Heard: November 15, 2016.
Harassment. Harassment Prevention. Intent. Evidence, Intent.
for protection from harassment filed in the Cambridge
Division of the District Court Department on May 27, 2015. A
hearing to extend the harassment prevention order was had
before James H. Wexler, J.
O'Meara-Costello for the defendant.
F. Kane, II, & Joan E. Kolligian, for the plaintiff,
submitted a brief.
Present: Trainor, Meade, & Hanlon, JJ.
hearing, a judge of the District Court extended a harassment
prevention order, pursuant to G. L. c. 258E, against the
defendant, A.K.A. She appeals, arguing, among other things,
that the judge failed to identify three acts as the basis for
the order, failed to make findings supporting A.K.A.'s
intent in contacting the plaintiff, A.S.R., and, based on
A.S.R.'s testimony that he was not placed in fear of
physical harm or property damage as a result of the contact,
there was insufficient evidence to extend the order. Finally,
she argues that, even if issuing the order was warranted
under the statute, the order was unconstitutional because it
penalized constitutionally protected speech. We affirm.
beginning of the extension hearing, the judge carefully
reviewed A.S.R.'s initial affidavit and copies of various
voice mail, text, and electronic mail (e-mail) messages
admitted as an exhibit packet by agreement of the
parties. He then heard testimony from A.S.R. and
A.K.A.; both were represented by counsel.
parties were in a dating relationship for a little more than
one year until September, 2013. They continued to have
contact until January, 2014, because A.S.R. "tried to
help [A.K.A.] for a while, " but then A.S.R. cut off
contact and "made it very clear that [he] didn't
want any contact from her." Afterwards, A.K.A. began
sending A.S.R. "lots of e-mails, phone calls, [and]
appearing in person in an attempt to get [him] to resume
contact in a way that made [him] feel very afraid and hurt
and abused." Although in March, 2014, A.S.R. threatened
to obtain a restraining order, he resumed contact with A.K.A.
for a short time in June, 2014, "in an attempt to make
things right, " because she had sent him images of her
having cut herself "and a lot of desperate
pleas." Eventually, however, A.S.R. cut off
communications again. At the time of the hearing, on June 5,
2015, A.S.R. had not responded to any of A.K.A.'s written
communications since June, 2014.
was aware that in July, 2014, A.K.A. had left the country; he
learned that she was back in Boston in January, 2015, when
she attended a programming event where he was working.
However, even while A.K.A. was living out of the country,
A.S.R. was receiving "a pretty steady stream" of
e-mails from her, despite the fact that he had blocked her
e-mail accounts and telephone numbers. He testified that
"she would find ways around it." A.K.A. was able
to skirt A.S.R.'s e-mail filters by sending messages from
new e-mail addresses, and she would also call from unlisted
telephone numbers so that her calls would not be blocked.
A.S.R. testified that, after he broke off contact with
A.K.A., he received "hundreds" of e-mails, text
messages, and voice messages from her. Some of the messages
purported to be from an imaginary friend; many were rambling
and only barely coherent. Sometimes, there would be a series of
e-mails with the message only in the title or subject line,
thus defeating any effort by A.S.R. to avoid them by not
opening the e-mail.
March, 2015, A.K.A. appeared at a choral ensemble concert
where A.S.R. was singing; a few days later, she was at a
Cambridge restaurant where A.S.R. was meeting his new girl
friend and her parents for the first time. A.K.A. was seated
at a table by the window so he saw her immediately when he
approached the restaurant; she came outside and they had
"a short confrontation." A.S.R. "implored her
to stop trying to contact [him] and she implored [him] to
resume contact with her." The messages continued. A.K.A.
also appeared at a Quaker meeting she knew that A.S.R.
testified that A.K.A.'s continuous contact made him
"extremely afraid a lot of times" to open his
e-mails and text messages, or to listen to his voice mail
messages and, also, afraid that A.K.A. was going to appear at
places where he was going to be. The constant contact caused
him, and his family when he talked to them about it,
emotional distress, fear, and anger. In many of her messages,
A.K.A. spoke of killing herself or said that she was
"going to die" (e.g., an e-mail from
"throwaway account, " "Subject: I want nothing
more than to stick a knife in the back of my neck"). The
last communication A.S.R. received from A.K.A. prior to the
hearing was on May 12, 2015, an e-mail invitation to
A.K.A.'s birthday party sent to a group of people
also testified. She stated that, in early 2014, she was
severely depressed; she agreed that she sent each of the
e-mails contained in the exhibit packet, including the images
of her having cut herself. She sent those e-mails and images
to A.S.R. because she "wanted his empathy and his
help"; she stated that she never threatened A.S.R. with
physical harm or threatened to damage his property. She never
threatened to hurt anyone other than herself. A.K.A.
testified that, at the time of the hearing, she was
"doing much better" and was no longer depressed;
her continued attempts at contact with A.S.R. were "much
calmer and conciliatory, " and her intention in sending
those communications was that they could "reach a
resolution between [them] that feels satisfactory." She
stated that between January and June, 2014, she did not
actively seek out physical contact with A.S.R.
her testimony, A.K.A. further stated that she had appeared at
the Quaker meeting, the choral concert, and the programming
event for reasons that had nothing to do with A.S.R. She did
not know that A.S.R. was going to be at the Cambridge
restaurant where she saw him; she had made plans with a
friend to meet for lunch, and the friend had suggested that
testified that, as to the phrase appearing in the April 24,
2015, transcript of an audio file she sent to A.S.R., which
read, "I've been thinking a lot about whether I can
find it in my heart to forgive you, or just thinking about an
alternative to violence that feels true, " she was
"referring to the Quaker tradition of resolving
conflicts through means other than physical or spiritual
violence"; it did not refer to physical violence. She
stated that the phrase, "I want it to be something other
than violence that you've done to me, " referred to
"the fact that [A.S.R.] cut [her] off and tried to force
[her] into silence." She testified that the
"violence" that she was guilty of was her continued
contact attempts with A.S.R. after he specifically had asked
her to stop. A.K.A. stated that no matter the outcome of the
hearing, she did not intend to contact A.S.R. again.
cross-examination, A.K.A. did not agree that she continued to
contact A.S.R. in an attempt to have him return to a
relationship with her; she stated that her intent was to work
out a "peaceful resolution" with him. She said that
she was not trying to make A.S.R. uncomfortable; she
acknowledged that she understood that, since June, 2014,
A.S.R. did not want to have any contact with her. However,
after seeing A.S.R. at the Cambridge restaurant, she sent an
e-mail to his new girl friend; she (A.K.A.) had obtained his
girl friend's e-mail address by checking A.S.R.'s
OKCupid Internet dating account. She also admitted that, at
the time of the hearing, she was still monitoring
conclusion of the hearing, the judge stated in oral findings
that he did not find A.K.A.'s testimony to be credible,
and that, although he found it a close question whether the
e-mails fell within A.K.A.'s rights under the First
Amendment to the United States Constitution, in his view the
communications were "very violent"; he extended the
harassment prevention order that had been issued ex