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Tort - Harassment - Separate acts.

Byline: Mass. Lawyers Weekly Staff

Where two high school seniors obtained a harassment prevention order against a defendant classmate who wrote a song that referred to them, the defendant did not commit three or more separate acts of harassment as required by G.L.c. 258E, so the order must be vacated.

"The plaintiffs and the defendant were seniors at the same high school when the defendant created a rap song in which he improvised lyrics pertaining to the plaintiffs. Some of the lyrics referenced violence that the defendant stated that he wanted to inflict on M.D., whose name was mentioned in the song. Other lyrics described acts of sexual violence that the defendant stated he wanted to inflict on an unnamed woman; in context, F.K. understood that the lyrics referred to her. The defendant posted the song on a public Internet website, and then posted a link to the song on a social media website. The plaintiffs ultimately sought harassment prevention orders, pursuant to G.L.c. 258E, 3(a), against the defendant, and a District Court judge issued the requested orders.

"A harassment prevention order may issue under G.L.c. 258E, when a defendant has committed '[three] or more acts' of '[h]arassment.' ... The judge found that, in posting the song, the defendant had committed at least three individual acts of harassment against M.D. and F.K. Because we conclude that the defendant's conduct amounted to only one act of harassment, the harassment prevention orders must be vacated and set aside.

"We note, however, that a single act of harassment may be sufficient for a civil injunctive order issued pursuant to a court's equity jurisdiction. The plaintiffs here did not seek such relief.

"The defendant apparently concedes that posting the song on the Internet constituted harassment. We therefore assume without deciding that posting the song on the Internet rose to the level of '[h]arassment' within the meaning of G.L.c. 258E, 1. The question before us, then, is whether the defendant committed three or more separate acts of harassment. The defendant argues that he did not, and that the judge erred in issuing the civil harassment prevention orders against him, pursuant to G.L.c. 258E, 1 and 3(a). We agree.

"Here, the defendant posted a single song to SoundCloud, then linked the same song from SoundCloud to Snapchat. He did not post different songs on the Internet.

"By posting the song to SoundCloud, the defendant made it available to SoundCloud members. When he linked the song to his Snapchat account, he merely reshared it with SoundCloud members who were also members of the defendant's specific Snapchat network of 'friends.' He accomplished the two acts in close succession, and removed the song from the Internet within two hours of initially posting it. We are satisfied that when the defendant posted the song to Soundcloud and linked it to his Snapchat account, he engaged in one continuous act.

"The fact that several people accessed the song on the Internet does not transform that single song into more than one act of harassment. Of course, the number of witnesses to an act properly may be considered in the context of determining the extent to which a defendant's actions were 'aimed at a specific person' or did 'in fact cause fear, intimidation, abuse or damage to property.' G.L.c. 258E, 1. In the context of G.L.c. 258E, however, a single act is not multiplied by the number of witnesses to that act.

"Nor did the fact that M.D. received notice of the song from multiple people constitute additional acts of harassment perpetrated by the defendant. The record contains no indication that the defendant directed anyone to notify M.D. of the song. Rather, M.D. was informed about the song by his friends, acting of their own volition. Indeed, the defendant removed the song from the Internet two hours after posting it because M.D.'s friends were threatening 'to beat him up.' The actions of the individuals who notified M.D. about the song are not attributable to the defendant.

"The defendant's conduct, troubling and offensive as it was, failed to satisfy the threshold requirement of G.L.c. 258E, 1, that a defendant commit at least three acts of harassment, without which a civil harassment prevention order cannot issue under G.L.c. 258E, 3(a). Vacatur of the orders in this case therefore is required. Moreover, 'if a judge vacates a harassment prevention order, law enforcement officials shall destroy 'all record' concerning such order.'

"We therefore remand the case to the District Court for entry of an order vacating and setting aside the harassment prevention orders, and for further actions required by G.L.c. 258E, 9."

F.K. v. S.C. (and a consolidated case) (Lawyers Weekly No. 10-021-19) (18 pages) (Gaziano, J.) A hearing to extend harassment prevention orders was heard by Ellis, J., and a motion for reconsideration was heard by her. Lisa S. Core for S.C. (Docket No. SJC-12452) (Jan. 31, 2019).

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Title Annotation:F.K. v. S.C., Massachusetts Supreme Judicial Court
Publication:Massachusetts Lawyers Weekly
Date:Feb 5, 2019
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