112 N.E.3d 837
Mass. App. Ct.2018Background
- Plaintiff M.G. sought a G. L. c. 209A abuse-prevention order after an incident in which she testified that, during a consensual sexual encounter she then withdrew consent, the defendant remained on top of her and masturbated to ejaculation despite her saying “I’m done, I’m tired” and telling him to stop.
- After notice to the defendant, an evidentiary hearing was held in District Court; the judge declined a temporary order initially but proceeded to a full evidentiary hearing.
- At the close of the plaintiff’s case the defendant moved for a directed verdict (labeled as such); the judge allowed the motion and dismissed the complaint, reasoning the parties were no longer engaged in intercourse when the complainant withdrew consent and that the conduct amounted at most to assault and battery.
- Plaintiff appealed, arguing the term “sexual relations” in G. L. c. 209A § 1(c) should encompass the defendant’s conduct (masturbation over the plaintiff after withdrawal of consent) and that the judge erred in dismissing at the close of her case by making credibility findings.
- The Appeals Court reviewed statutory definitions, analogous statutes and case law, and procedural rules governing motions for directed/required findings in G. L. c. 209A hearings in District and Boston Municipal Courts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "sexual relations" in G. L. c. 209A § 1(c) includes "inappropriate contact of a sexual nature" such as masturbating on a nonconsenting person | "Sexual relations" should be read broadly to include intentional, inappropriate sexual contact; plaintiff’s nonconsent turned otherwise sexual conduct into involuntary sexual relations | Term should be limited to acts of sexual intercourse; here intercourse had ended so statute does not apply | Held for plaintiff: "sexual relations" is not limited to intercourse and can include inappropriate sexual contact; evidence sufficed to support involuntary sexual relations by force |
| Whether the defendant’s conduct constituted "force" under § 1(c) | Remaining on top of the plaintiff and masturbating after she asked him to stop is physical force sufficient to render the sexual contact involuntary | Conduct was at most assault and battery, not the type of force contemplated by § 1(c) | Held for plaintiff: physical restraint/positioning and continuing sexual contact after withdrawal of consent can constitute "force" for § 1(c) purposes |
| Whether a judge in District/Boston Municipal Court may dismiss a G. L. c. 209A complaint at the close of the plaintiff’s case by discrediting the plaintiff under Mass. R. Civ. P. 41(b)(2) | Even if dismissal is sought at close of plaintiff’s case, the judge must view evidence in plaintiff’s favor; plaintiff argued judge improperly made credibility determinations before defendant rested | Defendant argued judge may exercise the trier-of-fact option under Rule 41(b)(2) to weigh credibility and dismiss at that stage | Held: Rule 41(b)(2) does not apply in District/Boston Municipal Court G. L. c. 209A hearings; judge may, in discretion, entertain a required finding motion but may not make credibility determinations dismissing the complaint until the close of all evidence unless defendant rests |
| Remedial/procedural guidance when a directed-finding motion is made at close of plaintiff’s case in G. L. c. 209A matters | Plaintiff urged caution: because these are protective proceedings, judges should prefer hearing defendant’s evidence before dismissing | Defendant sought immediate dismissal based on insufficiency of plaintiff’s evidence | Held: Court recommends, where possible, asking whether defendant will present evidence and, if so, hearing it before ruling; encourages meaningful opportunity to present and challenge evidence given safety-focus of statute |
Key Cases Cited
- Commonwealth v. Enimpah, 81 Mass. App. Ct. 657 (Mass. App. Ct. 2012) (consent may be withdrawn during the sexual act)
- Commonwealth v. Armstrong, 73 Mass. App. Ct. 245 (Mass. App. Ct. 2008) (physical positioning and restraint can show force in sexual assault context)
- Commonwealth v. Stockhammer, 409 Mass. 867 (Mass. 1991) (holding that holding a complainant down and disarranging clothes supported finding of force in rape prosecution)
- Iamele v. Asselin, 444 Mass. 734 (Mass. 2005) (burden in G. L. c. 209A proceedings is by preponderance; defendant not required to testify)
- Frizado v. Frizado, 420 Mass. 592 (Mass. 1995) (defendant’s failure to testify insufficient alone to warrant issuance of abuse prevention order)