A.S.R. v. A.K.A., No. 17-P-1109 (Mass. App.)        September 22, 2017.

A.K.A. appealed from a district court’s extension of a harassment protection order originally issue ex parte, arguing that the trial court failed to identify three acts supporting the order, failed to make findings concerning A.K.A.’s intent in contacting former beau A.S.R., and erred in entering the order where A.S.R. did not fear physical harm or property damage.

A.S.R. and A.K.A. had intermittent contacts following the end of their one year affair, but when A.S.R. determined not to have further contact, A.K.A. deluged him with email, text and telephone contacts from multiple sources, thereby defeating privacy controls, imploring re-establishment of contact and occasionally threatening self harm  A.K.A. appeared at public places where A.S.R. was performing or dining with a new love interest.

In pursuit of the harassment protection order, A.S.R. testified that the constant contacts made him afraid to access internet and phone communications, afraid to venture out publicly, and upset his family, particularly where A.K.A. threatened self-harm.

A.K.A. testified that she had no intent to harm A.S.R.:  she wanted to resolve the relationship.  Her appearances where A.S.R. was present were coincidental, although she did email A.S.R.’s new interest.

The trial court disbelieved A.K.A. and extended the harassment order because of the violence of here communications, notwithstanding that in the trial court’s view A.K.A.’s First Amendment interests were in play.

The Massachusetts Court of Appeals found that the standards of criminal harassment had been amply met, making the determination that civil harassment had occurred supportable.

While three acts are required by statute to establish harassment, the court as trier of fact had before it evidence of multiple acts and was not required to make specific findings selecting three acts before extending the order.  Neither was the judge required to issue specific findings that A.K.A.’s acts were willful and malicious.

Even if A.S.R. was uncertain about apprehension of physical harm, A.S.R. was clear that A.K.A. caused extreme fear.  The trial judge was warranted in finding that the volume and kind of contacts would cause a reasonable person to experience emotional distress or fear for safety.

A.K.A.’s speech and conduct enjoyed no First Amendment protections. The evidence supported a finding that A.K.A.’s behavior was a true threat, which does not require explicit statements of imminent harm. Massachusetts holds that “true threats” include intentional aggression which, in context, cause victims to fear current or future harm.

Not every former partner’s intrusions will justify issuance of protective orders, the Court of Appeals noted.  In this case, however, the order was amply supported because of evidence of the volume, nature and persistence of A.K.A.’s contacts.

A.S.R. v. A.K.A. (Mass. App., 2017)

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