amherst (UMass-Amherst) in August 2018.      She lived

on campus.   On September 23, 2018, the defendant, who was not a

student at UMass-Amherst, approached the plaintiff in a dining

hall.   The sight of him made her freeze, then flee.    She no

longer felt safe on campus and returned home for a week.      She

was unable to sleep.    Her father spoke to his brother and
                                                                    4


requested that the defendant stay away from the plaintiff and

from UMass-Amherst.

    Nonetheless, on December 9, 2018, the defendant called the

plaintiff on her telephone, then sent a number of "disturbing"

text messages.   In the first text message, the defendant asked

the plaintiff to talk "to make things better between us,"

stating that he did not want to involve his parents.    When the

plaintiff did not respond, the defendant fired off a series of

text messages, the first complaining that she had told her

parents:   "[G]reat job [Yahna] really mature of you . . . I've

had patience this is a fucking joke.   I'm done."   The defendant

followed with six short text messages demanding that the

plaintiff respond to him.   The plaintiff sought a c. 209A

protective order the next day.

    Discussion.    Under G. L. c. 209A, § 3, a person "suffering

from abuse" by a "family or household member" may initiate an

action "requesting protection from such abuse" in the form of a

court order requiring the defendant to refrain from abusing or

contacting the victim, among other remedies.   "Abuse" is defined

by the statute as "the occurrence of one or more of the

following acts between family or household members:    (a)

attempting to cause or causing physical harm; (b) placing

another in fear of imminent serious physical harm; [or] (c)
                                                                    5


causing another to engage involuntarily in sexual relations by

force, threat or duress."    G. L. c. 209A, § 1.

     The plaintiff alleged abuse under both the second and third

definitions.     To obtain an abuse prevention order based on an

allegation of abuse under § 1 (b), the plaintiff must satisfy a

subjective and an objective standard:     she must show both that

she is currently in fear of imminent serious physical harm, and

that her fear is reasonable.    See Iamele v. Asselin, 444 Mass.

734, 737 (2005); Dollan v. Dollan, 55 Mass. App. Ct. 905, 906

(2002).   "Generalized apprehension, nervousness, feeling

aggravated or hassled, i.e., psychological distress from vexing

but nonphysical intercourse, when there is no threat of imminent

serious physical harm, does not rise to the level of fear of

imminent serious physical harm."     Wooldridge v. Hickey, 45 Mass.

App. Ct. 637, 639 (1998).    We require the plaintiff to prove

reasonable fear of imminent harm because § 1 (b) is intended to

prevent future harm rather than to address past abuse.    See

Dollan, supra.

     Under § 1 (c), a plaintiff may also seek protection from a

person who abused her in the past by forcing3 her to engage in


     3 The term "force," as used in § 1 (c), includes
constructive force, which is sufficient to prove the crimes of
rape, G. L. c. 265, § 22, and forcible rape of a child, G. L.
c. 265, § 22A. See M.G. v. G.A., 94 Mass. App. Ct. 139, 142-143
(2018); Commonwealth v. Armstrong, 73 Mass. App. Ct. 245, 255
(2008).
                                                                     6


sexual acts against her will.    With respect to protection from

past physical abuse under § 1 (a), we have held that a plaintiff

does not need to prove a reasonable fear of imminent future

physical abuse to obtain relief.    See McIsaac v. Porter, 90

Mass. App. Ct. 730, 733-734 (2016); Callahan v. Callahan, 85

Mass. App. Ct. 369, 373-374 (2014).     Rather, when a plaintiff

has suffered physical abuse, a judge may reasonably conclude

that a c. 209A order is necessary "because the damage resulting

from that physical harm affects the victim even when further

physical attack is not reasonably imminent."     Callahan, supra at

374 (affirming extension of abuse prevention order against

incarcerated defendant based on past physical abuse of

plaintiff).

    For the same reason, the same rule applies to allegations

of sexual abuse under § 1 (c):     because the plaintiff seeks

protection from the effects of past sexual abuse, she need not

allege a fear of imminent future sexual abuse.     See Iamele, 444

Mass. at 740 n.3 (if plaintiff, not in fear of imminent serious

physical harm, "were suffering from attempted or actual physical

abuse, see G. L. c. 209A, § 1 [a], or involuntary sexual

relations, see G. L. c. 209A, § 1 [c], there is no question that

an extension should be granted").

    The evidence permitted the judge to find that the defendant

had sexually abused the plaintiff in the past, that the
                                                                   7


plaintiff was "still 'suffering from' that abuse," and "that

[she] reasonably remain[ed] in fear of the abuser."    McIsaac, 90

Mass. App. Ct. at 733-734, quoting G. L. c. 209A, § 3.4    The

judge credited the plaintiff's testimony that the defendant

sexually abused her when she was in the sixth and seventh

grades, that she was traumatized by the abuse she endured, and

that the defendant's reappearance immediately after she left

home for college reopened her feelings of fear, vulnerability,

and helplessness.   Despite the family's attempt to intervene,

the defendant aggressively pursued the plaintiff.     The judge

could reasonably conclude that the damage from the defendant's

past sexual abuse still affected the plaintiff and that an order

was necessary to protect her from the impact of that abuse, even

if the evidence did not show that another sexual assault or

other physical harm was imminent.

                                    Order entered December 21,
                                      2018, affirmed.




     4 The judge noted that the plaintiff alleged prior sexual
abuse and found that "[r]ecent contact by [the defendant] via
text, appearing at U Mass Amherst etc. has caused [the
plaintiff] to be placed in fear. Court credits plaintiff's
testimony." The judge also found that the "plaintiff remains in
fear of imminent serious physical harm." Because we conclude
that the judge properly issued the order to prevent abuse under
§ 1 (c), we need not address the judge's findings of abuse under
§ 1 (b).
