Section Review

A Step Toward Achieving Greater Fairness: Expungment Of Certain Entries In The Domestic Violence Record-Keeping System

Jerome Aaron is in private practice in Worcester, where he concentrates his practice in domestic relations law.

Elaine Gordon is in private practice in Worcester, where she concentrates her practice in domestic relations law.

Since 1992, Massachusetts has had a domestic violence record-keeping system for recording restraining orders and protective orders arising from domestic disputes. That many of these orders are issued ex parte and yet remain in the record-keeping system even though they are dismissed after hearing, has troubled members of the bar and the public. The record of an ex parte domestic abuse order can adversely impact future decisions concerning an individual's substantive rights. Presently, there is no statutory provision in Massachusetts for expungement of these records

Background

By St 1992, c 188, ß 7, the legislature authorized and directed the commissioner of probation to develop and implement a Domestic Violence Record Keeping System that was to contain a computerized record of the issuance and violation of any restraining or protective order issued pursuant to M G L c 209A, ß 3, 4 and 5, which are enforced under M GL c. 209A, ß 7. This record keeping system also includes a computerized record of the issuance of or violations of any protective orders or restraining orders issued pursuant to M G L c 208, ß l8 and 34B, c. 209, ß32 and c 209C, ßß 15 and 20. The relevant portion of St 1992, c 188, ß 7 (which statute was not codified in the General Laws) reads as follows:

The commissioner of probation is hereby authorized and directed to develop and implement a statewide Domestic Violence Record Keeping System…. Said system shall include a computerized record of the issuance of or violations of any protective orders, or restraining orders issued pursuant to G L c.208, ß18 and 34B; c. 209, ß 32: c. 209A; c. 209C, ßß 15 and 20…. Further, said computerized system shall include the information contained in the court activity record information system maintained by the office of said commissioner. The information contained in said system shall be made available to judges considering petitions or complaints pursuant to G.L, c. 208, ß 18 and 34B; c. 209, ß 32; c. 209A; c 209C, ßß 15 and 20. Further, the information contained in said system shall be made available to law enforcement agencies through the criminal justice information system maintained by the executive office of public safety. ..'

In 1997, the Supreme Judicial Court of Massachusetts in Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E 2d 55 (1997) observed that although G.L. c.209A, ß7 mandates the destruction of police department records of vacated 209A orders, there was no like mandate to expunge the computerized records in the statewide system. It held that no such authority could be implied, moreover, as "the absence of any provision for removal or authority for expungement reflects a deliberate legislative decision that all records be available for review by a judge … and by other authorized agencies that have a legitimate need to see the record." Id. At 157.

Vaccaro reveals the potential injustice caused by the retention of certain records in the statewide system. In that case, an ex parte restraining order was issued pursuant to G.L. c.209A. Two weeks later at a hearing with both parties testifying, the presiding judge found insufficient facts to justify continuing the order, and it was vacated. A subsequent motion to expunge the record in the statewide system was allowed. On appeal from the allowance of that motion, the Supreme Judicial Court found no statutory authority to expunge the record. Thus Vaccaro mandates that a defendant's name remain in the Domestic Violence Record Keeping System as a person who has committed an act of abuse, despite a finding to the contrary after hearing.

The effect on such a defendant is not trivial. Access to this information is through CARI (Court Activity Record Information), which is a subset of the CORI system (Criminal Offender Record Information). Those who have access to CARI include law enforcement officials, court personnel and certain airport personnel. See Title 803; Criminal History System Board, c. 3.00; Access Procedures (certification.) The information is used in a variety of circumstances where it may have negative effects, as pointed out by the Appeals Court in Jones v. Gallagher, 54 Mass.App.Ct. 883, 768 N.E.2d 1088 (2002.)

Issuance of an order effects entry of that in the Commonwealth's criminal records system, and the order can have an adverse effect upon the defendant in any future c. 209A proceeding and in certain future bail proceedings. Wooldridge v. Hickey , 45 Mass. App. Ct. 637, 638 (1998) The order can also create criminal jeopardy specific to the defendant and subject him or her to arrest without a warrant. See Richardson v. Boston, 53 Mass. App Ct. 201. 203 (2001) "The judicial imprimatur on the 209A order lends it significant weight. This is not just a filing in court but a determination by the court." Commonwealth v. Foreman, 52 Mass App. Ct. 510, 515 (2001).

Id. at 887.

The particular circumstances in which this information comes into play are worth noting. G.L. c.218, ß35A provides that when a district court receives a complaint for a misdemeanor, the person against whom the complaint is made is entitled to written notice of the complaint and an opportunity to be heard in opposition to the issuance of further process. If, however, the clerk or assistant clerk (who usually makes such an inquiry) determines that there is an "imminent threat of bodily injury" [presumably to the complainant], then there is no requirement of written notice, and the named defendant loses the right to be heard in opposition. See Com. v. Smallwood, 379 Mass. 878, 885 (1980.)

According to the statute, when assessing whether such an imminent threat exists, the clerk of court or other court officer is to consider only "the named defendant's criminal record and the records contained with in the statewide domestic violence record keeping system…" These latter records, of course, will contain 209A orders, even those which were issued ex parte but the allegations of which were later found to have no basis. Unless the officer examining the records were to make further inquiry into the circumstances of such an order, which is not authorized by the statute, and that may be impracticable without information from the defendant, the existence of an ex parte, but unsubstantiated 209A order will be available to influence the decision whether to issue court process at a point where the named defendant has no opportunity to be heard.

G.L. c.276, ß58A authorizes the commonwealth, after an arrest for certain felony offenses involving the use or threat of force against another, or after arrest for an alleged violation of a restraining order under 208, ß18, ,34B, or 34C; C.209, ß.32, or 209A, ß3, 4, or 5 "to move, based on dangerousness, for an order of pretrial detention," among other things. In assessing whether pretrial detention is necessary "to assure the safety of any other individual or the community," the judge must consider, among other things, whether the named defendant has a history of orders issued against him pursuant to "the aforesaid sections," i.e., the sections governing restraining orders mentioned above. See G.L. c.276, ß58A(5). Again, the CARI check performed by the court may show one or more ex parte 209A orders that, although dismissed after hearing, remain in the system.

G.L. c.276, ß57 empowers certain officials to "admit to bail" a prisoner or witness held under arrest or under a mittimus. These officials include judges, clerks of court, standing special commissioners and sheriffs, among others. Bail may be issued if the officer finds that 1) it will assure the appearance of the person before the court, and 2) release of the person on bail will not "endanger the safety of any other person or the community." Since the second part of the standard is identical to that in the pretrial detention statute, G.L. c.276, ß58, the official may well resort to the statewide domestic violence record keeping system for guidance.

It has been said that G.L.c.209A, ß6(7) "expanded the authority of police to make warrantless arrests for certain misdemeanors in the context of domestic abuse." Commonwealth v. Jacobsen, 419 Mass. 269,272 (2001). Such arrests have been held constitutional as long as the arresting officer had probable cause at the time of the arrest. Jacobsen, Id. at 272 n.3. Probable cause itself depends upon "facts and circumstances within the arresting officer's knowledge, of which he or she has reasonable trustworthy information…sufficient to warrant a person of reasonable caution in believing that an offense has been or is being committed" Richardson v. Boston, 53 Mass.App.Ct. 201,206 (2001), quoting Commonwealth v. Williams, 422 Mass. 111, 119 n.11 (1996).

Section 6(7) provides that "arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that the person arrested… had committed a misdemeanor involving abuse…" The facts in Richardson illustrate the often difficult balancing of information undertaken by police to determine, as in Richardson, whether abuse has been committed. Included in that balance is whether the parties' stories are trustworthy. A complainant's credibility would almost certainly be "enhanced" (as the court found it had in Richardson), by the record of a restraining order in the statewide system. That would be true even though the underlying allegations of the restraining order were ultimately found meritless. The arresting officer would not have that information, and is under no obligation to go beyond the official records.

Arrest in the domestic abuse context is not limited to situations where it is necessary to "remove the abuser from the scene of violence in order to protect the victim from further abuse," Id. at 207, as Mr. Richardson found out. He was arrested at his workplace for an assault allegedly committed earlier that afternoon, amidst co-workers who told the officers that he could not have committed the assault since he was at work the entire afternoon. It should also be noted that the officers who arrested Richardson were originally dispatched because of their sergeant's "prior knowledge" of Richardson's abuse of the complainant. Such prior knowledge in future cases might consist of information contained in the statewide system records, which at this time contains ex parte orders vacated after hearing. A mere accusation of abuse, found to have no basis, should not be available to influence the decision whether to arrest without a warrant.

Finally, airport officials are the only non court-related persons who have access to records in the statewide system. Presumably, the information can be used in hiring and firing decisions.

Although there may be justification for retaining records of expired restraining orders, or even ex parte orders that were not extended when the complainant failed to appear at the required "follow-up" hearing after notice,1 there is little justification for keeping records of ex parte orders that were terminated after hearing before a judge.2 Such ex parte orders are, by definition, unmeritorious. There is substantial doubt that such an order should play any role in serious deliberations concerning pretrial detention, bail, employment or arrest.

The Massachusetts Bar Association Family Law Council has approved legislation to correct the injustice of having such vacated ex parte orders continue in the statewide system. At the same time, the legislation seeks to provide additional information to judges, clerks and others who access these records, by indicating whether any order has been vacated, expired or dismissed. The text of the legislation is as follows:

Whenever an order is entered Ex Parte pursuant to Secs. 3, 4 and 5 of M.G.L. c. 209A, Sec. 18, Sec. 34(a) and 34(c) of c. 208 and Sec. 32 of c. 209 or Sec. 15 and 20 of c. 209C and said Order is not continued, at the first hearing date after service, both parties appearing after hearing, said Order, and any references thereto, and the defendant's name (if not listed in the registry for reasons other than the Order) shall be expunged from the Statewide Domestic Violence Record Keeping System.

In those circumstances when an order is vacated, expired or dismissed, the domestic violence records shall clearly indicate such disposition.

The enactment of these provisions will lead to a more fair consideration of the particular restraining orders that have issued from the court and will discontinue the practice, perhaps unintended, of employing vacated ex parte orders as a basis for important decisions about citizens of the commonwealth.

End notes

1. See Vaccaro v. Vaccaro, 425 Mass. 153, 158 n.5 (1997): "…frequently such orders are vacated because the plaintiff has chosen not to pursue the order. The dynamics of this choice are complex and can involve the plaintiff's self-esteem, financial and family pressures, a desire for reconciliation, coercion, intimidation, or the heightened sense of danger that accompanies a separation."[back]

2. Despite the dicta in Utaro v. Utaro, 54 Mass.App.Ct. 871,875-876 (2002), that measures exist to ensure that records of vacated restraining orders are eliminated, this appears to apply only records kept by the police. See G.L. c.209A, ß.7.[back]

©2014 Massachusetts Bar Association