C.S. v. M.R.

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.

7