Texts, harassment at issue in local case


BRATTLEBORO -- In a case that considers the meaning of "harassment" and the acceptable frequency of text-messaging, the Vermont Supreme Court took the relatively rare step of acquitting a man who had been convicted of violating a Windham County abuse-prevention order.

But those on both sides of the issue doubt the court's ruling will be the final word on the matter.

Vermont Defender General Matthew Valerio, whose office represented Tyler Smith Waters in an appeal stemming from 2009 charges, believes the court's decision will spur action from state lawmakers.

"Rarely do these types of questions go unaddressed by the Legislature," Valerio said.

And at the Women's Freedom Center in Brattleboro, those who keep close watch on domestic-violence issues have dubbed the court ruling "troubling" and believe further action is necessary to protect victims.

"It's precedent-setting, and now we will have work to do to try and regain the ground that was lost here," said Donna Macomber, a legal advocate at the center.

At issue is a case brought by the Windham County State's Attorney's office against Waters. He had been accused of violating a relief-from-abuse order obtained by his former girlfriend, with whom he had lived for several years and had a child.

In October 2009, court records say, an order prohibited Waters from having direct or indirect contact with the victim "except that it specifically stated, 'defendant may have contact by telephone only.' The order placed no limitation on the frequency, timing or subject matter of telephone contact."

That would prove to be a key point in the case.

That December, the victim reported that she had been "harassed, bullied and made to feel guilty" because Waters allegedly had sent her about 40 text messages in a month and had called her more than 30 times.

At trial, the victim "testified that the texts were unwelcome, and that she did not think defendant was supposed to be communicating with her," court records say.

The victim also said she asked Waters to "stop constantly texting me and calling."

A jury in Windham Superior Court Criminal Division convicted Waters. Because this was his second conviction for violating an abuse-prevention order, he faced up to three years in prison.

He was sentenced to two years. But Waters also appealed, arguing that "the court's jury instruction on harassment was overly broad, and that the evidence of harassment in this case was insufficient to convict defendant of violating the abuse-prevention order."

A majority of the state's high court now agrees, ruling Friday that Judge David Suntag's jury instructions defining harassment were in "plain error."

The court reversed the jury's verdict and issued a judgment of acquittal, meaning that Waters -- rather than being subject to further action in the lower court -- has been declared innocent of the charge.

"It's not all that often that they do that," Valerio said.

In a majority ruling penned by Justice Beth Robinson, the court says there is "no question" that an abuse order can prohibit actions such as "serial texting."

The problem, the majority found, is that the order in this case did not do so. Quoting a 2002 ruling, the justices say "the law can only punish defendant 'because he violated the conditions imposed upon him, (not) because he violated the conditions that hindsight shows should have been imposed upon him.'"

In exploring whether Waters should have been found guilty of harassing the woman, the court considered dictionary definitions of "harass" as well as the word's description in Vermont's stalking statute and in the state's civil law. The court also considered a statute that prohibits disturbing the peace by electronic communication.

In the end, the court's majority ruling says the stalking law is the "most-appropriate touchstone" for Waters' case. And by that standard, justices wrote, "we see no evidence that the Legislature passed the statute to criminalize annoying or bothersome conduct."

Justices make clear that they are not condoning Waters' actions. But, in noting that his texts were a mix of the mundane and "overtures to re-establish his relationship," the majority ruling says those messages should not have spurred a conviction in this case.

The victim could have asked the court to modify the abuse order or to prohibit all contact, the ruling says.

"We recognize that defendant's repeated texts to petitioner were insensitive," justices wrote. "But we cannot say that the communications amounted to threats."

The majority also quoted statistics on text-messaging rates among 18- to 29-year-olds, with justices writing that "the frequency of defendant's texts by itself cannot support an inference that the conduct was threatening."

The majority decision provoked a strongly worded dissent from Justice Brian Burgess, now retired. Chief Justice Paul Reiber joined the dissent.

"It does not take a linguist, a lawyer or statutes from other states to know that persistently texting your domestic-violence victim to get her within reach, after she has obtained a relief-from-abuse order against you and after being told your hectoring is unwelcome, is 'harassment,'" Burgess wrote.

Burgess believes the context of Waters' texts is important. In taking a narrow view of what qualifies as harassment, he wrote, the court's majority is excluding many actions that should be unacceptable in abuse cases.

"While, as the majority correctly notes, none of his texts were profane, explicitly threatening or violent, defendant texted complainant as though there was no history of abuse, no risk to complainant, and as if it was she who was responsible for their separation," Burgess wrote.

He added that, "literature and cinema, like real life reflected by this defendant's actions, are replete with serial ruffians who are neither profane nor expressly threatening."

Based on her experiences at the Women's Freedom Center, Macomber couldn't agree more.

"It's definitely troubling," she said of the majority opinion acquitting Waters. "What I think happens is, violent offenders -- and batterers in particular -- will often go to the very edge of the law."

Because what constitutes harassment may not have been explicitly spelled out, "unfortunately, he gets away with continuing to harass and pursue and to make unwanted contact with the victim in this situation," Macomber said. "It's disappointing, because the victim sought a court order because she felt her safety was compromised."

Macomber said she has "a lot of respect for the legal process." But in domestic-violence cases, she believes, important details sometimes get lost.

"It's disheartening that someone has to work so hard to get the contact stopped," she said.

Valerio sees things differently, saying the appeals court determined clearly that "the facts didn't constitute harassment."

"Effectively, they went with that the definition of harassment was on the books," he said.

Waters served his time and now is out of jail, Valerio said, adding that "we don't know where he is now."

The ruling, however, has impacts that go beyond Waters' criminal record. Macomber said it may be a "teachable moment" showing that victims of domestic violence must be "very specific in asking the court for exactly what is going to work" in each case.

In addition to Valerio's prediction of legislative action, state Supreme Court Justice John Dooley -- while concurring with the majority opinion -- also penned several paragraphs calling for changes.

Dooley said relief-from-abuse forms should better define "harass" or else should use a different term. Similar clarification is overdue for other court forms such as conditions of probation and pretrial release, Dooley said.

"Such a review is a far better way of addressing the language issues than more piecemeal litigation like this," he wrote.

Mike Faher can be reached at mfaher@reformer.com or 802-254-2311, ext. 275.


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