Harassment Prevention Orders in Massachusetts are governed by M.G.L. c. 258E, which defines Harassment as follows:
“Harassment”, (i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property...In Smith v. Mastalerz (SJC-11011039. January 28, 2014 - available here), the SJC clarifies what constitutes 3 or more acts. The trial Judge found that the Defendant driving by the Plaintiff three times all within a short period of time counted as 3 separate acts. However the SJC disagreed "with the judge that driving by the plaintiff constituted three separate acts of harassment." In addition, the lower court had not made specific findings that convinced the SJC that the act of driving by was "wilful and malicious, directed at the plaintiff, intended to cause, and in fact did cause, fear, intimidation, abuse, or damage to property."
In Smith, the SCJ is sending a clear message that they are looking for lower court findings in Harassment Prevention Order cases to include three distinct incidents temporally, as well as clear findings that the alleged incidents were malicious and willful. This requires more than an inference and will likely require more work by Plaintiffs to obtain these orders.
In another decision published on the same date, the SJC further addressed the issue of malicious intent. In Seney v. Morhy (SJC-11399. January 28, 2014 - available here), the SJC overturns a lower court's harassment prevention order even though it had already expired. First, the SJC points out the importance of deciding appeals of these cases, even if moot for the future of that case, because the issue could continue to arise but avoid review due to the temporary nature of these cases. In addition, if the order never should have issued that will affect the record keeping on that matter.
After addressing that procedural issue, the SJC turned to the actual incidents in this case which involved alleged harassment by a parent of an assistant little league coach. In particular, one of the alleged incidents was an e-mail sent to the head coach that berated the assistant coach. The SJC decided that the e-mail did not meet the standard for Harassment because "it was not directed at him and was not motivated by cruelty, hostility, or revenge."
Read in conjunction with the Smith case, the SJC is telling the trial court that harassment requires malicious intent and harm. That is more than just a mean e-mail, and this heightened standard must be applied to each alleged incident specifically. Two incidents of clear harassment and one mean e-mail still won't be enough to meet the statutory definition of harassment under these two decisions.
Practice Tip: As the Plaintiff in a Harassment Prevention Order case it might be tempting to simply present three incidents that make the case, even if there are more. However, if any one of them doesn't meet the standard you are only left with two incidents. To avoid a dismissal, if there are more than 3 incidents you should present every incident that constitutes harassment. Then, even if the record isn't sufficient on one incident that won't result in a dismissal so long as there at least 3 sufficient incidents.