Massachusetts Appeals Court Vacates Restraining Order Over Explicit Photos

The Massachusetts Court of Appeal has vacated a harassment prevention order between two fire department EMTs, concluding that while troubling, the behavior that occurred did not meet the statutory definition of harassment. The restraining order was obtained by a female EMT identified as E.T., who claimed that a colleague, J.U., created and shared lewd images of her.

The images were taken from Facebook and altered by J.U. The facts as explained by the Court of Appeals are as follows:

• On August 12, 2021, E.T. applied for a harassment prevention order against J.U.
• 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.
• 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.”

On appeal J.U. claimed his conduct did not constitute “harassment,” as defined in Massachusetts General Laws Chapter 258E, and thus the order should be vacated. The Court of Appeals agreed, concluding as follows (citations and quotation marks removed):

• Although [the photos and the video] 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 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.
• 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.
• 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.
• 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.

There is no indication of whether J.U. faced any internal fire department disciplinary action for his conduct. However, the harassment order was in effect for 22 months, and hopefully served some purpose while it was in effect.

Here is a copy of the complaint: