This article appeared in the July 1999 issue of the
© 1999 Massachusetts Bar Association
Matthew T.Duffy III is a sole practitioner in Everett. He concentrates his practice indomestic relations, criminal cases and personal injury actions.
It is rare for a family law or District Court practitionerto have not had a client who sought, or received a 209A Abuse Prevention Order.The statute was enacted by the Massachusetts Legislature in 1990 as an amendedversion of the 1978 Abuse Prevention statute. The law "provides a statutorymechanism by which victims of family or household abuse can enlist the aid ofthe State to prevent further abuse." Commonwealth v. Gordon,
407 Mass.340, 344, 553 N.E. 2d 915 (1990). The courts have interpreted the statute as alegislative attempt to respond to the social dynamics and problems of familiesand households prevalent in today's society.
The statute has been attacked on constitutional grounds.However, the court has held that a "no contact" provision in anabuse prevention order that forbade a defendant from having any contact eitherin person, by telephone, or in writing with a victim, did not violatedefendant's constitutional right to free speech. Commonwealth v.Thompson, 45 Mass. App. Ct. 523, 699 N.E. 2d 847 (1998).
The courts that have jurisdiction over these"abuse" cases are the Superior, Probate and Family, BostonMunicipal and District courts. Although the proceedings and the granting of theorder are considered civil in nature, any violation of the order is criminal innature. The penalty for violating an active order is imprisonment for not morethan two and one-half years or a fine of not more than $5,000 or a combinationof both. If the person charged with a violation of such an order has no priorrecord of any crime of violence, and where the court makes the determinationthat such a person would benefit by a batterer's treatment program, thecourt may order such treatment in addition to other permissible penalties. Inaddition, the court may order the defendant to pay the plaintiff for damageswhich include, but are not limited to, the cost of shelter or emergencyhousing, the loss of earning or support, out-of-pocket losses for injuriessustained or property damaged, medical expenses, moving expenses, the cost forobtaining an unlisted telephone number, and reasonable attorney's fees.G.L. c. 209A, § 7.
Of note, it has been held that distinct sentences imposedon a defendant convicted of both violating a protective order and threateningto commit various crimes did not violate double jeopardy. The court found thateven though the same conduct gave rise to both convictions, the elements of thethreat charges were not identical to elements of violating the protectiveorder. Commonwealth v. Johnson, 45 Mass. App. Ct. 473, 700 N.E. 2d 270 (1998)
While the statute specifically pertains to family members,it is also applicable to people who are not related by blood or marriage. Thisincludes a husband or wife, a former spouse, a household member, a formerhousehold member, the other parent of a person's minor child (ifunmarried), any blood relative, or anyone with whom you have had a substantialdating relationship. This last category, a "substantial datingrelationship," has presented the court with an additional prong inissuing such an order. When faced with a complaint of abuse arising from adating relationship, the court will consider the duration of the relationship,the type of relationship, the frequency of interaction between the two partiesand if the relationship has been terminated by either person, the length oftime elapsed since termination. G.L. c. 209A, § 1. Interestingly, only theProbate and Family, Boston Municipal and District courts have jurisdiction overthese abuse cases if the abuse arose from a dating relationship.
In deciding whether to issue an abuse prevention order,the court must focus on whether serious physical harm is imminent, and itshould not issue an order on the theory that it will do no harm, e.g. it seemsto be a good idea or because it will not cause the defendant any realinconvenience. Wooldridge v. Hickey, 45 Mass.App.Ct. 637, 700 N.E. 2d 296(1998). Generalized apprehension,nervousness, feeling aggravated or hassled, when there is no threat of imminentserious physical harm, does not rise to the level of "fear of imminentserious physical harm," so as to support the issuance of abuse preventionorder. Id. In most, if not all, cases, upon a finding of asubstantial likelihood of abuse, the judge will grant the order for a period of10 days without notice to the defendant. The court will also schedule a furtherhearing, thus allowing the defendant to present any information in defense andas to whether the temporary order should continue. Under G.L. c. 209A, §3, the court can extend the order for a period of one year. Generally, a judgelacks the authority to order the "expungement" of a 209A order.Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E. 2d 55 (1997).
The abused person who files a complaint may requestvarious types of relief from the court. The plaintiff may seek an orderrequesting the following relief:
- thatthe defendant not abuse the plaintiff
- thatthe defendant refrain from contacting the plaintiff (either directly orindirectly)
- thatthe defendant vacate and remain away from the household and work place of theplaintiff
- awardingthe plaintiff temporary custody of minor children
- requiringsupport payments be made by the defendant to the plaintiff
- awardingcompensation for various reasons
- impoundingplaintiff's address
- restrainingdefendant from contacting the plaintiff's child
- issuinga judicial recommendation that the defendant attend a recognizedbatterer's program
The proceedings were intended by the Legislature to beexpeditious and as informal as reasonably possible.
Recently, the Appeals Court addressed some of theprocedural aspects of enforcing an abuse-prevention order. In Commonwealth v.Munafo,
45 Mass.App.Ct. 597, 700 N.E. 2d 556 (1998), the defendant wasconvicted of violating an abuse-prevention order. On appeal, he claimed that hewas never served with the complaint for the abuse-prevention order and wasnever served with an extension to the order. The Appeals Court held that anyerror in this regard was harmless because the defendant had received in-hand serviceof the order itself (in fact, the defendant received the order in the verycourthouse in which he sought and received a similar order against the victim,and from the same judge who had issued the order against him), the defendantfailed to appear at a scheduled hearing to contest the order, and the defendantfailed to assert any prejudice or even that he would have contested theissuance of the order if he had the complaint. Underlying the court'sdecision was the belief that with a reasonable inquiry, the defendant couldhave learned of the nature and scope of the allegations against him.
Further, service of the order need not be in hand to beeffective. Under the statute, when an appropriate law enforcement agency hasmade a conscientious and reasonable effort to serve the defendant with theorder, but nevertheless failed, the law enforcement agency should notify thecourt. If after a hearing, the judge is satisfied that reasonable efforts havebeen made, he or she may order that service be made by some other identifiedmeans reasonably calculated to reach the defendant. Where such substitutedservice appears unlikely to notify the defendant, the judge may even excuseservice. Zullo v. Goguen,
423 Mass. 679 (1996).