M.G. v. G.A.

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17-P-584 Appeals Court

M.G. vs. G.A.

No. 17-P-584.

Middlesex. April 10, 2018. - September 28, 2018.

Present: Agnes, Massing, & Neyman, JJ.

Abuse Prevention. Practice, Civil, Dismissal. Rules of Civil
Procedure. District Court. Boston Municipal Court.
Words, "Abuse," "Sexual relations."

Civil action commenced in the Somerville Division of the
District Court Department on February 2, 2017.

The entry of an order dismissing the complaint was ordered
by Paul M. Yee, J.

Andrew W. Piltser Cowan for the plaintiff.
James J. Coviello (Danielle C. Chattin also present) for
the defendant.

AGNES, J. This appeal arises from the dismissal of a

complaint that sought a G. L. c. 209A abuse prevention order.

At the hearing conducted after notice had issued to the
2

defendant, the defendant moved "for a directed verdict"1 at the

close of the plaintiff's case on the ground that the evidence

presented by the plaintiff was not sufficient to support the

issuance of an order. After hearing argument from counsel, the

judge allowed the defendant's motion and dismissed the

complaint.

We conclude that the judge's order dismissing the complaint

must be vacated and the case must be remanded because the judge

interpreted the phrase "sexual relations," as it appears in the

definition of "abuse" set forth in G. L. c. 209A, § 1, too

narrowly. When the evidence is viewed in the light most

favorable to the plaintiff, the facts in this case are that

after the parties had begun to engage in consensual sexual

intercourse, the plaintiff withdrew her consent, but the

defendant remained on top of her and masturbated until he

ejaculated on her. As we explain below, this conduct involves

"inappropriate contact of a sexual nature," G. L. c. 268, § 21A,

1 Strictly speaking, the motion was mislabeled. "Motions
for directed verdicts are proper only when a jury have been
empanelled. Only juries reach verdicts; judges make findings"
(citations omitted). Kendall v. Selvaggio, 413 Mass. 619, 620
n.3 (1992). See Joseph Freedman Co. v. North Penn Transfer,
Inc., 388 Mass. 551, 554 n.4 (1983). In fact, prior to the 1996
merger of the District/Municipal Courts Rules of Civil Procedure
into the Massachusetts Rules of Civil Procedure, there was no
such thing as a motion for a "directed verdict" in District
Court practice. See Joseph Freedman Co., supra. The
appropriate motion at the close of the plaintiff's case in a
jury-waived trial would be a motion for a directed finding or a
required finding.
3

which we conclude is encompassed by the phrase "sexual

relations" as it appears in the definition of abuse in G. L.

c. 209A, § 1.

We also address the defendant's argument that the judge may

have dismissed the complaint at the close of the plaintiff's

case by not crediting the plaintiff's testimony. See Mass.

R. Civ. P. 41 (b) (2), 365 Mass. 803 (1974) (second and third

sentences). Although on the record before us it is unclear

whether the judge did make credibility determinations as

permitted by rule 41 (b) (2) in certain cases tried without a

jury, we take this occasion to explain why rule 41 (b) (2) is

not applicable to G. L. c. 209A hearings in the District Court

and Boston Municipal Court.2 In such cases, as we explain below,

the judge has the discretion -- but not the duty -- to rule on

the sufficiency of the plaintiff's case at the close of the

plaintiff's evidence. If the judge exercises this discretion,

he must view the evidence in the light most favorable to the

plaintiff, drawing all reasonable and possible inferences in the

plaintiff's favor.

2 While this case was tried in the District Court, our
analysis applies equally to cases tried in the Boston Municipal
Court. See Mass. R. Civ. P. 1, as amended, 450 Mass. 1403
(2008) (explaining that "except when the context means something
to the contrary," District Court includes the Boston Municipal
Court).
4

Background. On February 2, 2017, the plaintiff, M.G.,

filed a complaint for an abuse prevention order against the

defendant, G.A., pursuant to G. L. c. 209A. The judge declined

to issue a temporary abuse prevention order after an ex parte

hearing on the complaint. An evidentiary hearing on the matter

was subsequently held at which both parties were present and

represented by counsel.

Viewing the evidence in the light most favorable to the

plaintiff, the judge could have found the following facts. The

plaintiff and the defendant began dating in August, 2012, and

purchased a condominium together by the end of 2013. In

October, 2015, the defendant moved out of the condominium, but

the parties continued to have sexual relations. In December,

2015, the defendant initiated a consensual sexual encounter with

the plaintiff. The parties engaged in "genital-to-genital

contact" as well as "finger-to-genital contact." At some point

during the sexual encounter, the plaintiff stated, "I'm done,

I'm tired" while the defendant was physically on top of her.

She told the defendant at least twice that she "did not want to

be doing this." The defendant stated "that he wanted to

finish." The defendant then masturbated to ejaculation while

remaining physically on top of the plaintiff.

The defendant moved for what he termed a "directed verdict"

at the close of the plaintiff's case. The judge allowed the
5

motion, concluding that the plaintiff failed to prove that the

defendant caused her to "engage involuntarily in sexual

relations by force, threat or duress," G. L. c. 209A, § 1 (c),

because the parties were no longer engaging in sexual

intercourse after the plaintiff said she was "done" and "tired."

Rather, the judge reasoned, "the most it could have been was an

assault and battery at that point in time."

Discussion. 1. Definition of "abuse" under G. L. c. 209A,

§ 1. In explaining the reasons for his ruling, the judge

indicated at one point that the plaintiff failed to prove that

the defendant caused her to engage in involuntary sexual

relations by force, threat, or duress as a matter of law because

the parties were no longer engaging in sexual intercourse after

the plaintiff said she was "done" and "tired." The plaintiff

argues on appeal that the term "sexual relations" as used in

G. L. c. 209A, § 1, should not be so narrowly construed. We

agree.

General Laws c. 209A, § 1, defines abuse as "the occurrence

of one or more of the following acts between family or household

members: (a) attempting to cause or causing physical harm; (b)

placing another in fear of imminent serious physical harm; [or]

(c) causing another to engage involuntarily in sexual relations

by force, threat or duress." Here, the plaintiff proceeded

under the third definition of "abuse." The term "sexual
6

relations" is not further defined in G. L. c. 209A, nor has it

been clearly defined by this court or the Supreme Judicial

Court. It is, however, broadly defined in G. L. c. 268, § 21A,

which criminalizes sexual relations between employees of

correctional institutions and inmates, as "intentional,

inappropriate contact of a sexual nature, including, but not

limited to conduct prohibited by [various enumerated criminal

sexual offenses]." In the context of G. L. c. 209A, we do not

believe that the Legislature intended to define "sexual

relations" so narrowly as to encompass only acts of sexual

intercourse, where the statute seeks to protect victims from

further sexual abuse and where it has been defined broadly in

another chapter of the General Laws. The plaintiff testified

that after she said, "I'm done, I'm tired," and communicated

that she wanted the defendant to stop, he remained physically on

top of her and continued to masturbate over her until he

ejaculated. In connection with conduct that is encompassed by

the phrase "sexual relations," no less than in the context of

"sexual intercourse" as used in the statutes proscribing rape, a

person's consent may be withdrawn prior to or during the act.

See Commonwealth v. Enimpah, 81 Mass. App. Ct. 657, 658-661

(2012). The evidence, taken in the light most favorable to the

plaintiff, was sufficient for the fact finder to conclude that
7

the defendant caused the plaintiff to engage involuntarily in

sexual relations.

We further conclude that sufficient evidence was introduced

to prove that the sexual relations between the parties were the

product of force. The term "force" is not further defined in

G. L. c. 209A, § 1, and has not been clearly defined by the case

law interpreting the statute. Force is an element of both the

offense of rape, G. L. c. 265, § 22,3 and of child rape, G. L.

c. 265, § 22A,4 and cases examining the sufficiency of the

evidence as it relates to the use of force in that context are

instructive. In Commonwealth v. Armstrong, 73 Mass. App. Ct.

245, 254 (2008), this court concluded that sufficient evidence

was presented to conclude that the defendant raped the victim, a

child, by physical force where "the defendant pulled the

victim's legs apart and positioned himself against her spread

legs while he engaged in oral sex." In Commonwealth v.

Stockhammer, 409 Mass. 867, 873 (1991), the Supreme Judicial

3 General Laws c. 265, § 22, provides, in pertinent part:
"Whoever has sexual intercourse or unnatural sexual intercourse
with a person, and compels such person to submit by force and
against his will . . . shall be punished by imprisonment in the
state prison for life or for any term of years."

4 General Laws c. 265, § 22A, states: "Whoever has sexual
intercourse or unnatural sexual intercourse with a child under
16, and compels such child to submit by force and against his
will or compels such child to submit by threat of bodily injury,
shall be punished by imprisonment in the state prison for life
or for any term of years."
8

Court concluded that sufficient evidence was presented to

overcome the defendant's motion for a required finding of not

guilty where the evidence indicated that the defendant

physically "forced the complainant onto her bed, removed and

disarranged her clothes while holding her down, and had

intercourse with her while the complainant pushed at him and

told him to stop." Using these cases as guidance, and taking

the evidence in the light most favorable to the plaintiff, we

conclude that the defendant's remaining physically on top of the

plaintiff and masturbating to ejaculation after she said, "I'm

done. I'm tired" was sufficient to establish the element of

force as it appears in G. L. c. 209A, § 1 (c).

2. Motion for a directed finding in a G. L. c. 209A case.

A party who seeks either an initial G. L. c. 209A order or an

extension of an order previously issued has the burden of

proving, by a preponderance of the evidence, that he or she is

"suffering from abuse." Iamele v. Asselin, 444 Mass. 734, 736

(2005), quoting G. L. c. 209A, § 3. See Frizado v. Frizado, 420

Mass. 592, 596, 597 (1995); Guidelines for Judicial Practice:

Abuse Prevention Proceedings § 5:04 (2011). The defendant is

not required to testify or present evidence, although the judge

may draw an adverse inference against a defendant who fails to

testify. Id. at 596. The drawing of an adverse inference alone

is insufficient to establish that the plaintiff has set forth an
9

adequate case for relief. See id. "Thus a defendant's failure

to testify cannot be used to justify the issuance of an abuse

prevention order until a case is presented on other evidence."

Id.

The defendant argues in the alternative that apart from his

rulings of law, the judge had independent grounds to dismiss the

plaintiff's complaint at the close of her evidence by exercising

his right as the finder of fact and simply choosing not to

believe the plaintiff's testimony in whole or in part. See

Mass. R. Civ. P. 41 (b) (2).5 See also Skowronski v. Sachs, 62

Mass. App. Ct. 630, 633 n.4 (2004); Ryan, Elliott & Co. v.

Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689-690

(1979). Generally, Mass. R. Civ. P. 41 (b) (2) allows a judge

to apply the directed verdict standard from Mass. R. Civ. P.

5Rule 41 (b) (2) of the Massachusetts Rules of Civil
Procedure provides as follows: "On motion of the defendant,
with notice, the court may, in its discretion, dismiss any
action for failure of the plaintiff to prosecute or to comply
with these rules or any order of court. After the plaintiff, in
an action tried by the court without a jury, has completed the
presentation of his evidence, the defendant, without waiving his
right to offer evidence in the event the motion is not granted,
may move for a dismissal on the ground that upon the facts and
the law the plaintiff has shown no right to relief. The court
as trier of the facts may then determine them and render
judgment against the plaintiff or may decline to render any
judgment until the close of all the evidence. If the court
renders judgment on the merits against the plaintiff the court
shall make findings as provided in [Mass. R. Civ. P. 52 (a), as
amended, 423 Mass. 1402 (1996)]."
10

50 (a), 365 Mass. 814 (1974),6 and, viewing the evidence in the

light most favorable to the plaintiff, determine whether from

anywhere in the evidence there are facts from which a rational

inference may be drawn in favor of the plaintiff. See Curtiss-

Wright Corp. v. Edel-Brown Tool & Die Co., 381 Mass. 1, 3-4

(1980). Alternatively, Mass. R. Civ. P. 41 (b) (2) allows a

judge to exercise his or her discretion as the trier of fact,

"weigh[ing] the evidence and resolv[ing] all questions of

credibility, ambiguity, and contradiction in reaching a

decision." Ryan, Elliott & Co., 8 Mass. App. Ct. at 689.

Written factual findings supporting the judge's decision to

allow a motion for involuntary dismissal must be made pursuant

to Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996),

when the judge follows the second option and elects to act as a

trier of fact. See Mass. R. Civ. P. 41 (b) (2).

6 Rule 50 (a) of the Massachusetts Rules of Civil Procedure
provides as follows: "A party may move for a directed verdict
at the close of the evidence offered by an opponent, and may
offer evidence in the event that the motion is not granted,
without having reserved the right so to do and to the same
extent as if the motion had not been made. A party may also
move for a directed verdict at the close of all the evidence. A
motion for a directed verdict which is not granted is not a
waiver of trial by jury even though all parties to the action
have moved for directed verdicts. A motion for a directed
verdict shall state the specific grounds therefor. The order of
the court granting a motion for a directed verdict is effective
without any assent of the jury." Rule 50 (a) applies only to
cases tried to a jury. J.W. Smith & H.B. Zobel, Rules Practice
§ 50.2 (2d ed. 2007). See Wire & Textile Mach. v. Robinson, 332
Mass. 417, 418 (1955); Forbes v. Gordon & Gerber, Inc., 298
Mass. 91, 94-95 (1937).
11

The question therefore is whether Mass. R. Civ. P.

41 (b) (2) applies in G. L. c. 209A cases tried in the District

Court. The answer, we conclude, is "no." The Massachusetts

Rules of Civil Procedure apply "in the District Court and in the

Boston Municipal Court, in all suits of a civil nature whether

cognizable as cases at law or in equity, with the exceptions

stated in [Mass. R. Civ. P. 81, as amended, 423 Mass. 1412

(1996)]." Mass. R. Civ. P. 1, as amended, 450 Mass. 1403

(2008). In the District Court, "[t]hese rules apply to all

civil proceedings involved in cases traditionally considered

tort, contract, replevin, or equity actions . . . ." Mass.

R. Civ. P. 81 (a) (2).7 This was true even prior to the 1996

merger of the District/Municipal Courts Rules of Civil Procedure

into the Massachusetts Rules of Civil Procedure. See, e.g.,

Dist./Mun. Cts. R. Civ. P. 81 (a) (1995). General Laws c. 209A

7 Civil proceedings under G. L. c. 209A are commenced by
filing a complaint. G. L. c. 209A, § 3A. Throughout the
chapter, the parties are referred to as "plaintiff" and
"defendant." See, e.g., G. L. c. 209A, § 3. Although the
proceeding that occurs after notice to the defendant is referred
to as a "hearing," see G. L. c. 209A, § 3, "[p]roceedings held
pursuant to G. L. c. 209A are no different than any other
adversarial hearings in that each party has a right to present
evidence, and the moving party must satisfy the burden of proof
and subject its witnesses to cross-examination." C.O. v. M.M.,
442 Mass. 648, 657 (2004). See S.T. v. E.M., 80 Mass. App. Ct.
423, 429-431 (2011). Whether the G. L. c. 209A proceeding after
notice to the defendant is referred to as a "hearing" or a
"trial," we look to the Massachusetts Rules of Civil Procedure
because they apply to "all civil proceedings" unless noted
otherwise. See Mass. R. Civ. P. 81 (a) (1)-(3).
12

proceedings are purely statutory and, thus, are not among the

cases to which the Massachusetts Rules of Civil Procedure,

including in particular Mass. R. Civ. P. 41 (b) (2), apply in

the District Court. See Adoption of Paula, 420 Mass. 716, 732

n.17 (1995).

Guidance is supplied, however, by Mass. R. Civ. P.

81 (a) (3), which informs us that if a procedural question is

not governed by statute or another applicable rule, the practice

"shall follow the course of the common law, as near to these

rules as may be . . . ."8 As there is no provision in G. L.

c. 209A that provides a defendant with a right to challenge the

sufficiency of the evidence at the close of the plaintiff's

case, we look to the common law, i.e., the law in existence

prior to the adoption of the rules of civil procedure in 1973.

At common law, "[n]o pre-rule procedure existed in

Massachusetts for dismissal of a jury-waived or equity case,

after the plaintiff had rested, on the ground that upon the

8 Rule 81 (a) (3) of the Massachusetts Rules of Civil
Procedure provides as follows: "In respects not governed by
statute, or in the case of the District Court not governed by
other District Court rules, the practice in civil proceedings to
which these rules do not apply shall follow the course of the
common law, as near to these rules as may be, except that
depositions shall not be taken, nor interrogatories served, save
by order of the court on motion, with notice, for good cause
shown." See Mass. R. Civ. P. 81 (e), 365 Mass. 841 (1974)
("When no procedure is specifically prescribed, the court shall
proceed in any lawful manner not inconsistent with the
Constitution of this Commonwealth, these rules, or any
applicable statute").
13

facts and the law the plaintiff had shown no right to relief."

Reporter's Notes to Rule 41 (b) (2), Massachusetts Rules of

Court, Rules of Civil Procedure, at 65 (Thomson Reuters 2018).

See Hurley v. O'Sullivan, 137 Mass. 86, 86-87 (1884) ("The

respondent was not entitled to the two rulings requested at the

close of the petitioner's evidence. Without discussing them in

any other respect, he did not propose to submit the case finally

upon that evidence. Unless he did so, he could not require the

judge to express an opinion upon the weight and sufficiency of

the petitioner's evidence, or whether he had or not made out a

prima facie case. The refusal of the judge to rule in

accordance with his request, at this stage of the case, does not

afford him any ground of exception"); McMahon v. Tyng, 14 Allen

167, 169 (1867) ("The defendant was not entitled to a ruling

upon the plaintiff's case, reserving to himself the right to put

in his own case afterwards. No exception lies to this

refusal"). Nevertheless, while a judge was not required to

entertain such a motion at the close of the plaintiff's case, he

had discretion to do so. See Kingsford v. Hood, 105 Mass. 495,

498 (1870); Wetherbee v. Potter, 99 Mass. 354, 359-360 (1868);

Bradley v. Poole, 98 Mass. 169, 179 (1867). Because there was

discretion at common law to entertain a motion for a required or

directed finding challenging the sufficiency of the evidence at

the close of the plaintiff's case, Mass. R. Civ. P. 81 (a) (3)
14

preserves that option for judges sitting in the District Court.

However, Mass. R. Civ. P. 81 (a) (3) does not preserve the

option to make credibility determinations at this stage of the

proceedings. At common law, there was no practice like there is

under Mass. R. Civ. P. 41 (b) (2), whereby a judge in a jury-

waived proceeding could determine the credibility of the

plaintiff at the close of her case and dismiss a complaint on

that basis.

In determining whether to exercise discretion and entertain

a challenge to the sufficiency of the evidence presented by the

plaintiff at the close of her case in a G. L. c. 209A

proceeding, as judges do routinely in civil cases involving, for

example, tort or contract, judges should consider the nature and

purpose of G. L. c. 209A. In cases brought pursuant to G. L.

c. 209A, the focus of the proceeding must be on the plaintiff's

need for protection. Singh v. Capuano, 468 Mass. 328, 332

(2014). As we said in S.T. v. E.M., 80 Mass. App. Ct. 423, 430-

431 (2011), "each party should be given a fair opportunity to

present his case. While a judge surely may exclude irrelevant

or inadmissible evidence, or even interrupt an argument or a

witness examination that has become repetitious, he should not

terminate a hearing without ensuring that he has heard all the

relevant and admissible evidence once. [J]udicial discretion is

not unlimited, and each side must be given a meaningful
15

opportunity to challenge each other's evidence" (quotation and

citations omitted).

These considerations suggest that when presented with a

defendant's motion for a directed finding at the close of the

plaintiff's case on the ground that the evidence presented did

not support the issuance or extension of a G. L. c. 209A abuse

prevention order, there are advantages to first inquiring

whether the defendant intends to present evidence and, if so,

hearing any evidence that the defendant wishes to present before

acting on the motion. The judicial burden of hearing the

defendant's evidence is minimal, and hearing such evidence will

enable the judge to make a more informed decision in these

sensitive cases, in which the safety of the plaintiff is often

at issue. Because the majority of these cases involve self-

represented parties, inviting the defendant to present evidence,

which in turn gives the plaintiff the opportunity to cross-

examine the defendant or any witnesses he may call, may produce

relevant and probative evidence that otherwise would not be

presented. If the defendant does not wish to present any

evidence, the judge may, at that point, make credibility

determinations and adjudicate the case in the ordinary course.
16

See Frizado, 420 Mass. at 596 ("The plaintiff must make the case

for the awarding of relief").9

Here, based on the record before us, there are indications

that the judge, prior to the close of the evidence, may have

discredited portions of the plaintiff's testimony relating to

whether the sexual acts at issue were voluntary. Because, as we

explained above, Mass. R. Civ. P. 41 (b) (2) is not applicable

in G. L. c. 209A cases heard in the District Court,10 the judge

was not authorized to make credibility determinations at the

close of the plaintiff's case unless and until the defendant

rested.

Conclusion. We are mindful of the large volume of cases

under G. L. c. 209A that come before the District Court and

Boston Municipal Court week in and week out, and the careful

9 Of course, there may be cases in which the legal
insufficiency of the plaintiff's case is plain, such as when the
defendant is not a "family or household member" within the
meaning of G. L. c. 209A, § 1. In such a case, a judge sitting
in the District Court or Boston Municipal Court would be
authorized to allow a motion for a directed finding at the close
of the plaintiff's case and to enter judgment for the defendant.

10The limitation on the application of the rules of civil
procedure expressed in Mass. R. Civ. P. 81 (a) (2) does not
apply to proceedings brought in the Superior Court, see Mass. R.
Civ. P. 81 (a) (1), or in the Probate and Family Court. See
Mass. R. Dom. Rel. P. 41 (b) (2). Nonetheless, the advantages
in a G. L. c. 209A case associated with hearing both the
plaintiff's case and the defendant's case, if the defendant
wishes to testify or call witnesses, before making a decision
applies equally to judges in the Superior Court and Probate and
Family Court.
17

attention judges give to these sensitive and important cases.

Nothing we have said today should interfere with the efficient

disposition of these cases.11 Judges in those courts retain

their traditional, discretionary authority to dismiss a

complaint at the close of the plaintiff's case when the

evidence, if believed, would not entitle the plaintiff to

relief. Further, nothing in this opinion requires a defendant

who otherwise wishes not to testify or to present evidence to do

so. However, based on the Massachusetts Rules of Civil

Procedure, judges sitting in the District Court and Boston

Municipal Court hearing a complaint for relief under G. L. c.

209A, after notice to the defendant, are not authorized to

dismiss the complaint at the close of the plaintiff's case

Nothing we say in this opinion affects the settled law
11

that in a G. L. c. 209A hearing, after notice to the defendant,
"the moving party must satisfy the burden of proof and subject
its witnesses to cross-examination." C.O. v. M.M., 442 Mass.
648, 657 (2004). Thus, before the plaintiff rests, the
defendant has the right to cross-examine the plaintiff or any
witness called by the plaintiff to demonstrate inconsistencies,
contradictions, or ambiguities, if any, in the evidence.
Furthermore, the Supreme Judicial Court has repeatedly
emphasized that the "judge must be the directing and controlling
mind at the trial, and not a mere functionary to preserve order
and lend ceremonial dignity to the proceedings" (quotation
omitted). Commonwealth v. Carter, 475 Mass. 512, 526 (2016).
The judge thus "has discretion to exclude irrelevant evidence,
sua sponte, provided he does not exhibit bias in the process."
Commonwealth v. Lucien, 440 Mass. 658, 664 (2004). See
Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 74 (2005) ("It is
well established that a judge in this Commonwealth may question
witnesses to clarify and develop evidence and to avert
perjury").
18

simply because they do not believe some or all of the

plaintiff's testimony. Instead, the resolution of questions of

credibility, ambiguity, and contradiction must await the close

of the evidence.

For the reasons set forth above, we vacate the order

dismissing the plaintiff's complaint and remand the matter for

further proceedings not inconsistent with this opinion.

So ordered.