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F.K. v. S.C.

Supreme Judicial Court of Massachusetts, Essex

January 31, 2019

F.K.
v.
S.C. (and a consolidated case[1]).

          Heard: October 4, 2018.

         Complaints 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.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Lisa S. Core for S.C.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

          GAZIANO, J.

         The 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 orders.

         A 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.

         We 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.

         1. Background.

         a. Facts.

         The facts are essentially undisputed, and were described in detail in the District Court judge's memorandum of decision.

         Although 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.

         On an 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.[2] 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."[3] 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.

         The 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.[4] 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."

         On the 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.[5]

         After 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.[6]

         The 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.

         Also 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 "seriously received."

         The 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 ...


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