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-1002

E.T.

vs.

J.U.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On August 12, 2021, E.T. applied for a harassment 

prevention order against J.U. See G. L. c. 258E. In an 

affidavit in support of her application, E.T. stated that J.U.

had cropped photos from her Facebook account to create over 

twenty lewd images and a video of her, some of which "involved 

extremely sexual conduct." J.U. sent the photos to several of 

E.T.'s coworkers, and made numerous comments about her work and 

potentially reporting her because of her alleged incompetence. 

E.T. also stated that some of her coworkers had informed her of 

their concerns regarding J.U.'s obsession with her and E.T. did 

"not feel safe" because of his obsession. Lastly, E.T. wrote 

that J.U. had contacted her children's babysitter, inquiring 

about what time the babysitter was watching the children and 

why.
2

At the hearing, after notice, on E.T.'s application for the 

order, E.T. and J.U. testified. E.T. and J.U. have known each 

other for three years because of their employment as emergency 

medical technicians for the same fire department. They have 

never worked directly together, but interacted occasionally on 

duty for emergency calls. E.T. testified that what she wrote in 

her affidavit was true and showed the judge screenshots of the 

video that J.U. sent around. J.U. did not send the video to 

E.T., but E.T. received it from a co-worker. E.T. testified 

that J.U. never threatened to harm her. 

The judge concluded that the evidence was sufficient to 

issue a harassment prevention order and ordered J.U. to stay 

away from and have no contact with E.T. and "to take all photos 

and videos of the plaintiff [offline] and not to post any photos 

and videos of the plaintiff."

Discussion. On appeal, J.U. argues that the evidence was 

insufficient to establish "harassment," as defined in G. L. 

c. 258E, and thus the harassment prevention order was issued in 

error. When reviewing harassment prevention orders, "we 

consider whether the judge could find, 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 
3

and that [did] in fact cause fear, intimidation, abuse or damage 

to property'" (citation omitted). Gassman v. Reason, 90 Mass. 

App. Ct. 1, 7 (2016). See G. L. c. 258E, § 1. Where, as here, 

some of the conduct involves speech, that speech must constitute 

"true threats" or "fighting words" to qualify as an act of 

harassment. Seney v. Morhy, 467 Mass. 58, 63 (2014). True 

threats include "direct threats of imminent physical harm" and 

"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." Van Liew v. Stansfield, 

474 Mass. 31, 37 (2016), quoting O'Brien v. Borowksi, 461 Mass. 

415, 425 (2012). 

Because the judge here did not articulate which of J.U.'s

actions constituted the three acts, our review is based on the 

entirety of the record. See Yasmin Y. v. Queshon Q., 101 Mass. 

App. Ct. 252, 256 (2022).

We turn to the photos and the video. Although they may 

have been crude and vulgar, they do not qualify as harassment 

because there is no evidence that J.U. sent them with the intent 

to cause fear, intimidation, abuse or damage to property or that

they in fact caused E.T. to experience fear, intimidation, abuse 

or damage to property. Furthermore, they did not constitute "a 

serious expression of an intent to commit an act of unlawful 

violence to a particular individual or group of individuals," 
4

Kareem K. v. Ida I., 100 Mass. App. Ct. 902, 904 (2022), quoting 

Virginia v. Black, 538 U.S. 343, 359 (2003), or "face-to-face 

personal insults that are so personally abusive that they are 

plainly likely to provoke a violent reaction and cause a breach 

of the peace." O'Brien, 461 Mass. 423, citing Cohen v. 

California, 403 U.S. 15, 20 (1971). Thus, creating and 

distributing the photos and video, as a matter of law, did not 

constitute acts of harassment, particularly where E.T. informed 

the judge that J.U. never threatened her with physical harm or 

put her in fear of serious bodily injury. Cf. A.S.R. v. A.K.A., 

92 Mass. App. Ct. 270, 280 (2017) (though defendant did not 

threaten immediate harm, communications that were "relentless, 

carried on over a period of months, and frequently contained 

explicit references to violence" satisfied definition of "true 

threat").

Similarly, J.U.'s various statements that he was going to 

report E.T. to supervisors for incompetence or that he was going 

to get her in trouble at work, although upsetting to E.T., did 

not amount to harassment or abuse within the meaning of G. L. 

c. 258E, § 1. See O'Brien, 461 Mass. at 427 ("fear of economic 

loss, [or] of unfavorable publicity" insufficient to establish 

harassment for purposes of G. L. c. 258E). 

The remaining allegation in E.T.'s affidavit -- that J.U. 

contacted her children's babysitter to find out what time the 
5

babysitter was watching the children and why -- arguably could 

have qualified as harassment. But even so, to obtain a 

harassment prevention order, E.T. had the burden of proving that 

J.U. committed at least three acts of harassment. For the 

reasons we have stated, she did not meet that burden. While 

J.U.'s conduct is troubling, we are constrained to conclude that 

it is not enough to prove harassment under the statute. General 

Laws c. 258E was not designed to protect against every type of 

speech that can lead a reasonable person to be disgusted. See 

Gassman, 90 Mass. App. Ct. at 8 ("the term 'harass' has a 

specific definition in this context, derived from the statute 

and case law, a definition much more exacting than common 

usage"). 

Because the evidence adduced at the hearing failed to 

satisfy the threshold requirements of G. L. c. 258E, § 1, the 

harassment prevention order should not have issued and must be 

vacated. Moreover, "if a judge vacates a harassment prevention 

order, law enforcement officials shall destroy 'all record' 

concerning such order." Seney, 467 Mass. at 60-61, quoting 

G. L. c. 258E, § 9. The case is remanded to the District Court 

for entry of an order vacating and setting aside the harassment 

prevention order, 
6

and for further actions as required by G. L. c. 258E, § 9. See 

F.K. v. S.C., 481 Mass. 325, 335 (2019).

So ordered.

By the Court (Sacks, Shin & 

D'Angelo, JJ.1),

Clerk

Entered: June 28, 2023.

1 The panelists are listed in order of seniority.