When would a judge make an abuse prevention order permanent, and can it be extended purely based on past abuse? The recent Massachusetts case of McIsaac v. Porter answered that question. [1]
In that case, the plaintiff and defendant had dated for about six years and lived together for about six months. The defendant, who suffered from depression and drank alcohol to escape, had a tendency to become aggressive and violent with the plaintiff–for example, dragging her across the room to prevent her from leaving, breaking her glasses after grabbing them from her face, and choking her, causing bruises on her collar bone and arms.
On one night in December 2013, the defendant became angry and lunged at the plaintiff, choking and punching her and asking her if she wanted to die that night. The defendant caused the plaintiff to have bruises on her back, sides, chest, arms, and face. The plaintiff filed for an abuse prevention order under Massachusetts General Laws chapter 209A in January of 2014, which was granted ex parte and subsequently extended twice. As a result of the incident, the defendant was charged with assault and battery and received a continuance without a finding, with a five-year probationary period.
In January of 2015, the plaintiff sought to make the abuse prevention order permanent. She testified that she continued to remain scared and in fear of the defendant, and that she desired an extra measure of safety and protection from him. She noted that the parties went to the same out-of-state college and both continued to be involved with the same alumni network. The judge granted the permanent abuse prevention order, finding that there was a past incident to be categorized as “very serious.”
The defendant appealed, arguing that the order was improper because it was entirely based on past abuse, with no finding that the plaintiff currently had any reasonable fear of imminent harm. The Appeals Court held that a judge may extend an abuse prevention order “where, as here, the judge finds that the victim is still reasonably suffering fear due to a past incident of serious physical abuse, regardless of whether the victim also reasonably fears imminent serious physical harm.” [2] The Court noted that an order may issue to protect a victim from the continuing impact of violence which was caused entirely in the past.
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[1] McIsaac v. Porter, No. 16-P-135 (October 14, 2016-December 9, 2016)
[2] Id., at 2.