This case concerns whether a parent may seek an extension of an abuse prevention order under G. L. c. 209A to prevent his daughter, who was sixteen years of age, from voluntarily engaging in a sexual relationship with an adult.
1. Facts. We recite the facts based on the record before us. See Caplan v. Donovan, 450 Mass. 463, 464 n.l, cert, denied, 553 U.S. 1018 (2008). In July, 2011, while traveling in Europe with her mother and grandmother, the daughter, who was sixteen years of age, met the defendant, a citizen of the United Kingdom who was twenty-four years of age. In conversation with the defendant, the daughter falsely indicated that she was bom in 1992, thus making her eighteen or nineteen years of age. They exchanged contact information. A few days later, the defendant took the daughter on a tour of the area surrounding London.
The daughter returned home and maintained communication with the defendant through various electronic means, including electronic mail messages (e-mail), instant messaging,
The defendant made plans to visit the Boston area in October and wrote to the daughter about how they would spend their time together on his arrival. The defendant indicated he wanted “a day spent in each others arms (make tht a few),” acknowledged her parents’ disapproval of their “relationship,”
In addition to submitting his affidavit, the father provided the judge with copies of some of the electronic communications between the defendant and the daughter. During cross-examination by defense counsel, the father admitted that the defendant had not threatened physical harm to the daughter. Nor did the father have any evidence that the defendant “caused [the daughter] to engage involuntarily in sexual relations by force, threat, or duress.” In addition to filing an affidavit, the defendant testified. Much of his testimony was indiscernible by the court reporter because of noise, but the defendant testified that he “would never do anything that could possibly hurt [the daughter].” He testified that he told the mother that he would not have contact with the daughter and claimed that he “kept to that.”
The judge rejected defense counsel’s arguments that an abuse prevention order was inappropriate because there were no allegations of physical abuse or involuntary sexual conduct, and no evidence of a substantive dating relationship. The judge did not explain, however, on what basis he found abuse or the existence of a substantive dating relationship. He extended the abuse prevention order “in all respects” for one year. This appeal followed.
2. Discussion. We review the issuance of an order pursuant to
General Laws c. 209A enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from abuse or contact. G. L. c. 209A, § 3. Under G. L. c. 209A, § 1 (e), family or household members include persons who “are or have been in a substantive dating or engagement relationship.” “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” G. L. c. 209A, § 1. The issuance of an abuse prevention order is a civil procedure, and abuse need only be proved by a preponderance of the evidence. See Jordan v. Clerk of the Wes field Div. of the Dist. Court Dep’t, 425 Mass. 1016, 1017 (1997). A violation of an order to refrain from abuse or contact, however, is a crime, punishable by a fine or imprisonment in a house of correction, or both. G. L. c. 209A, § 7, fifth par. See Commonwealth v. Finase, 435 Mass. 310, 313-314 (2001).
Here, as conceded by the father, the defendant has neither physically harmed nor attempted physically to harm the daughter. In addition, because she is over the age of sixteen, she is legally capable of “consenting” to sexual intercourse, see note 3, supra, and as admitted by the father, the defendant has not caused the daughter to engage involuntarily in sexual relations
The father contends that the defendant’s actions placed the daughter “in fear of imminent serious physical harm” under G. L. c. 209A, § 1 (b), because in suggesting that he was going to supply the plaintiff with alcohol, the defendant essentially offered to supply alcohol to a minor in violation of G. L. c. 138, § 34 (“whoever furnishes . . . alcohol for a person under 21 years of age shall be punished by a fine ... or by imprisonment for not more than one year or both”). We disagree.
The definition of “abuse” under G. L. c. 209A, § 1 (b), closely approximates the common-law definition of the crime of assault, and we are guided by our definition in considering whether the defendant’s conduct rose to such level of “abuse” under the statute. See Commonwealth v. Gordon, 407 Mass. 340, 349-350 (1990). We consider whether the defendant’s conduct placed the daughter in “reasonable apprehension that [the defendant] might physically abuse her.” Id. at 350. The defendant’s passing references in his electronic communications with the daughter implying that he might furnish her with alcohol, while understandably reprehensible to the father, is not evidence suggesting physical abuse or evidence that the defendant planned to give alcohol to her in order to have involuntary sexual relations with her, certainly a form of physical abuse. We conclude that this conduct does not meet the definition of “abuse” under G. L. c. 209A, § 1 (b), and thus fails to serve as a basis for issuing the extension order.
Our conclusion, that there was no “abuse” as required by the statute, obviates the need to decide whether the father proved by a preponderance of the evidence that his daughter and the defendant were engaged in a “substantive dating relationship” within the meaning of G. L. c. 209A, § 1 (e). Nevertheless, because it would be instructive in other cases, we conclude that
General Laws c. 209A, § 1, directs courts to adjudge the existence of substantive dating relationships by considering four factors: “(1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship.” Here, there was a three-month relationship that involved regular mutual communication. Although, after the daughter’s return home from Europe, that communication occurred electronically, many of the transmissions, such as those through instant messaging and Skype, involved “real-time” communication and face-to-face communication, thus adding a level of intimacy to the relationship. Significantly, the parties to the relationship did not stand on equal footing in terms of emotional maturity. One party to the relationship was a minor, to whom we afford unique protection, see Commonwealth v. A Juvenile (No. 1), 389 Mass. 128, 132 (1983), and the other party was an adult who held himself out to “love” the minor. The content of the conversations were intimate, reflected a mutual romantic relationship, and expressed a mutual desire to engage in sexual relations. In these circumstances, we conclude that a substantive dating relationship was established. If the defendant had threatened to harm the daughter (rather than seeking to engage in a consensual sexual relationship with her), G. L. c. 209A should be available to protect her.
Our conclusion comports with fulfilling the remedial purpose of the statute. See C.O. v. M.M., 442 Mass. 648, 653 (2004) (noting that, when enacting abuse prevention statute, “Legislature intended to address violence stemming from relationships which may not be considered traditional ‘family or household’ associations” and that judicial guidelines on abuse prevention properly instruct courts to afford broad meaning to term “substantive dating relationship” to protect remedial purpose of the statute). It also reflects the changing nature of relationships and, specifically, the fact that an increasing number of relationships, including ones involving teenagers, are being conducted electronically. See id. (“Dating is inherently personal and idiosyncratic, and
3. Conclusion. The abuse prevention extension order issued October 11, 2011, is vacated. The District Court judge shall cause a notification and direction to be sent, conformably with G. L. c. 209A, § 7, third par., for the destruction of all records of the vacated order. See Carroll v. Kartell, 56 Mass. App. Ct. 83, 87-88 (2002).
So ordered.
A person sixteen years of age or older is legally capable of “consenting” to sexual intercourse. See G. L. c. 265, § 23; G. L. c. 277, § 39.
“Instant messaging” is “a form of computer communication in which individuals hold an online conversation via the [I]ntemet .... [The] message is transmitted instantaneously . . . allowing] both parties ... to respond immediately.” Commonwealth v. Disler, 451 Mass. 216, 218 n.3 (2008), quoting State v. Lott, 152 N.H. 436, 437 (2005).
Skype is “a proprietary [I]ntemet-based computer software system that provides two-way visual and voice communication.” Rivera v. State, 381 S.W.3d 710, 711 n.2 (Tex. Ct. App. 2012).
“Facebook is an online social network where members develop personalized [W]eb profiles to interact and share information with other members.” Lane v. Facebook, Inc., 696 F.3d 811, 816 (9th Cir. 2012). We have referred to Facebook as “a social networking Web site.” Commonwealth v. Purdy, 459 Mass. 442, 450 (2011).
In his affidavit, the defendant states that for “several weeks,” he communicated with the daughter “by means of Skype, instant messaging, e-mail and Facebook.” It appears that these communications began in July, 2011, and ended in late September, 2011. The exact frequency of the communications is not specified in the record, although it appears that the communications occurred on a fairly regular basis. Copies of three lengthy instant messaging exchanges between the defendant and the daughter were included in the record as examples of their communications.
At some point before September 30, 2011, the parents became aware of their daughter’s communications with the defendant. They expressed their disapproval to their daughter and told the defendant that they felt that “this relationship” was inappropriate and requested that he stop communicating with her.
In the complaint, the father alleged that the defendant posed a safety threat to his daughter, asserting that the defendant intended to travel to the United States to “us[e] alcohol with her while here” and to have sex with her.
The order directed the defendant to refrain from abusing the daughter, to refrain from contacting the daughter, and to stay away from the family residence.
No further explanation appears on the record because of “background noise.”
It appears that the extension order has expired. The appeal, however, is
Were the defendant actually to furnish alcohol to the daughter, such conduct would violate G. L. c. 138, § 34 (furnishing alcohol to minor), and G. L. c. 119, § 63 (contributing to delinquency of minor), and would present a different circumstance than existed here.