From A.C. v. W.J., decided Monday by Justices Gabrielle Wolohojian, Sabita Singh & Kathryn Hand:
In reviewing a civil harassment order under G. L. c. 258E, we consider "whether a fact finder could conclude 'by a preponderance of the evidence, together with all permissible inferences, that the defendant had committed [three] 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 [did] in fact cause fear, intimidation, abuse or damage to property." Where, as here, the defendant's conduct involves speech, that speech must generally constitute "true threats" or "fighting words" to qualify as an act of civil harassment. "True threats" include "'direct threats of imminent physical harm,' as well as 'words or actions that—taking into account the context in which they arise—cause the victim to fear such [imminent physical] harm now or in the future.'" …
Here, the judge identified the first act of harassment as a December 8 phone call from W.J., where she said to A.C., "I'm going to light you up" after learning that her pottery pieces would not be delivered that evening. {The only one to give meaning to this ambiguous phrase was D.G., who testified that he took it to mean that W.J. would post a negative Google review. However, "[a] true threat does not require 'an explicit statement of an intention to harm the victim as long as circumstances support the victim's fearful or apprehensive response.'"} Assuming that this statement constituted an act of harassment under c. 258E, the only other instance of alleged direct conduct by W.J. that qualifies as harassment on this record is from a December 14 phone call, that A.C. testified she received from a caller who identified herself as W.J. and threatened to kill her. Such a threat, if credited, is clearly an act of harassment.
This leaves us to consider the question at the heart of this appeal: whether acts of harassment directed at A.C. by third parties in these circumstances can be attributed to W.J. to establish a third qualifying act within the purview of c. 258E. The answer is no.
