Heard: March 4, 2019.
for protection from abuse filed in the Lawrence Division of
the District Court Department on October 16, 2017.
case was heard by Mark A. Sullivan, J.
Francis T. O'Brien, Jr., for the defendant.
Present: Wolohojian, Milkey, & Blake, JJ.
defendant, A.P.B., appeals from the issuance and extension of
a G. L. c. 258E harassment prevention order (c. 258E order)
in the District Court. He claims that the evidence was
insufficient to support the issuance of the ex parte order
and the order after notice. We agree and vacate the order
that entered at the hearing after notice.
parties, who were students at the same college, had
previously had a romantic relationship. By March, 2017, their
on-again, off-again relationship had ended. At this time, the
plaintiff, R.S.,  began receiving an increasing number of
text messages and other messages through various social media
websites. She asked A.P.B. to stop messaging her and
eventually blocked his telephone number and
"Twitter" social media account. A.P.B. then reached
out to friends of R.S. Thereafter, R.S. received messages
that she described as "linked to [A.P.B.'s]
name" as well as messages from what she called
"fake accounts" and some that were "sexually
aggressive." R.S. contacted a mutual friend of the
parties and asked him to ask A.P.B. to "stop." R.S.
continued to receive messages from more fake accounts,
causing her to file a police report with the college police
parte hearing. On October 16, 2017, R.S. applied for an abuse
prevention order pursuant to G. L. c. 209A. In support of her
request, R.S. filed an affidavit that recounted the
parties' on and off relationship. In her affidavit, R.S.
wrote that "[d]ue to [A.P.B.'s] persist[e]nce
through his messages and graphic language, he has instilled
fear in me." At the ex parte hearing, the judge asked
R.S. a series of questions. He asked, "You were nervous
about [the messages] but you weren't afraid at that
point?" R.S. answered, "No." The judge then
asked whether there had been "any problems with abuse or
was [A.P.B.] being too physical with you or anything"
during the relationship. She again answered, "No."
The judge then asked, "[A]re you feeling like he is
harassing you or do you feel like he is abusing you?"
and before R.S. responded, the judge stated, "This needs
to be a harassment order. This is not a -- abuse is defined
as harming, threatening to harm you physically or placing you
in fear of imminent harm. That's not what you're
telling me. But you are telling me that you're afraid of
him because he is harassing you with the volume of contact
and the content of those contacts." R.S. replied,
"Yes, the content." The judge did not issue a
domestic abuse prevention order pursuant to G. L. c. 209A.
Instead he issued a harassment c. 258E order.
after notice. On October 24, 2017, a different judge held an
evidentiary hearing on R.S.'s request for an extension of
the c. 258E order. A.P.B. appeared with counsel. R.S.
appeared pro se and testified in narrative form, answering
questions interposed by the judge. A detective lieutenant
from the college police department was also present. R.S.
recounted much of what was set forth in her affidavit
concerning her receipt of social media and text messages.
After blocking A.P.B. from her accounts on these sites in the
spring of 2017, she continued to receive messages, as did
some of her friends.
testified that she thereafter received messages on her
"Snapchat" account with three variations of
A.P.B.'s name: "[A.P.B.] 123," "[A.P.B.]
96," and "[A.P.B.] 82." None of these
messages were abusive, malicious, or intimidating. At the end
of the summer of 2017, she received a Snapchat message from
someone whom she believed was A.P.B.'s eleven year old
brother. There was no evidence of the content of this
message. A.P.B. also messaged another friend of R.S. claiming
he found something that belonged to R.S. R.S. asked the
friend to tell A.P.B. to leave R.S. alone.
her return to school in the fall of 2017, R.S. described
receiving "a[d]ds" on her Snapchat account from
people she did not know. Most of the names included the
number 59, a number that had no significance to her. R.S.
replied to one of these messages, asked if they were coming
from A.P.B., and asked for the messages to stop. The response
was "just send me some nudes . . . send me pics."
When R.S. asked who the messages were from, the sender
responded, "the guy who wants to fuck you
senseless." She asked if it was A.P.B. After some
additional messaging the sender said, "[A.P.B.] gave me
your Snap, though. I'm trying to fuck." R.S. asked
to be left alone and the response was, "You sure
you're good? You don't want to have any fun? Yes or
no, final answer."
R.S. received a Snapchat "add" from "Matty P
559" with a message that read, "heard [R.S.]
send[s] nudes for money." It continued, "what are
you doing? A couple of nudes each, no ones [sic] got to know.
. . . If you don't answer, I'm going to send you