A.S.R. v. A.K.A.
AC 17-P-1109
| Mass. App. Ct. | Sep 22, 2017Background
- Plaintiff A.S.R. obtained an ex parte harassment prevention order under G. L. c. 258E after numerous unwanted communications from defendant A.K.A. following the end of a year‑long dating relationship.
- Between 2014–2015 A.K.A. sent hundreds of e‑mails, texts, and voicemails (often using new accounts/numbers and placing content in subject lines) and made unexpected in‑person appearances where A.S.R. was present.
- Many messages referenced self‑harm and included violent language; A.K.A. admitted sending the exhibit communications and images of self‑injury but testified they sought empathy and were not threats of physical harm to others.
- At the extension hearing the judge found A.K.A. not credible, concluded the communications were violent and harassing, and extended the one‑year harassment prevention order.
- A.K.A. appealed, arguing the judge failed to identify three acts, failed to make findings on intent, insufficient evidence that plaintiff feared physical harm, and that the order punished protected speech.
Issues
| Issue | Plaintiff's Argument (A.S.R.) | Defendant's Argument (A.K.A.) | Held |
|---|---|---|---|
| Whether record identified three or more harassing acts | Many communications and appearances constitute multiple acts; proof met preponderance standard | Judge failed to specify three particular acts; extension invalid without specific findings | Affirmed: multiple incidents (hundreds) supported inference of three+ acts; no written specification required in civil bench trial |
| Whether intent/maliciousness was shown | Defendant knowingly and willfully targeted plaintiff, evading blocks, showing malice/intention | Defendant intended reconciliation/resolution, not malice or threat | Affirmed: circumstantial evidence (evasion, persistence, misrepresentations) supports willful and malicious intent |
| Whether plaintiff was reasonably seriously alarmed / fear requirement | Plaintiff testified to being extremely afraid, emotional distress to family; reasonable person standard met | Plaintiff equivocated about physical fear; argued insufficient to show serious alarm or substantial emotional distress | Affirmed: testimony and message content satisfied "seriously alarmed" and reasonable‑person substantial emotional distress elements |
| Whether communications are protected speech (First Amendment) | Targeted, non‑public individual, persistent true threats fall outside protection | Communications framed as personal, conciliatory, or political/therapeutic speech; protected | Affirmed: targeted, anonymous‑style evasion and violent content supported true‑threat/harassment ruling; not protected political/public speech |
Key Cases Cited
- O'Brien v. Borowski, 461 Mass. 415 (discusses civil v. criminal harassment elements and true‑threat analysis)
- Seney v. Morhy, 467 Mass. 58 (procedural posture on harassment orders)
- Commonwealth v. Bigelow, 475 Mass. 554 (defines criminal harassment elements and discusses true‑threat doctrine)
- Smith v. Mastalerz, 467 Mass. 1001 (requires specific findings where facts could be a single continuous act)
- F.A.P. v. J.E.S., 87 Mass. App. Ct. 595 (interpretation of second definition of harassment under c. 258E)
- Commonwealth v. Johnson, 470 Mass. 300 (criminal harassment element framework)
- Commonwealth v. McDonald, 462 Mass. 236 (criminal harassment element framework)