At an ex parte hearing, a Juvenile Court judge issued a temporary harassment prevention order against the defendant, an eleven year old boy. See G. L. c. 258E, § 5. The order was issued based on allegations that the defendant had digitally raped the plaintiff, the seven year old girl on whose behalf the harassment complaint was filed. Following an evidentiary hearing, the judge extended the order for one year.
1. Background.
When initially questioned by her mother, the plaintiff said she was unaware of anything that might have caused the bleeding. The plaintiff reported the same to her doctor, who found a small tear on her labia. On further questioning, the plaintiff suggested to her mother that the injury might have been caused by an incident on the school playground during recess. After the plaintiff’s mother learned from the school that there had been no recess during the applicable time period due to inclement weather, she began more intensively questioning the plaintiff about what might have caused the injury. During such questioning, she implored the plaintiff to tell the truth, while threatening punishment if she did not. According to her mother, the plaintiff finally “cracked” and informed her that just before the bleeding started, the defendant had “shoved his fingers up there” and then told her not to tell anyone or they both would get in trouble. The plaintiff’s mother reported her daughter’s allegation to the local police, and a delinquency complaint was ultimately filed against the defendant. On March 21, 2013, the plaintiff’s mother filed the current harassment prevention action on her daughter’s behalf.
The plaintiff herself did not testify. Through her attorney, she notified the defendant of her intent to have her out-of-court statements introduced through her mother’s testimony. The defendant countered with a motion in limine seeking to exclude such testimony except through invocation of G. L. c. 233, § 82(a), inserted by St. 1990, c. 339.
“The procedural requirements of [G. L. c.] 233, § 82 are required when child hearsay is offered for its truth. Here, the Court made it clear to the parties throughout the proceedings that the [girl’s] statements were not admitted for their truth, but were instead admitted for the purpose of establishing her state of mind and generally that [she] made an allegation of sexual abuse against the [boy], which served as the basis for the [G. L. c.] 258E complaint.”
The judge went on to explain why she believed that her ruling was in accord with the purpose of the statute. In the judge’s view, all that the plaintiff needed to show to obtain a harassment order was that she feared the defendant based on her allegation that he had committed an act (here, a rape) that fit within the statutory definition of “harassment.” According to the judge, whether the defendant actually committed the alleged rape was not properly before her; instead, that was for the parallel delinquency proceeding. Citing to O’Brien v. Borowski,
2. Discussion. We begin by addressing what a plaintiff must establish to obtain a harassment prevention order. Such an order can be sought by anyone “suffering from harassment.” G. L. c. 258E, § 3, inserted by St. 2010, c. 112, § 30. The statute sets forth two definitions of “harassment.” The first, which does not apply to the facts of this case, defines “harassment” as “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” G. L. c. 258E, § 1, inserted by St. 2010, c. 23 (definition of “harassment,” subsection [i]). See
The second definition of “harassment” applies to situations where, as here, a defendant allegedly committed one or more acts of sexual misconduct. G. L. c. 258E, § 1 (definition of “harassment,” subsection [ii]).
If the defendant digitally raped the plaintiff, this would constitute a violation of G. L. c. 265, § 22A, and that, by definition, would amount to “harassment.” Proof that the defendant intended to instill fear, and in fact did so, would be wholly unnecessary.
3. Sufficiency. The defendant argues that there was insufficient admitted evidence to support the issuance of a harassment order under a proper reading of the statute. The most compelling evidence that the defendant raped the plaintiff was, of course, the plaintiff’s out-of-court statements that he did. However, because the judge did not admit those statements for their truth, we do not consider them for sufficiency purposes.
4. Limitations on cross-examination. There is no merit to the defendant’s argument that the judge unduly constrained his right to cross-examine the plaintiff’s witnesses. Despite the straightforward nature of the plaintiff’s allegations, the evidentiary hearing stretched on for three days. Throughout the proceedings, the defendant was afforded extensive opportunities to press the plaintiff’s witnesses on the details of their testimony and to explore their credibility. Although the judge did tell the defendant’s counsel to “move on” to another topic on multiple occasions, this generally was only after the defendant was given an exhaustive opportunity to explore the subject.
5. Remedy. Because we have concluded that there was sufficient evidence of harassment to support the judge’s order, but that the judge applied an incorrect view of the law, the case must be remanded for further proceedings.
6. Hearsay. By definition, a child’s out-of-court statements describing sexual contact in child abuse cases cannot be admitted pursuant to G. L. c. 233, § 82, inserted by St. 1990, c. 339, unless the dictates of that statute have been satisfied (including the requirement that the child be shown to be “unavailable”). However, by that statute’s explicit terms, “[a]n out-of-court statement admissible by common law or by [other] statute shall remain admissible notwithstanding the provisions of this statute.” G. L. c. 233, § 82(d). Thus, if a child’s out-of-court statements are otherwise admissible, the preconditions to admissibility set forth in G. L. c. 233, § 82, do not apply.
To determine the norms and procedures applicable to harassment prevention orders issued pursuant to G. L. c. 258E, the Supreme Judicial Court has looked to those applicable to abuse prevention orders issued pursuant to G. L. c. 209A. See O’Brien v. Borowski, 461 Mass, at 417-418. In such proceedings, “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado,
Based on these considerations, we conclude that the judge erred
7. Conclusion. For the reasons set forth above, we remand this matter for further proceedings consistent with this opinion. The current harassment order is to remain in effect in the interim.
So ordered.
Notes
The hearing took place some seven months after the complaint was filed. In the interim, the judge issued multiple orders extending the original ex parte order (apparently by agreement).
At oral argument, the parties represented that the order since has been extended again (without the judge’s taking any new evidence), and that the extended order remains in effect. An appeal of the most recent extension order is not before us, but, in any event, the current appeal has not become moot. See Seney v. Morhy,
“The facts are drawn from the judge’s findings, ‘supplemented by the record where necessary.’ ” Prenaveau v. Prenaveau,
The defendant’s mother testified that the two children were never alone together that day, but the judge expressly declined to credit that testimony.
In the prior incident, the defendant and the plaintiff (together with their younger siblings) had participated in what was characterized as the “bum drum,” in which the participants “drummed” the others’ bare behinds.
Subject to various provisos and exceptions, that statute allows the introduction of “out-of-court statements of a child under the age of ten describing any act of sexual contact performed on or with the child, the circumstances under which it occurred, or which identifies the perpetrator ... as substantive evidence in any civil proceeding.” One critical proviso is that the child be demonstrated to be “unavailable.” In turn, “unavailability” is broadly defined to include, inter alia, a showing that “testifying would be likely to cause severe psychological or emotional trauma to the child.”
Because the judge did not consider the out-of-court statements for their truth, the defendant’s argument that the judge improperly admitted hearsay evidence fails. However, we have considered the defendant’s hearsay arguments in evaluating whether, on remand, the out-of-court statements could be used for their truth.
This portion of the statutory definition reads in full as follows:
“(ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.”
The O’Brien court referred to this as an “alternative definition” of harassment. 461 Mass, at 419 n.4.
This is identical to one of the three forms of “abuse” defined in G. L. c. 209A, § 1(c).
Proof of rape of a child requires no showing of “force, threat or duress.” The presence or absence of fear could play a role in other circumstances where a plaintiff separately was alleging that a defendant “by force, threat or duress cause[d the plaintiff] to involuntarily engage in sexual relations,” or was trying to prove a violation of one of the other enumerated sex crimes.
We do not mean to suggest that if the admitted evidence were insufficient, then this necessarily would be the end of the matter. As discussed below, we disagree with the judge’s ruling that G. L. c. 233, § 82, barred the plaintiff’s out-of-court statements from being admitted for their truth. In addition, we note that this is a civil proceeding in which principles of double jeopardy do not apply.
The defendant highlights that when the judge told the defendant’s counsel to move on, she sometimes did so while commenting that counsel had made his point. The judge ultimately found the plaintiff’s mother credible on the key point that the defendant and girl had been together upstairs directly before the plaintiff came down to report her bleeding. The judge was free to accept the testimony of the witness on that point, regardless of whether she credited every aspect of her testimony. The determinative question is whether the defendant was given a fair opportunity to explore the witness’s credibility.
The one subject area that the judge denied the defendant any opportunity to explore was whether the plaintiff’s mother had made prior false allegations of sexual misconduct against others (either on behalf of herself or on behalf of the plaintiff). See generally Commonwealth v. Bohannon,
The Supreme Judicial Court repeatedly has cited these guidelines as an authoritative source for proceedings and orders pursuant to G. L. c. 209A. See Frizado v. Frizado,
There are some intimations in the judge’s findings and rulings that she believed that the alleged rape likely occurred. However, given her forceful statements eschewing any role in making such a determination, we conclude that a remand is necessary.
“Because a c. 209A proceeding is a civil and not a criminal proceeding, the constitutional right to confront witnesses and to cross-examine them set forth in art. 12 of the Declaration of Rights has no application. . . .” Id. at 596 n.3.
Because the judge agreed with the defendant that G. L. c. 233, § 82, prevented her from considering the plaintiffs out-of-court statements for their truth, she did not specifically consider whether the statements carried sufficient indicia of reliability. At the same time, however, the judge did observe that the particular language attributed to the plaintiff (the statement that the defendant “shoved his fingers up there”) was “both age appropriate and consistent with the sexual experiences of a seven (7) year old alleging sexual abuse, further supporting the credibility of her allegations.”
As noted, the harassment order was extended while this appeal was pending, see n.2, supra, and no appeal of that extension order is before us. In the event that the judge on remand were to determine that the harassment order that is the subject of this appeal should not have issued, we leave it to the defendant to seek appropriate relief from the trial court with regard to the further extension order and with regard to vacating the order that was before us.