(concurring, with whom Marshall, C.J., and Botsford, J., join). I agree with the court that the defendants are entitled to an interlocutory appeal from the judge’s denial of their special motion to dismiss, even though a favorable ruling on that appeal will not end the litigation because of the presence of counterclaims. I also agree that the defendants have met their burden of demonstrating that Benoit’s claims are based solely on their petitioning activities, the reporting of a crime to the police. Finally, I agree with the court that the claims against Michael and Susan Freder-ickson should be dismissed, because Benoit has made no showing in his pleadings or affidavits that their petitioning activity (facilitating their daughter’s report of rape to the police) was “devoid of any reasonable factual support.”1
While I concur in the court’s ultimate conclusion that, based on the record before us, the claims against Amanda Frederick-son (Amanda) also should be dismissed, I write separately to underscore the authority provided in the anti-SLAPP statute for a judge to permit limited discovery when confronted with the type of credibility issue presented in this case.
Amanda and Benoit have submitted affidavits directly contradicting each other on the critical question whether there was a rape or any sexual contact at all between them. There is no corroborating evidence of its occurrence other than the complaint Amanda said she made some time thereafter to her boy friend, and her complaint to the police three days after that. Nowhere in that complaint, or during the interview subsequently conducted by the police (as reproduced in the record) or in Amanda’s affi*156davits filed in support of her special motion to dismiss, is there any mention of the time of day the alleged rape occurred, a critical fact in this case in light of the plaintiff’s affidavit. There is also no explanation of the circumstances because Amanda declined to testify against the plaintiff (her alleged attacker) and the criminal complaint was dismissed.
Benoit, on the other hand, swears that he did not have sexual contact with Amanda. In addition, he swears that he was more than twenty miles away from the alleged location of the rape during the day of (and the day before) the alleged incident. He has submitted affidavits from others, including a private investigator, that independently document his whereabouts for a substantial portion (but not all) of those two days.
If Benoit’s statements in his affidavits are credible, Benoit will have established by a preponderance of the evidence that Amanda’s criminal complaint was devoid of any reasonable factual basis and therefore not protected by the anti-SLAPP statute. If Amanda’s statements in her affidavits are credible, Benoit will have failed to meet his burden. The competing affidavits are contradictory in material respects, and there is little, if anything, in the record to assist in determining which are credible.
We previously have not been confronted with a case in this precise posture, and have therefore not had occasion to consider whether a judge may exercise discretion to order further discovery before making a ruling. In terms of the statute, the judge plainly has the discretion to do so and could have done so in this case if Benoit had requested it.
Section 59H provides that “[a]ll discovery proceedings shall be stayed upon the filing of the special motion.” However, it also explicitly permits “specified discovery” when ordered by the judge for “good cause shown.” Id. This is the type of case in which good cause might have been shown, and specific discovery ordered (including the taking of limited depositions) in connection with deciding the special motion to dismiss.
We said in McLarnon v. Jokisch, 431 Mass. 343, 347-348 (2000), that the special motion procedure available in § 59H does not preclude claims for malicious prosecution.2 The court *157does not question that holding today, and any ruling to the contrary would, in my view, be constitutionally suspect. That case involved such a claim, based on the alleged submission by one of the defendants of false allegations in an application for an abuse prevention order. Id. at 345. The court, in affirming the dismissal of the malicious prosecution claim, concluded that the plaintiff had not met his burden of showing that the application for the abuse prevention order (the petitioning activity) was devoid of reasonable factual support. We noted that throughout the abuse prevention proceedings there had been “numerous court hearings before different judges” where the plaintiff’s al-. legations had been voiced and rejected by the granting of the protective orders and their many extensions. Id. at 349. Consequently, the judge in considering the special motion to dismiss could well have concluded from the record in the case that, despite contradictory affidavits, “the orders of these courts established that the plaintiff failed to meet his burden of proving no reasonable factual support” for the defendants’ petitioning activities. Id.
We faced a nearly identical situation in Fabre v. Walton, 436 Mass. 517, 524 (2002), S.C., 441 Mass. 9 (2004), an abuse of process case, where the plaintiff claimed that the defendant had filed false affidavits and given false testimony to secure an abuse prevention order. We concluded that the plaintiff failed to meet his burden in opposition to the defendant’s special motion to dismiss (in spite of the plaintiff’s affidavit claiming the abuse never occurred) because of “the findings and the final judgment entered in the contested [G. L. c.] 209A proceedings,” from which the plaintiff did not appeal. Id. The final judgment constituted “conclusive evidence that the petitioning activity was not devoid of any reasonable factual support.” Id.
We do not have that situation here. No judge has ruled on the credibility of the rape complaint; indeed, there has been no sworn testimony on the subject. In these circumstances, judges may, as the statute expressly permits, authorize specific discovery on the particulars of the facts that are alleged to have supported the underlying petitioning activity, in order to test the veracity *158of those facts. Thereafter, the plaintiff will bear the burden of demonstrating that the defendant’s petitioning conduct was “devoid of any reasonable factual support.”3 G. L. c. 231, § 59H.
In the present case, Benoit did not seek leave to take discovery for the purpose of preparing a response that would better enable the judge to decide the defendants’ motion to dismiss. Consequently, the record is insufficient to meet his burden of persuasion on the point.
I am also of the view that G. L. c. 231, § 85G, which provides for the limited liability of parents for certain wilful acts of their children, does not apply to either the conduct or injuries alleged by the plaintiff in this case.
It is indeed the right of every subject of the Commonwealth pursuant to art. 11 of the Massachusetts Declaration of Rights “to find a certain remedy, *157by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property or character.”
A finding by the judge that the plaintiff has met his burden and the case can go forward is, of course, not a judgment on the merits of the claim, but rather an evaluation whether the defendant’s prior petitioning activity falls within the protection of the anti-SLAPP statute.