NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2023 VT 29
No. 22-AP-199
Ava Morton Supreme Court
On Appeal from v. Superior Court, Windsor Unit, Civil Division
Mayah Young March Term, 2023
Robert P. Gerety, Jr., J.
Michelle Donnelly, Jaeden Spitale, Legal Intern, and Chester Harper, Fellow, South Royalton Legal Clinic, South Royalton, for Plaintiff-Appellant.
Mayah Young, Pro Se, White River Junction, Defendant-Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. WAPLES, J. Plaintiff Ava Morton appeals the denial of her complaint for an
order against stalking. We conclude that defendant’s conduct did not fall within the statutory
definition of stalking and therefore affirm the decision below.
¶ 2. In May 2022, plaintiff’s mother filed a complaint on behalf of plaintiff, who was
then seventeen years old, seeking an anti-stalking order against defendant Mayah Young. The
affidavit attached to the complaint alleged that in April 2022, defendant had posted a video on the
social media platform TikTok that included a half-naked picture of plaintiff. Plaintiff’s mother
called the police, who went to defendant’s home, directed her to delete plaintiff’s picture from her
phone, and warned her that she could end up in a lot of trouble because plaintiff was a minor. The complaint alleged that afterward, defendant posted another video in which she threatened to hurt
plaintiff, followed by two more videos in which she suggested that she still had the picture and
might send it to others.
¶ 3. The civil division declined to issue a temporary order, concluding that the alleged
conduct did not fall within the definition of stalking. Plaintiff notified the court of her intent to
pursue the complaint, and the court set the matter for a final hearing in May 2022. See V.R.C.P.
80.10 (setting forth procedure for actions for orders against stalking). Plaintiff was represented by
counsel and defendant appeared pro se. Plaintiff, defendant, and defendant’s foster parent testified
at the hearing.
¶ 4. Plaintiff testified that she and defendant used to be best friends. Plaintiff testified
that in mid-April 2022, defendant posted a picture of plaintiff on TikTok in which it was clear that
plaintiff was not wearing a shirt or bra, although her breasts were not visible. Defendant included
a caption that mentioned plaintiff’s username and stated, “don’t send my man pics TO MY
PHONE.” Plaintiff testified that defendant was referring to plaintiff’s ex-boyfriend, C.M., who
had been using defendant’s phone. 1 She testified that she had sent the photo privately to C.M.
using Snapchat and did not expect it to be shared with others.
¶ 5. Plaintiff testified that defendant subsequently posted a TikTok video with a caption
stating, “when he cheats on me and I don’t pull up to the bitch$ house and dr@g her by the sc@lp
cuz ik where she rests her head every night.” The post also included the words “you’ll be hearing
me rev my car outside your house every night tho booo.” Defendant then posted a second video
in which she stated, “If you send nudes to a man with a girlfriend, expect that shit to get leaked.
Expect that shit to get leaked. No shame on my end for leaking your shit.” In the comments to
1 We refer to C.M. by his initials because it is unclear whether he is a minor. 2 the third video, defendant implied that she would send the image to others, including plaintiff’s
father.
¶ 6. Later, defendant posted a third video with a caption stating, “took cardio’s advice
and the b!tch called the cops. maybe keep your t!ts away and away from ppl in relationships.
everything on the internet is permanent if you think I don’t still have it and everyone else you’re
wrong bae.” The post also stated, “cops couldn’t do anything boo #homewrecker.”
¶ 7. Plaintiff testified that these videos made her feel degraded and violated, and that
she cried a lot when she saw that defendant had posted her picture online. She testified that she
hadn’t been eating and that she had anxiety about going to school or out in public because she was
worried that defendant would do something to her or show up at her house. She also feared that
defendant would share the photo with future employers.
¶ 8. Defendant then testified. She stated that after the police officer came to her house,
plaintiff and two other friends had driven up defendant’s driveway. She argued that this
demonstrated that plaintiff was not actually scared of defendant. She also testified that the video
in which she discussed going to a woman’s house was not directed at plaintiff. She stated that her
then-boyfriend had cheated on her with five different girls, and the video was a blanket statement
to warn everyone off. Defendant’s foster parent testified that she saw a car full of girls pull up to
their home but could not identify them.
¶ 9. The trial court issued a written order in which it found that defendant’s posts were
directed at plaintiff and had caused plaintiff emotional stress, anxiety, embarrassment, and loss of
appetite. However, the court found that only one of the posts—the video in which defendant stated
that she would “pull up to the bitch$ house and dr@g her by the sc@lp”—threatened physical
harm. The other posts, in which defendant indicated that she still had the nude image and might
republish it to others, threatened emotional but not physical harm. Relying on this Court’s decision
in Hinkson v. Stevens, 2020 VT 69, 213 Vt. 32, 239 A.3d 212, the court concluded that plaintiff
3 had failed to meet her burden of showing that defendant engaged in a course of conduct
constituting stalking, because the evidence demonstrated only one threat of physical harm. It
therefore denied plaintiff’s request for an order against stalking. This appeal followed. 2
¶ 10. Plaintiff argues that the decision below should be reversed because defendant made
two or more threats that caused her substantial emotional distress and therefore engaged in a course
of conduct sufficient to constitute stalking under 12 V.S.A. § 5131. Whether the trial court
correctly interpreted the statute is a question of law that we review de novo. See Hinkson, 2020
VT 69, ¶ 26 (“In considering this appeal, we interpret the stalking statute and review the court’s
legal conclusions without deference.”).
¶ 11. Under the civil stalking statute, stalking is defined as “engag[ing] purposefully in a
course of conduct directed at a specific person that the person engaging in the conduct knows or
should know would cause a reasonable person to: (A) fear for his or her safety or the safety of a
family member; or (B) suffer substantial emotional distress.” 12 V.S.A. § 5131(6). “ ‘Course of
conduct’ means two or more acts over a period of time, however short, in which a person follows,
monitors, surveils, threatens, or makes threats about another person, or interferes with another
person’s property.” 3 Id. § 5131(1)(A). This definition includes direct or indirect acts “by any
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NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
2023 VT 29
No. 22-AP-199
Ava Morton Supreme Court
On Appeal from v. Superior Court, Windsor Unit, Civil Division
Mayah Young March Term, 2023
Robert P. Gerety, Jr., J.
Michelle Donnelly, Jaeden Spitale, Legal Intern, and Chester Harper, Fellow, South Royalton Legal Clinic, South Royalton, for Plaintiff-Appellant.
Mayah Young, Pro Se, White River Junction, Defendant-Appellee.
PRESENT: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.
¶ 1. WAPLES, J. Plaintiff Ava Morton appeals the denial of her complaint for an
order against stalking. We conclude that defendant’s conduct did not fall within the statutory
definition of stalking and therefore affirm the decision below.
¶ 2. In May 2022, plaintiff’s mother filed a complaint on behalf of plaintiff, who was
then seventeen years old, seeking an anti-stalking order against defendant Mayah Young. The
affidavit attached to the complaint alleged that in April 2022, defendant had posted a video on the
social media platform TikTok that included a half-naked picture of plaintiff. Plaintiff’s mother
called the police, who went to defendant’s home, directed her to delete plaintiff’s picture from her
phone, and warned her that she could end up in a lot of trouble because plaintiff was a minor. The complaint alleged that afterward, defendant posted another video in which she threatened to hurt
plaintiff, followed by two more videos in which she suggested that she still had the picture and
might send it to others.
¶ 3. The civil division declined to issue a temporary order, concluding that the alleged
conduct did not fall within the definition of stalking. Plaintiff notified the court of her intent to
pursue the complaint, and the court set the matter for a final hearing in May 2022. See V.R.C.P.
80.10 (setting forth procedure for actions for orders against stalking). Plaintiff was represented by
counsel and defendant appeared pro se. Plaintiff, defendant, and defendant’s foster parent testified
at the hearing.
¶ 4. Plaintiff testified that she and defendant used to be best friends. Plaintiff testified
that in mid-April 2022, defendant posted a picture of plaintiff on TikTok in which it was clear that
plaintiff was not wearing a shirt or bra, although her breasts were not visible. Defendant included
a caption that mentioned plaintiff’s username and stated, “don’t send my man pics TO MY
PHONE.” Plaintiff testified that defendant was referring to plaintiff’s ex-boyfriend, C.M., who
had been using defendant’s phone. 1 She testified that she had sent the photo privately to C.M.
using Snapchat and did not expect it to be shared with others.
¶ 5. Plaintiff testified that defendant subsequently posted a TikTok video with a caption
stating, “when he cheats on me and I don’t pull up to the bitch$ house and dr@g her by the sc@lp
cuz ik where she rests her head every night.” The post also included the words “you’ll be hearing
me rev my car outside your house every night tho booo.” Defendant then posted a second video
in which she stated, “If you send nudes to a man with a girlfriend, expect that shit to get leaked.
Expect that shit to get leaked. No shame on my end for leaking your shit.” In the comments to
1 We refer to C.M. by his initials because it is unclear whether he is a minor. 2 the third video, defendant implied that she would send the image to others, including plaintiff’s
father.
¶ 6. Later, defendant posted a third video with a caption stating, “took cardio’s advice
and the b!tch called the cops. maybe keep your t!ts away and away from ppl in relationships.
everything on the internet is permanent if you think I don’t still have it and everyone else you’re
wrong bae.” The post also stated, “cops couldn’t do anything boo #homewrecker.”
¶ 7. Plaintiff testified that these videos made her feel degraded and violated, and that
she cried a lot when she saw that defendant had posted her picture online. She testified that she
hadn’t been eating and that she had anxiety about going to school or out in public because she was
worried that defendant would do something to her or show up at her house. She also feared that
defendant would share the photo with future employers.
¶ 8. Defendant then testified. She stated that after the police officer came to her house,
plaintiff and two other friends had driven up defendant’s driveway. She argued that this
demonstrated that plaintiff was not actually scared of defendant. She also testified that the video
in which she discussed going to a woman’s house was not directed at plaintiff. She stated that her
then-boyfriend had cheated on her with five different girls, and the video was a blanket statement
to warn everyone off. Defendant’s foster parent testified that she saw a car full of girls pull up to
their home but could not identify them.
¶ 9. The trial court issued a written order in which it found that defendant’s posts were
directed at plaintiff and had caused plaintiff emotional stress, anxiety, embarrassment, and loss of
appetite. However, the court found that only one of the posts—the video in which defendant stated
that she would “pull up to the bitch$ house and dr@g her by the sc@lp”—threatened physical
harm. The other posts, in which defendant indicated that she still had the nude image and might
republish it to others, threatened emotional but not physical harm. Relying on this Court’s decision
in Hinkson v. Stevens, 2020 VT 69, 213 Vt. 32, 239 A.3d 212, the court concluded that plaintiff
3 had failed to meet her burden of showing that defendant engaged in a course of conduct
constituting stalking, because the evidence demonstrated only one threat of physical harm. It
therefore denied plaintiff’s request for an order against stalking. This appeal followed. 2
¶ 10. Plaintiff argues that the decision below should be reversed because defendant made
two or more threats that caused her substantial emotional distress and therefore engaged in a course
of conduct sufficient to constitute stalking under 12 V.S.A. § 5131. Whether the trial court
correctly interpreted the statute is a question of law that we review de novo. See Hinkson, 2020
VT 69, ¶ 26 (“In considering this appeal, we interpret the stalking statute and review the court’s
legal conclusions without deference.”).
¶ 11. Under the civil stalking statute, stalking is defined as “engag[ing] purposefully in a
course of conduct directed at a specific person that the person engaging in the conduct knows or
should know would cause a reasonable person to: (A) fear for his or her safety or the safety of a
family member; or (B) suffer substantial emotional distress.” 12 V.S.A. § 5131(6). “ ‘Course of
conduct’ means two or more acts over a period of time, however short, in which a person follows,
monitors, surveils, threatens, or makes threats about another person, or interferes with another
person’s property.” 3 Id. § 5131(1)(A). This definition includes direct or indirect acts “by any
action, method, device, or means,” but does not include constitutionally protected activity. Id.
¶ 12. In Hinkson v. Stevens, a majority of this Court concluded that the term “threatens,
or makes threats about” in § 5131(1) encompasses “only threats of physical harm.” 2020 VT 69,
¶ 42. The majority reasoned that the statute expressly excludes constitutionally protected activity
from the definition of “course of conduct.” Id. ¶ 44. This meant that it could only apply to “true
threats,” which are “those statements where the speaker means to communicate a serious
2 Defendant did not enter a notice of appearance or otherwise participate in this appeal. 3 Plaintiff does not claim that defendant followed, monitored, or surveilled her. 4 expression of an intent to commit an act of unlawful violence to a particular individual or group
of individuals,” and which are not protected by the First Amendment. Id. (quoting State v. Noll,
2018 VT 106, ¶ 24, 208 Vt. 474, 199 A.3d 1054). The majority found this construction to be
consistent with prior caselaw interpreting the term “threat” in other contexts to mean “an
expression of an intent to inflict harm, particularly physical harm, on another person.” Id. ¶ 45
(discussing State v. Schenk, 2018 VT 45, ¶ 11, 207 Vt. 423, 190 A.3d 820, and State v. Johnstone,
2013 VT 57, ¶ 17, 194 Vt. 230, 75 A.3d 642). Finally, the majority reasoned that “to the extent
that ‘threat’ can and has been interpreted to encompass threats of nonphysical harms,” it was
appropriate to resolve any ambiguity in favor of the defendant, which meant applying “the more
limited definition of threat as a communicated intent to inflict physical harm on another person.”
Id. ¶ 46.
¶ 13. Hinkson plainly controls this case. The trial court found that only one of the videos
defendant posted can be construed to imply a threat of violence to plaintiff. The others threatened
reputational or emotional harm, but not physical harm. Accordingly, these threats—though
demeaning and disturbing—could not support a finding that defendant stalked plaintiff within the
meaning of the statute. See 12 V.S.A. § 5131(1) (requiring two or more acts of threatening to
constitute stalking). Plaintiff does not challenge these findings, which support the court’s decision
to deny her complaint.
¶ 14. Instead, plaintiff urges us to reconsider Hinkson. She argues that a threat to
disseminate nude photos, while not a “true threat” of physical harm, is also not a constitutionally
protected activity and therefore can be restrained by the civil stalking statute. She contends that
Hinkson’s narrow construction of the term “threatens, or make threats about” is inconsistent with
the remedial purpose of the statute. She further argues that the previous Vermont caselaw referred
to in Hinkson did not support the interpretation favored by the Court and that the rule of lenity
should not be applied to the civil stalking statute.
5 ¶ 15. We considered and rejected most of plaintiff’s arguments in Hinkson. See 2020
VT 69, ¶¶ 32-34, ¶¶ 44-46; id. ¶¶ 54-62, 71 (Reiber, C.J., dissenting) (opining that civil stalking
statute should be construed more broadly due to its remedial nature and disagreeing that rule of
lenity applies or that only true threats are proscribed). Plaintiff nevertheless argues that we should
revisit our analysis based on our decision in State v. VanBuren, 2018 VT 95, 210 Vt. 293, 214
A.3d 791. 4 In VanBuren, we held that Vermont’s statute criminalizing disclosure of
nonconsensual pornography, 13 V.S.A. § 2606, did not violate the First Amendment. Id. ¶ 69.
Plaintiff asserts that, by extension, threats to disclose nonconsensual pornography are not
constitutionally protected activity and can be proscribed by the civil stalking statute. However, an
actual disclosure is different from a threat to disclose. Section 2606, by its plain language, only
addresses actual disclosures. Nowhere in VanBuren did we state or imply that the statute would
penalize threatened, as opposed to actual, disclosure of nonconsensual pornography, or that such
a proscription would comport with the First Amendment. Rather, in concluding that § 2606 was
narrowly tailored to serve a compelling governmental interest, we emphasized that it did not even
apply to all types of disclosures. See id. at ¶¶ 62-65 (observing that § 2606 only criminalizes
knowing disclosure of images without the victim’s consent and does not cover disclosures made
in public interest or in matters of public concern, or in setting where person does not have
reasonable expectation of privacy). The issue of whether a threat to disclose nonconsensual
pornography is protected speech was not raised or addressed in VanBuren. That decision therefore
does not oblige us to reconsider Hinkson’s interpretation of the civil stalking statute.
¶ 16. Plaintiff points out that the First Amendment allows the government to restrict
speech that is integral to criminal conduct. See Giboney v. Empire Storage & Ice Co., 336 U.S.
4 We had no reason to consider VanBuren in Hinkson because the latter case did not involve threatened or actual disclosure of nonconsensual pornography.
6 490, 502 (1949). Plaintiff contends that if defendant had followed through with her threats, “she
would have been committing a crime under 13 V.S.A. § 2606,” and therefore her threats were not
subject to the same protection as so-called “pure speech.” Although we did not address the
integral-to-criminal-conduct category of speech in Hinkson, we do not find this argument to be a
compelling basis on which to overturn or expand our interpretation of a threat sufficient to
constitute stalking, for the following reasons.
¶ 17. First, VanBuren undermines plaintiff’s argument that defendant’s threats, if carried
out, would necessarily have supported a criminal conviction. In that case, we explained that § 2606
“does not clearly reach images recorded in a private setting but distributed by the person depicted
to public or commercial settings or in a manner that undermines any reasonable expectation of
privacy.” 2018 VT 95, ¶ 66 (emphasis omitted). The defendant in VanBuren was charged with
violating § 2606 by posting on Facebook nude photos that the complainant had sent to defendant’s
boyfriend using Facebook Messenger. We affirmed dismissal of the charge against the defendant,
concluding the State had not shown that the complainant had a reasonable expectation of privacy
in the images as required under the statute because the complainant and the boyfriend were not in
a relationship and there was no evidence of a promise or request between them to keep the images
confidential. Id. ¶ 106. The facts of this case are similar in many respects to VanBuren, calling
into question whether defendant’s conduct could in fact support a conviction under § 2606.
¶ 18. Further, the caselaw cited by plaintiff offers little support to her claim. The primary
case upon which plaintiff relies is a federal circuit court decision affirming a stalking conviction
that was based in part on threats to share nude photos of the victim. See United States v. Ackell,
907 F.3d 67, 76-78 (1st Cir. 2018) (rejecting claim that federal stalking statute was facially
overbroad because it criminalized protected speech). Ackell is inapposite for several reasons. The
defendant in Ackell did not claim that the stalking statute was unconstitutional as applied to him,
so the court did not actually address whether his threats were protected speech. Further, the federal
7 stalking statute interpreted by Ackell is significantly broader than Vermont’s statute because it
only requires proof of two or more “acts” that cause substantial emotional distress. See 18 U.S.C.
§ 2261A (making it a crime to, “with the intent to kill, injure, harass, intimidate, or place under
surveillance,” use mail or electronic communication system to engage in course of conduct that
places person in reasonable fear of death or serious bodily injury or causes substantial emotional
distress); id. § 2266(2) (defining “course of conduct” as “a pattern of conduct composed of 2 or
more acts, evidencing a continuity of purpose”). Unlike the Vermont statute, these acts do not
have to fall within the narrow categories of following, monitoring, surveilling, or threatening; the
federal statute does not even include the terms “threat” or “threaten.” Cf. 12 V.S.A. § 5131(1).
Finally, the Ackell court concluded that the federal statute was not overbroad because, to the extent
it targeted speech made with intent to harass or intimidate, it clearly referred only to criminal
harassment, which involves true threats or speech integral to criminal conduct, or intimidation,
which is a type of true threat. 907 F.3d at 76. Here, plaintiff does not identify any criminal statute
applicable to defendant’s conduct other than § 2606. Ackell is therefore of limited value in this
context and does not justify revisiting our analysis in Hinkson. 5
¶ 19. “While not slavish adherents to stare decisis, we generally require more than mere
disagreement to overturn a decision, particularly one of such recent vintage.” State v. Berini, 167
Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.) (citation omitted). Plaintiff has offered no
persuasive reason for us to overrule a case decided just three years ago. There is no evidence that
this Court has moved away from our holding in Hinkson since it was issued or that Hinkson was
inconsistent with a trend in other jurisdictions. Cf. Coop. Fire Ins. Ass’n of Vt. v. White Caps,
Inc., 166 Vt. 355, 356, 694 A.2d 34, 34 (1997) (reconsidering previous caselaw based in part on
5 Plaintiff also cites various criminal extortion cases discussing the general principle that speech integral to criminal conduct, such as threats to extort, may be regulated, but she does not claim that defendant’s speech in this case was integral to extortion or any other type of crime. 8 evolving trends in jurisprudence of other jurisdictions). Nor has the Legislature amended the
statute since we decided Hinkson. See Chittenden v. Waterbury Ctr. Cmty. Church, Inc., 168 Vt.
478, 490-91, 726 A.2d 20, 29 (1998) (noting that “we do not lightly overrule settled law especially
where it involves construction of a statute which the legislature could change at any time.”
(quotation omitted)). These considerations weigh against overturning Hinkson, “even assuming
that current members of the Court would have reached a different decision.” O’Connor v. City of
Rutland, 172 Vt. 570, 571, 772 A.2d 551, 553 (2001).
Affirmed.
FOR THE COURT:
Associate Justice