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. The stress of unemployment added to the couple’s already rocky relationship, and Earl has grown increasingly abusive and violent towards Emma. Earl has verbally abused Emma in front of the children in their shared home, and he also slapped her on two occasions. 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.
One particular recourse for Emma, and for anyone in her situation, is to seek a protective order under Massachusetts General Laws chapter 209A. Restraining orders in general are ways for the court to compel a defendant to stop doing something. A protective order, sometimes also referred to as a restraining order, serves to protect a victim of domestic abuse, which is perpetrated by a member or former member of the victim’s household. It may also serve to protect a victim from abuse or violence perpetrated by someone the victim is/was dating.
The process by which a protective order is obtained is called a Complaint for Protection from Abuse. The Complaint is filed in the court, along with an affidavit, which is a sworn statement made under oath and under the pains and penalties of perjury. In the affidavit, the plaintiff must describe the particular circumstances surrounding the abuse, along with any evidence of prior abuse—for example, any facts regarding injuries and hospitalization, any facts regarding abuse of the minor children, and the like.
As with any other claim in court, the person who files the Complaint must adhere to certain requirements of due process: ensuring that the opposing party is entitled to notice and the opportunity to be heard. Notice of the Complaint is served on the defendant, and a hearing is typically held in court within ten court business days of filing the Complaint. There are, however, some situations under which the Court may issue a protective order ex parte, which means without the presence of the defendant, where there is a substantial likelihood of immediate danger of abuse. Moreover, a temporary emergency order may be granted even without the need to file a Complaint where the court is closed for business or the plaintiff’s physical condition, or some other severe hardship, makes him or her unable to appear in court. Initial orders that are granted may be extended, if the plaintiff continues to make a showing of abuse similar to the initial order.
It is important to note that a 209A protective order case is civil, and not criminal, in nature. The person seeking the order (the victim of abuse) files the case against the defendant (the abuser), and no prosecutor is involved. However, if the court grants a 209A protective order, and the defendant violates that order, then the defendant might be committing a crime and therefore might be arrested. Violation of the protective order might occur through continued abuse, threats, or in some cases even by contacting the victim despite the court’s orders not to do so.
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 is allowed to present his or her own credible evidence in order to present a more balanced view of the defendant’s conduct to the court. 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 protective order is granted, the defendant may, under some circumstances, petition to terminate the order or even 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?
- Last night, Alma’s estranged husband broke into her home and forced her to have sex with him.
- Bob and his girlfriend (and the mother of his two children) have just gone through an ugly break-up. Bob’s girlfriend has, on three occasions, left threatening notes on Bob’s windshield, slashed his tires, and scratched his car.
- 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.
- 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 section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.” 
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 Complaint 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.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.” 
- 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.
 Mass. Gen. Laws ch. 258E, s. 1.
 Mass. Gen. Laws ch. 258E, s. 3
 Mass. Gen. Laws ch. 265, s. 43