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Appeals Court Rules that Evidence is Insufficient to Issue HPO

gavel-1238036-300x201In R.S. v. A.P.B., the Appeals Court ruled that the evidence was insufficient to support the judge’s issuance of a harassment prevention order against the defendant pursuant to G.L. c.258E.

The background was as follows. “The parties, who were students at the same college, had previously had a romantic relationship. By March, 2017, [the] relationship had ended.” At this time, the plaintiff, R.S., asked the defendant, A.P.B., to stop communicating with her on social media. Eventually, she blocked his telephone number and Twitter account. “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.’” Eventually, she sought relief pursuant to G.L. c.209A. “In her affidavit [in support of a protective order], 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.’” The judge “issued a harassment c.258E order.” A week later, “a different judge held an evidentiary hearing on R.S.’s request for an extension of the c.258E order.” In her testimony, 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.” (A.P.B. acknowledged that “[h]e reached out to R.S. on the anniversary of his half-sister’s death and on R.S.’s birthday.”) Also, some of R.S.’s friends continued to receive messages. (For example, “‘Can you tell [R.S.] that I’m looking for her?’ and, ‘Tell her I think of her every day I wake up.’”) “R.S. 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.” “Upon her return to school in the fall of 2017, R.S. … receiv[ed] ‘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.’” A police officer from the parties’ college testified “that ‘anybody, basically, can create’” a new email address and a user name. The officer “acknowledged that it was very difficult to actually track who sends these types of messages.” The judge extended the G.L. c.258E order for one year. APB appealed.

In its decision, the Appeals Court stated, “Because we determine that the evidence of who sent the fake account messages was insufficient to conclude it was the defendant, and the messages admittedly sent by A.P.B. were not harassing,” the “harassment prevention order … is vacated.” The Court explained that proof of civil harassment under G.L. c.258E requires a showing that the acts of harassment were “‘wilful and “[m]alicious,” the latter defined as “characterized by cruelty, hostility or revenge”….’ O’Brien v. Borowski, 461 Mass. 415, 420 (2012), quoting G.L. c.258E, §1.” The Court noted that the three messages received by R.S. that included A.P.B.’s name were “reflective of an effort to revive [their] relationship.” “[T]here was no evidence that the messages were sent … maliciously…. [Therefore,] none of those messages established harassment.” “R.S. also received messages from accounts that she called fake accounts…. Many of these messages included the number ‘59.’ There was no evidence about the significance of this number, and none of the addresses bearing A.P.B.’s name included this number. In addition, these fake accounts did not include A.P.B.’s name or any variation thereof.” Finally, the Court opined that “the tone, tenor, and content of the messages from A.P.B. are in stark contrast to the fake account messages,” which “contain sexual innuendo and vulgarity.” Such features, stated the Court, are “noticeably absent from A.P.B.’s messages.”

Although harassment orders are civil in nature as opposed to criminal offenses, they nonetheless appear on a person’s board of probation record and, if violated, do constitute a crime. As a result, assessing whether a plaintiff has sufficient evidence to obtain a harassment order against a defendant is extremely important.  If you or a loved one is facing the possibility of a harassment order, it is crucial that you have an attorney that is well versed in the law and who will be able to cogently and persuasively argue your case to the court.  Attorney Daniel Cappetta is an experienced attorney and skilled attorney who has successfully defended clients who have faced the issuance of a harassment order, and clients who have been criminally charged with violating such an order.  Put his expertise to work for you and call him for a free consultation today.

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