Idris I. v. Hazel H.

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

22-P-633

IDRIS I.

vs.

HAZEL H.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2021, the plaintiff obtained an abuse prevention order

against the defendant, his former girlfriend, in District Court.

On the defendant's appeal, we vacated that order on the grounds

that she was not afforded due process at the hearing after

notice. See Idris I. v. Hazel H., 100 Mass. App. 784, 791

(2022). On remand, a different judge denied the plaintiff's

petition for an abuse protection order, and the plaintiff now

appeals. We affirm.

Background. The parties met online in March 2017 and dated

for a few months. They subsequently resumed a sexual

relationship that lasted, on and off, until March 2020. The

plaintiff alleges that the defendant raped him approximately

twenty times beginning in March of 2018 and continuing for the

next two years. According to him, the defendant frequently made
threats to harm herself or him, and he engaged in sexual

intercourse with her only because of those threats. He also

alleges that she physically abused him by shoving him in the

back once and by intentionally scratching him with her toenails

during sex.

The parties last saw each other in person on March 10,

2020. There was some slight contact between them by electronic

means for the next month, at which time the contact ended with

only limited exceptions. In May and June 2020, the plaintiff

made multiple entreaties to the defendant; the defendant

responded on only one occasion and did so with a simple direct

message: "I don't want to be with you." Then in July 2020,

after the plaintiff again reached out to the defendant, the

defendant let the plaintiff know that she had been admitted to

McLean's Hospital. The only subsequent contact the parties had

was on March 1, 2021, when the defendant sent the plaintiff an

e-mail about their past relationship. Although that e-mail

perhaps can best be described as one seeking closure (as the

defendant herself explained at the initial hearing after

notice), it had a triggering effect on the plaintiff. According

to him, it brought back the trauma he had suffered from the past

alleged rapes, and as a result, he "live[s] with a constant and

overwhelming sense of dread, and anxiety, and fear and

powerlessness, that eats away at [him], and makes it difficult

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to relax and enjoy [his] daily life." On this basis, he sought

an abuse prevention order pursuant to G. L. c. 209A.

Having directly been accused of rape, the defendant chose

to invoke her rights under the Fifth Amendment to the United

States Constitution not to testify at the hearing on remand. As

a result, the record consists of the plaintiff's testimony and

documentary evidence of various communications between the

parties (such as e-mails and text messages).

Discussion. The thrust of the plaintiff's appeal is that

the judge necessarily abused his discretion in declining to

issue a 209A order, because there was overwhelming, uncontested

evidence that the plaintiff suffered extensive sexual abuse,

physical abuse, and threats by the defendant. The central flaw

in the plaintiff's argument is that the judge was not required

to credit the plaintiff's allegations. See Commonwealth v.

Gordon, 87 Mass. App. Ct. 322, 328 n.10 (2015) ("The absence of

a conflict in the evidence does not mean that the [hearing]

judge is required to credit the testimony"). Moreover, our

review of the record reveals that the judge had a solid basis

for his apparent rejection of the plaintiff's view of the facts.

The following examples will suffice.

Contrary to suggestions from the plaintiff that the

defendant was relentlessly pursuing sex with him, the record is

replete with instances where he was the one seeking to convince

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the defendant not to cut off contact with him. In addition,

there are many examples throughout the period in question in

which he was imploring her, sometimes in graphic terms, to

continue to have sex with him. There was also evidence of his

efforts to control her to an extreme degree. For example, he

sent her a text message in 2019 stating his desire for her

"[t]otal sexual obedience at all times, including domestic

servitude, and having me make decisions about your appearance

and eating. With reasonable allowances for physical discomfort,

work, family, etc." The record also includes admissions by the

plaintiff that he mentally abused the defendant by telling her

that her "life doesn't matter" (while knowing that she suffered

from mental health issues), and that he physically abused her by

grabbing her arm and pulling her hair.1 Finally, the evidence

includes text messages in which the plaintiff implored the

defendant to "come over and 'rape' [him]," and in which he

expressed his fantasies about her "just barging in to take [him]

sexually" because he would "LOVE it."

None of this is to say that the defendant was faultless in

the relationship; she plainly was not. As the plaintiff

highlights, the documentary record establishes that the

1 Counterintuitively, the plaintiff claimed that in physically
abusing the defendant in this manner, his "purpose was precisely
to show [the defendant] that there would be no real violence."

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defendant made some threats of physical harm to him. For

example, most disturbingly, in February of 2020, she sent him a

text message in which she expressed the "right to stab [him] in

the eye." But even that threat takes on a different appearance

when viewed in the context of the mutually toxic relationship

that the parties had forged. Notably, on the very same day the

defendant sent that message, the plaintiff e-mailed her: "I

love you . . . . Please stop putting obstacles in our path" and

requested that she "stop blocking" his attempts to reach out to

her. Then, the following day, the plaintiff wrote to the

defendant: "I think we can both agree you were out-of-pocket

last night. I still miss you, though."2

Even with the plaintiff's having documented that the

defendant had made some threats of physical violence, nothing

required the judge to find that the defendant used those threats

to rape the plaintiff.3 See Vanna V. v. Tanner T., 102 Mass.

2 The plaintiff sought to have the defendant criminally
prosecuted for the alleged rapes, physical assaults, and
threats. Although the Commonwealth initially had applied for a
criminal complaint with respect to three text messages,
including the one about the plaintiff's eye, it abandoned that
effort after further investigation.

3 For this reason, the plaintiff cannot rely on cases that
recognize that once a party seeking an abuse prevention order
has demonstrated that he or she has been the victim of actual
physical harm or of a sexual offense, reasonable fear of
imminent serious physical harm need not be also established.
See, e.g., Callahan v. Callahan, 85 Mass. App. Ct. 369, 373-374
(2014).

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App. Ct. 549, 554 (2023) ("Any dispute as to the history of

abuse and the incidents of violence was for the judge to

resolve"). Nor was the judge required to accept the plaintiff's

testimony that any threats that were made placed him in

objectively reasonable fear of imminent serious physical harm.

See Iamele v. Asselin, 444 Mass. 734, 740-741 & n.3 (2005)

(discussing what party seeking abuse prevention order must prove

when the abuse alleged is based on threats and finding that "had

the judge chosen not to credit [the plaintiff's] testimony" as

to the "reasonableness or imminence of her fear[,] . . . he

might have properly decided not to extend the order"). The

hearing judge was in the best position to assess whether, in the

totality of the circumstances, an abuse prevention order was

warranted. See Ginsberg v. Blacker, 67 Mass. App. Ct. 139, 140

n.3 (2006) ("We accord the credibility determinations of the

judge who heard the testimony of the part[y] . . . [and]

observed [his] demeanor, the utmost deference" [quotation and

citation omitted]). Especially where the parties had not seen

each other in over two years, and had engaged in only very

limited contact during that time, the judge did not abuse his

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discretion when he declined to issue the requested order in May

of 2022.4

Order denying abuse
prevention order affirmed.

By the Court (Milkey, Walsh &
Smyth, JJ.5),

Clerk

Entered: June 1, 2023.

4 In passing, the plaintiff claims that the judge abused his
discretion by not allowing his counsel to pose specific
questions to the defendant after she indicated her intention to
invoke her Fifth Amendment rights. Where it was up to the
judge, as fact finder, whether to draw any negative inferences
against the defendant based on her invoking her Fifth Amendment
rights, see Baxter v. Palmigiano, 425 U.S. 308, 318-320 (1976),
the judge did not abuse his discretion in not subjecting the
defendant to such interrogation. To the extent the plaintiff
makes other arguments, they do not warrant further discussion.
See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

5 The panelists are listed in order of seniority.

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