State v. Waters

2013 VT 109, 87 A.3d 512, 195 Vt. 233, 2013 Vt. 109, 2013 WL 6037105, 2013 Vt. LEXIS 108

Opinions

Robinson, J.

¶ 1. This case calls upon us to determine whether it was plain error to instruct a jury that it could convict defendant for violating an abuse-prevention order prohibiting him from harassing petitioner if it concluded that he engaged in conduct that would cause a reasonable person to be “annoyed, irritated, tormented or alarmed.” We conclude that the instruction was plain error, and that the evidence below could not support a conviction for violating the abuse-prevention order, as worded. We accordingly reverse, and remand for entry of a judgment of acquittal.

¶ 2. Complainant and defendant Tyler Waters lived together for several years and have a minor child together. In 2009, after they broke up, complainant got a relief-from-abuse (RFA) order against defendant. For various reasons, the terms of the order were modified more than once. The October 2009 modified final RFA order was based on findings that defendant had abused complainant, there was a danger of further abuse, and defendant represented a credible threat to complainant’s safety. The order prohibited defendant from, among other things, abusing, threatening, stalking, or harassing complainant. It prohibited defendant from communicating or attempting to communicate directly or indirectly with complainant, except that it specifically stated, “[djefendant may have contact by telephone only.” The order placed no limitation on the frequency, timing, or subject matter of telephone contact.¹

¶ 3. The court did not make any findings that defendant had abused the then-two-year-old child, or that defendant posed any threat to the child’s safety. It authorized defendant to have telephone contact with the child on Friday evenings, and provided for weekly contact between defendant and the child at a specified visitation center in accordance with center rules and regulations.

¶ 4. In December 2009, complainant reported to the police that due to the volume of communications from defendant she felt “harassed, bullied, and made to feel guilty.” Complainant told police that defendant had sent her around forty text messages in a one-month period and had called her over thirty times.

¶ 5. The State charged defendant with violating the RFA order; in particular, the State alleged that defendant had violated the prohibition against harassing complainant. Because defendant had previously been convicted of violating an RFA order, this was a second offense, and defendant was subject to up to three years imprisonment, a fine of $25,000, or both. 13 V.S.A. § 1030(b).

¶ 6. Before the trial started, the court distributed proposed jury instructions to the parties. Both the State and defendant agreed with the court’s proposed instruction on harassment. Accordingly, in its pretrial instructions to the jury, the court defined harassment as follows:

To harass another person means to intentionally engage in a course of conduct directed at that person which would cause a reasonable person to be annoyed, irritated, tormented, or alarmed. The conduct might consist of words, gestures, offensive touching, telephone calls, text messages, or other acts. In this context harassment required proof of active or intentional participation by [defendant]. The mere fact that [complainant] may have been bothered by or that she disagreed with defendant’s actions is not enough by itself to show that [defendant] is guilty of harassment. Also, the word harassment means that defendant’s conduct was persistent. A single inadvertent incident is not harassment, whereas persistent, repeated, annoying conduct directed at another person may be found to be harassment.

¶ 7. At trial, complainant read aloud each of defendant’s texts and explained the context. Some texts simply related to defendant’s weekly telephone call or his weekly visit with the child, or other nuts-and-bolts matters. For example, he texted, “[g]rab stuff if you want later,” apparently in reference to the clothes complainant had left at defendant’s house. In other texts, defendant suggested meetings or outings with complainant and the child even though the RFA order did not allow defendant other-than-telephone contact with complainant. For example, defendant texted: “Lunch or dinner? Am bored. Hope you feel better. Can watch [the child] or fetch something if you need. Hi, [child’s name]. Let’s check Okemo out.”

¶ 8. In many texts, defendant made overtures to reestablish his relationship with complainant or expressed his loneliness or longing to reconcile. For example, defendant texted: “Hi. Getting in. It’s after work. Call me. Not sure what phone you got. I love you two. Wish to end no-contact soon. Let’s be more normal. No more courts and such. What you think?” Another time he wrote: “Have not any better friend than u. All alone all the time. Wish wuz with u 2. Call me if you need. Till Fri.”

¶ 9. Many if not most texts wove together two or more of these threads. For example, the day before a scheduled visit with the child, defendant texted: “Got few minutes if you wanted to call. If not, okay. I wish we could get together. Miss you two way too much. All I think about. Sorry to bother you. Sneakers on [the child] tomorrow. Love you.” And, finally, defendant appears to have sent some texts in response to messages from complainant. For example, one text began with the words, “[t]hat is awesome,” and was apparently a response to complainant’s instruction that he could bring snow pants to the next day’s visit.

¶ 10. All told, the State presented evidence of approximately thirty-seven text messages from defendant to complainant spanning approximately a thirty-seven-day period. The average rate of messaging during this period was one per day, although, in fact, many of the text messages were clustered in clumps around events or interactions, so often several days (ranging from two to five) passed between text communications. Defendant did not threaten harm to any person or property in any of the texts, and none of the texts contained language that was profane, threatening, intimidating, or violent.

¶ 11. The complainant testified that the texts were unwelcome, and that she did not think defendant was supposed to be communicating with her. She said, “I believe there were a couple of phone calls that occurred that I know there were a few times where we spoke together — where I believe in these phone calls I actually asked him to stop — stop constantly texting me and calling, . . . the way I understood was he wasn’t supposed to be talking to me.” There was no evidence as to when complainant made these requests.²

¶ 12. At the close of the State’s case, defendant moved for a judgment of acquittal. Defendant argued that thirty-seven texts over a one-month period is not something a reasonable person would find harassing. Defendant claimed that he had not intentionally acted to harass and there was no evidence to demonstrate that a reasonable person would find his messages harassing. Defendant claimed that even the complainant described the behavior as irritating rather than annoying. The court denied the motion, concluding that a reasonable person could be annoyed or tormented by repeated requests from a prior abuser for face-to-face contact in contravention of an RFA order. Defendant did not testify, and the case was submitted to the jury.

¶ 13. In the jury charge, the court repeated the substance of its pretrial instruction including its explanation that to harass a person “means to intentionally engage in a course of conduct directed at that person which would cause a reasonable person to be annoyed, irritated, tormented, or alarmed.” Defendant did not object to the court’s instruction.

¶ 14. During its deliberations, the jury submitted a question to the judge asking if there was a legal definition of “tormented” and “annoyed.” The court responded that there was no further legal definition and instructed the jury to apply the “common definitions.” The jury returned a guilty verdict, and defendant filed a timely notice of appeal.

¶ 15. On appeal, defendant argues that the court’s jury instruction on harassment was overly broad, and that the evidence of harassment in this case was insufficient to convict defendant of violating the abuse-prevention order.

¶ 16. We begin with defendant’s challenge to the jury instruction. Because defendant did not object to the court’s jury instructions at trial, our review on appeal is limited to plain error. See V.R.Cr.R 52(b); In re Carter, 2004 VT 21, ¶ 21, 176 Vt. 322, 848 A.2d 281 (“Since petitioner failed to object to the jury instructions, he must show plain error.”). Plain error review of jury instructions assesses the instructions as a whole “to determine if they breathe the true spirit of the law, and if there is no fair ground to say that the jury has been misled.” State v. Rounds, 2011 VT 39, ¶22, 189 Vt. 447, 22 A.3d 477 (quotation omitted). A claim of error only rises to the level of “plain error” if (1) there is an error; (2) the error is obvious; (3) the error affects substantial rights and results in prejudice to the defendant; and (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings. State v. Herrick, 2011 VT 94, ¶ 18, 190 Vt. 292, 30 A.3d 1285.

¶ 17. We note at the outset what this case is and is not about. This case is not about whether an abuse-prevention order can prohibit the type of conduct defendant undisputedly engaged in here. Vermont’s abuse-prevention statute specifically provides that an RFA order may include:

an order that the defendant refrain from abusing the plaintiff, his or her children, or both and from interfering with their personal liberty, including restrictions on the defendant’s ability to contact the plaintiff or the children in person, by phone, or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the children, the plaintiff’s residence, or other designated locations where the plaintiff or children are likely to spend time.

15 V.S.A. § 1103(c)(2)(A) (emphasis added). There is no question that an RFA order can prohibit conduct such as defendant’s serial texting of complainant, and that the State can criminally prosecute individuals who violate such prohibitions. See Benson v. Muscari, 172 Vt. 1, 4, 769 A.2d 1291, 1294 (2001) (acknowledging that provisions in RFA order may “prohibit what otherwise may be viewed as inoffensive contact before it matures into further incidents of abuse”); State v. Goyette, 166 Vt. 299, 302, 691 A.2d 1064, 1066 (1997) (“[A] relief-from-abuse order may prohibit otherwise legitimate conduct to prevent future abuse, and that conduct may serve as the basis of a criminal conviction for violating the order.”).

¶ 18. Had the RFA order in this case prohibited defendant from contacting complainant by telephone, or limited the subject matter of his communications solely to arrangements concerning scheduled telephone calls, visits with the parties’ child, or communications necessary to protect the child’s well-being, this would have been an open-and-shut case. But the State does not suggest that the frequency or subject matter of defendant’s text messages ran afoul of any specific limitations on defendant’s contact with complainant other than the prohibition against harassment. The law can only punish defendant “because he violated the conditions imposed upon him, [not] because he violated the conditions that hindsight shows should have been imposed upon him.” State v. Danaher, 174 Vt. 591, 595, 819 A.2d 691, 696 (2002) (mem.) (Dooley, J., dissenting). Accordinaly, the central question in this case is whether the RFA order actually issued in this case sufficiently notified defendant that he could be convicted for violating the order’s prohibition on harassment on the basis of his text messages if a jury concluded that the messages “would cause a reasonable person to be annoyed, irritated, tormented, or alarmed.”

¶ 19. In order to answer this question, we have to determine what “harassment” means in the context of an RFA order when it is not otherwise defined. Given the consequences of violating an RFA order — including criminal prosecution and a sentence of imprisonment — in construing the order, we must ensure that a defendant has notice “of what circumstances will constitute a violation.” See State v. Sanville, 2011 VT 34, ¶ 8, 189 Vt. 626, 22 A.3d 450 (mem.) (discussing requirement that probation order provide clear notice of what conduct will violate the order). “Due process requires that such notice inform him as to what acts may constitute a violation of [the order], thereby subjecting him to loss of liberty.” Id. (quotations omitted); see also State v. Frechette, 161 Vt. 233, 235-36, 637 A.2d 1080, 1082 (1993) (“To be enforceable, criminal statutes . . . must define a criminal offense with sufficient certainty so as to inform a person of ordinary intelligence of conduct which is proscribed, and such that arbitrary and discriminatory enforcement is not encouraged.” (quotations omitted)).

¶20. Vermont’s abuse-prevention statutes do not even mention, let alone define, the term “harassment.” See 15 V.S.A. §§ 1101-1115. However, the standard RFA form order used in the family division includes a check-box that allows the court to order that “[defendant shall not threaten or harass” the plaintiff and/or minor children. The form order likewise does not define the term.

¶21. We have previously determined that conduct must do more than subjectively bother another person in order to violate the prohibition of harassment in RFA orders. Goyette, 166 Vt. at 303, 691 A.2d at 1067. In Goyette we considered a violation-of-an-abuse-prevention-order (VAPO) conviction arising from a series of actions by the defendant subject to an RFA order containing a “no harassment” condition. The trial court’s instruction defined harassment as “to engage in repeated acts which trouble, worry, torment, disturb or threaten another.” Id. Concluding that “the court’s broad definition of harassment permitted defendant to be convicted on the basis of virtually any behavior that bothered the complainant,” we reversed the conviction. Id. at 304, 691 A.2d at 1067.

¶ 22. Although we determined that the described conduct did not rise to the level of harassment, we did not lay out exactly what does qualify as harassment in the context of RFA orders. We declined the defendant’s request to define harassment to require “that the alleged acts were committed for no legitimate purpose and caused the complainant emotional distress,” noting in passing that “[a] definition of harassment could conceivably vary depending on the circumstances of individual cases.”³ Id.

¶ 23. This case calls upon us to answer the question we left open in Goyette. As we suggested in Goyette, the question of whether -particular conduct constitutes harassment may be very context dependent. Seemingly innocuous statements or conduct may take on very different meaning when understood against the backdrop of a history of violence or threats of violence. See also State v. Hinchliffe, 2009 VT 111, ¶ 25, 186 Vt. 487, 987 A.2d 988 (explaining that context of past events is important to determining whether victim had objectively reasonable fear of bodily injury from defendant’s actions). But the definition of harassment itself cannot be a moving target if the standard provision in the family division RFA order is to provide fair notice to defendants and a fair basis for prosecuting them for violating those orders.

¶ 24. In trying to determine the appropriate definition of “harassment” in this context, we are struck by the widely divergent definitions and understandings of the term in various contexts. Vermont’s stalking statute is the only provision in Vermont’s criminal laws that purports to define the term.⁴ That statute provides:

“Harassing” means actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent.

13 V.S.A. § 1061(4). The statute prohibiting disturbing the peace by electronic communication does not define harassment, but states that “[a]n intent to terrify, threaten, harass or annoy may be inferred by the trier of fact from the use of obscene, lewd, lascivious or indecent language or the making of a threat or statement or repeated anonymous telephone calls or other electronic communications.” Id. § 1027(b).⁵

¶ 25. Vermont’s civil statutes use the term “harass” very differently. See, e.g., 16 V.S.A. § 11(a)(26)(A) (defining “harassment” as “incident or incidents of verbal, written, visual, or physical conduct, including any incident conducted by electronic means . . . that has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance or access to school resources or creating an objectively intimidating, hostile, or offensive environment”); Washington v. Pierce, 2005 VT 125, ¶ 3, 179 Vt. 318, 895 A.2d 173 (requiring, as a prerequisite for a claim under Vermont’s Public Accommodations Act, that the harassing conduct be “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school” (quotation omitted)).⁶

¶ 26. In ordinary usage, the term tends to have an overlapping but different set of meanings. See, e.g., Random House Unabridged Dictionary 870 (2d ed. 1993) (defining “harass” as “1. to disturb persistently; torment, as with troubles or cares; bother continually; pester; persecute. 2. to trouble by repeated attacks, incursions, etc., as in war or hostilities; harry; raid”); see also Black’s Law Dictionary 733 (8th ed. 2004) (defining harassment as “[w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose”).

¶ 27. We conclude that, in the absence of any elaboration in the RFA order regarding the intended definition of “harassment” or the type of conduct prohibited, the most appropriate touchstone for defining the term in the context of a VAPO prosecution is the definition in Vermont’s stalking statute. We reach this conclusion for several reasons. First, just as “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,” a prohibition in an abuse-prevention order, the violation of which can be the basis for a criminal prosecution, should be construed against the State when it is susceptible of varying reasonable interpretations. Jones v. United States, 529 U.S. 848, 858 (2000) (quotation omitted). Given the multiplicity of meanings associated with the term “harassment,” the more restrictive definition reflected in a related statute in Vermont’s criminal code is a more appropriate guideline than the extremely broad, everyday usage of the term, which can reach a wide range of bothersome but not necessarily threatening activity.

¶ 28. Second, the purposes of the stalking statute and the RFA statute are aligned; both concern themselves with threatening or violent behavior. The extensive limitations on a defendant’s conduct available through an RFA, and the powerful enforcement tool of criminal prosecution that is available to enforce an RFA, are warranted to combat the serious harm that domestic violence inflicts on individuals, families, and our society more broadly. We see no evidence that the Legislature passed the statute to criminalize annoying or bothersome conduct. This is not to say that an RFA cannot prohibit annoying or bothersome conduct. As noted above, it can — not because such conduct is itself the target of the statute, but because in the context of domestic violence, such conduct may “mature[] into further incidents of abuse.” Benson, 172 Vt. at 4, 769 A.2d at 1294. But, given the purposes of the statutes relating to domestic violence, we are not inclined to infer that annoying conduct violates an RFA order in the absence of a more specific statement in the order to that effect.

¶ 29. Third, the order in this case says that “defendant shall not threaten or harass [complainant].” The joining of “threaten” and “harass” in a single prohibition supports the inference that the two concepts are closely related. “Threaten” and “annoy” are different enough concepts that they would not likely share a check-box on the RFA form order. Moreover, this understanding of the meaning of harassment fits better with the litany of other acts prohibited in the order, including threats, stalking, interference with liberty, use of physical force reasonably expected to cause bodily injury, abuse, and acts that créate reasonable fear of bodily injury. “Annoying” acts are out of synch with the rest of this list.

¶ 30. We recognize that our construction of the term gives rise to redundancy, but the RFA order itself is rife with redundancy. It prohibits threats, as well as actions that would place the plaintiff “in reasonable fear of bodily injury,” as well as stalking — which itself is characterized by threatening conduct. This being a standardized court order rather than a statute passed by the Legislature, 'we are not compelled to ascribe a nonredundant meaning to every term. If anything, the form uses overlapping terms and categories to ensure that defendants understand their obligations.

¶ 31. We emphasize the limits of our holding. The definition of “harass” in the stalking statute may well be overly narrow in the context of an RFA order, and a court is free to prohibit a defendant from having any contact with a petitioner, or to specifically restrict the mode, substance, and timing of any permitted contact. But, in the absence of a definition of the term in the statutes relating to domestic violence, or a more specific definition in the RFA order itself, the stalking statute offers the best available legal definition to inform our interpretation of this RFA order. For all the reasons persuasively highlighted by the dissent, an RFA order certainly can, and in many cases should, proscribe the kind of conduct engaged in by defendant in this case — conduct that is not unlawful in its own right or even necessarily threatening, but which in the context of a relationship characterized by domestic violence takes on a different significance. However, in the absence of more specific guidance in an RFA order, or from the Legislature, we construe harassment to mean:

actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or physical contact without consent.

13 V.S.A. § 1061(4). Accordingly, we conclude that the trial court’s instruction was erroneous.

¶ 32. We further conclude that the error is sufficiently clear to amount to plain error. The trial court did its best to come up with an instruction to fill the gap this Court left open in Goyette. Unaided by a timely objection, it cannot be faulted for adopting a definition of “harassment” that is consistent with some colloquial uses of the term. However, given the considerations outlined above, including the wide range of legal and everyday uses of the term and the due-process-infused rule of lenity, we conclude that the instruction that allowed the jury to convict defendant on the basis of objectively annoying conduct was clearly error.

. ¶ 33. We further conclude that defendant was significantly prejudiced by the instruction. The State does not deny that the RFA order expressly allowed defendant to have telephone contact with complainant without express restrictions as to frequency, timing, or content. The State has not alleged that defendant’s messages included threatening, menacing, offensive, or lewd content, or that the messages would cause a reasonable person — including a reasonable person with full knowledge and experience of defendant’s past abusive conduct — to fear the kinds of harms listed above. As the State acknowledged in its closing argument, “the .real question is, did he harass her; was his behavior in that time period . . . harassment.” The State’s case, and defendant’s conviction, rested squarely on the overly broad definition of harassment used in the trial court’s jury instructions. That the jury itself struggled to understand the boundaries of the term “harassment” is evident from the questions it asked the court during its deliberations. If the jury instructions had defined harassment consistent with the default definition identified above — one that requires an element of threat — we conclude that the jury could not have convicted defendant on this evidence.

¶ 34. We recognize that defendant’s repeated texts to petitioner were insensitive. She would have been entitled to ask the court to modify its order to expressly restrict defendant’s text messages to her as to timing, frequency, manner, content, or other parameters. She could have asked the court to prohibit direct contact altogether, substituting an alternate method of arranging for parent-child contact. Against the backdrop of defendant’s prior abuse of her, such limitations would have been entirely appropriate. But we cannot say that the communications amounted to threats. The State relies primarily on the frequency of defendant’s communications to support its charge. In the face of an order permitting telephone contact without restriction as to frequency, timing, or subject matter, the frequency of defendant’s texts by itself cannot support an inference that the conduct was threatening. In this day and age, one text per day, on average, is not a shocking number, especially given the lack of clear evidence that complainant asked defendant to stop texting her before he sent many of those texts. As of spring 2011, 18-29 year-old cell-phone owners send and receive text messages at an average rate of 87.7 messages a day, and 95% of this age group use the text messaging feature on their phones. Aaron Smith, Pew Inst., Americans and Text Messaging 3 (2011), http://pewinternet.Org/~/media//Files/Reports/2011/ Americans%20and%20Text%20Messaging.pdf.

¶ 35. Given that we conclude that a jury instructed about the definition of “harassment” in the RFA order in a way that is consistent with this opinion could not convict defendant of violating the abuse-prevention order on the basis of the evidence presented below, convicting defendant of a felony on the basis of an overly broad instruction would undermine the fairness of the judicial process.

Defendant’s conviction is reversed and the matter is remanded for entry of a judgment of acquittal.

Footnotes

1

The State argues that the RFA order was modified to allow defendant to contact complainant for the specific purpose of setting up weekly telephone calls with the minor child. While this may have been the purpose of the allowed telephone contact, by its terms, the order did not limit defendant to calling at a particular time, for a particular purpose, or for a limited number of times. Such limitations would have been useful in preventing the unwanted contact in this case.

We note that the order did not specifically differentiate between telephone voice calls and text messages. Because the State has assumed that text messages were permitted by the order under the general category of “contact by telephone,” we do not reach this question. Given the prevalence of communication via text messaging, it is advisable in the future for the family division to specify in RFA orders whether this type of contact is permitted or prohibited.

2

Although the State’s initial charge also referenced phone calls between defendant and complainant, the evidence at trial focused almost exclusively on the text messages.

3

We subsequently declined to provide a specific definition of harassment for the purpose of a VAPO action in State v. Premo, 168 Vt. 600, 719 A.2d 398 (1998) (mem.). In that case, the trial court had used the definition of harassment that appears in Vermont’s stalking statute, and the State sought interlocutory appeal. The record was scant, the State had not offered any alternative definition of its own, and the briefing was one-sided because the defendant had not filed a brief. Given these factors, we concluded that the case was not appropriate for interlocutory review. Id. at 600, 719 A.2d at 399.

4

Other provisions in Vermont’s crimin.1 code use the term, but do not specifically define it. See, e.g., 13 V.S.A. § 352 (animal cruelty); id. § 1380 (financial exploitation); id. § 1456 (burning of religious symbols); id. § 5411a (prohibiting harassment of individuals listed on sex offender registry); id. § 7554 (contacting witnesses while on pretrial release).

5

Other states have adopted a variety of definitions of harassment in stalking and harassment-prevention statutes. See, e.g., Me. Rev. Stat. Ann. tit. 5, § 4651(2)(A) (2012) (defining harassment to mean: “Three or more acts of intimidation, confrontation, physical force or the threat of physical force directed against any person, family or business that are made with the intention of causing fear, intimidation or damage to personal property and that do in fact cause fear, intimidation or damage to personal property.”); Minn. Stat. Ann. § 609.748(a)(1) (West 2012) (including in definition of harassment, in addition to physical or sexual assault, “repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another”); N.C. Gen. Stat. Ann. § 14-277.3A(b)(2) (West 2008) (defining harassment as conduct “that torments, terrorizes, or terrifies that person and that serves no legitimate purpose”); Wash. Rev. Code Ann. § 10.14.020(2) (West 2011) (“ ‘Unlawful harassment’ means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental to such person, and which serves no legitimate or lawful purpose. The course of conduct shall be such as would cause a reasonable person to suffer substantial emotional distress, and shall actually cause substantial emotional distress to the petitioner . . . .”); Wis. Stat. Ann. § 813.125(1)(b) (West 2012) (defining harassment to in.1ude, in addition to threatening to or actually sexually assaulting, abusing, stalking, or physically contacting, “[e]ngaging in a course of conduct or repeatedly committing acts which harass or intimidate another person and which serve no legitimate purpose”).

6

See also 21 V.S.A. § 495d(13) (defining sexual harassment in employment-discrimination context to mean unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of sexual nature that satisfies certain requirements).