Massachusetts Protective Order Lawyer

Massachusetts Restraining Orders: 209A and 258E

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

Emma has been going through a very difficult time. Her long-time boyfriend and the father of her two children, Earl, recently lost his job. Unemployment stress worsened the couple’s already rocky relationship. Earl became more abusive and violent toward Emma. He verbally abused her in front of the children. Earl slapped her twice. Then, last night, Earl beat Emma until she almost lost consciousness and threatened to kill her before fleeing the home. Emma knows she needs to contact a trusted attorney and inquire about her rights.

Emma and others in her situation can seek a Massachusetts protective order. This is under Massachusetts General Laws chapter 209A. Restraining orders in general are ways for the court to compel a defendant to stop doing something. A Massachusetts protective order, also called a restraining order, protects victims of domestic abuse. A current or former member of the victim’s household must commit the abuse. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.

The Process

A person files a Complaint for Protection from Abuse to obtain a Massachusetts protective order. They file the complaint in court, along with an affidavit. A person makes the affidavit as a sworn statement under oath and the penalties of perjury. In the affidavit, the plaintiff describes the circumstances of the abuse. The plaintiff also provides evidence of prior abuse, such as injuries, hospitalization, or abuse of minor children.

The person who files the complaint must follow due process requirements, like in any other court claim. They must ensure the opposing party receives notice and the chance to be heard. The plaintiff serves the defendant with notice of the complaint. The court typically holds a hearing within ten business days of filing the complaint. In some cases, however, the court may issue a protective order ex parte if there is immediate danger of abuse. Moreover, The court may also grant a temporary emergency order if the court is closed or the plaintiff is unable to appear. The court may extend the initial order if the plaintiff shows continued evidence of abuse.

It is important to note that a 209A protective order case is civil and not criminal in nature. The victim of abuse files the case against the abuser, and no prosecutor is involved. However, If the court grants a 209A protective order and the abuser violates it, the abuser may commit a crime. The abuser could be arrested for violating the order through continued abuse, threats, or contacting the victim.

Rights of the Defendant

What are the defendant’s rights in regards to defending a complaint for a protective order? First, as explained above, the defendant in most circumstances has the right to notice and the right to appear at the hearing. Second, the defendant may challenge the plaintiff’s complaint in various ways, including by showing that the plaintiff has fabricated his or her allegations. Third, the defendant may present credible evidence to provide the court with a more balanced view of their conduct. For example, the defendant may choose to present evidence of positive and loving family relationships, gainful employment and financial support by the defendant of any minor children, and general good standing in the community. It is important to note, however, that the defendant may exercise his or her right against self-incrimination and refuse to testify at the hearing, particularly if there is a pending or possible criminal prosecution against the defendant.

Lastly, once a Massachusetts court grants a protective order, the defendant may, under some circumstances, petition to terminate the order or expunge it from the record.

Harassment Orders in the Commonwealth of Massachusetts

The following is a test. Which of these scenarios might be appropriate for an order of protection from harassment?

A) Last night, Alma’s estranged husband broke into her home and forced her to have sex with him.

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) Cal has had two dates with Dave. After Cal turned Dave down for a third date, Dave texted him three times today, threatening to kill him.

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