33 N.E.3d 1245
Mass. App. Ct.2015Background
- An ex parte harassment prevention order under G. L. c. 258E was issued against an 11‑year‑old after a 7‑year‑old allegedly reported that he "shoved his fingers up" her, and the order was later extended after an evidentiary hearing.
- The child victim did not testify; her out‑of‑court statements were offered through her mother. The judge admitted those statements but said they would not be considered for their truth.
- The judge framed the relevant legal standard around the victim’s fear (citing the general fear‑based approach in c. 258E) and declined to decide whether the alleged sexual conduct actually occurred, leaving that to the delinquency process.
- The defense moved to exclude the child’s statements for truth under G. L. c. 233, § 82; the judge agreed § 82 applied but nonetheless excluded those statements for truth on the ground the judge would treat them only as proof the allegation was made.
- The judge limited some cross‑examination but the court of appeals found the defendant had a meaningful opportunity to challenge witnesses and no undue restriction occurred.
- The Appeals Court found the judge applied an incorrect legal standard (requiring proof of fear) but concluded the non‑hearsay evidence (labial tear after being alone with the defendant and prior inappropriate touching) sufficed by a preponderance to support the harassment order; remand was required for proper legal analysis and to decide whether the child’s statements may be considered for their truth.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper legal standard for c. 258E sexual‑misconduct harassment | Harassment can be established based on commission of an enumerated sex crime (no need to prove fear) | Judge required proof of fear and relied on fear‑based standard | Court: Judge erred; when harassment is based on enumerated sex crimes (e.g., child rape), plaintiff need not prove fear; judge must decide whether plaintiff proved the crime by a preponderance |
| Admissibility/use of child’s out‑of‑court statements for truth | Statements should be admitted if sufficiently reliable; § 82 is not the sole route to admissibility | § 233, § 82 barred consideration for truth unless its conditions (including unavailability) met | Court: Judge erred in treating § 82 as categorically controlling; on remand judge may consider hearsay for truth if it has sufficient indicia of reliability and fairness under due process |
| Sufficiency of evidence without admitting child’s hearsay statements for truth | The allegation and physical injury support finding of harassment | Exclude child’s statements for truth; evidence then insufficient | Court: Even excluding the child’s statements for truth, physical injury plus being alone with defendant and prior touching suffice by a preponderance to support the order |
| Limitations on cross‑examination / confrontation | Plaintiff sought to avoid harassing the child; restrictions appropriate | Defense argued limits impeded meaningful cross‑examination | Court: No abuse of discretion; defendant had a meaningful opportunity to challenge evidence; cutting off certain lines (e.g., unsupported Bohannon theory) was proper |
Key Cases Cited
- O'Brien v. Borowski, 461 Mass. 415 (judge may look to fear standard in c. 258E but alternative definitions apply)
- Seney v. Morhy, 467 Mass. 58 (scope and procedures for harassment orders under c. 258E)
- Frizado v. Frizado, 420 Mass. 592 (rules of evidence may be relaxed in abuse‑prevention civil proceedings subject to fairness)
- Brantley v. Hampden Div. of the Probate & Family Ct. Dep't, 457 Mass. 172 (due process requires reliability indicia before admitting out‑of‑court child statements for truth)
- Schrottman v. Barnicle, 386 Mass. 627 (trial judge best positioned to assess credibility; remand for findings appropriate)
- C.O. v. M.M., 442 Mass. 648 (meaningful opportunity to challenge opposing evidence in c. 209A‑style proceedings)