NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1152
C.S.
vs.
M.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a two-party hearing pursuant to G. L. c. 258E, a
District Court judge issued an order prohibiting M.R., the
defendant, from harassing C.S., the plaintiff. The defendant
appeals, and we affirm.
Background. The parties are police officers in the same
department where the defendant supervises the plaintiff.
According to her complaint for protection from harassment and
supporting affidavit, the plaintiff alleged that the defendant
committed against her acts constituting indecent assault and
battery. Her affidavit described unwanted physical contact
including kissing her neck, pulling her close and pressing his
groin and penis against her, and reaching beneath her clothes and fondling and kissing her breasts. At a two-party hearing,
the plaintiff testified, affirmed the truth of the statements in
her affidavit, denied any relationship with the defendant, and
repeated her allegations about the defendant touching and
kissing her breasts without her consent. The defendant
testified it was the plaintiff who flirted with him and
unexpectedly kissed him. As to the remainder of their physical
contact, he testified, "She bit me on the neck, she gave me a
hickey and she pushed me on the bed, got on top of me, took off
her shirt and that was the end of it." The defendant also
submitted four exhibits that included e-mail and text messages
purportedly exchanged between the plaintiff and the defendant,
photographs of the plaintiff, and an e-mail message from the
city solicitor. After considering the evidence, the judge
concluded, "I do find [the plaintiff] credible and I do not find
the defendant credible and I am going to extend her request [for
the order]" based on facts constituting indecent assault and
battery.
Discussion. "A person suffering from harassment may file a
complaint in the appropriate court requesting protection from
such harassment." G. L. c. 258E, § 3 (a). "Harassment"
consists of any of the following: (1) three or more acts of
willful and malicious conduct, (2) an act of force, threat, or
2 duress that causes another to involuntarily engage in sexual
relations, or (3) an act that constitutes a violation of various
statutes including G. L. c. 265, § 13H (indecent assault and
battery). See G. L. c. 258E, § 1.
We disagree with the defendant's contention that the judge
erred by issuing a harassment prevention order that was not
based on three or more acts of willful and malicious conduct.
As the language of the statute indicates, harassment may be
shown by means other than three acts of willful and malicious
conduct. See G. L. c. 258E, § 1. Here, the plaintiff presented
evidence that the defendant subjected her to unwanted physical
contact including pulling her close and pressing his groin and
penis against her and reaching beneath her clothes and fondling
and kissing her breasts. The judge expressly credited her
version of these events, disbelieved the defendant's version,
and concluded that the evidence, constituting indecent assault
and battery or forced sexual relations, qualified as harassment
under G. L. c. 258E, § 1. The plaintiff did not have to prove
anything more than that to obtain court protection from the
defendant. Accordingly, we discern no error by the judge.
For the first time, the defendant contends that two hearsay
documents should not have been admitted and deprived him of the
right to cross-examine witnesses. In addition to her affidavit,
3 the plaintiff attached to her complaint two statements, dated
just days before filing the complaint, of two police department
employees. One statement purported to be an interoffice
memorandum of another supervisor reporting some of the
plaintiff's allegations about the defendant's conduct. A second
statement, addressed "[t]o [w]hom [t]his [m]ay [c]oncern,"
memorialized the witness's own observations of the defendant and
the plaintiff in the police station and summarized some of the
plaintiff's allegations that she made to the witness. Defense
counsel raised no objection and cross-examined the plaintiff
about the interoffice memorandum composed almost four years
after the incidents. At the conclusion of the two-party
hearing, the judge stated, "I believe [the plaintiff], based on
everything that I have seen and heard today, coupled with the
statements from [the two police department witnesses], as well
as [her other union representative witness who testified]." We
discern no error.
A hearing on a request for a harassment prevention order
must comport with fundamental requirements of due process. See
R.S. v. A.P.B., 95 Mass. App. Ct. 372, 373 n.4 (2019). These
requirements include fair notice of the proceedings, a
meaningful opportunity to be heard, a right to testify, a right
to present evidence, and a right to cross-examine witnesses.
4 See Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 788 (2022).
Proceedings under c. 258E, are protective and not penal, and
"the rules of evidence need not be followed, provided that there
is fairness in what evidence is admitted and relied on." A.P.
v. M.T., 92 Mass. App. Ct. 156, 161 (2017), quoting Frizado v.
Frizado, 420 Mass. 592, 597-598 (1995), overruled on another
ground by Zullo v. Goguen, 423 Mass. 679, 681 (1996). We
conclude that the defendant, who failed to raise any objection
at the two-party hearing, has waived any due process claim
regarding the procedure followed by the judge. See Diaz v.
Gomez, 82 Mass. App. Ct. 55, 63 (2012) (failure to raise due
process claim in trial court waives any due process claim on
appeal). It was not enough that defense counsel, after the
evidence closed and the judge announced her decision, asked
whether the judge was crediting "the two statements that
[counsel] can't cross examine," and then dropped the matter
after the judge answered in the affirmative.
Even if the claim were not waived, we discern no error. In
harassment prevention hearings, "the rules of evidence should be
applied flexibly by taking into consideration the personal and
emotional nature of the issues involved, whether one or both of
the parties is self-represented, and the need for fairness to
all parties." Mass. G. Evid. § 1106 (2022). As in analogous
5 abuse prevention hearings under G. L. c. 209A, the court process
"is intended to be expeditious and as comfortable as it
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-1152
C.S.
vs.
M.R.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a two-party hearing pursuant to G. L. c. 258E, a
District Court judge issued an order prohibiting M.R., the
defendant, from harassing C.S., the plaintiff. The defendant
appeals, and we affirm.
Background. The parties are police officers in the same
department where the defendant supervises the plaintiff.
According to her complaint for protection from harassment and
supporting affidavit, the plaintiff alleged that the defendant
committed against her acts constituting indecent assault and
battery. Her affidavit described unwanted physical contact
including kissing her neck, pulling her close and pressing his
groin and penis against her, and reaching beneath her clothes and fondling and kissing her breasts. At a two-party hearing,
the plaintiff testified, affirmed the truth of the statements in
her affidavit, denied any relationship with the defendant, and
repeated her allegations about the defendant touching and
kissing her breasts without her consent. The defendant
testified it was the plaintiff who flirted with him and
unexpectedly kissed him. As to the remainder of their physical
contact, he testified, "She bit me on the neck, she gave me a
hickey and she pushed me on the bed, got on top of me, took off
her shirt and that was the end of it." The defendant also
submitted four exhibits that included e-mail and text messages
purportedly exchanged between the plaintiff and the defendant,
photographs of the plaintiff, and an e-mail message from the
city solicitor. After considering the evidence, the judge
concluded, "I do find [the plaintiff] credible and I do not find
the defendant credible and I am going to extend her request [for
the order]" based on facts constituting indecent assault and
battery.
Discussion. "A person suffering from harassment may file a
complaint in the appropriate court requesting protection from
such harassment." G. L. c. 258E, § 3 (a). "Harassment"
consists of any of the following: (1) three or more acts of
willful and malicious conduct, (2) an act of force, threat, or
2 duress that causes another to involuntarily engage in sexual
relations, or (3) an act that constitutes a violation of various
statutes including G. L. c. 265, § 13H (indecent assault and
battery). See G. L. c. 258E, § 1.
We disagree with the defendant's contention that the judge
erred by issuing a harassment prevention order that was not
based on three or more acts of willful and malicious conduct.
As the language of the statute indicates, harassment may be
shown by means other than three acts of willful and malicious
conduct. See G. L. c. 258E, § 1. Here, the plaintiff presented
evidence that the defendant subjected her to unwanted physical
contact including pulling her close and pressing his groin and
penis against her and reaching beneath her clothes and fondling
and kissing her breasts. The judge expressly credited her
version of these events, disbelieved the defendant's version,
and concluded that the evidence, constituting indecent assault
and battery or forced sexual relations, qualified as harassment
under G. L. c. 258E, § 1. The plaintiff did not have to prove
anything more than that to obtain court protection from the
defendant. Accordingly, we discern no error by the judge.
For the first time, the defendant contends that two hearsay
documents should not have been admitted and deprived him of the
right to cross-examine witnesses. In addition to her affidavit,
3 the plaintiff attached to her complaint two statements, dated
just days before filing the complaint, of two police department
employees. One statement purported to be an interoffice
memorandum of another supervisor reporting some of the
plaintiff's allegations about the defendant's conduct. A second
statement, addressed "[t]o [w]hom [t]his [m]ay [c]oncern,"
memorialized the witness's own observations of the defendant and
the plaintiff in the police station and summarized some of the
plaintiff's allegations that she made to the witness. Defense
counsel raised no objection and cross-examined the plaintiff
about the interoffice memorandum composed almost four years
after the incidents. At the conclusion of the two-party
hearing, the judge stated, "I believe [the plaintiff], based on
everything that I have seen and heard today, coupled with the
statements from [the two police department witnesses], as well
as [her other union representative witness who testified]." We
discern no error.
A hearing on a request for a harassment prevention order
must comport with fundamental requirements of due process. See
R.S. v. A.P.B., 95 Mass. App. Ct. 372, 373 n.4 (2019). These
requirements include fair notice of the proceedings, a
meaningful opportunity to be heard, a right to testify, a right
to present evidence, and a right to cross-examine witnesses.
4 See Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 788 (2022).
Proceedings under c. 258E, are protective and not penal, and
"the rules of evidence need not be followed, provided that there
is fairness in what evidence is admitted and relied on." A.P.
v. M.T., 92 Mass. App. Ct. 156, 161 (2017), quoting Frizado v.
Frizado, 420 Mass. 592, 597-598 (1995), overruled on another
ground by Zullo v. Goguen, 423 Mass. 679, 681 (1996). We
conclude that the defendant, who failed to raise any objection
at the two-party hearing, has waived any due process claim
regarding the procedure followed by the judge. See Diaz v.
Gomez, 82 Mass. App. Ct. 55, 63 (2012) (failure to raise due
process claim in trial court waives any due process claim on
appeal). It was not enough that defense counsel, after the
evidence closed and the judge announced her decision, asked
whether the judge was crediting "the two statements that
[counsel] can't cross examine," and then dropped the matter
after the judge answered in the affirmative.
Even if the claim were not waived, we discern no error. In
harassment prevention hearings, "the rules of evidence should be
applied flexibly by taking into consideration the personal and
emotional nature of the issues involved, whether one or both of
the parties is self-represented, and the need for fairness to
all parties." Mass. G. Evid. § 1106 (2022). As in analogous
5 abuse prevention hearings under G. L. c. 209A, the court process
"is intended to be expeditious and as comfortable as it
reasonably can be for a lay person to pursue. Judges often must
deal with large numbers of these emotional matters in busy court
sessions. The process must be a practical one." Frizado, 420
Mass. at 598.
Applying these standards, we discern no due process
violation. The record here shows that the plaintiff,
representing herself, testified to sexual assaults of a highly
personal nature perpetrated by a police department supervisor.
She faced rigorous cross-examination, and the defendant
testified and presented his own extensive exhibits. The record
does not suggest that the defendant was limited in his defense
or otherwise prohibited from calling the two police department
employees as witnesses. Contrast C.O. v. M.M., 442 Mass. 648,
657 (2004) (due process violation where defendant "was not given
any opportunity to present or to cross-examine witnesses");
Idris I., 100 Mass. App. Ct. at 789 (due process violation where
judge "did not respond" to counsel's repeated protest).
Moreover, defense counsel made hay out of the very
statements that are now being challenged. Rather than objecting
to the hearsay statements, it is evident that counsel tried to
portray the hearsay statements as a last minute, ham-handed
6 effort by the plaintiff to generate police department
documentation of her complaints of events that happened almost
four years earlier. For example, defense counsel argued that
the hearsay statements, that lacked any internal reference to
dates of the events, "show very clearly that dates are left out
and missing in a calculated way." He also argued that the
supervisor who composed the interoffice memorandum about the
plaintiff's report "thought it just happened." Therefore, the
defendant had a fair opportunity to challenge the plaintiff's
evidence and present a defense and did not suffer from a denial
of due process.
Order entered April 11, 2023, extending harassment prevention order affirmed.
By the Court (Meade, Sacks & Hodgens, JJ.1),
Clerk
Entered: June 9, 2025.