S.C. (and a consolidated case).
Heard: October 4, 2018.
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.
Supreme Judicial Court on its own initiative transferred the
case from the Appeals Court.
S. Core for S.C.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, &
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 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
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.
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.
facts are essentially undisputed, and were described in
detail in the District Court judge's memorandum of
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.
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. The song at issue consisted of an
instrumental track overlaid by the defendant's
"freestyle" rap, i.e., unwritten lyrics that the
defendant 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." 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.
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 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. 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."
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.
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.
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.
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
asserted that he had not realized that the song would be
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 ...