ORLA O. vs. PATIENCE P.

NEYMAN, J. The issue before us is whether the juvenile defendant committed three or more separate acts of harassment within the meaning of G. L. c. 258E, § 1. Because the defendant engaged in one continuous event over a very brief period, we conclude that the harassment prevention order must be vacated and set aside.

Background. We recite the Juvenile Court judge's essential factual findings, none of which is challenged as clearly erroneous. [Note 1] On August 6, 2019, the defendant and two other girls confronted the plaintiff at a shopping mall. [Note 2] The defendant and the other girls told the plaintiff to go to the parking lot because

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they wanted to fight her. When the plaintiff refused and attempted to walk away, the defendant and the other girls followed her. The plaintiff walked into a nearby "family bathroom . . . to try and get away from the other girls." When she then tried to leave the bathroom, the defendant and the other girls pushed her back inside; they followed her into the bathroom and locked the door. The defendant and the other girls then kicked, punched, and otherwise physically harmed the plaintiff. The defendant "smashed [the plaintiff's] head into the wall," causing her to bleed, and continued to punch her. Eventually, a mall employee "walked in on the interaction and brought security to the scene." While "the other girls were being removed from the family bathroom," the defendant threatened to stab the plaintiff "if she told anyone what had happened." [Note 3]

The plaintiff filed a complaint under c. 258E and obtained a temporary order. After an evidentiary hearing at which both parties appeared, the judge extended the order, ruling that the above conduct constituted not one continuous act but "multiple acts of various types even though it occurred over a single period of time." The defendant appealed.

Discussion. Chapter 258E defines "harassment" in pertinent part as "[three] 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. See O'Brien v. Borowski, 461 Mass. 415, 419-420, 426 (2012). The essential question in this case is whether the defendant's conduct constituted merely one continuous act of harassment, [Note 4] as she contends, or, instead, three or more acts of harassment, albeit close in time to one another, as the judge ruled.

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Two critical principles guide our analysis in determining whether the defendant's actions constituted separate acts of harassment. First, "one continuous act cannot be divided into multiple discrete acts in order to satisfy the requirements of G. L. c. 258E, § 1." F.K. v. S.C., 481 Mass. 325, 333 (2019). Second, harassing conduct that occurs "within a very short period of time" has been held to constitute one continuous act of harassment in certain circumstances. Smith v. Mastalerz, 467 Mass. 1001, 1001 (2014). Neither Smith, supra, nor F.K., supra, requires that acts must be separated by any particular amount of time in order to be distinguished from one another. That notwithstanding, the temporal proximity of events remains an important part of our inquiry. See Smith, supra.

Here, the defendant, assisted by two others, confronted the plaintiff at a shopping mall, threatened her, followed her "down the hall" as she tried to flee, forced her into the bathroom, locked her in, physically assaulted her, and threatened to stab her "if she told anyone what had happened." The entire event occurred over what appears to be a ten- to eleven-minute period. There is no dispute that the acts at issue occurred "within a very short period of time." Smith, 467 Mass. at 1001. There is also no dispute that the conduct was continuous in that it occurred without any temporal or material pause or interruption. Accordingly, the defendant's "conduct, troubling and offensive as it was, failed to satisfy the threshold requirement of G. L. c. 258E, § 1." F.K., 481 Mass. at 334.

The dissent nonetheless concludes that although acts of the same type occurring close together in time cannot be considered separate acts, the acts in the present case "were of three different types," post at 130, and thus were by their nature three distinct acts. In other words, the dissent contends that different types of conduct -- even continuous conduct that occurs within a very short period -- may satisfy the separate acts requirement of c. 258E.

Neither the language of the statute, nor our case law, comport with such an interpretation. In F.K., 481 Mass. at 332, the Supreme Judicial Court (SJC) held only that "[o]ne continuous act cannot be parsed into its constituent parts." The SJC did not hold in that case, or any other, that one continuous act of the same type can be parsed into its constituent parts. Thus, the dissent's view

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contravenes the SJC's clear admonition. See id. at 332-333. [Note 5] Moreover, the effort to separate conduct by the type of act creates an arbitrary and unconvincing distinction in the application of G. L. c. 258E. [Note 6]

In short, the plain language of the statute speaks to "[three] or more acts of willful and malicious conduct." G. L. c. 258E, § 1. Where, as here, the defendant engaged in one continuous event over a very brief period, the harassment prevention order should not have issued. [Note 7] We therefore remand the case to the Juvenile Court for entry of an order vacating and setting aside the harassment prevention order, and for further actions required by G. L.

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c. 258E, § 9. [Note 8], [Note 9]

So ordered.

SACKS, J. (dissenting). I respectfully disagree with the majority's conclusion that the defendant committed only a single, indivisible act of harassment for c. 258E purposes. [Note Dissent-1] Although the defendant's acts occurred close together in time, they were of three different types, each intended to produce a different one of the harms expressly targeted by the statute: fear, or abuse, or intimidation. See G. L. c. 258E, § 1. They were thus three statutorily distinct acts of harassment, justifying the judge's order. Moreover, the acts appear to have constituted at least four separate criminal offenses, and our criminal law recognizes that a single, brief course of conduct aimed at a single victim may

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comprise multiple, easily distinguishable, and independently punishable acts. The majority offers no reason why c. 258E should not be applied in similar fashion.

1. Distinct acts under c. 258E. The defendant committed three acts intended to produce discrete harms that c. 258E itself recognizes as separate. First, after the plaintiff refused to fight her, the defendant pursued the plaintiff through the mall and into the bathroom -- an act intended to cause the plaintiff fear of physical harm. Second, the defendant physically battered the plaintiff, including by smashing her head into a wall -- an act intended to cause abuse, defined in pertinent part as "attempting to cause or causing physical harm to another." G. L. c. 258E, § 1. Third, the defendant threatened to stab the plaintiff if she told anyone about what had happened -- an act intended to cause intimidation, i.e., to put the plaintiff in fear of physical harm in order to deter future conduct. [Note Dissent-2]

These acts, despite occurring close together in time, were, by their nature and in light of the words of c. 258E itself, three conceptually separate acts. No doubt, "[o]ne continuous act cannot be parsed into its constituent parts so as to satisfy G. L. c. 258E, § 1." F.K. v. S.C., 481 Mass. 325, 332 (2019). But, as the judge here observed, threatening to stab the plaintiff if she told anyone what had happened is not merely "a parsed out piece of [the defendant] slamming the plaintiff's head into the wall."

Unlike the majority, I do not view this case as controlled by Smith v. Mastalerz, 467 Mass. 1001 (2014), and F.K., supra, and I see no reason to extend the holdings in those cases to govern the quite different situation presented here. In Smith, supra, the defendant drove past the plaintiff at her home three times in quick succession. The court decided that "[i]n the circumstances here, where there was no evidence refuting the defendant's claim that he lived down the street from the plaintiff, we conclude that driving by the plaintiff's home within a very short period of time was one continuous act" rather than "three separate acts of

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harassment." Id. [Note Dissent-3]

In F.K., 481 Mass. at 326-327, the defendant recorded a song that referenced the plaintiff while threatening physical harm; the defendant then made the song available on the Internet website SoundCloud and circulated to his friends who were SoundCloud members a link to the song on that website. Third parties then told the plaintiff to listen to the song on SoundCloud, which he did. Id. at 327-328. The court first determined that "dividing the defendant's 'one song' into many 'individual lyrics' for the purpose of finding separate acts of harassment [was] impermissible," because, as in Smith, 467 Mass. at 1001, "one continuous act cannot be divided into multiple discrete acts in order to satisfy the requirements of G. L. c. 258E, § 1." F.K., supra at 333. The court next determined that the mere recording of the song did not constitute a separate act of harassment, "[b]ecause a song recorded in private, without more, cannot 'in fact cause' intimidation, abuse, damage to property, or fear of physical harm or damage to property." [Note Dissent-4] Id. at 334, quoting G. L. c. 258E, § 1. "A recorded song may constitute an act of harassment, for the purposes of G. L. c. 258E, § 1, only when it is distributed to others." F.K., supra. Finally, the court determined that the defendant's acts of distributing the song, first by posting it on the Internet and then by sharing the link with his friends, were "two acts in close succession" that should be considered "one continuous act." Id.

Both Smith and F.K. support the proposition that a continuous series of similar acts -- such as driving by the plaintiff's house three times in Smith, or singing multiple lyrics in the same song or using two interconnected distribution methods for that song in F.K. -- cannot be arbitrarily subdivided to create three or more acts in order to satisfy the definition of harassment. However, neither Smith nor F.K. requires that all acts, no matter how dissimilar, must be separated by some particular amount of time in order to be distinguished from one another for c. 258E purposes.

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Moreover, the language of c. 258E strongly suggests otherwise. The definition of harassment in G. L. c. 258E, § 1, was based upon, but conspicuously omits certain important portions of, the definition of harassment contained in the criminal harassment statute, G. L. c. 265, § 43A. See O'Brien v. Borowski, 461 Mass. 415, 419-420 (2012). Unlike the latter statute -- which explicitly requires that, to constitute harassment, the "pattern of conduct or series of acts" must occur "over a period of time" -- the phrases "pattern of conduct" and "over a period of time" do not appear in G. L. c. 258E, § 1. I cannot help but view the Legislature's omission of these phrases as deliberate. See J.C. v. J.H., 92 Mass. App. Ct. 224, 231 (2017) (in c. 258E case, applying principle that "[t]he omission of particular language from a statute is deemed deliberate where the Legislature included such omitted language in related or similar statutes" [quotation and citation omitted]).

It follows that the Legislature did not intend to require a defendant's acts to form any particular pattern, or to be separated by any particular amount of time, in order to constitute harassment under c. 258E. Although "harassment" might be assumed at first blush to involve some pattern of acts repeated over a sufficient period of time to have predictive value regarding the defendant's future conduct if not enjoined, that is not how the Legislature chose to define the term in c. 258E. And "[a] [statutory] definition which declares what a term means . . . excludes any meaning that is not stated." Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 675 (1992), quoting Colautti v. Franklin, 439 U.S. 379, 392–393 n.10 (1979). [Note Dissent-5] Nothing in the definition requires that three acts of different types must occur over a period of time, or must be viewable as a pattern, in order to entitle the plaintiff to c. 258E protection. We should not read additional limitations into the definition that the Legislature did not see fit to put there.

This approach comports with what I take to be one purpose of c. 258E's three-or-more-acts requirement: to ensure that courts are not asked to intervene by issuing c. 258E orders unless the alleged harassment rises to a level of seriousness that warrants both the use of scarce judicial resources and the potential criminal

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and collateral consequences to the defendant. [Note Dissent-6] There is no dispute that the requisite level of seriousness may be attained by repeated acts intended to cause only a single type of statutorily-targeted harm -- i.e., intended to cause only "fear," or only "intimidation," or only "abuse," or only "damage to property" -- provided that such acts occur over more than a short period of time. [Note Dissent-7] But, particularly where the Legislature purposefully declined to require that the three or more acts constitute a "pattern" occurring "over a period of time," see supra, I see no reason why the requisite level of seriousness may not also be attained, as in this case, by the commission of three acts intended to produce three different types of statutorily-targeted harm, even if committed within a short period of time. [Note Dissent-8]

Other language in c. 258E confirms that serious conduct need not be repeated over time, or establish a "pattern" and thereby show that similar conduct is likely in the future, in order to constitute harassment warranting a c. 258E order. To the contrary, a single serious act may satisfy the definition. Specifically, "an act that . . . by force, threat or duress causes another to involuntarily

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engage in sexual relations" constitutes harassment. G. L. c. 258E, § 1. So does "an act that 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." [Note Dissent-9] Id. Where the Legislature has specified that a single such act constitutes harassment, I fail to see why three serious and statutorily distinct acts, even if committed in prompt succession, do not also constitute harassment. Nothing in c. 258E requires that victims of such acts be denied the statute's protections.

2. Distinct acts under criminal law. Indeed, it would be odd to treat the defendant's course of conduct here, which appears to have included at least four distinct criminal offenses -- threatening to commit a crime, kidnapping, assault and battery by means of a dangerous weapon (the bathroom wall), [Note Dissent-10] and witness intimidation -- as nevertheless constituting only a single act for c. 258E purposes. [Note Dissent-11] None of these crimes is a lesser included offense or duplicative of any of the other three. "[W]here . . . neither crime is a lesser included offense of the other, multiple punishments are permitted even where the offenses arise from the very same criminal event." Commonwealth v. Vick, 454 Mass. 418, 436 (2009). [Note Dissent-12] The acts were not "so closely related in fact as to constitute in substance but a single crime" (citation omitted), id. at 435, and -- unlike the majority's hypothetical scenario of three assaults against the same plaintiff in a ten-minute period, see ante at note 6 -- they would present no question regarding the appropriate unit of prosecution or the continuous offense doctrine. See Commonwealth v. Horne, 466 Mass. 440, 450 (2013) ("Relevant to discerning a criminal statute's unit of prosecution is the continuous offense doctrine, which recognizes that certain criminal

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statutes are intended to punish just once for a continuing course of conduct, rather than for each and every discrete act comprising that course of conduct"). [Note Dissent-13]

Of course, these principles from the criminal context do not directly govern here. But they illustrate that the law is quite accustomed to treating multiple acts involving different means and ends as separate, rather than as a single continuous act, even when committed close together in time and against the same victim. Adopting the same approach to G. L. c. 258E would not create "an arbitrary . . . distinction," ante at 129, but instead would further c. 258E's protective purposes. Moreover, that the acts here appear to have been distinct criminal offenses is another indication that the defendant's course of conduct -- in contrast to the noncriminal conduct at issue in Smith and F.K. -- was sufficiently serious to warrant c. 258E relief. [Note Dissent-14]

Conclusion. Absent anything in the language or purpose of c. 258E suggesting that three different types of harassing acts -- even those constituting separate crimes -- must be treated as a single act when committed close together in time, I would not

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read such a requirement into the statute and, instead, would affirm the judge's order. [Note Dissent-15] I therefore respectfully dissent.