Massachusetts Protective Order Lawyer

Massachusetts Restraining Orders: 209A and 258E

What is a 209A protective order, and when might I need one?

Emma is experiencing a challenging and dangerous situation. Her longtime partner, Earl, who is also the father of their two children, recently lost his job. The stress of unemployment exacerbated an already strained relationship, leading to an increase in abusive and violent behavior. Earl became verbally abusive in front of the children and, on two occasions, physically struck Emma. Last night, the situation escalated, and Earl assaulted her severely, threatening her life before fleeing the home. In the aftermath, Emma recognizes the need to reach out to a trusted attorney to explore her legal options.

Individuals like Emma, who find themselves in similar circumstances, can seek protection through a Massachusetts protective order, as outlined in Massachusetts General Laws Chapter 209A. A protective order, or restraining order, protects individuals from domestic abuse. The law applies to current or former household members and can also extend to situations involving individuals the victim has been dating.

The Legal Process

To obtain a Massachusetts protective order, an individual files a Complaint for Protection from Abuse in court. You must submit an affidavit alongside the complaint. This affidavit serves as a sworn statement under oath, where the plaintiff details the abuse they have suffered. This document may also include evidence such as medical records, hospitalizations, or incidents involving the victim’s children.

As with any legal claim, it is important to follow due process. The defendant must be notified of the complaint and given an opportunity to respond. Typically, the court schedules a hearing within ten business days of the filing. However, in urgent situations, the court may issue a protective order without a hearing (ex parte) if the risk of harm is immediate. If the court is unavailable or the plaintiff cannot attend, a judge can issue a temporary emergency order, and the judge may extend it upon the presentation of further evidence.

It’s important to understand that a 209A protective order is a civil matter. The victim files the case directly against the alleged abuser, and the court does not involve a prosecutor. However, should the abuser violate the protective order, the violation may result in criminal charges. In such cases, the abuser could face arrest for continuing to harass, threaten, or contact the victim.

Rights of the Defendant

The defendant in a protective order case has several rights. First, they are entitled to notice of the complaint and the opportunity to participate in the hearing. The defendant may challenge the allegations, including presenting evidence to suggest that the plaintiff’s claims are false. Additionally, the defendant can introduce evidence of their positive behavior, such as maintaining stable employment or a supportive relationship with their children, to provide the court with a fuller picture of their character.

It is important to note that the defendant has the constitutional right not to testify, particularly if there are criminal charges pending or anticipated. Finally, once a protective order is granted, the defendant may petition the court to lift the order or expunge it from their record, depending on the circumstances.

Harassment Orders in the Commonwealth of Massachusetts

Which of the following scenarios might justify the issuance of a harassment order?

A) Alma’s estranged husband broke into her home and forced her into sex.

B) Bob and his girlfriend (and the mother of his two children) have just gone through an ugly breakup. Bob’s girlfriend has on three occasions left threatening notes on Bob’s windshield, slashed his tires, and scratched his car.

C) Dave, after being rejected for a third date, has sent Cal threatening texts, including a death threat.

D) All of the above.

The answer, of course, is D. Massachusetts defines harassment as “(i) three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse, or damage to property and that does in fact cause fear, intimidation, abuse, or damage to property; or (ii) an act that: (A) by force, threat, or duress causes another to involuntarily engage in sexual relations; or (B) constitutes a violation of sections 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.” [1]

Seeking a Harassment Order

Under Chapter 258E of the Massachusetts General Laws, any party may seek a harassment order against another party; unlike a temporary order of protection from abuse, it is not necessary that domestic violence or abuse be in the picture. The plaintiff may file a complaint to begin the procedure for obtaining a harassment order. There is no filing fee associated with this complaint. The complainant might ask the court to order the defendant to do the following:

• (i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor;
• (ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or minor;
• (iii) remain away from the plaintiffs household or workplace, whether the defendant is an adult or minor; and
• (iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided, however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted phone number and reasonable attorney’s fees.[2]

  It is important to note that Chapter 258E orders are civil in nature. The criminal harassment statute of Massachusetts provides: “Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking and shall be punished by imprisonment in the state prison for not more than 5 years or by a fine of not more than $1,000, or imprisonment in the house of correction for not more than 2 ½ years or by both such fine and imprisonment.” [3]

• In deciding whether to grant the order, the Court considers whether there is a substantial likelihood of harm posed to the plaintiff. The order may be granted temporarily; it may then be extended for a period of time deemed necessary to protect the plaintiff from harassment. In addition to the foregoing, the law also provides some guidelines for police officers, requiring them to use all reasonable means to prevent further abuse and harassment.

[1] Mass. Gen. Laws ch. 258E, s. 1.

[2] Mass. Gen. Laws ch. 258E, s. 3

[3] Mass. Gen. Laws ch. 265, s. 43