Opinion
18-P-110
05-01-2019
K.H. v. C.T-Q.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the issuance of an order against him pursuant to G. L. c. 209A. In order to obtain such an order "a plaintiff must show that he or she is 'suffering from abuse.' G. L. c. 209A, § 3. 'Abuse' is defined as 'one or more of the following acts . . . (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress." G. L. c. 209A, § 1. When a person seeks to prove abuse by 'fear of imminent serious physical harm,' our cases have required in addition that the fear be reasonable." Iamele v. Asselin, 444 Mass. 734, 736-737 (2005). In this case only prongs (b) and (c) are at issue.
The plaintiff initially filed an affidavit alleging, among other things, "I am scared he is going to take me[,] so 'no one else' can have me." A temporary order issued. At the extension hearing, the plaintiff, who was then nineteen years old, appeared pro se, and the defendant was represented by counsel. The judge questioned the plaintiff, asked defense counsel if he had any questions, which he did not, and defense counsel made what he called a motion for a "directed verdict." Defense counsel then argued that the standard under G. L. c. 209A had not been met, and that the evidence did not support a finding of fear of imminent physical harm.
At the end of this argument, the plaintiff interjected, saying, "There's something else. . . . That I can tell you about." She then said she had seen the defendant a few months previously when he had asked her to come to his house to get her belongings. He insisted they would be together although she did not want to.
"I asked him what I needed to do to get him to stop. Okay. And he said that the only thing that I could do was to let him -She said she had taken her phone to the police about three weeks before the hearing, prior to the initial issuance of the c. 209A order.
"He forced me to have sex with him that day, and he told me that that was the only way that he would stop trying to get me to be in a relationship with him. And I told him that I didn't want to and to please not make me. And he raped me, and I left. And he texted me a lot saying that he was really sorry, and that he didn't mean to take it that far, and he knows what he did was wrong.
"So I took my phone to the police station, and they sent my phone out to cyber crimes."
Defense counsel noted that he had understood the evidence was closed and that he had made his dispositive motion. The judge said, "She's unrepresented, and she has information. I'm certainly not going to allow a motion because she didn't want to disclose something of a very personal nature about what may or may not have happened. I'm not saying it didn't happen, but what I'm saying is that I can understand why she may not have wanted to say anything in open court either." The judge stated that, given the nature of the proceeding, and the age and unrepresented status of the plaintiff, he was going to permit the evidence in, allowing the defendant to respond, including by calling the defendant as a witness.
After a brief recess, the defendant in fact took the stand and testified, inter alia, that he did not compel the plaintiff to, and in fact did not, have sex with her on the day in question. Defense counsel then gave an additional closing argument in which he argued that the plaintiff's testimony about compelled sex was not credible. The judge found by a preponderance of the evidence both that the plaintiff was in reasonable fear of imminent physical harm, and that she had been compelled by the defendant to have sex. He entered the order at issue here.
The defendant, now pro se, argues that the order must be reversed because of the procedural irregularity of allowing the witness to testify about the incident in which she alleges he compelled her to have sex. We see no abuse of discretion in the judge proceeding as he did in these circumstances, and, even if there were one, given the protections afforded the defendant, including an opportunity both to introduce his own evidence in response and to have counsel argue again, we would conclude there was no prejudice. The defendant argues that allowing this procedure was a violation of equal protection, because pro se litigants may be held to the same standards as those represented by lawyers, e.g., Maza v. Commonwealth, 423 Mass. 1006, 1006 (1996), and, he alleges, the plaintiff was not in this case. Given the rational basis for the judge's action, however, even assuming the premises of the argument are correct, this claim is insubstantial. At one point the defendant also references the "the male-female dynamic of domestic abuse allegations," but if by this he intends to make a claim of discrimination on the basis of sex, there is nothing in the record that indicates that the judge allowed the evidence to be reopened because he is a man, or because the plaintiff is a woman.
The defendant next argues that the evidence was insufficient to support a finding of abuse under either prong (b) or (c) of the statute. The plaintiff's testimony about the coerced sex alone, however, suffices under prong (c) to support both the judge's finding, and his order. The abuse prevention order is affirmed.
So ordered.
By the Court (Rubin, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 1, 2019.