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Page 1<br />
1 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 1 (2012)<br />
§ 1. Definitions.<br />
As used in this chapter the following words shall have the following meanings:<br />
"Abuse", the occurrence <strong>of</strong> one or more <strong>of</strong> the following acts between family or household members:<br />
(a) attempting to cause or causing physical harm;<br />
(b) placing another in fear <strong>of</strong> imminent serious physical harm;<br />
(c) causing another to engage involuntarily in sexual relations by force, threat or duress.<br />
"Court", the superior, probate and family, district or Boston municipal court departments <strong>of</strong> the trial court, except<br />
when the petitioner is in a dating relationship when "Court" shall mean district, probate, or Boston municipal courts.<br />
"Family or household members", persons who:<br />
(a) are or were married to one another;<br />
(b) are or were residing together in the same household;<br />
(c) are or were related by blood or marriage;<br />
(d) having a child in common regardless <strong>of</strong> whether they have ever married or lived together; or<br />
(e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district,<br />
probate or Boston municipal courts consideration <strong>of</strong> the following factors:<br />
(1) the length <strong>of</strong> time <strong>of</strong> the relationship; (2) the type <strong>of</strong> relationship; (3) the frequency <strong>of</strong> interaction between
ALM GL ch. 209A, § 1<br />
Page 2<br />
the parties; and (4) if the relationship has been terminated by either person, the length <strong>of</strong> time elapsed since the<br />
termination <strong>of</strong> the relationship.<br />
"Law <strong>of</strong>ficer", any <strong>of</strong>ficer authorized to serve criminal process.<br />
"Protection order issued by another jurisdiction", any injunction or other order issued by a court <strong>of</strong> another state,<br />
territory or possession <strong>of</strong> the United States, the Commonwealth <strong>of</strong> Puerto Rico, or the District <strong>of</strong> Columbia, or tribal<br />
court that is issued for the purpose <strong>of</strong> preventing violent or threatening acts or harassment against, or contact or<br />
communication with or physical proximity to another person, including temporary and final orders issued by civil and<br />
criminal courts filed by or on behalf <strong>of</strong> a person seeking protection.<br />
"Vacate order", court order to leave and remain away from a premises and surrendering forthwith any keys to said<br />
premises to the plaintiff. The defendant shall not damage any <strong>of</strong> the plaintiff's belongings or those <strong>of</strong> any other occupant<br />
and shall not shut <strong>of</strong>f or cause to be shut <strong>of</strong>f any utilities or mail delivery to the plaintiff. In the case where the premises<br />
designated in the vacate order is a residence, so long as the plaintiff is living at said residence, the defendant shall not<br />
interfere in any way with the plaintiff's right to possess such residence, except by order or judgment <strong>of</strong> a court <strong>of</strong><br />
competent jurisdiction pursuant to appropriate civil eviction proceedings, a petition to partition real estate, or a<br />
proceeding to divide marital property. A vacate order may include in its scope a household, a multiple family dwelling<br />
and the plaintiff's workplace. When issuing an order to vacate the plaintiff's workplace, the presiding justice must<br />
consider whether the plaintiff and defendant work in the same location or for the same employer.<br />
HISTORY: 1978, 447, § 2; 1983, 678, § 2; 1986, 310, § <strong>15</strong>; 1990, 403, § 2; 1996, 298, § 1; 1996, 450, § 232.<br />
NOTES: Editorial Note<br />
The 1983 amendment rewrote the definition <strong>of</strong> "Court" to include the family or Boston municipal court<br />
departments <strong>of</strong> the trial court.<br />
The 1986 amendment rewrote the definition <strong>of</strong> "Family or household member" by adding former household<br />
member, and parent <strong>of</strong> the plaintiff's minor child.<br />
The 1990 amendment in the opening paragraph, substituted "As used" for "The following words as used"; in<br />
paragraph (c) <strong>of</strong> the definition <strong>of</strong> "Abuse", substituted "threat" for "threat <strong>of</strong> force"; in the definition <strong>of</strong> "Court", inserted<br />
", except when the petitioner is in a dating relationship when 'Court' shall mean district, probate, or Boston municipal<br />
courts"; restructured and changed the definition <strong>of</strong> "Family or household member" to be applicable and refer to "Family<br />
or household members"; and inserted the definition <strong>of</strong> "Vacate order." Sections 14 through 16 provide:<br />
Section 14. The secretary <strong>of</strong> public safety shall establish a policy for law enforcement response to domestic<br />
violence consistent with the provisions <strong>of</strong> this act; provided, however, that he may revise, terminate, or revoke such<br />
policy at his discretion. Such policy shall be developed after consultation with the director <strong>of</strong> the victim assistance<br />
<strong>of</strong>fice, at least two representatives <strong>of</strong> a certified or provisionally certified batterer's treatment program, and at least four<br />
representatives from the governor's anti-crime council including at least one district attorney, one member <strong>of</strong> the<br />
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law<br />
enforcement response to domestic violence shall be promulgated within six months <strong>of</strong> the effective date <strong>of</strong> this act.<br />
Section <strong>15</strong>. Each law enforcement agency shall establish and implement specific operational guidelines consistent<br />
with the policy established under the provisions <strong>of</strong> section fourteen or adopt said policy. Local operational guidelines<br />
shall be submitted to the secretary <strong>of</strong> public safety for review within sixty days <strong>of</strong> the adoption <strong>of</strong> said policy. The<br />
secretary shall provide written notice <strong>of</strong> approval <strong>of</strong> the local guidelines within thirty days <strong>of</strong> receipt <strong>of</strong> said guidelines.<br />
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the<br />
absence <strong>of</strong> approved guidelines, the law enforcement agency shall implement said policy.
ALM GL ch. 209A, § 1<br />
Page 3<br />
Section 16. Within six months <strong>of</strong> the effective date <strong>of</strong> this act, guidelines and standards for the certification <strong>of</strong><br />
batterer's treatment programs by the department <strong>of</strong> public health shall be set up by a commission to be established by<br />
the chief justice <strong>of</strong> the trial court department, one member <strong>of</strong> which shall be a district attorney or his designee, two <strong>of</strong><br />
which shall be members <strong>of</strong> a recognized batterer's treatment program with training experience, two <strong>of</strong> which shall be<br />
members <strong>of</strong> a domestic violence program or the statewide coalition <strong>of</strong> programs which provide services to victims <strong>of</strong><br />
domestic violence and one <strong>of</strong> whom shall be a member from a probation department. Prior to the establishment <strong>of</strong> such<br />
guidelines and standards, the department <strong>of</strong> public health may provisionally certify batterer's treatment programs<br />
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment<br />
<strong>of</strong> guidelines under this section.<br />
The department <strong>of</strong> public health shall thereafter certify and monitor batterer's treatment programs according to the<br />
standards established and promulgated by the commission. Programs so certified shall be the only batterer's treatment<br />
programs appropriate for court referrals.<br />
The first 1996 amendment, (ch 298), inserted the definition "Protection order issued by another jurisdiction".<br />
The second 1996 amendment, (ch 450), made grammatical changes in subparagraph (d) <strong>of</strong> the definition "Family<br />
or household members."<br />
Cross References<br />
State Police forms for reporting incidents to include space to indicate abuse as defined in this section, ALM GL c<br />
22C, § 49.<br />
Protection and care <strong>of</strong> children, and proceedings against them, ALM GL c 119, § 1 et seq.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
Annotations<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.<br />
"Cohabitation" for purposes <strong>of</strong> domestic violence statutes. 71 ALR5th 285.<br />
Treatise References<br />
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.720, Violation <strong>of</strong> an Abuse Prevention<br />
Order.<br />
Estate Planning for the Aging or Incapacitated Client § 11.3.1, Abuse.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.05, 4.09, 22:8-22:10, 22:26,<br />
22:29, 22:41, 51:2, Form 208.<br />
Massachusetts Divorce Law Practice Manual § 25.7, Renewal <strong>of</strong> Protective Orders.<br />
Law Reviews
ALM GL ch. 209A, § 1<br />
Page 4<br />
Garvey, The Race Card: Dealing with Domestic Violence in the Courts. 11 Am UJ Gender Soc Pol'y & L 287<br />
(2003).<br />
Maytal, Specialized Domestic Violence Courts: Are They Worth the Trouble In Massachusetts. 18 B.U. Pub. Int.<br />
L.J. 197 (Fall, 2008).<br />
Volovski, Crime And Punishment Law Chapter: Domestic Violence. 5 Geo J Gender & L 175 (Spring, 2004).<br />
Rousseve, Sixth Annual Review <strong>of</strong> Gender and Sexuality Law: II. Criminal Law Chapter: Domestic Violence and<br />
the States. 6 Geo. J. Gender & L. 431 (2005).<br />
Hickey, Ninth Annual Review <strong>of</strong> Gender and Sexuality Law: Criminal Law Chapter: Domestic Violence and the<br />
State. 9 Geo. J. Gender & L. 625 (2008).<br />
Solon, Domestic Violence. 10 Geo. J. Gender & L. 369 (2009).<br />
Morao, Domestic Violence and the State. 7 Geo. J. Gender XXX L. 787 (2006).<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Taylor, Ex Parte Domestic Violence Orders <strong>of</strong> Protection: How Easing Access To Judicial Process Has Eased the<br />
Possibility for Abuse <strong>of</strong> the Process. 18 Kan. J.L. & Pub. Pol'y 83 (Fall, 2008).<br />
Harrington, Commonwealth v. Finase: The Scope <strong>of</strong> Massachusetts Abuse Prevention Order Prosecution and<br />
Efficacy. 29 NE J on Crim & Civ Con 193 (Summer, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A<br />
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).<br />
Alter, Recent Developments in New York Law: Article: What's an Intimate Relationship, Anyway Expanding<br />
Access to the New York State Family Courts for Civil Orders <strong>of</strong> Protection. 29 Pace L. Rev. 455 (Spring, 2009).<br />
Tracia, Navigating the Waters <strong>of</strong> Massachusetts Child Relocation Law: Assessing The Application <strong>of</strong> the Real<br />
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).<br />
Seidman and Vickers, The Second Wave: An Agenda for the Next Thirty Years <strong>of</strong> Rape Law Reform. 38 Suffolk U L<br />
Rev 467 (2005).<br />
Gresens, Denying Choice <strong>of</strong> Forum: An Interference by the Massachusetts Trial Court with Domestic Violence<br />
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Womack, Please Check One - Male or Female: Confronting Gender Identity Discrimination in Collegiate<br />
Residential Life. 44 U. Rich. L. Rev. 1365 (May, 2010).
ALM GL ch. 209A, § 1<br />
Page 5<br />
Cokler, Marriage Mimicry: The Law <strong>of</strong> Domestic Violence. 47 Wm and Mary L. Rev. 1841 (April, 2006).<br />
Wright and Logan, The Political Economy <strong>of</strong> Application Fees for Indigent Criminal Defense 47 Wm and Mary L.<br />
Rev. 2045 (April, 2006).<br />
Saperstein, Teen Dating Violence: Eliminating Statutory Barriers to Civil Protection Orders. 39 Fam. L.Q. 181<br />
(Spring, 2005).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
1. In general 2. What is "abuse" 3. --Fear <strong>of</strong> imminent serious physical harm 4. Warrantless arrest 5. Violation <strong>of</strong><br />
order 5.5. Testimony<br />
1. In general<br />
ALM GL c 209A provides statutory mechanism by which victims <strong>of</strong> family or household abuse can enlist aid <strong>of</strong><br />
state to prevent further abuse. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Where man referred to complainant as "former girlfriend," saw her 2-3 times per week, and was sexually active<br />
with her for 14-month period, "substantive dating relationship" existed for purposes <strong>of</strong> Abuse Prevention Law.<br />
Brossard v. West Roxbury Div. <strong>of</strong> the Dist. Court Dep't (1994) 417 Mass 183, 629 NE2d 295, 1994 Mass LEXIS 87.<br />
Judge was not required to include language on circumstantial evidence in jury instruction regarding elements <strong>of</strong><br />
abuse. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.<br />
Probate Court may issue domestic relations protective order during pendency <strong>of</strong> divorce proceeding to prohibit<br />
party from imposing restraint upon personal liberty <strong>of</strong> other party, to order spouse to vacate marital home, and for<br />
temporary relief from actual abuse or immediate threats <strong>of</strong> physical harm. Champagne v. Champagne (1999) 429 Mass<br />
324, 708 NE2d 100, 1999 Mass LEXIS 136.<br />
Paternal grandmother <strong>of</strong> child whose parents were not married is "related by blood" to child's mother, and thus has<br />
right to invoke protection from domestic abuse under ALM GL c 209A. Turner v. Lewis (2001) 434 Mass 331, 749<br />
NE2d 122, 2001 Mass LEXIS 329.<br />
Trial court erred in denying a boy's motion to vacate an order for protection from abuse entered pursuant to ALM<br />
GL c 209A, § 4; trial court erred in finding that the boy and a girl he allegedly sexually assaulted had engaged in a<br />
substantive dating relationship as defined by ALM GL c 209A, § 3, and ALM GL c 209A, § 1(e), as the trial court did not
ALM GL ch. 209A, § 1<br />
Page 6<br />
apply the four factors provided by ALM GL c 209A, § 1(e)(1)-(4) in determining whether a substantive dating<br />
relationship existed, and the trial court erred in refusing to allow the boy to present evidence and cross examine<br />
witnesses at the hearing in question. C.O. v. M.M. (2004) 442 Mass 648, 8<strong>15</strong> NE2d 582, 2004 Mass LEXIS 665.<br />
Because the trial court made no specific findings and conclusions <strong>of</strong> law, the supreme judicial court was unable to<br />
determine the standard that was applied in denying a girlfriend's motion to extend a protective order under ALM GL c<br />
209A, § 3; the trial court's sua sponte vacation <strong>of</strong> the original ALM GL c 209A, § 1 order was error because the only<br />
issue before it was whether the order should be extended. Iamele v. Asselin (2005) 444 Mass 734, 831 NE2d 324, 2005<br />
Mass LEXIS 421.<br />
Where plaintiff lived with her mother and mother's husband for ten years in same household until mother and her<br />
husband were divorced, plaintiff and former husband "resided in same household" and "were related . . . by marriage" as<br />
stepfather and stepdaughter within meaning <strong>of</strong> ALM GL c 209A, § 1(b) and (c). Sorgman v. Sorgman (2000) 49 Mass<br />
App 416, 729 NE2d 1141, 2000 Mass App LEXIS 470.<br />
There is no time limitation on application <strong>of</strong> ALM GL c 209A, §§ 1 and 3, so that stepdaughter who last lived with<br />
stepfather in same household in 1977, but who continued to have contact and involvement with stepfather, was not<br />
precluded from seeking protective order under ALM GL c 209A. Sorgman v. Sorgman (2000) 49 Mass App 416, 729<br />
NE2d 1141, 2000 Mass App LEXIS 470.<br />
ALM GL c 209A attempts to remedy violence among family or household members; the proceedings are civil in<br />
nature, and the appellate court accords the trial judge's findings great deference prescribed by Mass. R. Civ. P. 52(a),<br />
which may be supplemented by inspection <strong>of</strong> the transcript. Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782<br />
NE2d 1085, 2003 Mass App LEXIS 164.<br />
Appellate court reads conflicting evidence in an ALM GL c 209A proceeding granting relief to the plaintiff in the<br />
light most favorable to the plaintiff. Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass<br />
App LEXIS 164.<br />
Court should not issue an ALM GL c 209A order simply because it seems to be a good idea or because it seems it<br />
will not cause the defendant any real inconvenience as a ALM GL c 209A order will infallibly cause inconvenience; in<br />
considering whether to issue a ALM GL c 209A order, the judge must focus on whether serious physical harm is<br />
imminent, and a generalized apprehension does not rise to the level <strong>of</strong> fear <strong>of</strong> imminent serious physical harm.<br />
Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass App LEXIS 164.<br />
In considering an application for an ALM GL c 209A order, a judge must be alert against allowing the process to be<br />
used, as it sometimes is, abusively by litigants for purposes <strong>of</strong> discovery and harassment. Szymkowski v. Szymkowski<br />
(2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass App LEXIS 164.<br />
Although the judge is entitled to reject the ultimate evaluation <strong>of</strong> a Department <strong>of</strong> Social Services social worker, a<br />
judge, in the exercise <strong>of</strong> discretion, may consider the factual content <strong>of</strong> reports as to an investigation into charges <strong>of</strong><br />
abuse and neglect into account in an ALM GL c 209A proceeding. Szymkowski v. Szymkowski (2003) 57 Mass App<br />
284, 782 NE2d 1085, 2003 Mass App LEXIS 164.<br />
Where the trial judge found that abuse had not occurred but the trial judge extended abuse prevention orders to<br />
keep plaintiff and the fiance apart pending resolution <strong>of</strong> a property dispute, the trial judge erred; where abuse under<br />
ALM GL c 209A, § 1 had not occurred, the remedies under ALM GL c 209A, § 3 were unavailable. Corrado v. Hedrick<br />
(2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.<br />
No error occurred when a district court extended an abuse protection order, which a girlfriend had obtained on an<br />
emergency basis against her boyfriend's son, pursuant to ALM GL c 209A, § 3 (as amended by 1983 Mass. Acts ch.678,<br />
§ 4). The son had lived with them in the same house for two years, he kept a kept a key to the house after he moved out,
ALM GL ch. 209A, § 1<br />
Page 7<br />
he continued to receive his mail and to take showers there, he came and left without making prior arrangements, and on<br />
several occasions when he entered without permission, he had shoved and threatened her and her children; the son thus<br />
fit the definition <strong>of</strong> a "former household member" that was contained in ALM GL c 209A, § 1 (as inserted by 1990 Mass.<br />
Acts ch. 403, § 2). Aguilar v. Hernandez-Mendez (2006) 66 Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.<br />
In issuing and extending for a year an abuse protection order pursuant to ALM GL c 209A, § 3 (as amended by 1983<br />
Mass. Acts ch. 678, § 4) against a son on the petition <strong>of</strong> a girlfriend, who was the girlfriend <strong>of</strong> the son's father, a district<br />
court did not abuse its discretion; the son fit within the definition <strong>of</strong> a "former household member" under ALM GL c<br />
209A, § 1 (as inserted by 1990 Mass. Acts ch. 403, § 2), as he had lived with them for two years and had kept a key and<br />
had continued to use their home after he moved out. The legislature had consistently amended the statute since its<br />
inception in 1978 and had consistently expanded the definition <strong>of</strong> a "family or household member" in, § 1, the<br />
legislature had drafted the statute with a purposeful flexibility, the categories <strong>of</strong> persons covered under the statute had<br />
been continually expanded, and a broad and flexible interpretation was appropriate. Aguilar v. Hernandez-Mendez<br />
(2006) 66 Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.<br />
Because the ALM GL c 209A affidavit was factually detailed, based on personal knowledge and observation by the<br />
source, the statements arose under circumstances that supported the veracity <strong>of</strong> the source, originated from a<br />
disinterested witness, and was trustworthy, it was admissible in the probation revocation hearing. Commonwealth v.<br />
Henderson (2012) 82 Mass App 674, 2012 Mass. App. LEXIS 269.<br />
Because a court could issue an order <strong>of</strong> prevention and protection even without personal jurisdiction over the father,<br />
who resided in Florida, but could not impose affirmative obligations on the father if there was no personal jurisdiction,<br />
the order's prohibition against abusing, contacting, or approaching the mother or their child required no personal<br />
jurisdiction. However, that portion <strong>of</strong> the order that required the father to surrender his firearms imposed an affirmative<br />
duty, and such an obligation could only be imposed by a court with personal jurisdiction over the father. accordingly,<br />
that portion <strong>of</strong> the order was invalid. Caplan v. Donovan (2008) 450 Mass. 463, 879 NE2d 117, 2008 Mass. LEXIS 16,<br />
cert den (2008) 170 L. Ed. 2d 817, 128 S. Ct. 2088, 2008 U.S. LEXIS 3682.<br />
2. What is "abuse"<br />
Party violates order to refrain from abuse when he or she attempts to cause or causes physical harm, places another<br />
in fear <strong>of</strong> imminent serious physical harm, or causes another to engage involuntarily in sexual relations by force, threat<br />
<strong>of</strong> force, or duress. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Definition <strong>of</strong> "abuse" in ALM GL c 209A, § 1, i.e., placing another in fear <strong>of</strong> imminent serious physical harm,<br />
closely approximates common-law description <strong>of</strong> crime <strong>of</strong> assault. Commonwealth v. Gordon (1990) 407 Mass 340,<br />
553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
There was insufficient evidence that defendant's words carried an indicia <strong>of</strong> proximate execution <strong>of</strong> the substantive<br />
abuse violation <strong>of</strong> causing physical harm under ALM GL c 209A, § 1(a), to support a finding that he attempted to violate<br />
the protective order. Commonwealth v. Fortier (2002) 56 Mass App 116, 775 NE2d 785, 2002 Mass App LEXIS 1219.<br />
Child protective order was vacated as the allegations against the father constituted improper parenting, as opposed<br />
to inflicting physical harm on the child where the father: (1) told his seven-year-old child about peculiar and frightening<br />
dreams; (2) tossed a milk container at the child; (3) cuffed the child under the chin in irritation; (4) gave the child a kick<br />
in the back <strong>of</strong> her legs while both were in bed, again because he was irritated; and (5) pinched his daughter on the arm<br />
so that it left a mark. Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass App LEXIS 164.<br />
3. --Fear <strong>of</strong> imminent serious physical harm<br />
Evidence <strong>of</strong> defendant's violation <strong>of</strong> ALM GL c 209A order to refrain from abusing victim was sufficient, where<br />
jury could find that actions and words <strong>of</strong> defendant placed victim in reasonable apprehension that physical force might
ALM GL ch. 209A, § 1<br />
Page 8<br />
be used against her (defendant drove to front <strong>of</strong> victim's home, got out <strong>of</strong> car and yelled obscene language to and made<br />
obscene gesture at victim and soon thereafter told victim over telephone that he would kill her)]. Commonwealth v.<br />
Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.<br />
Hearsay statements attributed to defendant's son by complainant warranted finding that complainant was in fear <strong>of</strong><br />
imminent serious physical harm from defendant (defendant told son he should use toy sword to slit his mother's throat).<br />
Flynn v. Warner (1995) 421 Mass 1002, 654 NE2d 926, 1995 Mass LEXIS 358.<br />
Testimony before District Court was not sufficient to warrant extension <strong>of</strong> ALM GL c 209A order entered ex parte<br />
10 days earlier, where complainant's testimony that she suffered emotionally and experienced aggravation <strong>of</strong> ulcer<br />
condition as result <strong>of</strong> receiving defendant's notices <strong>of</strong> lawsuit and court proceedings did not constitute threat <strong>of</strong> serious<br />
physical harm or "abuse;" petition for relief under ALM GL c 211, § 3 should have been allowed. Larkin v. Ayer Div. <strong>of</strong><br />
the Dist. Court Dep't (1997) 425 Mass 1020, 681 NE2d 817, 1997 Mass LEXIS 174.<br />
Where the third party and ex-girlfriend found a hidden video camera in the ex-girlfriend's bedroom in a clock<br />
installed by the ex-boyfriend and the ex-boyfriend left an answering machine message with the ex-girlfriend denying<br />
the installation <strong>of</strong> the camera and stating that had the ex-boyfriend installed the camera the ex-girlfriend would not have<br />
found it, the trial court erred in issuing a protective order against the ex-boyfriend and any record <strong>of</strong> the order was to be<br />
destroyed pursuant to ALM GL c 209A, § 7; although the ex-boyfriend allegedly had a temper, joked that the<br />
ex-boyfriend could have someone taken care <strong>of</strong>, and had guns, there was nothing in the record that showed a history <strong>of</strong><br />
violence, threats, or hostility between the parties that would have objectively placed the ex-girlfriend in fear <strong>of</strong><br />
imminent serious physical harm pursuant to ALM GL c 209A, § 1. Keene v. Gangi (2004) 60 Mass App 667, 805 NE2d<br />
77, 2004 Mass App LEXIS 299.<br />
Plaintiff established her and her 14-year-old son's reasonable fear <strong>of</strong> imminent serious physical harm from<br />
defendant with evidence that defendant spent eight years in prison for raping two <strong>of</strong> the parties' other children,<br />
physically and sexually assaulted plaintiff, engaged in ominously controlling and wrathful behavior towards his family<br />
while in prison, and after his release planned to live in the same general area as plaintiff and the son. Vittone v.<br />
Clairmont (2005) 64 Mass App 479, 834 NE2d 258, 2005 Mass App LEXIS 852, review denied Vittone v. Clairmont<br />
(2005) 445 Mass 1106, 836 NE2d 1096, 2005 Mass LEXIS 633.<br />
Trial court did not err in issuing an ex parte abuse prevention order pursuant to ALM GL c 209A, § 3 against the<br />
fiance and son, as both <strong>of</strong> them, who resided with plaintiff, were household members under ALM GL c 209A, § 1, the<br />
fiance and plaintiff were in a substantive dating relationship, and plaintiff's affidavits established a sufficient factual<br />
basis for the conclusion that the fiance and son had caused plaintiff physical harm or placed plaintiff in fear <strong>of</strong> imminent<br />
serious physical harm. Corrado v. Hedrick (2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.<br />
Permanent protective order was improperly entered under ALM GL c 209A as a boyfriend's improper behavior was<br />
directly tied to his refusal in the immediate aftermath <strong>of</strong> a breakup to accept that his lengthy romantic relationship was<br />
over and that the girlfriend preferred to stay with her husband; nothing suggested that the boyfriend's intensity persisted<br />
for the two-year period between the date <strong>of</strong> the original order and when the girlfriend sought the permanent order.<br />
Smith v. Jones (2009) 75 Mass App 540, 9<strong>15</strong> NE2d 260, 2009 Mass. App. LEXIS 1280.<br />
4. Warrantless arrest<br />
ALM GL c 209A, permitting warrantless arrest for certain misdemeanors in context <strong>of</strong> domestic abuse (including<br />
placing another in fear <strong>of</strong> imminent serious physical harm) could not be relied on to justify warrantless arrest <strong>of</strong><br />
defendant for making threats, where record did not establish that defendant's threats constituted "abuse" as defined by<br />
statute. Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.<br />
If police <strong>of</strong>ficers has reason to believe that defendant's conduct with respect to person protected under ALM GL c<br />
209A placed person in fear <strong>of</strong> imminent serious physical harm, warrantless arrest for assault may be made.
ALM GL ch. 209A, § 1<br />
Page 9<br />
Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.<br />
Officers had probable cause to submit request for plaintiff's arrest for assault and battery, even though plaintiff<br />
suggests that "probable cause" analysis went afoul when <strong>of</strong>ficers erroneously obtained temporary protective order for<br />
victim stripper under ALM GL c 209A, § 1(e) since plaintiff and stripper were not involved in "substantive dating<br />
relationship," because, while choice to seek ALM GL c 209A order may well have contributed to same sense <strong>of</strong> gravity<br />
that informed decision to arrest, wisdom <strong>of</strong> obtaining ex parte restraining order has no bearing on question <strong>of</strong> whether<br />
police had probable cause to arrest. White v. Town <strong>of</strong> Marblehead (1997) 989 F Supp 345, 1997 US Dist LEXIS 20902.<br />
5. Violation <strong>of</strong> order<br />
Mother's conduct, threatening the father through his attorney with economic harm unless her demands in a custody<br />
suit were met, violated a ALM GL c 209A no contact order. As a result, the judge did not err in holding the mother in<br />
contempt. L.F. v. L.J. (2008) 2008 Mass. App. LEXIS 571.<br />
Since a father claimed that a mother's actions in a New Jersey proceeding violated the integrity <strong>of</strong> a Massachusetts<br />
order, that claim was properly addressed by a Massachusetts court; thus, the trial judge correctly denied the mother's<br />
motion to dismiss for lack <strong>of</strong> subject matter jurisdiction the father's complaint for civil contempt in violating a ALM GL<br />
c 209A order. L.F. v. L.J. (2008) 2008 Mass. App. LEXIS 571.<br />
5.5. Testimony<br />
Trial court impermissibly prevented plaintiff from calling defendant as a witness at the hearing on an application<br />
for a ALM GL c 209A abuse prevention order because defendant never asserted a privilege not to testify, and trial court<br />
did not inquire if defendant chose to do so; it was not the trial court's prerogative to make that choice for him. S.T. v.<br />
E.M. (2011) 2011 Mass. App. LEXIS 1192.
Page 10<br />
2 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 2 (2012)<br />
§ 2. Venue.<br />
Proceedings under this chapter shall be filed, heard and determined in the superior court department or the Boston<br />
municipal court department or respective divisions <strong>of</strong> the probate and family or district court departments having venue<br />
over the plaintiff's residence. If the plaintiff has left a residence or household to avoid abuse, such plaintiff shall have<br />
the option <strong>of</strong> commencing an action in the court having venue over such prior residence or household, or in the court<br />
having venue over the present residence or household.<br />
HISTORY: 1978, 447, § 2; 1983, 678, § 3.<br />
NOTES: Editorial Note<br />
The 1983 amendment rewrote this section, inserting the Boston municipal and family court departments, and<br />
adding language further specifying venue in the case where a plaintiff has left a residence to avoid abuse.<br />
Cross References<br />
Venue, generally, ALM GL c 223, §§ 1-<strong>15</strong>.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
Annotations<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.
ALM GL ch. 209A, § 2<br />
Page 11<br />
Treatise References<br />
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
Cross, Fleischner, Elder, Guardianship and Conservatorship in Massachusetts, 2d Ed. (Michie) § 9.02.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.10, 9.05, 51:2, Form 208.<br />
Massachusetts Divorce Law Practice Manual § 11.2.3, Abuse Prevention.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Gresens, Denying Choice <strong>of</strong> Forum: An Interference by the Massachusetts Trial Court with Domestic Violence<br />
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
Appellate Division <strong>of</strong> District Court Department lacks subject matter jurisdiction to review ALM GL c 209A cases<br />
in District Courts. Burrill v. Burrill (1993) 1993 Mass App Div 178, 1993 Mass App Div LEXIS 63.<br />
Trial court impermissibly prevented plaintiff from calling defendant as a witness at the hearing on an application<br />
for a ALM GL c 209A abuse prevention order because defendant never asserted a privilege not to testify, and trial court<br />
did not inquire if defendant chose to do so; it was not the trial court's prerogative to make that choice for him. S.T. v.
ALM GL ch. 209A, § 2<br />
Page 12<br />
E.M. (2011) 2011 Mass. App. LEXIS 1192.
Page 13<br />
3 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 3 (2012)<br />
§ 3. Remedies Available Through Order for Protection From Abuse.<br />
A person suffering from abuse from an adult or minor family or household member may file a complaint in the court<br />
requesting protection from such abuse, including, but not limited to, the following orders:<br />
(a) ordering the defendant to refrain from abusing the plaintiff, whether the defendant is an adult or minor;<br />
(b) ordering the defendant to refrain from contacting the plaintiff, unless authorized by the court, whether the<br />
defendant is an adult or minor;<br />
(c) ordering the defendant to vacate forthwith and remain away from the household, multiple family dwelling,<br />
and workplace. Notwithstanding the provisions <strong>of</strong> section thirty-four B <strong>of</strong> chapter two hundred and eight, an order to<br />
vacate shall be for a fixed period <strong>of</strong> time, not to exceed one year, at the expiration <strong>of</strong> which time the court may extend<br />
any such order upon motion <strong>of</strong> the plaintiff, with notice to the defendant, for such additional time as it deems necessary<br />
to protect the plaintiff from abuse;<br />
(d) awarding the plaintiff temporary custody <strong>of</strong> a minor child; provided, however, that in any case brought in the<br />
probate and family court a finding by such court by a preponderance <strong>of</strong> the evidence that a pattern or serious incident <strong>of</strong><br />
abuse, as defined in section 31A <strong>of</strong> chapter 208, toward a parent or child has occurred shall create a rebuttable<br />
presumption that it is not in the best interests <strong>of</strong> the child to be placed in sole custody, shared legal custody or shared<br />
physical custody with the abusive parent. Such presumption may be rebutted by a preponderance <strong>of</strong> the evidence that<br />
such custody award is in the best interests <strong>of</strong> the child. For the purposes <strong>of</strong> this section, an "abusive parent" shall mean a<br />
parent who has committed a pattern <strong>of</strong> abuse or a serious incident <strong>of</strong> abuse;<br />
For the purposes <strong>of</strong> this section, the issuance <strong>of</strong> an order or orders under chapter 209A shall not in and <strong>of</strong> itself<br />
constitute a pattern or serious incident <strong>of</strong> abuse; nor shall an order or orders entered ex parte under said chapter 209A be<br />
admissible to show whether a pattern or serious incident <strong>of</strong> abuse has in fact occurred; provided, however, that an order
ALM GL ch. 209A, § 3<br />
Page 14<br />
or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine,<br />
other than showing whether a pattern or serious incident <strong>of</strong> abuse has in fact occurred; provided further, that the<br />
underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding<br />
by the probate and family court that a pattern or serious incident <strong>of</strong> abuse has occurred.<br />
If the court finds that a pattern or serious incident <strong>of</strong> abuse has occurred and issues a temporary or permanent<br />
custody order, the court shall within 90 days enter written findings <strong>of</strong> fact as to the effects <strong>of</strong> the abuse on the child,<br />
which findings demonstrate that such order is in the furtherance <strong>of</strong> the child's best interests and provides for the safety<br />
and well-being <strong>of</strong> the child.<br />
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being <strong>of</strong> the child and<br />
the safety <strong>of</strong> the abused parent. The court may consider:<br />
party;<br />
(a) ordering an exchange <strong>of</strong> the child to occur in a protected setting or in the presence <strong>of</strong> an appropriate third<br />
(b) ordering visitation supervised by an appropriate third party, visitation center or agency;<br />
(c) ordering the abusive parent to attend and complete, to the satisfaction <strong>of</strong> the court, a certified batterer's<br />
treatment program as a condition <strong>of</strong> visitation;<br />
(d) ordering the abusive parent to abstain from possession or consumption <strong>of</strong> alcohol or controlled substances<br />
during the visitation and for 24 hours preceding visitation;<br />
(e) ordering the abusive parent to pay the costs <strong>of</strong> supervised visitation;<br />
(f) prohibiting overnight visitation;<br />
(g) requiring a bond from the abusive parent for the return and safety <strong>of</strong> the child;<br />
(h) ordering an investigation or appointment <strong>of</strong> a guardian ad litem or attorney for the child; and<br />
(i) imposing any other condition that is deemed necessary to provide for the safety and well-being <strong>of</strong> the child<br />
and the safety <strong>of</strong> the abused parent.<br />
Nothing in this section shall be construed to affect the right <strong>of</strong> the parties to a hearing under the rules <strong>of</strong> domestic<br />
relations procedure or to affect the discretion <strong>of</strong> the probate and family court in the conduct <strong>of</strong> such hearing.<br />
(e) ordering the defendant to pay temporary support for the plaintiff or any child in the plaintiff's custody or both,<br />
when the defendant has a legal obligation to support such a person. In determining the amount to be paid, the court shall<br />
apply the standards established in the child support guidelines. Each judgment or order <strong>of</strong> support which is issued,<br />
reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions<br />
<strong>of</strong> section 12 <strong>of</strong> chapter 119A;<br />
(f) ordering the defendant to pay the person abused monetary compensation for the losses suffered as a direct<br />
result <strong>of</strong> such abuse. Compensatory losses shall include, but not be limited to, loss <strong>of</strong> earnings or support, costs for<br />
restoring utilities, out-<strong>of</strong>-pocket losses for injuries sustained, replacement costs for locks or personal property removed<br />
or destroyed, medical and moving expenses and reasonable attorney's fees;<br />
(g) ordering information in the case record to be impounded in accordance with court rule;<br />
(h) ordering the defendant to refrain from abusing or contacting the plaintiff's child, or child in plaintiff's care or<br />
custody, unless authorized by the court;
ALM GL ch. 209A, § 3<br />
Page <strong>15</strong><br />
(i) the judge may recommend to the defendant that the defendant attend a batterer's intervention program that is<br />
certified by the department <strong>of</strong> public health.<br />
No filing fee shall be charged for the filing <strong>of</strong> the complaint. Neither the plaintiff nor the plaintiff's attorney shall be<br />
charged for certified copies <strong>of</strong> any orders entered by the court, or any copies <strong>of</strong> the file reasonably required for future<br />
court action or as a result <strong>of</strong> the loss or destruction <strong>of</strong> plaintiff's copies.<br />
Any relief granted by the court shall be for a fixed period <strong>of</strong> time not to exceed one year. Every order shall on its<br />
face state the time and date the order is to expire and shall include the date and time that the matter will again be heard.<br />
If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to<br />
extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.<br />
When the expiration date stated on the order is on a weekend day or holiday, or a date when the court is closed to<br />
business, the order shall not expire until the next date that the court is open to business. The plaintiff may appear on<br />
such next court business day at the time designated by the order to request that the order be extended. The court may<br />
also extend the order upon motion <strong>of</strong> the plaintiff, for such additional time as it deems necessary to protect from abuse<br />
the plaintiff or any child in the plaintiff's care or custody. The fact that abuse has not occurred during the pendency <strong>of</strong><br />
an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, <strong>of</strong> allowing an order<br />
to expire or be vacated, or for refusing to issue a new order.<br />
The court may modify its order at any subsequent time upon motion by either party. When the plaintiff's address is<br />
inaccessible to the defendant as provided in section 8 <strong>of</strong> this chapter and the defendant has filed a motion to modify the<br />
court's order, the court shall be responsible for notifying the plaintiff. In no event shall the court disclose any such<br />
inaccessible address.<br />
No order under this chapter shall in any manner affect title to real property.<br />
No court shall compel parties to mediate any aspect <strong>of</strong> their case. Although the court may refer the case to the<br />
family service <strong>of</strong>fice <strong>of</strong> the probation department or victim/witness advocates for information gathering purposes, the<br />
court shall not compel the parties to meet together in such information gathering sessions.<br />
A court shall not deny any complaint filed under this chapter solely because it was not filed within a particular time<br />
period after the last alleged incident <strong>of</strong> abuse.<br />
A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action<br />
only if the court has made specific written findings <strong>of</strong> fact. The court shall then provide a detailed order, sufficiently<br />
specific to apprise any law <strong>of</strong>ficer as to which party has violated the order, if the parties are in or appear to be in<br />
violation <strong>of</strong> the order.<br />
Any action commenced under the provisions <strong>of</strong> this chapter shall not preclude any other civil or criminal remedies.<br />
A party filing a complaint under this chapter shall be required to disclose any prior or pending actions involving the<br />
parties for divorce, annulment, paternity, custody or support, guardianship, separate support or legal separation, or<br />
abuse prevention.<br />
If there is a prior or pending custody support order from the probate and family court department <strong>of</strong> the trial court,<br />
an order issued in the superior, district or Boston municipal court departments <strong>of</strong> the trial court pursuant to this chapter<br />
may include any relief available pursuant to this chapter except orders for custody or support.<br />
If the parties to a proceeding under this chapter are parties in a subsequent proceeding in the probate and family<br />
court department for divorce, annulment, paternity, custody or support, guardianship or separate support, any custody or<br />
support order or judgment issued in the subsequent proceeding shall supersede any prior custody or support order under<br />
this chapter.
ALM GL ch. 209A, § 3<br />
Page 16<br />
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1990, 403, § 3; 1998, 64, § 204; 1998, 179, § 5; 1999, 127, § <strong>15</strong>5; 2000,<br />
236, §§ 22, 23, 2002, 184, § 113.<br />
NOTES: Editorial Note<br />
Acts 1978, 447, § 2, enacted this section. Section 6 provides:<br />
Section 6. The chief justice <strong>of</strong> the superior court and the chief judge <strong>of</strong> the probate court and the chief justice <strong>of</strong> the<br />
district courts shall jointly promulgate a form <strong>of</strong> petition for chapter two hundred and nine A <strong>of</strong> the General Laws,<br />
inserted by section one <strong>of</strong> this act, which shall be simple and permit a person to file a petition himself.<br />
The 1983 amendment rewrote this section, making, among others, the following changes: (1) adding language to<br />
clause (b) relative to the duration <strong>of</strong> an order to vacate the household; (2) adding clause (f) relative to the impounding <strong>of</strong><br />
plaintiff's address; (3) adding a sentence to the second paragraph providing that plaintiff shall not be charged for copies<br />
<strong>of</strong> orders entered by the court; (4) adding a sentence to the fifth paragraph requiring the complaining party to disclose<br />
any prior or pending divorce actions; and (5) adding two new paragraphs to the end <strong>of</strong> the section relative to procedures<br />
to be followed where there exists a prior or pending order for divorce.<br />
The 1990 amendment rewrote this section. Sections 14 through 16 provide:<br />
Section 14. The secretary <strong>of</strong> public safety shall establish a policy for law enforcement response to domestic<br />
violence consistent with the provisions <strong>of</strong> this act; provided, however, that he may revise, terminate, or revoke such<br />
policy at his discretion. Such policy shall be developed after consultation with the director <strong>of</strong> the victim assistance<br />
<strong>of</strong>fice, at least two representatives <strong>of</strong> a certified or provisionally certified batterer's treatment program, and at least four<br />
representatives from the governor's anti-crime council including at least one district attorney, one member <strong>of</strong> the<br />
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law<br />
enforcement response to domestic violence shall be promulgated within six months <strong>of</strong> the effective date <strong>of</strong> this act.<br />
Section <strong>15</strong>. Each law enforcement agency shall establish and implement specific operational guidelines consistent<br />
with the policy established under the provisions <strong>of</strong> section fourteen or adopt said policy. Local operational guidelines<br />
shall be submitted to the secretary <strong>of</strong> public safety for review within sixty days <strong>of</strong> the adoption <strong>of</strong> said policy. The<br />
secretary shall provide written notice <strong>of</strong> approval <strong>of</strong> the local guidelines within thirty days <strong>of</strong> receipt <strong>of</strong> said guidelines.<br />
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the<br />
absence <strong>of</strong> approved guidelines, the law enforcement agency shall implement said policy.<br />
Section 16. Within six months <strong>of</strong> the effective date <strong>of</strong> this act, guidelines and standards for the certification <strong>of</strong><br />
batterer's treatment programs by the department <strong>of</strong> public health shall be set up by a commission to be established by<br />
the chief justice <strong>of</strong> the trial court department, one member <strong>of</strong> which shall be a district attorney or his designee, two <strong>of</strong><br />
which shall be members <strong>of</strong> a recognized batterer's treatment program with training experience, two <strong>of</strong> which shall be<br />
members <strong>of</strong> a domestic violence program or the statewide coalition <strong>of</strong> programs which provide services to victims <strong>of</strong><br />
domestic violence and one <strong>of</strong> whom shall be a member from a probation department. Prior to the establishment <strong>of</strong> such<br />
guidelines and standards, the department <strong>of</strong> public health may provisionally certify batterer's treatment programs<br />
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment<br />
<strong>of</strong> guidelines under this section. The department <strong>of</strong> public health shall thereafter certify and monitor batterer's treatment<br />
programs according to the standards established and promulgated by the commission. Programs so certified shall be the<br />
only batterer's treatment programs appropriate for court referrals.<br />
The first 1998 amendment, (ch 64), in the first paragraph, revised subparagraph (e).<br />
The second 1998 amendment, (ch 179), in the first paragraph, rewrote subparagraph (d).<br />
The 1999 amendment in paragraph (g) <strong>of</strong> the first paragraph, substituted "8" for "nine".
ALM GL ch. 209A, § 3<br />
Page 17<br />
The 2000 amendment, effective Sept 28, 2000, by § 22, substituted paragraph (g) <strong>of</strong> the first paragraph, which<br />
formerly read: "ordering the plaintiff's address to be impounded as provided in section 8" and by § 23, substituted the<br />
fourth paragraph <strong>of</strong> paragraph (i) <strong>of</strong> the first paragraph, which formerly read: "The court may modify its order at any<br />
subsequent time upon motion by either party. When the plaintiff's address is impounded and the defendant has filed a<br />
motion to modify the court's order, the court shall be responsible for notifying the plaintiff. In no event shall the court<br />
disclose any impounded address." Section 100 provides:<br />
Section 100. Sections 22, 23 and 24 shall apply to complaints filed pursuant to chapter 209A <strong>of</strong> the General Laws,<br />
on or after 90 days following enactment.<br />
The 2002 amendment, effective July 1, 2002, in paragraph (i) <strong>of</strong> the first paragraph, substituted "batterer's<br />
intervention program that is certified by the department <strong>of</strong> public health" for "recognized batterer's treatment program."<br />
Cross References<br />
Age limitation as to reports concerning abused and neglected children, ALM GL c 119, § 51A.<br />
Abuse <strong>of</strong> child under 16 years <strong>of</strong> age, ALM GL c 265, § 23.<br />
Penalty for committing crime <strong>of</strong> stalking in violation <strong>of</strong> order or judgment issued pursuant to this section, ALM GL<br />
c 265, § 43.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
33 Am Jur Pro<strong>of</strong> <strong>of</strong> Facts 3d 303, Proving Child Sexual Abuse in Custody or Visitation Dispute.<br />
Annotations<br />
Admissibility <strong>of</strong> expert medical testimony on battered child syndrome. 98 ALR3d 306.<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.<br />
Treatise References<br />
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.180, Assault and Battery on a Person<br />
Protected by an Abuse Prevention Order.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.360, Assault and Battery with a Dangerous<br />
Weapon on a Person Protected by an Abuse Prevention Order.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.680, Stalking.<br />
Cross, Fleischner, Elder, Guardianship and Conservatorship in Massachusetts, 2d Ed. (Michie) § 9.02.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.11, 4.16, 6.02, 9.02, 17.01,<br />
22:12, 22:17, 22:27-22:38, 22:44-22:46, 51:2, Form 208.
ALM GL ch. 209A, § 3<br />
Page 18<br />
Massachusetts Divorce Law Practice Manual § 3.2.3, Current Use.<br />
Massachusetts Divorce Law Practice Manual § 10.2.3, Chapter 209A: Abuse Prevention.<br />
Massachusetts Divorce Law Practice Manual § 11.2.3, Abuse Prevention.<br />
Massachusetts Divorce Law Practice Manual § 25.2.1, Defining and Proving Domestic Violence.<br />
Massachusetts Divorce Law Practice Manual § 25.4.2, Mutual Restraining Order Actions Filed by Batterers.<br />
Massachusetts Divorce Law Practice Manual § 25.5.1, The Rebuttable Presumption Against Custody to Domestic<br />
Abuse Perpetrators.<br />
Massachusetts Divorce Law Practice Manual § 25.5.3, The Threshold <strong>of</strong> Abuse to Trigger the Presumption and<br />
Related Issues.<br />
Massachusetts Divorce Law Practice Manual § 25.7.2, The Plaintiff's Burden <strong>of</strong> Pro<strong>of</strong> at the Renewal Hearing.<br />
Massachusetts Divorce Law Practice Manual § 25.7.3, Attorney Fees in Chapter 209A Actions.<br />
Massachusetts Divorce Law Practice Manual § 25.7, Renewal <strong>of</strong> Protective Orders.<br />
Massachusetts Divorce Law Practice Manual § 25.10, Litigation Strategy and the Future <strong>of</strong> Our Clients.<br />
Massachusetts Divorce Law Practice Manual Exhibit 3M, Uniform Rules on Dispute Resolution.<br />
Massachusetts Guardianship and Conservatorship § 8.2.2, Private Custody Actions.<br />
Law Reviews<br />
Domestic Violence. The Georgetown Journal <strong>of</strong> Gender and the Law (2012).<br />
Saperstein, Teen Dating Violence: Eliminating Statutory Barriers to Civil Protection Orders. 39 Fam. L.Q. 181<br />
(Spring, 2005).<br />
Gonzalez and Reichmann, Representing Children in Civil Cases Involving Domestic Violence. 39 Fam. L.Q. 197<br />
(Spring, 2005).<br />
Volovski, Crime And Punishment Law Chapter: Domestic Violence. 5 Geo J Gender & L 175 (Spring, 2004).<br />
Rousseve, Sixth Annual Review <strong>of</strong> Gender and Sexuality Law: II. Criminal Law Chapter: Domestic Violence and<br />
the States. 6 Geo. J. Gender & L. 431 (2005).<br />
Hickey, Ninth Annual Review <strong>of</strong> Gender and Sexuality Law: Criminal Law Chapter: Domestic Violence and the<br />
State. 9 Geo. J. Gender & L. 625 (2008).<br />
Solon, Domestic Violence. 10 Geo. J. Gender & L. 369 (2009).<br />
Morao, Domestic Violence and the State. 7 Geo. J. Gender XXX L. 787 (2006).<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Kohn, Why Doesn't She Leave The Collision <strong>of</strong> First Amendment Rights and Effective Court Remedies for Victims
ALM GL ch. 209A, § 3<br />
Page 19<br />
<strong>of</strong> Domestic Violence. 29 Hastings Const LQ 1 (Fall, 2001).<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Taylor, Ex Parte Domestic Violence Orders <strong>of</strong> Protection: How Easing Access To Judicial Process Has Eased the<br />
Possibility for Abuse <strong>of</strong> the Process. 18 Kan. J.L. & Pub. Pol'y 83 (Fall, 2008).<br />
Dunlap, Sometimes I Feel Like a Motherless Child: The Error <strong>of</strong> Pursuing Battered Mothers for Failure to Protect.<br />
50 Loy L Rev 565.<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A<br />
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).<br />
Tracia, Navigating the Waters <strong>of</strong> Massachusetts Child Relocation Law: Assessing The Application <strong>of</strong> the Real<br />
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).<br />
Gresens, Denying Choice <strong>of</strong> Forum: An Interference by the Massachusetts Trial Court with Domestic Violence<br />
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).<br />
Balos, Creating a Constitutional Right to Counsel in the Civil Context: Domestic Violence Matters: The Case for<br />
Appointed Counsel in Protective Order Proceedings. <strong>15</strong> Temp. Pol. & Civ. Rts. L. Rev. 557 (Summer, 2006).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
ALM GL c 209A, § 3 is clear legislative statement <strong>of</strong> public policy which is <strong>of</strong> assistance in construing 1974<br />
revision <strong>of</strong> rape statutes to eliminate common law spousal exclusion. Commonwealth v. [Name Redacted] (1981) 383<br />
Mass 123, 417 NE2d 1203, 1981 Mass LEXIS 1142.<br />
Evidence <strong>of</strong> restraining order requiring defendant-husband to vacate marital home issued more than 7 months
ALM GL ch. 209A, § 3<br />
Page 20<br />
before wife was murdered was admissible as showing continued hostility between husband and wife and motive for<br />
husband to murder wife. Commonwealth v. Gil (1984) 393 Mass 204, 471 NE2d 30, 1984 Mass LEXIS 1787.<br />
Orders issued by court for protection from family abuse are for fixed period not to exceed one year but may be<br />
extended if needed. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Only violation <strong>of</strong> order to refrain from abuse or to vacate household represents criminal <strong>of</strong>fense. Commonwealth v.<br />
Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Defendant ordered to "vacate" marital home must not only surrender legal occupancy but must remain away<br />
without right to enter at any time. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS<br />
197.<br />
Plaintiff could invoke ALM GL c 211, § 3 to review issuance <strong>of</strong> restraining order under ALM GL c 209A, since<br />
ALM GL c 209A provided no express appellate remedy from issuance <strong>of</strong> restraining order by Municipal or District<br />
Court. Callahan v. Boston Municipal Court Dep't (1992) 413 Mass 1009, 604 NE2d 1287, 1992 Mass LEXIS 622.<br />
Municipal Court was proper party defendant in plaintiff's proceeding under ALM GL c 211, § 3 to review issuance<br />
<strong>of</strong> restraining order under ALM GL c 209A, where plaintiff alleged that court personnel denied her access to tape<br />
recordings <strong>of</strong> court proceedings; tapes ordered released to plaintiff. Callahan v. Boston Municipal Court Dep't (1992)<br />
413 Mass 1009, 604 NE2d 1287, 1992 Mass LEXIS 622.<br />
Even if complainant signed notice <strong>of</strong> voluntary dismissal several months after protective order had issued and wrote<br />
letter to court asking court to dismiss order, no judicial action was taken on request for voluntary dismissal and order<br />
therefore was not vacated. Brossard v. West Roxbury Div. <strong>of</strong> the Dist. Court Dep't (1994) 417 Mass 183, 629 NE2d<br />
295, 1994 Mass LEXIS 87.<br />
There is no statutory or constitutional requirement that ALM GL c 209A complainant's affidavit in support <strong>of</strong><br />
issuance <strong>of</strong> complaint be served on defendant with order. Flynn v. Warner (1995) 421 Mass 1002, 654 NE2d 926, 1995<br />
Mass LEXIS 358.<br />
Without legislative change, only route <strong>of</strong> appeal from District Court's ALM GL c 209A order is to seek relief from<br />
Single Justice <strong>of</strong> Supreme Judicial Court, and then, if necessary, from full court. Flynn v. Warner (1995) 421 Mass<br />
1002, 654 NE2d 926, 1995 Mass LEXIS 358.<br />
Order entered in ALM GL c 209A abuse prevention proceeding is not interlocutory order <strong>of</strong> trial court subject to<br />
SJC Rule 2:21. Parekh v. Parekh (1996) 421 Mass 1009, 659 NE2d 740, 1996 Mass LEXIS 9.<br />
Failure to serve defendant with copy <strong>of</strong> extended abuse prevention order did not deprive District Court <strong>of</strong> subject<br />
matter jurisdiction and was not required before defendant could be convicted <strong>of</strong> violating order, where defendant was<br />
served with temporary order at his last and usual place <strong>of</strong> abode and that order warned that if he failed to appear<br />
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass<br />
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.<br />
Complainant's testimony was insufficient to support issuance <strong>of</strong> ALM GL c 209A order against complainant's<br />
former husband and father <strong>of</strong> her two children, where former husband was incarcerated for kidnapping <strong>of</strong> complainant<br />
during time complainant alleged she was placed in fear <strong>of</strong> imminent serious physical harm, and complainant's fear that<br />
former husband knew <strong>of</strong> her home and work addresses or <strong>of</strong> children's school address did not constitute abuse. Jordan<br />
v. Clerk <strong>of</strong> the Westfield Div. <strong>of</strong> the Dist. Court Dep't (1997) 425 Mass 1016, 681 NE2d 276, 1997 Mass LEXIS <strong>15</strong>6.<br />
Testimony before District Court was not sufficient to warrant extension <strong>of</strong> 209A order entered ex parte 10 days<br />
earlier, where complainant's testimony that she suffered emotionally and experienced aggravation <strong>of</strong> ulcer condition as
ALM GL ch. 209A, § 3<br />
Page 21<br />
result <strong>of</strong> receiving defendant's notices <strong>of</strong> lawsuit and court proceedings did not constitute threat <strong>of</strong> serious physical harm<br />
or "abuse;" petition for relief under ALM GL c 211, § 3 should have been allowed. Larkin v. Ayer Div. <strong>of</strong> the Dist.<br />
Court Dep't (1997) 425 Mass 1020, 681 NE2d 817, 1997 Mass LEXIS 174.<br />
Probate Court may issue domestic relations protective order during pendency <strong>of</strong> divorce proceeding to prohibit<br />
party from imposing restraint upon personal liberty <strong>of</strong> other party, to order spouse to vacate marital home, and for<br />
temporary relief from actual abuse or immediate threats <strong>of</strong> physical harm. Champagne v. Champagne (1999) 429 Mass<br />
324, 708 NE2d 100, 1999 Mass LEXIS 136.<br />
Probate and Family Court has authority to issue or extend permanent protective orders in final judgments to<br />
married parties, separated parties, and unmarried parties with children. Champagne v. Champagne (1999) 429 Mass<br />
324, 708 NE2d 100, 1999 Mass LEXIS 136.<br />
Judge in District Court or any court with jurisdiction <strong>of</strong> request for protective order is empowered to issue<br />
permanent protective order at renewal hearing. Crenshaw v. Macklin (2000) 430 Mass 633, 722 NE2d 458, 2000 Mass<br />
LEXIS 12.<br />
District Court judge erred in ruling that she had no power to issue permanent protective order at renewal hearing<br />
and in refusing to entertain request for such order; case remanded for reconsideration. Crenshaw v. Macklin (2000) 430<br />
Mass 633, 722 NE2d 458, 2000 Mass LEXIS 12.<br />
Paternal grandmother <strong>of</strong> child whose parents were not married is "related by blood" to child's mother, and thus has<br />
right to invoke protection from domestic abuse under ALM GL c 209A. Turner v. Lewis (2001) 434 Mass 331, 749<br />
NE2d 122, 2001 Mass LEXIS 329.<br />
Trial court erred in denying a boy's motion to vacate an order for protection from abuse entered pursuant to ALM<br />
GL c 209A, § 4; trial court erred in finding that the boy and a girl he allegedly sexually assaulted had engaged in a<br />
substantive dating relationship as defined by ALM GL c 209A, § 3, and ALM GL c 209A, § 1(e), as the trial court did not<br />
apply the four factors provided by ALM GL c 209A, § 1(e)(1)-(4) in determining whether a substantive dating<br />
relationship existed, and the trial court erred in refusing to allow the boy to present evidence and cross examine<br />
witnesses at the hearing in question. C.O. v. M.M. (2004) 442 Mass 648, 8<strong>15</strong> NE2d 582, 2004 Mass LEXIS 665.<br />
Evidence consisting <strong>of</strong> assault victim's affidavit in support <strong>of</strong> application for 209A abuse prevention order and<br />
order, both identifying defendant as assailant, and police <strong>of</strong>ficer's serving <strong>of</strong> order on defendant were not admissible in<br />
prosecution for assault and battery under judicial notice doctrine or <strong>of</strong>ficial records exception to hearsay rule, where<br />
victim was available, did not testify, and was not subject to cross-examination; conviction violated article 12 <strong>of</strong><br />
Massachusetts Declaration <strong>of</strong> Rights.Commonwealth v. Kirk (1995) 39 Mass App 225, 654 NE2d 938, 1995 Mass App<br />
LEXIS 754.<br />
Findings <strong>of</strong> District Court judge were insufficient to justify revocation <strong>of</strong> defendant's probation imposed after he<br />
pleaded guilty to violating ALM GL c 209A protective order, where only evidence was that another court had revoked<br />
probation for unknown violations on unknown dates. Commonwealth v. Michaels (1996) 39 Mass App 646, 659 NE2d<br />
1209, 1996 Mass App LEXIS 14.<br />
Judge's order for defendant not to "contact" former girlfriend in person, by telephone, in writing, or otherwise was<br />
not unconstitutionally vague. Commonwealth v. Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS<br />
99.<br />
Defendant who arranged for flowers to be sent to former girlfriend violated "no contact" order. Commonwealth v.<br />
Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS 99.<br />
Protestations <strong>of</strong> "nonhostile intent" or "desire to make amends" are irrelevant to enforcement <strong>of</strong> no-contact order.
ALM GL ch. 209A, § 3<br />
Page 22<br />
Commonwealth v. Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS 99.<br />
Defendant's motion for required finding <strong>of</strong> not guilty on charge <strong>of</strong> violating extended ALM GL c 209A order<br />
should have been allowed because Commonwealth failed to establish that defendant was served with copy <strong>of</strong> order or<br />
had actual knowledge <strong>of</strong> its existence and terms. Commonwealth v. Molloy (1998) 44 Mass App 306, 690 NE2d 836,<br />
1998 Mass App LEXIS 29, review denied (1998) 427 Mass 1107, 699 NE2d 851, 1998 Mass LEXIS 452.<br />
Domestic protective order may contain one or more <strong>of</strong> following restraints: (a) refrain from abusing complainant;<br />
(b) refrain from contacting complainant; and (c) vacate forthwith and remain away from household, multiple family<br />
dwelling, and workplace. Commonwealth v. Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS<br />
1031.<br />
Where domestic protective order forbade defendant from abusing complainant but judge's instructions to jury stated<br />
that Commonwealth had to prove that defendant violated order by abusing and/or contacting her, instruction was<br />
erroneous, and although defendant did not object to instruction, error created substantial risk <strong>of</strong> miscarriage <strong>of</strong> justice in<br />
light <strong>of</strong> admitted evidence that while incarcerated defendant sent complainant over 300 letters. Commonwealth v.<br />
Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS 1031.<br />
Three convictions <strong>of</strong> defendant for threatening to commit crime (murder, assault and battery, and malicious damage<br />
to property) were not duplicative <strong>of</strong> conviction <strong>of</strong> violation <strong>of</strong> domestic protective order, and judge could impose<br />
consecutive sentences on each threatening charge to run on and after two and one-half year sentence for violating<br />
protective order. Commonwealth v. Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS 1031.<br />
Evidence from complainant that defendant had physically abused her at least eight or nine times previously was<br />
admissible at trial <strong>of</strong> defendant for violating domestic protective order because it was probative <strong>of</strong> defendant's hostility<br />
toward complainant and his pattern <strong>of</strong> acting on that hostility and <strong>of</strong> complainant's fear that defendant would harm her.<br />
Commonwealth v. Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS 1031.<br />
"No contact" provision in abuse prevention order did not violate defendant's right <strong>of</strong> free speech. Commonwealth v.<br />
Thompson (1998) 45 Mass App 523, 699 NE2d 847, 1998 Mass App LEXIS 1040, review denied (1998) 428 Mass 1108,<br />
707 NE2d 366, 1998 Mass LEXIS 739.<br />
Where judge realized need for former wife to establish that she feared imminent serious physical harm from former<br />
husband and transcript contained inaudible portions <strong>of</strong> former wife's testimony that may have described her fear <strong>of</strong><br />
repeat <strong>of</strong> past physical harm, appellate court would not disturb judge's issuance <strong>of</strong> protective order, especially since as<br />
appellant former husband did not furnish appellate court with all evidence and did not utilize procedure to repair<br />
inaudible portions <strong>of</strong> transcript. Wooldridge v. Hickey (1998) 45 Mass App 637, 700 NE2d 296, 1998 Mass App LEXIS<br />
1112.<br />
Where evidence was that former husband subjected children to verbal harassment and hit son and grabbed him<br />
when angry, evidence <strong>of</strong> imminent serious physical harm to children was lacking; order for former husband to stay<br />
away from children vacated. Wooldridge v. Hickey (1998) 45 Mass App 637, 700 NE2d 296, 1998 Mass App LEXIS<br />
1112.<br />
Where judge conducted evidentiary hearings and took evidence from both parties before making 209A restraining<br />
order permanent, defendant was not denied fair hearing. Pike v. Maguire (1999) 47 Mass App 929, 716 NE2d 686,<br />
1999 Mass App LEXIS 1081.<br />
Permanent extension <strong>of</strong> 209A abuse prevention order was justified by former wife's genuine fear <strong>of</strong> defendant for<br />
five years, which arose from defendant's past abusive acts, recent smashing <strong>of</strong> windshield <strong>of</strong> family car, and defendant's<br />
agitated conduct in court. Pike v. Maguire (1999) 47 Mass App 929, 716 NE2d 686, 1999 Mass App LEXIS 1081.
ALM GL ch. 209A, § 3<br />
Page 23<br />
Past as well as present relationships are within ambit <strong>of</strong> ALM GL c 209A, § 3. Sorgman v. Sorgman (2000) 49<br />
Mass App 416, 729 NE2d 1141, 2000 Mass App LEXIS 470.<br />
Where plaintiff lived with her mother and mother's husband for ten years in same household until mother and her<br />
husband were divorced, plaintiff and former husband "resided in same household" and "were related . . . by marriage" as<br />
stepfather and stepdaughter within meaning <strong>of</strong> ALM GL c 209A, § 1(b) and (c). Sorgman v. Sorgman (2000) 49 Mass<br />
App 416, 729 NE2d 1141, 2000 Mass App LEXIS 470.<br />
There is no time limitation on application <strong>of</strong> ALM GL c 209A, §§ 1 and 3, so that stepdaughter who last lived with<br />
stepfather in same household in 1977, but who continued to have contact and involvement with stepfather, was not<br />
precluded from seeking protective order under ALM GL c 209A. Sorgman v. Sorgman (2000) 49 Mass App 416, 729<br />
NE2d 1141, 2000 Mass App LEXIS 470.<br />
Modification <strong>of</strong> custody or support order in divorce action does not operate to modify orders in 209A proceeding<br />
which were entered to protect plaintiff from defendant's abuse. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740<br />
NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.<br />
If there is preexisting order <strong>of</strong> Probate and Family Court relative to custody or support, Superior Court, District<br />
Court, or Boston Municipal Court must abstain in 209A proceeding from making orders concerning custody and<br />
support. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied<br />
(2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.<br />
Where probate judge in divorce action issued visitation order which did not specifically modify existing 209A order<br />
issued by Probate Court against husband and was not inconsistent with 209A order, latter order was not modified.<br />
Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001)<br />
434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.<br />
If orders entered in 209A proceeding and another action in Probate Court are inconsistent, protections afforded by<br />
209A order will take precedence over orders for custody or visitation entered in other proceeding. Commonwealth v.<br />
Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001) 434 Mass 1102, 751<br />
NE2d 419, 2001 Mass LEXIS 275.<br />
Judge was warranted in concluding that there was continued need for abuse prevention order and did not err in<br />
extending order beyond initial one-year period, where defendant persisted in contacting wife although prohibited by<br />
order from doing so and wife testified that she continued to be extremely afraid <strong>of</strong> defendant. Rauseo v. Rauseo (2001)<br />
50 Mass App 911, 740 NE2d 1063, 2001 Mass App LEXIS 9, review denied Commonwealth v. Rauseo (2001) 434 Mass<br />
1103, 751 NE2d 419, 2001 Mass LEXIS 275.<br />
Where one home occupant successfully sought protective order against two other occupants in Orleans District<br />
Court and a few days later two occupants sought protective order against individual occupant in Plymouth District<br />
Court, orders were "mutual" and judge in Plymouth Court was required to make specific written findings <strong>of</strong> fact;<br />
restraining orders issued by Plymouth court vacated for failure <strong>of</strong> judge to make findings <strong>of</strong> fact. Sommi v. Ayer (2001)<br />
51 Mass App 207, 744 NE2d 679, 2001 Mass App LEXIS 210.<br />
In issuing mutual protective order, judge is required to set forth bases for concluding that mutual abuse occurred<br />
and that reciprocal order is warranted. Sommi v. Ayer (2001) 51 Mass App 207, 744 NE2d 679, 2001 Mass App LEXIS<br />
210.<br />
Purpose <strong>of</strong> requiring judge to provide specific written findings <strong>of</strong> fact when mutual restraining order or no-contact<br />
order is to be issued is to ensure that judge will carefully consider evidence presented to determine who is real victim<br />
and aggressor in abusive relationship and if mutual order is warranted. Sommi v. Ayer (2001) 51 Mass App 207, 744<br />
NE2d 679, 2001 Mass App LEXIS 210.
ALM GL ch. 209A, § 3<br />
Page 24<br />
Judge properly excluded evidence <strong>of</strong>fered by defendant that clerk-magistrate had declined to issue process on<br />
earlier complaint arising out <strong>of</strong> similar conduct by defendant, i.e., his effort to telephone daughter at former wife's<br />
residence, inasmuch as order clearly prohibited defendant from contacting wife by telephone and what defendant may<br />
have thought order meant was irrelevant. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass<br />
App LEXIS 761.<br />
Where defendant was on notice that on February 6, 1998 judge <strong>of</strong> District Court had extended protective order on<br />
permanent basis, there could be no reasonable doubt on his part that order prohibited him from calling his former wife<br />
on April 21, 1999. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.<br />
Complaints for violation <strong>of</strong> 209A protective orders are not immune from requirement <strong>of</strong> show-cause hearing under<br />
ALM GL c 218, § 35A, but notice and opportunity to be heard need not be provided if one <strong>of</strong> three exceptions set forth<br />
in § 35A applies. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.<br />
Applications for retaliatory abuse prevention orders were only allowed if the predicate conditions were shown and<br />
not as a prophylactic agent to prevent putative violations; neither ALM GL c 209A, nor the decisions interpreting it,<br />
contained any authority allowing the fear <strong>of</strong> arrest, even upon innocent contact, as a basis for a reciprocal restraining<br />
order. Uttaro v. Uttaro (2002) 54 Mass App 871, 768 NE2d 600, 2002 Mass App LEXIS 736.<br />
Woman who had previously been granted a one-year abuse prevention order could automatically obtain a<br />
permanent order without establishing by a preponderance <strong>of</strong> the evidence that without such an order she would be in<br />
danger. Jones v. Gallagher (2002) 54 Mass App 883, 768 NE2d 1088, 2002 Mass App LEXIS 745.<br />
Given a husband's history <strong>of</strong> assaults upon the husband's wife and the husband's conviction for illegal possession <strong>of</strong><br />
a machine gun, trial court did not exceed its discretion by ordering the husband to stay at least 500 yards away from the<br />
wife and 1 mile away from the wife's home. Litchfield v. Litchfield (2002) 55 Mass App 354, 770 NE2d 554, 2002 Mass<br />
App LEXIS 841.<br />
The 29-year-old daughter did not present any evidence that abuse might resume if the protective order were not<br />
issued; her "generalized apprehension" based on past abuse by her mother was insufficient to justify issuance <strong>of</strong> a<br />
restraining order. Dollan v. Dollan (2002) 55 Mass App 905, 771 NE2d 825, 2002 Mass App LEXIS 985.<br />
Trial court erred in issuing a protective order where there was no evidence that defendant threatened plaintiff, either<br />
implicitly or explicitly, with physical harm and plaintiff's subjective and unspecified fear was an insufficient basis for<br />
the order. Carroll v. Kartell (2002) 56 Mass App 83, 775 NE2d 457, 2002 Mass App LEXIS 1213.<br />
Denial <strong>of</strong> an ex-wife's request for a permanent order was vacated, and remanded as it was error to refuse, on the<br />
basis <strong>of</strong> personal preference or philosophy, a request to give consideration to a permanent order permitted by the law.<br />
Lonergan-Gillen v. Gillen (2003) 57 Mass App 746, 785 NE2d 1285, 2003 Mass App LEXIS 430.<br />
Permanent protective order was granted against two abusers who had allegedly threatened the victim's life, anally<br />
raped him, and abused him, where there was sufficient credible evidence to support such an order and where it was clear<br />
that the victim was still in fear <strong>of</strong> the abusers; it did not matter that a grand jury had not indicted the abusers on the anal<br />
rape charge, nor that the victim had not been in contact with the abusers for more than two years. Doe v. Keller (2003)<br />
57 Mass App 776, 786 NE2d 422, 2003 Mass App LEXIS 457.<br />
Defendant's convictions for violation <strong>of</strong> a no contact order were upheld where defendant contended that the<br />
comments he made about his ex-wife were not directed to her, but rather, were directed to a passenger in his vehicle, as<br />
one could not undermine a no contact order by simple expedient <strong>of</strong> ricocheting prohibited comments <strong>of</strong>f third persons;<br />
the legislature rationally concluded that prohibiting contact, whether or not the contact was itself abusive, sometimes<br />
might be necessary to reduce the likelihood that abuse would occur, under ALM GL c 209A, §§ 3(b), 7. Commonwealth<br />
v. Consoli (2003) 58 Mass App 734, 792 NE2d 1007, 2003 Mass App LEXIS 831, review denied (2003) 440 Mass 1103,
ALM GL ch. 209A, § 3<br />
Page 25<br />
797 NE2d 379, 2003 Mass LEXIS 777.<br />
Standard for determining whether prospective relief from a ALM GL c 209A order is warranted must be a flexible<br />
one under Mass. R. Dom. Rel. P. 60(b)(5); the level <strong>of</strong> impact on the underlying risk from harm that a ALM GL c 209A<br />
order seeks to protect against will vary from case to case. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79,<br />
2005 Mass App LEXIS 36.<br />
Abuse prevention order, entered after a hearing that satisfies due process requirements, should be set aside only in<br />
the most extraordinary circumstances and where it has been clearly and convincingly established that the order is no<br />
longer needed to protect the victim from harm or the reasonable fear <strong>of</strong> serious harm; furthermore, if the judge<br />
determines that it is appropriate to allow a motion to vacate or terminate a ALM GL c 209A order, the decision should<br />
be supported by findings <strong>of</strong> fact. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS<br />
36.<br />
With regard to prospective relief, a husband's motion to vacate an abuse prevention order was improperly granted<br />
because the wife's voluntary contact with the husband regarding family pets and a funeral was insufficient to show that<br />
the order was not needed to protect the wife from harm or the threat <strong>of</strong> serious harm. Mitchell v. Mitchell (2005) 62<br />
Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.<br />
Motion that seeks to vacate retroactively an order issued under ALM GL c 209A on the ground <strong>of</strong> newly<br />
discovered evidence cannot properly be granted unless it is found that the evidence relied on was not available to the<br />
party seeking relief for introduction at the original trial by the exercise <strong>of</strong> reasonable diligence, and that such evidence is<br />
material not only in the sense that it is relevant and admissible but also in the sense that it is important evidence <strong>of</strong> such<br />
a nature that it likely would have affected the result had it been available at the time. Mitchell v. Mitchell (2005) 62<br />
Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.<br />
With regard to retroactive relief from an abuse prevention order, a trial court improperly granted a husband's<br />
motion to vacate because, even if a wife's voluntary contact with the husband concerning pets and a funeral amounted to<br />
newly discovered evidence, a new trial was not warranted based on the fact that the evidence merely impeached the<br />
wife's credibility. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.<br />
Court did not abuse its discretion in issuing a permanent restraining order barring defendant from having contact<br />
with plaintiff or the parties' 14-year-old son after his release from prison, as he spent eight years in prison for raping two<br />
<strong>of</strong> the parties' children, had physically and sexually assaulted plaintiff, engaged in ominously controlling and wrathful<br />
behavior towards his family while in prison, and upon his release, planned to live in the same general area as plaintiff<br />
and the son. Vittone v. Clairmont (2005) 64 Mass App 479, 834 NE2d 258, 2005 Mass App LEXIS 852, review denied<br />
Vittone v. Clairmont (2005) 445 Mass 1106, 836 NE2d 1096, 2005 Mass LEXIS 633.<br />
Trial court did not err in issuing an ex parte abuse prevention order pursuant to ALM GL c 209A, § 3 against the<br />
fiance and son, as both <strong>of</strong> them, who resided with plaintiff, were household members under ALM GL c 209A, § 1, the<br />
fiance and plaintiff were in a substantive dating relationship, and plaintiff's affidavits established a sufficient factual<br />
basis for the conclusion that the fiance and son had caused plaintiff physical harm or placed plaintiff in fear <strong>of</strong> imminent<br />
serious physical harm. Corrado v. Hedrick (2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.<br />
District Judge had the inherent authority to expunge a record <strong>of</strong> a ALM GL c 209A civil abuse protection order<br />
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found<br />
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation <strong>of</strong> the<br />
order, nor sealing <strong>of</strong> the record was sufficient to protect the integrity <strong>of</strong> the courts, did not send an appropriate message<br />
to the public, and left a record <strong>of</strong> the order in the system; and (2) the potential harm to the courts and to the victim <strong>of</strong> the<br />
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it<br />
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL
ALM GL ch. 209A, § 3<br />
Page 26<br />
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's<br />
failure to attend a hearing on a motion to destroy all copies <strong>of</strong> the ALM GL c 209A order. Comm'r <strong>of</strong> Prob. v. Adams<br />
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.<br />
Appellate Division <strong>of</strong> District Court Department lacks subject matter jurisdiction to review ALM GL c 209A cases<br />
in District Courts. Burrill v. Burrill (1993) 1993 Mass App Div 178, 1993 Mass App Div LEXIS 63.<br />
No error occurred when a district court extended an abuse protection order, which a girlfriend had obtained on an<br />
emergency basis against her boyfriend's son, pursuant to ALM GL c 209A, § 3 (as amended by 1983 Mass. Acts ch. 678,<br />
§ 4). The son had lived with them in the same house for two years, he kept a kept a key to the house after he moved out,<br />
he continued to receive his mail and to take showers there, he came and left without making prior arrangements, and on<br />
several occasions when he entered without permission, he had shoved and threatened her and her children; the son thus<br />
fit the definition <strong>of</strong> a "former household member" that was contained in ALM GL c 209A, § 1 (as inserted by 1990 Mass.<br />
Acts ch. 403, § 2). Aguilar v. Hernandez-Mendez (2006) 66 Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.<br />
In issuing and extending for a year an abuse protection order pursuant to ALM GL c 209A, § 3 (as amended by 1983<br />
Mass. Acts ch. 678, § 4) against a son on the petition <strong>of</strong> a girlfriend, who was the girlfriend <strong>of</strong> the son's father, a district<br />
court did not abuse its discretion; the son fit within the definition <strong>of</strong> a "former household member" under ALM GL c<br />
209A, § 1 (as inserted by 1990 Mass. Acts ch. 403, § 2), as he had lived with them for two years and had kept a key and<br />
had continued to use their home after he moved out. The legislature had consistently amended the statute since its<br />
inception in 1978 and had consistently expanded the definition <strong>of</strong> a "family or household member" in § 1, the legislature<br />
had drafted the statute with a purposeful flexibility, the categories <strong>of</strong> persons covered under the statute had been<br />
continually expanded, and a broad and flexible interpretation was appropriate. Aguilar v. Hernandez-Mendez (2006) 66<br />
Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.<br />
Where a mother stated in her affidavit in support <strong>of</strong> a ALM GL c 209A abuse prevention order that defendant, her<br />
husband, had punched her son, but testified at the assault and battery trial that defendant had accidently struck her son,<br />
pursuant to Commonwealth v. Daye, 393 Mass. 55, 469 NE2d 483, 1984 Mass LEXIS 1737 (1984), the trial court<br />
properly allowed the affidavit to be used as substantive evidence. Commonwealth v Belmer (2010) 78 Mass App 62,<br />
935 NE2d 327, 2010 Mass. App. LEXIS 1320.<br />
Trial court impermissibly prevented plaintiff from calling defendant as a witness at the hearing on an application<br />
for a ALM GL c 209A abuse prevention order because defendant never asserted a privilege not to testify, and trial court<br />
did not inquire if defendant chose to do so; it was not the trial court's prerogative to make that choice for him. S.T. v.<br />
E.M. (2011) 2011 Mass. App. LEXIS 1192.<br />
In a case in which defendant appealed the extension <strong>of</strong> an abuse prevention order, defendant waived any due<br />
process objection to the procedure followed by the judge. Defense counsel actively participated in requesting, and<br />
crafting the scope <strong>of</strong>, the out-<strong>of</strong>-court inquiry that the judge undertook, and defense counsel never mentioned due<br />
process, either before or after the judge obtained a police sergeant's statements. Diaz v. Gomez (2012) 82 Mass App 55,<br />
2012 Mass. App. LEXIS 209.<br />
In a case in which defendant appealed the extension <strong>of</strong> an abuse prevention order, he unsuccessfully argued that the<br />
evidence was insufficient to support the judge's finding by a preponderance <strong>of</strong> the evidence that his former spouse was<br />
reasonably in fear <strong>of</strong> imminent physical harm. The judge found credible the former spouse's testimony that defendant<br />
previously put a gun to her head and threatened to kill her if she left him, and neither that finding, nor any <strong>of</strong> the others<br />
made by the judge, was clearly erroneous. Diaz v. Gomez (2012) 82 Mass App 55, 2012 Mass. App. LEXIS 209.<br />
Under ALM GL c 209A, household members, including petitioner's stepdaughter who resided with him, are<br />
protected from domestic abuse; thus, petitioner's conviction for indecent assault and battery under ALM GL c 265, §<br />
13H satisfied second prong <strong>of</strong> 8 USCS § 1227(a)(2)(E)(i), notwithstanding that stepdaughter never obtained protective
ALM GL ch. 209A, § 3<br />
Page 27<br />
order under ALM GL c 209A. Sutherland v. Reno (2000) 228 F3d 171, 2000 US App LEXIS 23363.<br />
General protection for household members under ALM GL c 209A applies regardless <strong>of</strong> whether they avail<br />
themselves <strong>of</strong> protective orders. Sutherland v. Reno (2000) 228 F3d 171, 2000 US App LEXIS 23363.<br />
Petitioner's convicted <strong>of</strong>fense <strong>of</strong> indecent assault and battery on person over age <strong>of</strong> 14 ( ALM GL c 265, § 13H) was<br />
both (1) "crime <strong>of</strong> violence" under 18 USCS § 16(b) because it involved substantial risk that physical force may have<br />
been used, and (2) crime committed against person protected by domestic or family violence laws <strong>of</strong> Massachusetts.<br />
Sutherland v. Reno (2000) 228 F3d 171, 2000 US App LEXIS 23363.<br />
Because the trial court made no specific findings and conclusions <strong>of</strong> law, the supreme judicial court was unable to<br />
determine the standard that was applied in denying a girlfriend's motion to extend a protective order under ALM GL c<br />
209A, § 3; the trial court's sua sponte vacation <strong>of</strong> the original ALM GL c 209A, § 1 order was error because the only<br />
issue before it was whether the order should be extended. Iamele v. Asselin (2005) 444 Mass 734, 831 NE2d 324, 2005<br />
Mass LEXIS 421.<br />
Where the trial judge found that abuse had not occurred but the trial judge extended abuse prevention orders to<br />
keep plaintiff and the fiance apart pending resolution <strong>of</strong> a property dispute, the trial judge erred; where abuse under<br />
ALM GL c 209A, § 1 had not occurred, the remedies under ALM GL c 209A, § 3 were unavailable. Corrado v. Hedrick<br />
(2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.
Page 28<br />
4 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 3A (2012)<br />
§ 3A. Information Required to be Given to Complainant.<br />
Upon the filing <strong>of</strong> a complaint under this chapter, a complainant shall be informed that the proceedings hereunder are<br />
civil in nature and that violations <strong>of</strong> orders issued hereunder are criminal in nature. Further, a complainant shall be<br />
given information prepared by the appropriate district attorney's <strong>of</strong>fice that other criminal proceedings may be available<br />
and such complainant shall be instructed by such district attorney's <strong>of</strong>fice relative to the procedures required to initiate<br />
criminal proceedings including, but not limited to, a complaint for a violation <strong>of</strong> section forty-three <strong>of</strong> chapter two<br />
hundred and sixty-five. Whenever possible, a complainant shall be provided with such information in the complainant's<br />
native language.<br />
HISTORY: 1992, 188, § 3.<br />
NOTES: Treatise References<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Web References
ALM GL ch. 209A, § 3A<br />
Page 29<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
Page 30<br />
5 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 3B (2012)<br />
§ 3B. Suspension <strong>of</strong> Firearm License and Surrender <strong>of</strong> Firearms With Temporary or Emergency Order;<br />
Petition for Review.<br />
Upon issuance <strong>of</strong> a temporary or emergency order under section four or five <strong>of</strong> this chapter, the court shall, if the<br />
plaintiff demonstrates a substantial likelihood <strong>of</strong> immediate danger <strong>of</strong> abuse, order the immediate suspension and<br />
surrender <strong>of</strong> any license to carry firearms and or firearms identification card which the defendant may hold and order<br />
the defendant to surrender all firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or<br />
possesses in accordance with the provisions <strong>of</strong> this chapter and any license to carry firearms or firearms identification<br />
cards which the defendant may hold shall be surrendered to the appropriate law enforcement <strong>of</strong>ficials in accordance<br />
with the provisions <strong>of</strong> this chapter and, said law enforcement <strong>of</strong>ficial may store, transfer or otherwise dispose <strong>of</strong> any<br />
such weapon in accordance with the provisions <strong>of</strong> section 129D <strong>of</strong> chapter 140; provided however, that nothing herein<br />
shall authorize the transfer <strong>of</strong> any weapons surrendered by the defendant to anyone other than a licensed dealer. Notice<br />
<strong>of</strong> such suspension and ordered surrender shall be appended to the copy <strong>of</strong> abuse prevention order served on the<br />
defendant pursuant to section seven. Law enforcement <strong>of</strong>ficials, upon the service <strong>of</strong> said orders, shall immediately take<br />
possession <strong>of</strong> all firearms, rifles, shotguns, machine guns, ammunition, any license to carry firearms and any firearms<br />
identification cards in the control, ownership, or possession <strong>of</strong> said defendant. Any violation <strong>of</strong> such orders shall be<br />
punishable by a fine <strong>of</strong> not more than five thousand dollars, or by imprisonment for not more than two and one-half<br />
years in a house <strong>of</strong> correction, or by both such fine and imprisonment.<br />
Any defendant aggrieved by an order <strong>of</strong> surrender or suspension as described in the first sentence <strong>of</strong> this section<br />
may petition the court which issued such suspension or surrender order for a review <strong>of</strong> such action and such petition<br />
shall be heard no later than ten court business days after the receipt <strong>of</strong> the notice <strong>of</strong> the petition by the court. If said<br />
license to carry firearms or firearms identification card has been suspended upon the issuance <strong>of</strong> an order issued<br />
pursuant to section four or five, said petition may be heard contemporaneously with the hearing specified in the second<br />
sentence <strong>of</strong> the second paragraph <strong>of</strong> section four. Upon the filing <strong>of</strong> an affidavit by the defendant that a firearm, rifle,<br />
shotgun, machine gun or ammunition is required in the performance <strong>of</strong> the defendant's employment, and upon a request
ALM GL ch. 209A, § 3B<br />
Page 31<br />
for an expedited hearing, the court shall order said hearing within two business days <strong>of</strong> receipt <strong>of</strong> such affidavit and<br />
request but only on the issue <strong>of</strong> surrender and suspension pursuant to this section.<br />
HISTORY: 1994, 24, § 6; 1996, 298, § 2; 1998, 180, § 48.<br />
NOTES: Editorial Note<br />
Acts 1994, 24, § 6, enacted this section. Section 9 provides:<br />
Section 9. Notwithstanding the provisions <strong>of</strong> any general or special law to the contrary, a licensing authority as<br />
defined in section 121 <strong>of</strong> chapter one hundred and forty <strong>of</strong> the General Laws who receives or takes possession <strong>of</strong> any<br />
firearm, rifle, shotgun, machine gun, ammunition, firearms identification card or license to carry firearms surrendered<br />
pursuant to the provisions <strong>of</strong> section three B <strong>of</strong> chapter two hundred and nine A may transport and present to the State<br />
Police all said items or store and maintain said items in the care and custody <strong>of</strong> said licensing authority. The State Police<br />
or the local licensing authority shall immediately issue a receipt to the owner <strong>of</strong> said items specifying where said items<br />
will be held. In all cases where the State Police is charged with the care and custody <strong>of</strong> said items they shall also<br />
forward a duplicate receipt to the local licensing authority. The State Police or a local licensing authority shall store and<br />
keep all said items safely and securely in accordance with standards set forth by the Executive Office <strong>of</strong> Public Safety<br />
relative to the storage <strong>of</strong> such items until an item is returned to its owner; provided that such owner shall have the right,<br />
at any time up to one year after any such order has been issued, to transfer such firearms, rifles, shotguns, machine guns<br />
and ammunition to any licensed dealer and upon notification in writing by the licensed dealer and the owner, the<br />
licensing authority shall within ten days deliver such firearms, rifles, shotguns, machine guns and ammunition to the<br />
licensed dealer. Any item stored by the State Police or the local licensing authority pursuant to such order which is not<br />
lawfully reclaimed by its owner within one year after such order has been vacated or has expired shall be destroyed. The<br />
Secretary <strong>of</strong> the Executive Office <strong>of</strong> Public Safety is hereby authorized and directed to promulgate rules and regulations<br />
necessary to carry out the provisions <strong>of</strong> this section.<br />
The 1996 amendment revised the first paragraph.<br />
The 1998 amendment revised the first paragraph.<br />
Jurisprudence<br />
79 Am Jur 2d, Weapons and Firearms § 33.<br />
Annotations<br />
Validity <strong>of</strong> state gun control legislation under state constitutional provisions securing the right to bear arms. 86<br />
ALR4th 931.<br />
Treatise References<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
ALM GL ch. 209A, § 3B<br />
Page 32<br />
2007).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
Police chief did not unreasonably determine that an applicant for renewal was no longer a suitable person to hold a<br />
weapon carry license where the chief discovered that the applicant recently had been subject to domestic relations<br />
orders that required the surrender <strong>of</strong> firearms. Howard v. Chief <strong>of</strong> Police (2003) 59 Mass App 901, 794 NE2d 604, 2003<br />
Mass App LEXIS 903.
Page 33<br />
6 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 3C (2012)<br />
§ 3C. Continuation or Modification <strong>of</strong> Firearm Suspension and Surrender Order.<br />
Upon the continuation or modification <strong>of</strong> an order issued pursuant to section 4 or upon petition for review as described<br />
in section 3B, the court shall also order or continue to order the immediate suspension and surrender <strong>of</strong> a defendant's<br />
license to carry firearms, including a Class A or Class B license, and firearms identification card and the surrender <strong>of</strong> all<br />
firearms, rifles, shotguns, machine guns or ammunition which such defendant then controls, owns or possesses if the<br />
court makes a determination that the return <strong>of</strong> such license to carry firearms, including a Class A or Class B license, and<br />
firearm identification card or firearms, rifles, shotguns, machine guns or ammunition presents a likelihood <strong>of</strong> abuse to<br />
the plaintiff. A suspension and surrender order issued pursuant to this section shall continue so long as the restraining<br />
order to which it relates is in effect; and, any law enforcement <strong>of</strong>ficial to whom such weapon is surrendered may store,<br />
transfer or otherwise dispose <strong>of</strong> any such weapon in accordance with the provisions <strong>of</strong> section 129D <strong>of</strong> chapter 140;<br />
provided, however, that nothing herein shall authorize the transfer <strong>of</strong> any weapons surrendered by the defendant to<br />
anyone other than a licensed dealer. Any violation <strong>of</strong> such order shall be punishable by a fine <strong>of</strong> not more than $5,000<br />
or by imprisonment for not more than two and one-half years in a house <strong>of</strong> correction or by both such fine and<br />
imprisonment.<br />
HISTORY: 1994, 24, § 6; 1996, 450, § 233; 1998, 180, § 49.<br />
NOTES: Editorial Note<br />
The 1996 amendment substituted "three B" for "3B <strong>of</strong> this chapter."<br />
The 1998 amendment rewrote this section.<br />
Treatise References<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
ALM GL ch. 209A, § 3C<br />
Page 34<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
Police chief did not unreasonably determine that an applicant for renewal was no longer a suitable person to hold a<br />
weapon carry license where the chief discovered that the applicant recently had been subject to domestic relations<br />
orders that required the surrender <strong>of</strong> firearms. Howard v. Chief <strong>of</strong> Police (2003) 59 Mass App 901, 794 NE2d 604, 2003<br />
Mass App LEXIS 903.
Page 35<br />
7 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
§ 4. Temporary Orders; Orders Without Notice.<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 4 (2012)<br />
Upon the filing <strong>of</strong> a complaint under this chapter, the court may enter such temporary orders as it deems necessary to<br />
protect a plaintiff from abuse, including relief as provided in section three. Such relief shall not be contingent upon the<br />
filing <strong>of</strong> a complaint for divorce, separate support, or paternity action.<br />
If the plaintiff demonstrates a substantial likelihood <strong>of</strong> immediate danger <strong>of</strong> abuse, the court may enter such<br />
temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse and shall immediately<br />
thereafter notify the defendant that the temporary orders have been issued. The court shall give the defendant an<br />
opportunity to be heard on the question <strong>of</strong> continuing the temporary order and <strong>of</strong> granting other relief as requested by<br />
the plaintiff no later than ten court business days after such orders are entered.<br />
Notice shall be made by the appropriate law enforcement agency as provided in section seven.<br />
If the defendant does not appear at such subsequent hearing, the temporary orders shall continue in effect without<br />
further order <strong>of</strong> the court.<br />
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1984, 189, § <strong>15</strong>2; 1990, 403, § 4.<br />
NOTES: Editorial Note<br />
The 1983 amendment rewrote this section, making, among others, the following changes: (1) deleting in the first<br />
paragraph references to ALM GL c 208, § 34B and ALM GL c 209 § 32, and substituting therein a reference to the<br />
section three <strong>of</strong> chapter two hundred and nine A; (2) adding a sentence to the first paragraph providing that relief shall<br />
not be contingent upon the filing <strong>of</strong> a complaint for divorce or separate support; and (3) adding two sentences to the<br />
second paragraph relative to the furnishing <strong>of</strong> notice to defendant <strong>of</strong> temporary orders, and providing for the<br />
continuance <strong>of</strong> temporary orders where the defendant fails to appear at a hearing on such orders.
ALM GL ch. 209A, § 4<br />
Page 36<br />
The 1984 amendment purported to substitute "schedule" for "schedule" in the second paragraph, but such<br />
amendment could not be executed.<br />
The 1990 amendment in the first paragraph, added at the end ", or paternity action"; in the second sentence <strong>of</strong> the<br />
second paragraph, changed from seven to ten the number <strong>of</strong> days a defendant has to appear; and added the third and<br />
fourth paragraphs. Sections 14-16 provide:<br />
Section 14. The secretary <strong>of</strong> public safety shall establish a policy for law enforcement response to domestic<br />
violence consistent with the provisions <strong>of</strong> this act; provided, however, that he may revise, terminate, or revoke such<br />
policy at his discretion. Such policy shall be developed after consultation with the director <strong>of</strong> the victim assistance<br />
<strong>of</strong>fice, at least two representatives <strong>of</strong> a certified or provisionally certified batterer's treatment program, and at least four<br />
representatives from the governor's anti-crime council including at least one district attorney, one member <strong>of</strong> the<br />
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law<br />
enforcement response to domestic violence shall be promulgated within six months <strong>of</strong> the effective date <strong>of</strong> this act.<br />
Section <strong>15</strong>. Each law enforcement agency shall establish and implement specific operational guidelines consistent<br />
with the policy established under the provisions <strong>of</strong> section fourteen or adopt said policy. Local operational guidelines<br />
shall be submitted to the secretary <strong>of</strong> public safety for review within sixty days <strong>of</strong> the adoption <strong>of</strong> said policy. The<br />
secretary shall provide written notice <strong>of</strong> approval <strong>of</strong> the local guidelines within thirty days <strong>of</strong> receipt <strong>of</strong> said guidelines.<br />
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the<br />
absence <strong>of</strong> approved guidelines, the law enforcement agency shall implement said policy.<br />
Section 16. Within six months <strong>of</strong> the effective date <strong>of</strong> this act, guidelines and standards for the certification <strong>of</strong><br />
batterer's treatment programs by the department <strong>of</strong> public health shall be set up by a commission to be established by<br />
the chief justice <strong>of</strong> the trial court department, one member <strong>of</strong> which shall be a district attorney or his designee, two <strong>of</strong><br />
which shall be members <strong>of</strong> a recognized batterer's treatment program with training experience, two <strong>of</strong> which shall be<br />
members <strong>of</strong> a domestic violence program or the statewide coalition <strong>of</strong> programs which provide services to victims <strong>of</strong><br />
domestic violence and one <strong>of</strong> whom shall be a member from a probation department. Prior to the establishment <strong>of</strong> such<br />
guidelines and standards, the department <strong>of</strong> public health may provisionally certify batterer's treatment programs<br />
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment<br />
<strong>of</strong> guidelines under this section. The department <strong>of</strong> public health shall thereafter certify and monitor batterer's treatment<br />
programs according to the standards established and promulgated by the commission. Programs so certified shall be the<br />
only batterer's treatment programs appropriate for court referrals.<br />
Cross References<br />
Penalty for committing crime <strong>of</strong> stalking in violation <strong>of</strong> order or judgment issued pursuant to this section, ALM GL<br />
c 265, § 43.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
Annotations<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.<br />
Treatise References<br />
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
ALM GL ch. 209A, § 4<br />
Page 37<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.180, Assault and Battery on a Person<br />
Protected by an Abuse Prevention Order.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.360, Assault and Battery with a Dangerous<br />
Weapon on a Person Protected by an Abuse Prevention Order.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.13, 22:12, 22:20-22:24, 22:35,<br />
22:62, 51:2, Form 208.<br />
Law Reviews<br />
Collaboration and Coercion. Hastings Women's Law Journal (Winter, 2013).<br />
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims <strong>of</strong><br />
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough 17 Suffolk J. Trial & App. Adv. 102<br />
(2012).<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Taylor, Ex Parte Domestic Violence Orders <strong>of</strong> Protection: How Easing Access To Judicial Process Has Eased the<br />
Possibility for Abuse <strong>of</strong> the Process. 18 Kan. J.L. & Pub. Pol'y 83 (Fall, 2008).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A<br />
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).<br />
Gresens, Denying Choice <strong>of</strong> Forum: An Interference by the Massachusetts Trial Court with Domestic Violence<br />
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
ALM GL ch. 209A, § 4<br />
Page 38<br />
CASE NOTES<br />
Emergency hearing regarding transfer <strong>of</strong> custody <strong>of</strong> child in need <strong>of</strong> care and protection may be held ex parte.<br />
Care & Protection <strong>of</strong> Robert (1990) 408 Mass 52, 556 NE2d 993, 1990 Mass LEXIS 325.<br />
After District Court judge vacated temporary protective order against husband, judge lacked statutory authority to<br />
order expungement <strong>of</strong> husband's name from statewide domestic violence record keeping system created by St. 1992 ch.<br />
188, § 7. Vaccaro v. Vaccaro (1997) 425 Mass <strong>15</strong>3, 680 NE2d 55, 1997 Mass LEXIS 121.<br />
Failure to serve defendant with copy <strong>of</strong> extended abuse prevention order did not deprive District Court <strong>of</strong> subject<br />
matter jurisdiction and was not required before defendant could be convicted <strong>of</strong> violating order, where defendant was<br />
served with temporary order at his last and usual place <strong>of</strong> abode and that order warned that if he failed to appear<br />
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass<br />
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.<br />
Testimony before District Court was not sufficient to warrant extension <strong>of</strong> 209A order entered ex parte 10 days<br />
earlier, where complainant's testimony that she suffered emotionally and experienced aggravation <strong>of</strong> ulcer condition as<br />
result <strong>of</strong> receiving defendant's notices <strong>of</strong> lawsuit and court proceedings did not constitute threat <strong>of</strong> serious physical harm<br />
or "abuse;" petition for relief under ALM GL c 211, § 3 should have been allowed. Larkin v. Ayer Div. <strong>of</strong> the Dist.<br />
Court Dep't (1997) 425 Mass 1020, 681 NE2d 817, 1997 Mass LEXIS 174.<br />
Where incarcerated defendant received actual notice <strong>of</strong> scheduled hearing on extension <strong>of</strong> temporary protective<br />
order which had been granted ex parte, knew order could be extended, and never expressed desire to exercise his right<br />
to be heard, defendant's due process rights were not violated and his conviction for violation <strong>of</strong> protective order would<br />
be affirmed. Commonwealth v. Henderson (2001) 434 Mass <strong>15</strong>5, 747 NE2d 659, 2001 Mass LEXIS 213.<br />
Trial court erred in denying a boy's motion to vacate an order for protection from abuse entered pursuant to ALM<br />
GL c 209A, § 4; trial court erred in finding that the boy and a girl he allegedly sexually assaulted had engaged in a<br />
substantive dating relationship as defined by ALM GL c 209A, § 3, and ALM GL c 209A, § 1(e), as the trial court did not<br />
apply the four factors provided by ALM GL c 209A, § 1(e)(1)-(4) in determining whether a substantive dating<br />
relationship existed, and the trial court erred in refusing to allow the boy to present evidence and cross examine<br />
witnesses at the hearing in question. C.O. v. M.M. (2004) 442 Mass 648, 8<strong>15</strong> NE2d 582, 2004 Mass LEXIS 665.<br />
District Judge had the inherent authority to expunge a record <strong>of</strong> a ALM GL c 209A civil abuse protection order<br />
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found<br />
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation <strong>of</strong> the<br />
order, nor sealing <strong>of</strong> the record was sufficient to protect the integrity <strong>of</strong> the courts, did not send an appropriate message<br />
to the public, and left a record <strong>of</strong> the order in the system; and (2) the potential harm to the courts and to the victim <strong>of</strong> the<br />
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it<br />
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL<br />
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's<br />
failure to attend a hearing on a motion to destroy all copies <strong>of</strong> the ALM GL c 209A order. Comm'r <strong>of</strong> Prob. v. Adams<br />
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.<br />
Plaintiff could not meet his burden, in action under anti-SLAPP law ( ALM GL c 231, § 59H) to show that<br />
defendant's exercise <strong>of</strong> her right to petition court for extended orders for protection from abuse was devoid <strong>of</strong> any<br />
reasonable factual support or arguable basis in law where plaintiff had opportunity to be heard before any temporary<br />
order was extended under ALM GL c 209A, even though he was ultimately acquitted after jury trial for allegedly<br />
violating such order. Franco v. Mudford (2002) 2002 Mass App Div 63, 2002 Mass App Div LEXIS 26.
Page 39<br />
8 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 5 (2012)<br />
§ 5. Granting <strong>of</strong> Relief When Courts Closed; Notice; Next-Day Certification.<br />
[Effective until July 1, 2012.] When the court is closed for business or the plaintiff is unable to appear in court<br />
because <strong>of</strong> severe hardship due to the plaintiff's physical condition, any justice <strong>of</strong> the superior, probate and family,<br />
district or Boston municipal court departments may grant relief to the plaintiff as provided under section four if the<br />
plaintiff demonstrates a substantial likelihood <strong>of</strong> immediate danger <strong>of</strong> abuse. In the discretion <strong>of</strong> the justice, such relief<br />
may be granted and communicated by telephone to an <strong>of</strong>ficer or employee <strong>of</strong> an appropriate law enforcement agency,<br />
who shall record such order on a form <strong>of</strong> order promulgated for such use by the chief administrative justice and shall<br />
deliver a copy <strong>of</strong> such order on the next court day to the clerk-magistrate <strong>of</strong> the court having venue and jurisdiction over<br />
the matter. If relief has been granted without the filing <strong>of</strong> a complaint pursuant to this section <strong>of</strong> this chapter, then the<br />
plaintiff shall appear in court on the next available business day to file said complaint. If the plaintiff in such a case is<br />
unable to appear in court without severe hardship due to the plaintiff's physical condition, then a representative may<br />
appear in court on the plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances<br />
preventing the plaintiff from appearing personally. Notice to the plaintiff and defendant and an opportunity for the<br />
defendant to be heard shall be given as provided in said section four.<br />
[Effective July 1, 2012.]<br />
When the court is closed for business or the plaintiff is unable to appear in court because <strong>of</strong> severe hardship due to<br />
the plaintiff's physical condition, any justice <strong>of</strong> the superior, probate and family, district or Boston municipal court<br />
departments may grant relief to the plaintiff as provided under section four if the plaintiff demonstrates a substantial<br />
likelihood <strong>of</strong> immediate danger <strong>of</strong> abuse. In the discretion <strong>of</strong> the justice, such relief may be granted and communicated<br />
by telephone to an <strong>of</strong>ficer or employee <strong>of</strong> an appropriate law enforcement agency, who shall record such order on a<br />
form <strong>of</strong> order promulgated for such use by the chief justice <strong>of</strong> the trial court and shall deliver a copy <strong>of</strong> such order on<br />
the next court day to the clerk-magistrate <strong>of</strong> the court having venue and jurisdiction over the matter. If relief has been<br />
granted without the filing <strong>of</strong> a complaint pursuant to this section <strong>of</strong> this chapter, then the plaintiff shall appear in court<br />
on the next available business day to file said complaint. If the plaintiff in such a case is unable to appear in court
ALM GL ch. 209A, § 5<br />
Page 40<br />
without severe hardship due to the plaintiff's physical condition, then a representative may appear in court on the<br />
plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff<br />
from appearing personally. Notice to the plaintiff and defendant and an opportunity for the defendant to be heard shall<br />
be given as provided in said section four.<br />
Any order issued under this section and any documentation in support there<strong>of</strong> shall be certified on the next court<br />
day by the clerk-magistrate or register <strong>of</strong> the court issuing such order to the court having venue and jurisdiction over the<br />
matter. Such certification to the court shall have the effect <strong>of</strong> commencing proceedings under this chapter and invoking<br />
the other provisions <strong>of</strong> this chapter but shall not be deemed necessary for an emergency order issued under this section<br />
to take effect.<br />
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1990, 403, §§ 5, 6; 1996, 298, §§ 3, 4; 2011, 93, § 40.<br />
NOTES: Editorial Note<br />
The 1983 amendment substantially rewrote this section, making, among other changes, the following changes: (1)<br />
expanding the category <strong>of</strong> justices who can grant relief under this section; (2) adding other language in the first<br />
paragraph relative to notice and a subsequent hearing on such relief; (3) deleting the paragraph which provided that<br />
orders issued under this section would terminate as <strong>of</strong> the close <strong>of</strong> business on the next day the court is in session; and<br />
(4) adding language to the last paragraph to provide that certification <strong>of</strong> an order shall not be necessary for such order to<br />
take effect.<br />
The 1990 amendment in the first paragraph, added the second sentence relative to relief granted and<br />
communicated by telephone, and in the first sentence <strong>of</strong> the second paragraph, following "clerk-magistrate", inserted "or<br />
register." Sections 14-16 provide:<br />
Section 14. The secretary <strong>of</strong> public safety shall establish a policy for law enforcement response to domestic<br />
violence consistent with the provisions <strong>of</strong> this act; provided, however, that he may revise, terminate, or revoke such<br />
policy at his discretion. Such policy shall be developed after consultation with the director <strong>of</strong> the victim assistance<br />
<strong>of</strong>fice, at least two representatives <strong>of</strong> a certified or provisionally certified batterer's treatment program, and at least four<br />
representatives from the governor's anti-crime council including at least one district attorney, one member <strong>of</strong> the<br />
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law<br />
enforcement response to domestic violence shall be promulgated within six months <strong>of</strong> the effective date <strong>of</strong> this act.<br />
Section <strong>15</strong>. Each law enforcement agency shall establish and implement specific operational guidelines consistent<br />
with the policy established under the provisions <strong>of</strong> section fourteen or adopt said policy. Local operational guidelines<br />
shall be submitted to the secretary <strong>of</strong> public safety for review within sixty days <strong>of</strong> the adoption <strong>of</strong> said policy. The<br />
secretary shall provide written notice <strong>of</strong> approval <strong>of</strong> the local guidelines within thirty days <strong>of</strong> receipt <strong>of</strong> said guidelines.<br />
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the<br />
absence <strong>of</strong> approved guidelines, the law enforcement agency shall implement said policy.<br />
Section 16. Within six months <strong>of</strong> the effective date <strong>of</strong> this act, guidelines and standards for the certification <strong>of</strong><br />
batterer's treatment programs by the department <strong>of</strong> public health shall be set up by a commission to be established by<br />
the chief justice <strong>of</strong> the trial court department, one member <strong>of</strong> which shall be a district attorney or his designee, two <strong>of</strong><br />
which shall be members <strong>of</strong> a recognized batterer's treatment program with training experience, two <strong>of</strong> which shall be<br />
members <strong>of</strong> a domestic violence program or the statewide coalition <strong>of</strong> programs which provide services to victims <strong>of</strong><br />
domestic violence and one <strong>of</strong> whom shall be a member from a probation department. Prior to the establishment <strong>of</strong> such<br />
guidelines and standards, the department <strong>of</strong> public health may provisionally certify batterer's treatment programs<br />
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment<br />
<strong>of</strong> guidelines under this section. The department <strong>of</strong> public health shall thereafter certify and monitor batterer's treatment<br />
programs according to the standards established and promulgated by the commission. Programs so certified shall be the
ALM GL ch. 209A, § 5<br />
Page 41<br />
only batterer's treatment programs appropriate for court referrals.<br />
The 1996 amendment, by § 3, in the first sentence <strong>of</strong> the first paragraph, following "business" inserted "or the<br />
plaintiff is . . . physical condition"; and by § 4, in the first paragraph, inserted the fourth sentence.<br />
The 2011 amendment, effective July 1, 2012, substituted "chief justice <strong>of</strong> the trial court" for "chief administrative<br />
justice" in the second sentence <strong>of</strong> the first paragraph. Section 137 provides:<br />
Section 137. Sections 2 to 7, inclusive, 10 to 54, inclusive, 57 to 117, inclusive, 122, 123, 124, 125 and 127A shall<br />
take effect on July 1, 2012.<br />
Cross References<br />
Penalty for committing crime <strong>of</strong> stalking in violation <strong>of</strong> order or judgment issued pursuant to this section, ALM GL<br />
c 265, § 43.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
Annotations<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.<br />
Treatise References<br />
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.180, Assault and Battery on a Person<br />
Protected by an Abuse Prevention Order.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.360, Assault and Battery with a Dangerous<br />
Weapon on a Person Protected by an Abuse Prevention Order.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.680, Stalking.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) § 4.13, 51:2, Form 208.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A<br />
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).
ALM GL ch. 209A, § 5<br />
Page 42<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
Failure to serve defendant with copy <strong>of</strong> extended abuse prevention order did not deprive District Court <strong>of</strong> subject<br />
matter jurisdiction and was not required before defendant could be convicted <strong>of</strong> violating order, where defendant was<br />
served with temporary order at his last and usual place <strong>of</strong> abode and that order warned that if he failed to appear<br />
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass<br />
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.<br />
Personal service <strong>of</strong> protective order is not required if Commonwealth can show that defendant had actual or<br />
constructive knowledge <strong>of</strong> existence and terms <strong>of</strong> court order. Commonwealth v. Molloy (1998) 44 Mass App 306, 690<br />
NE2d 836, 1998 Mass App LEXIS 29, review denied (1998) 427 Mass 1107, 699 NE2d 851, 1998 Mass LEXIS 452.<br />
District Judge had the inherent authority to expunge a record <strong>of</strong> a ALM GL c 209A civil abuse protection order<br />
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found<br />
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation <strong>of</strong> the<br />
order, nor sealing <strong>of</strong> the record was sufficient to protect the integrity <strong>of</strong> the courts, did not send an appropriate message<br />
to the public, and left a record <strong>of</strong> the order in the system; and (2) the potential harm to the courts and to the victim <strong>of</strong> the<br />
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it<br />
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL<br />
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's<br />
failure to attend a hearing on a motion to destroy all copies <strong>of</strong> the ALM GL c 209A order. Comm'r <strong>of</strong> Prob. v. Adams<br />
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.
Page 43<br />
9 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 5A (2012)<br />
§ 5A. Protection Orders Issued By Another Jurisdiction.<br />
Any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit<br />
throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in<br />
effect in the issuing jurisdiction.<br />
A person entitled to protection under a protection order issued by another jurisdiction may file such order in the<br />
superior court department or the Boston municipal court department or any division <strong>of</strong> the probate and family or district<br />
court departments by filing with the court a certified copy <strong>of</strong> such order which shall be entered into the statewide<br />
domestic violence record keeping system established pursuant to the provisions <strong>of</strong> section seven <strong>of</strong> chapter one hundred<br />
and eighty-eight <strong>of</strong> the acts <strong>of</strong> nineteen hundred and ninety-two and maintained by the <strong>of</strong>fice <strong>of</strong> the commissioner <strong>of</strong><br />
probation. Such person shall swear under oath in an affidavit, to the best <strong>of</strong> such person's knowledge, that such order is<br />
presently in effect as written. Upon request by a law enforcement agency, the register or clerk <strong>of</strong> such court shall<br />
provide a certified copy <strong>of</strong> the protection order issued by the other jurisdiction.<br />
A law enforcement <strong>of</strong>ficer may presume the validity <strong>of</strong>, and enforce in accordance with section six, a copy <strong>of</strong> a<br />
protection order issued by another jurisdiction which has been provided to the law enforcement <strong>of</strong>ficer by any source;<br />
provided, however, that the <strong>of</strong>ficer is also provided with a statement by the person protected by the order that such order<br />
remains in effect. Law enforcement <strong>of</strong>ficers may rely on such statement by the person protected by such order.<br />
HISTORY: 1996, 298, § 5.<br />
NOTES: Treatise References<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
Law Reviews
ALM GL ch. 209A, § 5A<br />
Page 44<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
93.<br />
Smith, Battered Non-Wives and Unequal Protection-Order Coverage: A Call for Reform. 23 Yale L & Pol'y Rev<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
Page 45<br />
10 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 6 (2012)<br />
§ 6. Powers and Duties <strong>of</strong> Law Officers; Notice <strong>of</strong> Rights.<br />
Whenever any law <strong>of</strong>ficer has reason to believe that a family or household member has been abused or is in danger <strong>of</strong><br />
being abused, such <strong>of</strong>ficer shall use all reasonable means to prevent further abuse. The <strong>of</strong>ficer shall take, but not be<br />
limited to the following action:<br />
(1) remain on the scene <strong>of</strong> where said abuse occurred or was in danger <strong>of</strong> occurring as long as the <strong>of</strong>ficer has<br />
reason to believe that at least one <strong>of</strong> the parties involved would be in immediate physical danger without the presence <strong>of</strong><br />
a law <strong>of</strong>ficer. This shall include, but not be limited to remaining in the dwelling for a reasonable period <strong>of</strong> time;<br />
(2) assist the abused person in obtaining medical treatment necessitated by an assault, which may include driving<br />
the victim to the emergency room <strong>of</strong> the nearest hospital, or arranging for appropriate transportation to a health care<br />
facility, notwithstanding any law to the contrary;<br />
(3) assist the abused person in locating and getting to a safe place; including but not limited to a designated<br />
meeting place for a shelter or a family member's or friend's residence. The <strong>of</strong>ficer shall consider the victim's preference<br />
in this regard and what is reasonable under all the circumstances;<br />
(4) give such person immediate and adequate notice <strong>of</strong> his or her rights. Such notice shall consist <strong>of</strong> handing said<br />
person a copy <strong>of</strong> the statement which follows below and reading the same to said person. Where said person's native<br />
language is not English, the statement shall be then provided in said person's native language whenever possible.<br />
"You have the right to appear at the Superior, Probate and Family, District or Boston Municipal Court, if you<br />
reside within the appropriate jurisdiction, and file a complaint requesting any <strong>of</strong> the following applicable orders: (a) an<br />
order restraining your attacker from abusing you; (b) an order directing your attacker to leave your household, building<br />
or workplace; (c) an order awarding you custody <strong>of</strong> a minor child; (d) an order directing your attacker to pay support for<br />
you or any minor child in your custody, if the attacker has a legal obligation <strong>of</strong> support; and (e) an order directing your
ALM GL ch. 209A, § 6<br />
Page 46<br />
attacker to pay you for losses suffered as a result <strong>of</strong> abuse, including medical and moving expenses, loss <strong>of</strong> earnings or<br />
support, costs for restoring utilities and replacing locks, reasonable attorney's fees and other out-<strong>of</strong>-pocket losses for<br />
injuries and property damage sustained.<br />
For an emergency on weekends, holidays, or weeknights the police will refer you to a justice <strong>of</strong> the superior,<br />
probate and family, district, or Boston municipal court departments.<br />
You have the right to go to the appropriate district court or the Boston municipal court and seek a criminal<br />
complaint for threats, assault and battery, assault with a deadly weapon, assault with intent to kill or other related<br />
<strong>of</strong>fenses.<br />
If you are in need <strong>of</strong> medical treatment, you have the right to request that an <strong>of</strong>ficer present drive you to the<br />
nearest hospital or otherwise assist you in obtaining medical treatment.<br />
If you believe that police protection is needed for your physical safety, you have the right to request that the<br />
<strong>of</strong>ficer present remain at the scene until you and your children can leave or until your safety is otherwise ensured. You<br />
may also request that the <strong>of</strong>ficer assist you in locating and taking you to a safe place, including but not limited to a<br />
designated meeting place for a shelter or a family member's or a friend's residence, or a similar place <strong>of</strong> safety.<br />
You may request a copy <strong>of</strong> the police incident report at no cost from the police department."<br />
The <strong>of</strong>ficer shall leave a copy <strong>of</strong> the foregoing statement with such person before leaving the scene or premises.<br />
(5) assist such person by activating the emergency judicial system when the court is closed for business;<br />
(6) inform the victim that the abuser will be eligible for bail and may be promptly released; and<br />
(7) arrest any person a law <strong>of</strong>ficer witnesses or has probable cause to believe has violated a temporary or<br />
permanent vacate, restraining, or no-contact order or judgment issued pursuant to section eighteen, thirty-four B or<br />
thirty-four C <strong>of</strong> chapter two hundred and eight, section thirty-two <strong>of</strong> chapter two hundred and nine, section three, three<br />
B, three C, four or five <strong>of</strong> this chapter, or sections fifteen or twenty <strong>of</strong> chapter two hundred and nine C or similar<br />
protection order issued by another jurisdiction. When there are no vacate, restraining, or no-contact orders or judgments<br />
in effect, arrest shall be the preferred response whenever an <strong>of</strong>ficer witnesses or has probable cause to believe that a<br />
person:<br />
(a) has committed a felony;<br />
(b) has committed a misdemeanor involving abuse as defined in section one <strong>of</strong> this chapter;<br />
(c) has committed an assault and battery in violation <strong>of</strong> section thirteen A <strong>of</strong> chapter two hundred and<br />
sixty-five.<br />
The safety <strong>of</strong> the victim and any involved children shall be paramount in any decision to arrest. Any <strong>of</strong>ficer<br />
arresting both parties must submit a detailed, written report in addition to an incident report, setting forth the grounds<br />
for dual arrest.<br />
No law <strong>of</strong>ficer investigating an incident <strong>of</strong> domestic violence shall threaten, suggest, or otherwise indicate the arrest<br />
<strong>of</strong> all parties for the purpose <strong>of</strong> discouraging requests for law enforcement intervention by any party.<br />
No law <strong>of</strong>ficer shall be held liable in any civil action regarding personal injury or injury to property brought by any<br />
party to a domestic violence incident for an arrest based on probable cause when such <strong>of</strong>ficer acted reasonably and in<br />
good faith and in compliance with this chapter and the statewide policy as established by the secretary <strong>of</strong> public safety.
ALM GL ch. 209A, § 6<br />
Page 47<br />
Whenever any law <strong>of</strong>ficer investigates an incident <strong>of</strong> domestic violence, the <strong>of</strong>ficer shall immediately file a written<br />
incident report in accordance with the standards <strong>of</strong> the <strong>of</strong>ficer's law enforcement agency and, wherever possible, in the<br />
form <strong>of</strong> the National Incident-Based Reporting System, as defined by the Federal Bureau <strong>of</strong> Investigation. The latter<br />
information may be submitted voluntarily by the local police on a monthly basis to the crime reporting unit <strong>of</strong> the<br />
department <strong>of</strong> criminal justice information services.<br />
The victim shall be provided a copy <strong>of</strong> the full incident report at no cost upon request to the appropriate law<br />
enforcement department.<br />
When a judge or other person authorized to take bail bails any person arrested under the provisions <strong>of</strong> this chapter,<br />
he shall make reasonable efforts to inform the victim <strong>of</strong> such release prior to or at the time <strong>of</strong> said release.<br />
When any person charged with or arrested for a crime involving abuse under this chapter is released from custody,<br />
the court or the emergency response judge shall issue, upon the request <strong>of</strong> the victim, a written no-contact order<br />
prohibiting the person charged or arrested from having any contact with the victim and shall use all reasonable means to<br />
notify the victim immediately <strong>of</strong> release from custody. The victim shall be given at no cost a certified copy <strong>of</strong> the<br />
no-contact order.<br />
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1987, 761; 1990, 403, § 7; 1996, 298, §§ 6, 7; 2010, 256, § 103.<br />
NOTES: Editorial Note<br />
The 1983 amendment rewrote this section, making, among other changes, the following changes: (1) inserting<br />
after the word "abused" in the first sentence <strong>of</strong> the first paragraph, the words "or is in danger <strong>of</strong> being abused"; (2)<br />
inserting in clause (1) the word "immediate" before the word "danger" and the words "for a reasonable period <strong>of</strong> time"<br />
after the words "dwelling unit"; (3) inserting language in clause (2) relative to transportation to a health care facility; (4)<br />
inserting in clause (6) a reference to section seven <strong>of</strong> chapter two hundred and nine A; and (5) inserting a paragraph<br />
relative to the right to obtain emergency relief on weekends, holidays or weeknights.<br />
The 1987 amendment added clause (7) to the first paragraph.<br />
The 1990 amendment restructured and rewrote this section, expanding upon actions and procedures any law<br />
<strong>of</strong>ficer may take whenever he has reason to believe that a family or household member has been abused or in is danger<br />
<strong>of</strong> being abused. Sections 14-16 provide:<br />
Section 14. The secretary <strong>of</strong> public safety shall establish a policy for law enforcement response to domestic<br />
violence consistent with the provisions <strong>of</strong> this act; provided, however, that he may revise, terminate, or revoke such<br />
policy at his discretion. Such policy shall be developed after consultation with the director <strong>of</strong> the victim assistance<br />
<strong>of</strong>fice, at least two representatives <strong>of</strong> a certified or provisionally certified batterer's treatment program, and at least four<br />
representatives from the governor's anti-crime council including at least one district attorney, one member <strong>of</strong> the<br />
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law<br />
enforcement response to domestic violence shall be promulgated within six months <strong>of</strong> the effective date <strong>of</strong> this act.<br />
Section <strong>15</strong>. Each law enforcement agency shall establish and implement specific operational guidelines consistent<br />
with the policy established under the provisions <strong>of</strong> section fourteen or adopt said policy. Local operational guidelines<br />
shall be submitted to the secretary <strong>of</strong> public safety for review within sixty days <strong>of</strong> the adoption <strong>of</strong> said policy. The<br />
secretary shall provide written notice <strong>of</strong> approval <strong>of</strong> the local guidelines within thirty days <strong>of</strong> receipt <strong>of</strong> said guidelines.<br />
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the<br />
absence <strong>of</strong> approved guidelines, the law enforcement agency shall implement said policy.<br />
Section 16. Within six months <strong>of</strong> the effective date <strong>of</strong> this act, guidelines and standards for the certification <strong>of</strong><br />
batterer's treatment programs by the department <strong>of</strong> public health shall be set up by a commission to be established by
ALM GL ch. 209A, § 6<br />
Page 48<br />
the chief justice <strong>of</strong> the trial court department, one member <strong>of</strong> which shall be a district attorney or his designee, two <strong>of</strong><br />
which shall be members <strong>of</strong> a recognized batterer's treatment program with training experience, two <strong>of</strong> which shall be<br />
members <strong>of</strong> a domestic violence program or the statewide coalition <strong>of</strong> programs which provide services to victims <strong>of</strong><br />
domestic violence and one <strong>of</strong> whom shall be a member from a probation department. Prior to the establishment <strong>of</strong> such<br />
guidelines and standards, the department <strong>of</strong> public health may provisionally certify batterer's treatment programs<br />
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment<br />
<strong>of</strong> guidelines under this section. The department <strong>of</strong> public health shall thereafter certify and monitor batterer's treatment<br />
programs according to the standards established and promulgated by the commission. Programs so certified shall be the<br />
only batterer's treatment programs appropriate for court referrals.<br />
The 1996 amendment, by § 6, in item (7), following "three" inserted ", three B, three C" and by § 7, in item (7),<br />
following "nine C" inserted "or similar protection order issued by another jurisdiction."<br />
The 2010 amendment, effective Nov 4, 2010, substituted "department <strong>of</strong> criminal justice information services" for<br />
"criminal history systems board" in the second sentence <strong>of</strong> the fifth paragraph.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
Annotations<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.<br />
Treatise References<br />
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.05, 4.14, 51:2, Form 208.<br />
Law Reviews<br />
Domestic Violence. The Georgetown Journal <strong>of</strong> Gender and the Law (2012).<br />
Roederer, Another Case in Lochner's Legacy, The Court's Assault on New Property: The Right to The Mandatory<br />
Enforcement <strong>of</strong> a Restraining Order is a "Sham," "Nullity," and "Cruel Deception". 54 Drake L. Rev. 321 (Winter,<br />
2006).<br />
Volovski, Crime And Punishment Law Chapter: Domestic Violence. 5 Geo J Gender & L 175 (Spring, 2004).<br />
Rousseve, Sixth Annual Review <strong>of</strong> Gender and Sexuality Law: II. Criminal Law Chapter: Domestic Violence and<br />
the States. 6 Geo. J. Gender & L. 431 (2005).<br />
Hickey, Ninth Annual Review <strong>of</strong> Gender and Sexuality Law: Criminal Law Chapter: Domestic Violence and the<br />
State. 9 Geo. J. Gender & L. 625 (2008).<br />
Solon, Domestic Violence. 10 Geo. J. Gender & L. 369 (2009).<br />
Morao, Domestic Violence and the State. 7 Geo. J. Gender XXX L. 787 (2006).<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative
ALM GL ch. 209A, § 6<br />
Page 49<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Hirschel, et al, Domestic Violence and Mandatory Arrest Laws: To What Extent Do They Influence Police Arrest<br />
Decisions 98 J. Crim. L. & Criminology 255 (Fall, 2007).<br />
Moses, Understanding Legal Responses to Technological Change: The Example <strong>of</strong> In Vitro Fertilization. 6 Minn.<br />
J.L. Sci. & Tech. 505 (May, 2005).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Miccio, Exiled from the Province <strong>of</strong> Care: Domestic Violence, Duty and Conceptions <strong>of</strong> State Accountability. 37<br />
Rutgers L. J. 111 (Fall, 2005).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Rizer, Mandatory Arrest: Do We Need To Take a Closer Look 36 U. West. L.A. L. Rev. 1 (2005).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
ALM GL c 209A, permitting warrantless arrest for certain misdemeanors in context <strong>of</strong> domestic abuse (including<br />
placing another in fear <strong>of</strong> imminent serious physical harm) could not be relied on to justify warrantless arrest <strong>of</strong><br />
defendant for making threats, where record did not establish that defendant's threats constituted "abuse" as defined by<br />
statute. Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.<br />
If police <strong>of</strong>ficers has reason to believe that defendant's conduct with respect to person protected under ALM GL c<br />
209A placed person in fear <strong>of</strong> imminent serious physical harm, warrantless arrest for assault may be made.<br />
Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.<br />
After husband had acted in threatening and hostile manner in presence <strong>of</strong> police <strong>of</strong>ficers in home, police <strong>of</strong>ficer<br />
acted reasonably and constitutionally in following husband to bedroom in order to protect wife and prevent husband's<br />
access to weapons; motion to suppress drugs seized from bedroom properly denied. Commonwealth v. Rexach (1985)<br />
20 Mass App 919, 478 NE2d 744, 1985 Mass App LEXIS 1748, review den Commonwealth v. Rexach (1985) 395 Mass
ALM GL ch. 209A, § 6<br />
Page 50<br />
1104, 482 NE2d 328, 1985 Mass LEXIS 1659, and among conflicting authorities noted in, Commonwealth v. Wright<br />
(1994) 560 Pa 34, 742 A2d 661, 1999 Pa LEXIS 3774, reconsideration den, Commonwealth v. Wright (2000, Pa) 2000<br />
Pa LEXIS 522.<br />
Although ALM GL c 209A requires police <strong>of</strong>ficers to arrest person who has violated protective order, police<br />
<strong>of</strong>ficers are not made liable for failing to do so, and, accordingly, claim under last paragraph or "savings clause" <strong>of</strong> ALM<br />
GL c 258, § 10 (Massachusetts Tort Claims Act) is not supported by police <strong>of</strong>ficers' failure to arrest plaintiff's former<br />
husband for repeatedly violating ALM GL c 209A order. Ford v. Town <strong>of</strong> Grafton (1998) 44 Mass App 7<strong>15</strong>, 693 NE2d<br />
1047, 1998 Mass App LEXIS 401, review denied (1998) 427 Mass 1108, 700 NE2d 268, 1998 Mass LEXIS 389 and<br />
petition for certiorari filed (Sep 30, 1998).<br />
Complaints for violation <strong>of</strong> 209A protective orders are not immune from requirement <strong>of</strong> show-cause hearing under<br />
ALM GL c 218, § 35A, but notice and opportunity to be heard need not be provided if one <strong>of</strong> three exceptions set forth<br />
in ALM GL c 218, § 35A applies. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App<br />
LEXIS 761.<br />
Since defendant had been arrested on warrant for violation <strong>of</strong> 209A restraining order, requirement <strong>of</strong> show-cause<br />
hearing under ALM GL c 218, § 35A was obviated. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799,<br />
2001 Mass App LEXIS 761.<br />
Where woman who entered police station was bruised and disheveled and reported that defendant had punched her<br />
in face and had done same thing two days earlier, police had probable cause to believe defendant had committed assault<br />
and battery or misdemeanor involving abuse and could arrest defendant without warrant. Richardson v. City <strong>of</strong> Boston<br />
(2001) 53 Mass App 201, 758 NE2d 629, 2001 Mass App LEXIS 1070.
Page 51<br />
11 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 7 (2012)<br />
§ 7. Search <strong>of</strong> Domestic Violence Records; Outstanding Warrants; Service <strong>of</strong> Order, Complaint and Summons;<br />
Enforcement; Violations.<br />
When considering a complaint filed under this chapter, a judge shall cause a search to be made <strong>of</strong> the records<br />
contained within the statewide domestic violence record keeping system maintained by the <strong>of</strong>fice <strong>of</strong> the commissioner<br />
<strong>of</strong> probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record<br />
involving domestic or other violence. Upon receipt <strong>of</strong> information that an outstanding warrant exists against the named<br />
defendant, a judge shall order that the appropriate law enforcement <strong>of</strong>ficials be notified and shall order that any<br />
information regarding the defendant's most recent whereabouts shall be forwarded to such <strong>of</strong>ficials. In all instances<br />
where an outstanding warrant exists, a judge shall make a finding, based upon all <strong>of</strong> the circumstances, as to whether an<br />
imminent threat <strong>of</strong> bodily injury exists to the petitioner. In all instances where such an imminent threat <strong>of</strong> bodily injury<br />
is found to exist, the judge shall notify the appropriate law enforcement <strong>of</strong>ficials <strong>of</strong> such finding and such <strong>of</strong>ficials shall<br />
take all necessary actions to execute any such outstanding warrant as soon as is practicable.<br />
Whenever the court orders under sections eighteen, thirty-four B, and thirty-four C <strong>of</strong> chapter two hundred and<br />
eight, section thirty-two <strong>of</strong> chapter two hundred and nine, sections three, four and five <strong>of</strong> this chapter, or sections fifteen<br />
and twenty <strong>of</strong> chapter two hundred and nine C, the defendant to vacate, refrain from abusing the plaintiff or to have no<br />
contact with the plaintiff or the plaintiff's minor child, the register or clerk-magistrate shall transmit two certified copies<br />
<strong>of</strong> each such order and one copy <strong>of</strong> the complaint and summons forthwith to the appropriate law enforcement agency<br />
which, unless otherwise ordered by the court, shall serve one copy <strong>of</strong> each order upon the defendant, together with a<br />
copy <strong>of</strong> the complaint, order and summons and notice <strong>of</strong> any suspension or surrender ordered pursuant to section three<br />
B <strong>of</strong> this chapter. The law enforcement agency shall promptly make its return <strong>of</strong> service to the court.<br />
Law enforcement <strong>of</strong>ficers shall use every reasonable means to enforce such abuse prevention orders. Law<br />
enforcement agencies shall establish procedures adequate to insure that an <strong>of</strong>ficer on the scene <strong>of</strong> an alleged violation <strong>of</strong><br />
such order may be informed <strong>of</strong> the existence and terms <strong>of</strong> such order. The court shall notify the appropriate law<br />
enforcement agency in writing whenever any such order is vacated and shall direct the agency to destroy all record <strong>of</strong>
ALM GL ch. 209A, § 7<br />
Page 52<br />
such vacated order and such agency shall comply with that directive.<br />
Each abuse prevention order issued shall contain the following statement: VIOLATION <strong>OF</strong> THIS ORDER IS A<br />
CRIMINAL <strong>OF</strong>FENSE.<br />
Any violation <strong>of</strong> such order or a protection order issued by another jurisdiction shall be punishable by a fine <strong>of</strong> not<br />
more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house <strong>of</strong> correction,<br />
or by both such fine and imprisonment. In addition to, but not in lieu <strong>of</strong>, the forgoing penalties and any other sentence,<br />
fee or assessment, including the victim witness assessment in section 8 <strong>of</strong> chapter 258B, the court shall order persons<br />
convicted <strong>of</strong> a crime under this statute to pay a fine <strong>of</strong> $25 that shall be transmitted to the treasurer for deposit into the<br />
General Fund. For any violation <strong>of</strong> such order, the court shall order the defendant to complete a certified batterer's<br />
intervention program unless, upon good cause shown, the court issues specific written findings describing the reasons<br />
that batterer's intervention should not be ordered or unless the batterer's intervention program determines that the<br />
defendant is not suitable for intervention. The court shall not order substance abuse or anger management treatment or<br />
any other form <strong>of</strong> treatment as a substitute for certified batterer's intervention. If a defendant ordered to undergo<br />
treatment has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to<br />
participate in said program as required by the terms <strong>of</strong> his probation. If the court determines that the violation was in<br />
retaliation for the defendant being reported by the plaintiff to the department <strong>of</strong> revenue for failure to pay child support<br />
payments or for the establishment <strong>of</strong> paternity, the defendant shall be punished by a fine <strong>of</strong> not less than one thousand<br />
dollars and not more than ten thousand dollars and by imprisonment for not less than sixty days; provided, however,<br />
that the sentence shall not be suspended, nor shall any such person be eligible for probation, parole, or furlough or<br />
receive any deduction from his sentence for good conduct until he shall have served sixty days <strong>of</strong> such sentence.<br />
When a defendant has been ordered to participate in a treatment program pursuant to this section, the defendant<br />
shall be required to regularly attend a certified or provisionally certified batterer's treatment program. To the extent<br />
permitted by pr<strong>of</strong>essional requirements <strong>of</strong> confidentiality, said program shall communicate with local battered women's<br />
programs for the purpose <strong>of</strong> protecting the victim's safety. Additionally, it shall specify the defendant's attendance<br />
requirements and keep the probation department informed <strong>of</strong> whether the defendant is in compliance.<br />
In addition to, but not in lieu <strong>of</strong>, such orders for treatment, if the defendant has a substance abuse problem, the court<br />
may order appropriate treatment for such problem. All ordered treatment shall last until the end <strong>of</strong> the probationary<br />
period or until the treatment program decides to discharge the defendant, whichever comes first. When the defendant is<br />
not in compliance with the terms <strong>of</strong> probation, the court shall hold a revocation <strong>of</strong> probation hearing. To the extent<br />
possible, the defendant shall be responsible for paying all costs for court ordered treatment.<br />
Where a defendant has been found in violation <strong>of</strong> an abuse prevention order under this chapter or a protection order<br />
issued by another jurisdiction, the court may, in addition to the penalties provided for in this section after conviction, as<br />
an alternative to incarceration and, as a condition <strong>of</strong> probation, prohibit contact with the victim through the<br />
establishment <strong>of</strong> court defined geographic exclusion zones including, but not limited to, the areas in and around the<br />
complainant's residence, place <strong>of</strong> employment, and the complainant's child's school, and order that the defendant to<br />
wear a global positioning satellite tracking device designed to transmit and record the defendant's location data. If the<br />
defendant enters a court defined exclusion zone, the defendant's location data shall be immediately transmitted to the<br />
complainant, and to the police, through an appropriate means including, but not limited to, the telephone, an electronic<br />
beeper or a paging device. The global positioning satellite device and its tracking shall be administered by the<br />
department <strong>of</strong> probation. If a court finds that the defendant has entered a geographic exclusion zone, it shall revoke his<br />
probation and the defendant shall be fined, imprisoned or both as provided in this section. Based on the defendant's<br />
ability to pay, the court may also order him to pay the monthly costs or portion there<strong>of</strong> for monitoring through the<br />
global positioning satellite tracking system.<br />
In each instance where there is a violation <strong>of</strong> an abuse prevention order or a protection order issued by another<br />
jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to, cost for
ALM GL ch. 209A, § 7<br />
Page 53<br />
shelter or emergency housing, loss <strong>of</strong> earnings or support, out-<strong>of</strong>-pocket losses for injuries sustained or property<br />
damaged, medical expenses, moving expenses, cost for obtaining an unlisted telephone number, and reasonable<br />
attorney's fees.<br />
Any such violation may be enforced in the superior, the district or Boston municipal court departments. Criminal<br />
remedies provided herein are not exclusive and do not preclude any other available civil or criminal remedies. The<br />
superior, probate and family, district and Boston municipal court departments may each enforce by civil contempt<br />
procedure a violation <strong>of</strong> its own court order.<br />
The provisions <strong>of</strong> section eight <strong>of</strong> chapter one hundred and thirty-six shall not apply to any order, complaint or<br />
summons issued pursuant to this section.<br />
HISTORY: 1983, 678, § 5; 1987, 213; 1990, 403, § 8; 1992, 188, § 4; 1994, 24, § 7; 1995, 5, § 81; 1996, 298, § 8;<br />
2002, 184, § 114; 2003, 26, § 448; 2006, 418, § 1.<br />
NOTES: Editorial Note<br />
8.<br />
The 1987 amendment added the tenth paragraph, relative to the applicability <strong>of</strong> the provisions <strong>of</strong> ALM GL c 136, §<br />
The 1990 amendment replaced the former first and second paragraphs with the second through eighth paragraphs.<br />
Sections 14-16 provide:<br />
Section 14. The secretary <strong>of</strong> public safety shall establish a policy for law enforcement response to domestic<br />
violence consistent with the provisions <strong>of</strong> this act; provided, however, that he may revise, terminate, or revoke such<br />
policy at his discretion. Such policy shall be developed after consultation with the director <strong>of</strong> the victim assistance<br />
<strong>of</strong>fice, at least two representatives <strong>of</strong> a certified or provisionally certified batterer's treatment program, and at least four<br />
representatives from the governor's anti-crime council including at least one district attorney, one member <strong>of</strong> the<br />
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law<br />
enforcement response to domestic violence shall be promulgated within six months <strong>of</strong> the effective date <strong>of</strong> this act.<br />
Section <strong>15</strong>. Each law enforcement agency shall establish and implement specific operational guidelines consistent<br />
with the policy established under the provisions <strong>of</strong> section fourteen or adopt said policy. Local operational guidelines<br />
shall be submitted to the secretary <strong>of</strong> public safety for review within sixty days <strong>of</strong> the adoption <strong>of</strong> said policy. The<br />
secretary shall provide written notice <strong>of</strong> approval <strong>of</strong> the local guidelines within thirty days <strong>of</strong> receipt <strong>of</strong> said guidelines.<br />
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the<br />
absence <strong>of</strong> approved guidelines, the law enforcement agency shall implement said policy.<br />
Section 16. Within six months <strong>of</strong> the effective date <strong>of</strong> this act, guidelines and standards for the certification <strong>of</strong><br />
batterer's treatment programs by the department <strong>of</strong> public health shall be set up by a commission to be established by<br />
the chief justice <strong>of</strong> the trial court department, one member <strong>of</strong> which shall be a district attorney or his designee, two <strong>of</strong><br />
which shall be members <strong>of</strong> a recognized batterer's treatment program with training experience, two <strong>of</strong> which shall be<br />
members <strong>of</strong> a domestic violence program or the statewide coalition <strong>of</strong> programs which provide services to victims <strong>of</strong><br />
domestic violence and one <strong>of</strong> whom shall be a member from a probation department. Prior to the establishment <strong>of</strong> such<br />
guidelines and standards, the department <strong>of</strong> public health may provisionally certify batterer's treatment programs<br />
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment<br />
<strong>of</strong> guidelines under this section. The department <strong>of</strong> public health shall thereafter certify and monitor batterer's treatment<br />
programs according to the standards established and promulgated by the commission. Programs so certified shall be the<br />
only batterer's treatment programs appropriate for court referrals.<br />
The 1992 amendment inserted the first paragraph.
ALM GL ch. 209A, § 7<br />
Page 54<br />
The 1994 amendment in the first sentence <strong>of</strong> the second paragraph, following "summons", inserted "and notice <strong>of</strong><br />
any suspension or surrender ordered pursuant to section three B <strong>of</strong> this chapter."<br />
The 1995 amendment, in the fifth paragraph, added the last sentence. Sections 141 and 142 provide:<br />
Section 141. Each provision <strong>of</strong> this act, shall, regardless <strong>of</strong> whether it includes a specific proviso, be subject to<br />
federal approval, if required, and federal financial participation. In any case in which the state fails to receive a waiver<br />
for any said provision <strong>of</strong> this act or otherwise would fail to receive federal financial participation in the implementation<br />
<strong>of</strong> such provision, then such provision shall not be implemented unless the full amount required for said implementation<br />
without federal participation is appropriated for said implementation.<br />
Section 142. Any provision <strong>of</strong> this act that is inconsistent with federal law or regulations shall be void unless the<br />
department receives an exemption or waiver from the federal government to implement said provision.<br />
The 1996 amendment in the fifth and eighth paragraphs, following "order" inserted "or a protection order issued<br />
by another jurisdiction."<br />
The 2002 amendment, effective July 1, 2002, in the fifth paragraph, substituted the second and third sentences,<br />
which formerly read: "Where the defendant has no prior record <strong>of</strong> any crime <strong>of</strong> violence and where the court believes,<br />
after evaluation by a certified or provisionally certified batterer's treatment program, that the defendant is amenable to<br />
treatment, the court may, in addition to any other penalty, order appropriate treatment as specified in this section."<br />
The 2003 amendment, effective July 1, 2003, in the fifth paragraph, inserted "In addition to, but not in lieu <strong>of</strong>, the<br />
forgoing penalties and any other sentence, fee or assessment, including the victim witness assessment in section 8 <strong>of</strong><br />
chapter 258B, the court shall order persons convicted <strong>of</strong> a crime under this statute to pay a fine <strong>of</strong> $25 that shall be<br />
transmitted to the treasurer for deposit into the General Fund" following the first sentence.<br />
The 2006 amendment, effective Apr. 3, 2007, inserted the eighth paragraph.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
Annotations<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.<br />
Treatise References<br />
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 2.520, Imposing Sentence.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.680, Stalking.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.720, Violation <strong>of</strong> an Abuse Prevention<br />
Order.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.<strong>15</strong>, 9.05, 22:18, 22:37-22:39,<br />
22:47, 22:49-22:51, 23:62, 51:2, Form 208.
ALM GL ch. 209A, § 7<br />
Page 55<br />
Massachusetts Divorce Law Practice Manual § 25.7.2, The Plaintiff's Burden <strong>of</strong> Pro<strong>of</strong> at the Renewal Hearing.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Harrington, Commonwealth v. Finase: The Scope <strong>of</strong> Massachusetts Abuse Prevention Order Prosecution and<br />
Efficacy. 29 NE J on Crim & Civ Con 193 (Summer, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Tracia, Navigating the Waters <strong>of</strong> Massachusetts Child Relocation Law: Assessing The Application <strong>of</strong> the Real<br />
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).<br />
Gresens, Denying Choice <strong>of</strong> Forum: An Interference by the Massachusetts Trial Court with Domestic Violence<br />
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
93.<br />
Smith, Battered Non-Wives and Unequal Protection-Order Coverage: A Call for Reform. 23 Yale L & Pol'y Rev<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
1. In general 2. Order to refrain from abuse 3. --Violation 4. Order to vacate household 5. --Violation 6. No contact<br />
order; protective order 6.5. District Judge's authority to vacate order 7. --Violation 8. Prosecution; trial 9. --Evidence 10.<br />
--Jury instructions 11. Penalties<br />
1. In general<br />
Record identified for destruction in third paragraph <strong>of</strong> ALM GL c 209A, § 7 is record <strong>of</strong> order previously<br />
transmitted to police department called on to serve order and subsequently vacated. Vaccaro v. Vaccaro (1997) 425
ALM GL ch. 209A, § 7<br />
Page 56<br />
Mass <strong>15</strong>3, 680 NE2d 55, 1997 Mass LEXIS 121.<br />
Section requires judge to search computerized records to determine if person has civil or criminal record involving<br />
domestic or other violence. Vaccaro v. Vaccaro (1997) 425 Mass <strong>15</strong>3, 680 NE2d 55, 1997 Mass LEXIS 121.<br />
ALM GL c 209A, § 7 establishes distinct statutory crime for violation <strong>of</strong> ALM GL c 209A order, and while<br />
Commonwealth must show that defendant knew <strong>of</strong> order, there is no requirement that Commonwealth show intent on<br />
part <strong>of</strong> defendant to violate order. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass LEXIS<br />
187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.<br />
Challenge to District Court's renewal <strong>of</strong> 209A order should have been directed to Appeals Court and not made<br />
subject to petition under ALM GL c 211, § 3. Kraytsberg v. Kraytsberg (1998) 427 Mass 1008, 696 NE2d 124, 1998<br />
Mass LEXIS 334.<br />
ALM GL c 209A, § 7 criminalizes violation <strong>of</strong> three orders: orders to vacate household, orders to refrain from<br />
abusing, and orders to have no contact. Commonwealth v. Finase (2001) 435 Mass 310, 757 NE2d 721, 2001 Mass<br />
LEXIS 642.<br />
2. Order to refrain from abuse<br />
Although abuse prevention orders had expired, defendant's appeal challenging their lawfulness was not moot, since<br />
defendant could be adversely affected by them in future applications for such orders or in bail proceedings. Wooldridge<br />
v. Hickey (1998) 45 Mass App 637, 700 NE2d 296, 1998 Mass App LEXIS 1112.<br />
3. --Violation<br />
Party violates order to refrain from abuse when he or she attempts to cause or causes physical harm, places another<br />
in fear <strong>of</strong> imminent serious physical harm, or causes another to engage involuntarily in sexual relations by force, threat<br />
<strong>of</strong> force, or duress. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Although defendant did not physically harm wife or attempt to physically harm her when he arrived at her home<br />
unannounced, defendant's conduct in preventing wife from closing front door by propping his back against it when wife<br />
indicated her unwillingness to speak with him could be considered by jury as placing wife in fear <strong>of</strong> imminent serious<br />
physical harm. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Evidence that defendant was angry with his wife for seeing another man and that he called her "bitch" and "whore"<br />
5 days before defendant visited wife at marital home from which he was ordered to stay away was relevant to proving<br />
that wife was in fear <strong>of</strong> defendant. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS<br />
197.<br />
Evidence <strong>of</strong> defendant's violation <strong>of</strong> ALM GL c 209A order to refrain from abusing victim was sufficient, where<br />
jury could find that actions and words <strong>of</strong> defendant placed victim in reasonable apprehension that physical force might<br />
be used against her (defendant drove to front <strong>of</strong> victim's home, got out <strong>of</strong> car and yelled obscene language to and made<br />
obscene gesture at victim and soon thereafter told victim over telephone that he would kill her). Commonwealth v.<br />
Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.<br />
First Amendment did not protect defendant's conduct that was threatening to victim and constituted violation <strong>of</strong><br />
ALM GL c 209A order to refrain from abusing victim. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d<br />
1196, 1995 Mass LEXIS 359.<br />
Jury verdicts convicting defendant <strong>of</strong> violating ALM GL c 209A order to refrain from abusing victim and<br />
acquitting defendant <strong>of</strong> threatening a crime were inconsistent, but they did not violate defendant's due process rights and
ALM GL ch. 209A, § 7<br />
Page 57<br />
did not require reversal <strong>of</strong> guilty verdict. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995<br />
Mass LEXIS 359.<br />
Commonwealth could not prosecute defendant for stalking under ALM GL c 265, § 43(b) without violating<br />
defendant's double jeopardy rights. In trying to prosecute defendant for that <strong>of</strong>fense, the Commonwealth was relying on<br />
conduct for which defendant had been prosecuted, convicted, and sentenced for violating a ALM GL c 209A abuse<br />
prevention order in violation <strong>of</strong> ALM GL c 209A, § 7, and, thus, the Commonwealth was trying to prosecute the same<br />
violations twice. Edge v. Commonwealth (2008) 451 Mass. 74, 883 NE2d 928, 2008 Mass. LEXIS 209.<br />
4. Order to vacate household<br />
Defendant ordered to "vacate" marital home must not only surrender legal occupancy but must remain away<br />
without right to enter at any time. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS<br />
197.<br />
Abuse prevention order issued under ALM GL c 209A, § 7, was not vague or overbroad, as a person <strong>of</strong> ordinary<br />
intelligence could not have reasonably understood that the order requiring defendant to stay away from the residence he<br />
and the victim had resided in would have sanctioned his return to the residence without requesting permission from the<br />
court, as expressly provided for in the order. Commonwealth v. Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008<br />
Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105, 902 N.E.2d 947, 2009 Mass. LEXIS 479.<br />
5. --Violation<br />
Defendant could be found criminally liable under ALM GL c 209A, § 7 for violating order to vacate household,<br />
where he returned to marital home for visits after being ordered "to immediately leave and remain away from"<br />
household. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Defendant was properly convicted <strong>of</strong> violating a restraining order issued under ALM GL c 209A, § 7, by going to a<br />
residence where he and the victim used to live. The order did not unconstitutionally violate defendant's right to remain<br />
in his residence, as that right could be suspended by an abuse prevention order obtained in accordance with due process<br />
principles. Commonwealth v. Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review<br />
denied (2009) 453 Mass. 1105, 902 N.E.2d 947, 2009 Mass. LEXIS 479.<br />
6. No contact order; protective order<br />
Evidence was sufficient to show that defendant had knowledge <strong>of</strong> extension <strong>of</strong> protective order, where service <strong>of</strong><br />
initial order placed defendant on constructive, if not actual, notice <strong>of</strong> order's existence and terms. Commonwealth v.<br />
Henderson (2001) 434 Mass <strong>15</strong>5, 747 NE2d 659, 2001 Mass LEXIS 213.<br />
"No contact" order mandates that defendant not communicate by any means with protected party in addition to<br />
remaining physically separate and is broader than "stay away" order, which prohibits defendant from coming within<br />
specified distance <strong>of</strong> protected party but not from written or oral contact between parties. Commonwealth v. Finase<br />
(2001) 435 Mass 310, 757 NE2d 721, 2001 Mass LEXIS 642.<br />
Judge's order for defendant not to "contact" former girlfriend in person, by telephone, in writing, or otherwise was<br />
not unconstitutionally vague. Commonwealth v. Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS<br />
99.<br />
Where defendant was served with temporary restraining order and had read its contents and order was extended for<br />
one year at hearing at which defendant did not appear, and there was evidence that defendant knew terms <strong>of</strong> extended<br />
order, personal service <strong>of</strong> extended order on defendant was not required. Commonwealth v. Bachir (1998) 45 Mass App<br />
204, 696 NE2d 948, 1998 Mass App LEXIS 513, review denied (1998) 428 Mass 1104, 702 NE2d 812, 1998 Mass
ALM GL ch. 209A, § 7<br />
Page 58<br />
LEXIS 613.<br />
"No contact" provision in abuse prevention order did not violate defendant's right <strong>of</strong> free speech. Commonwealth v.<br />
Thompson (1998) 45 Mass App 523, 699 NE2d 847, 1998 Mass App LEXIS 1040, review denied (1998) 428 Mass 1108,<br />
707 NE2d 366, 1998 Mass LEXIS 739.<br />
Oral orders <strong>of</strong> judge are not effective to modify restraining orders issued pursuant to ALM GL c 209A, which<br />
contemplates that orders be transmitted in written form to law enforcement agencies and to defendant. Commonwealth<br />
v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001) 434 Mass 1102,<br />
751 NE2d 419, 2001 Mass LEXIS 275.<br />
Where the third party and ex-girlfriend found a hidden video camera in the ex-girlfriend's bedroom in a clock<br />
installed by the ex-boyfriend and the ex-boyfriend left an answering machine message with the ex-girlfriend denying<br />
the installation <strong>of</strong> the camera and stating that had the ex-boyfriend installed the camera the ex-girlfriend would not have<br />
found it, the trial court erred in issuing a protective order against the ex-boyfriend and any record <strong>of</strong> the order was to be<br />
destroyed pursuant to ALM GL c 209A, § 7; although the ex-boyfriend allegedly had a temper, joked that the<br />
ex-boyfriend could have someone taken care <strong>of</strong>, and had guns, there was nothing in the record that showed a history <strong>of</strong><br />
violence, threats, or hostility between the parties that would have objectively placed the ex-girlfriend in fear <strong>of</strong><br />
imminent serious physical harm pursuant to ALM GL c 209A, § 1. Keene v. Gangi (2004) 60 Mass App 667, 805 NE2d<br />
77, 2004 Mass App LEXIS 299.<br />
6.5. District Judge's authority to vacate order<br />
District Judge had the inherent authority to expunge a record <strong>of</strong> a ALM GL c 209A civil abuse protection order<br />
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found<br />
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation <strong>of</strong> the<br />
order, nor sealing <strong>of</strong> the record was sufficient to protect the integrity <strong>of</strong> the courts, did not send an appropriate message<br />
to the public, and left a record <strong>of</strong> the order in the system; and (2) the potential harm to the courts and to the victim <strong>of</strong> the<br />
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it<br />
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL<br />
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's<br />
failure to attend a hearing on a motion to destroy all copies <strong>of</strong> the ALM GL c 209A order. Comm'r <strong>of</strong> Prob. v. Adams<br />
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.<br />
7. --Violation<br />
In prosecution <strong>of</strong> defendant for violating protective order by coming within 100 yards <strong>of</strong> former wife and in so<br />
doing placing her in fear <strong>of</strong> imminent serious physical harm, Commonwealth was required to prove that defendant<br />
intended to do act that resulted in violation, where defendant was passenger in car driven by son in threatening manner<br />
three feet from former wife as she was entering parking garage after leaving court. Commonwealth v. Collier (1998)<br />
427 Mass 385, 693 NE2d 673, 1998 Mass LEXIS 182.<br />
Although evidence was sufficient to warrant finding that defendant acted intentionally to do act that resulted in<br />
violation <strong>of</strong> protective order, (i.e., while defendant was passenger in car driven by his son, he directed or assented to<br />
son's driving car in threatening manner three feet from former wife as she was entering parking garage after leaving<br />
court), conviction <strong>of</strong> violation <strong>of</strong> protective order reversed because judge did not instruct jury that defendant must have<br />
intended to commit act that resulted in violation. Commonwealth v. Collier (1998) 427 Mass 385, 693 NE2d 673, 1998<br />
Mass LEXIS 182.<br />
In prosecution <strong>of</strong> defendant for twice violating restraining order not to contact his former wife by telephone,<br />
evidence that defendant placed telephone calls to former wife's home and place <strong>of</strong> employment was insufficient to prove<br />
essential element <strong>of</strong> "contacting," because there was no evidence that defendant left message or reached former wife's
ALM GL ch. 209A, § 7<br />
Page 59<br />
"voice mail" or that former wife even knew that calls had been made. Commonwealth v. Cove (1998) 427 Mass 474,<br />
693 NE2d 1385, 1998 Mass LEXIS 196.<br />
Defendant who arranged for flowers to be sent to former girlfriend violated "no contact" order; protestations <strong>of</strong><br />
"nonhostile intent" or "desire to make amends" are irrelevant to enforcement <strong>of</strong> no-contact order. Commonwealth v.<br />
Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS 99.<br />
Circumstantial evidence was competent to persuade jury beyond reasonable doubt that defendant violated<br />
no-contact protective order, where four collect telephone calls were made to telephone number <strong>of</strong> defendant's wife from<br />
unit <strong>of</strong> correctional facility where defendant was incarcerated and later that day wife received call from person whose<br />
voice she did not recognize asking if defendant could call her collect. Commonwealth v. Russell (1999) 46 Mass App<br />
307, 705 NE2d 1144, 1999 Mass App LEXIS 93, review denied (1999) 429 Mass 1104, 709 NE2d 1121, 1999 Mass<br />
LEXIS 256.<br />
Elements <strong>of</strong> crime <strong>of</strong> violating abuse prevention order are (1) existence <strong>of</strong> order in effect at time <strong>of</strong> alleged<br />
violation; (2) defendant's knowledge <strong>of</strong> terms <strong>of</strong> order; and (3) violation <strong>of</strong> terms <strong>of</strong> order. Commonwealth v. Basile<br />
(1999) 47 Mass App 918, 712 NE2d 633, 1999 Mass App LEXIS 787, review denied (1999) 430 Mass 1106, 720 NE2d<br />
468, 1999 Mass LEXIS 790.<br />
Where defendant was served in hand with abuse prevention order and on next day appeared one block from where<br />
victim was unloading goods acquired on shopping trip and jumped in air and waved his hands, frightening victim and<br />
causing her to go into house, evidence was sufficient to convict defendant <strong>of</strong> violating "no contact" terms <strong>of</strong> order.<br />
Commonwealth v. Basile (1999) 47 Mass App 918, 712 NE2d 633, 1999 Mass App LEXIS 787, review denied (1999)<br />
430 Mass 1106, 720 NE2d 468, 1999 Mass LEXIS 790.<br />
Where defendant was charged with violating "no contact" order by having telephoned victim twice while confined<br />
at Bridgewater State Hospital, evidence that defendant was put in fear <strong>of</strong> imminent serious physical harm, i.e., evidence<br />
<strong>of</strong> abuse, was not required. Commonwealth v. Mendonca (2001) 50 Mass App 684, 740 NE2d 1034, 2001 Mass App<br />
LEXIS 6, review denied (2001) 434 Mass 1101, 751 NE2d 418, 2001 Mass LEXIS 236.<br />
Violation <strong>of</strong> order not to contact by telephone is established by pro<strong>of</strong> <strong>of</strong> unexcused conversation with protected<br />
party over telephone and without pro<strong>of</strong> that protected party was placed in fear. Commonwealth v. Mendonca (2001) 50<br />
Mass App 684, 740 NE2d 1034, 2001 Mass App LEXIS 6, review denied (2001) 434 Mass 1101, 751 NE2d 418, 2001<br />
Mass LEXIS 236.<br />
Where valid restraining order was in effect requiring defendant to refrain from contacting his wife in person and<br />
ordering him to stay away from marital home and defendant had knowledge <strong>of</strong> order when he went to wife's residence,<br />
rang doorbell and demanded to be let in to see his son, evidence was sufficient to withstand defendant's motion for<br />
required finding <strong>of</strong> not guilty. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App<br />
LEXIS 22, review denied (2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.<br />
Where protective order prohibited defendant from contacting or coming within 50 yards <strong>of</strong> former wife except that<br />
he could remain in his vehicle when picking up and dropping <strong>of</strong>f his children for visitation, defendant violated order<br />
when he left vehicle and accompanied child inside foyer <strong>of</strong> apartment building and stood 4-5 feet away from former<br />
wife's apartment door. Commonwealth v. Stewart (2001) 52 Mass App 755, 756 NE2d 22, 2001 Mass App LEXIS 953.<br />
Even though a protected person was not present when defendant knowingly intruded directly into the protective<br />
person's workplace in violation <strong>of</strong> a protective order, the evidence was sufficient to show a violation <strong>of</strong> the order<br />
pursuant to ALM GL c 209A, § 7. Commonwealth v. Habenstreit (2003) 57 Mass App 785, 786 NE2d 425, 2003 Mass<br />
App LEXIS 462, review denied (2003) 439 Mass 1106, 790 NE2d 1089, 2003 Mass LEXIS 490.<br />
Defendant's convictions for violation <strong>of</strong> a no contact order were upheld where defendant contended that the
ALM GL ch. 209A, § 7<br />
Page 60<br />
comments he made about his ex-wife were not directed to her, but rather, were directed to a passenger in his vehicle, as<br />
one could not undermine a no contact order by simple expedient <strong>of</strong> ricocheting prohibited comments <strong>of</strong>f third persons;<br />
the legislature rationally concluded that prohibiting contact, whether or not the contact was itself abusive, sometimes<br />
might be necessary to reduce the likelihood that abuse would occur, under ALM GL c 209A, §§ 3(b), 7. Commonwealth<br />
v. Consoli (2003) 58 Mass App 734, 792 NE2d 1007, 2003 Mass App LEXIS 831, review denied (2003) 440 Mass 1103,<br />
797 NE2d 379, 2003 Mass LEXIS 777.<br />
Court would not dismiss an indictment charging defendant with failing to comply with a protective order, as he was<br />
permanently restrained from contacting his daughter, yet sent her a 21st birthday card; that she was emancipated at the<br />
time was immaterial. Commonwealth v. Aspen (2003) 17 Mass L Rep 182, 2003 Mass Super LEXIS 439.<br />
Defendant's claim that indicting him for violating an ALM GL c 209A order violated due process was not valid<br />
since the protective order had been sufficiently clear to a person <strong>of</strong> ordinary intelligence to know what conduct was<br />
prohibited and he had fair notice that the permanent order applied to his daughter, whom he contacted despite the order.<br />
Commonwealth v. Aspen (2003) 17 Mass L Rep 182, 2003 Mass Super LEXIS 439.<br />
8. Prosecution; trial<br />
Judgment for contempt under Abuse Prevention Act ( ALM GL c 209A) did not bar Commonwealth on double<br />
jeopardy grounds from prosecuting defendant for same conduct that resulted in contempt, since contempt was civil in<br />
nature. Mahoney v. Commonwealth (1993) 4<strong>15</strong> Mass 278, 612 NE2d 1175, 1993 Mass LEXIS 276.<br />
Failure to serve defendant with copy <strong>of</strong> extended abuse prevention order did not deprive District Court <strong>of</strong> subject<br />
matter jurisdiction and was not required before defendant could be convicted <strong>of</strong> violating order, where defendant was<br />
served with temporary order at his last and usual place <strong>of</strong> abode and that order warned that if he failed to appear<br />
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass<br />
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.<br />
Where incarcerated defendant received actual notice <strong>of</strong> scheduled hearing on extension <strong>of</strong> temporary protective<br />
order which had been granted ex parte, knew order could be extended, and never expressed desire to exercise his right<br />
to be heard, defendant's due process rights were not violated and his conviction for violation <strong>of</strong> protective order would<br />
be affirmed. Commonwealth v. Henderson (2001) 434 Mass <strong>15</strong>5, 747 NE2d 659, 2001 Mass LEXIS 213.<br />
Accidental, mistaken, or unknowing violations <strong>of</strong> distance requirements <strong>of</strong> abuse prevention order are not<br />
prosecuted under ALM GL c 209A, § 7. Commonwealth v. Finase (2001) 435 Mass 310, 757 NE2d 721, 2001 Mass<br />
LEXIS 642.<br />
Defendant was entitled to hearing pursuant to ALM GL c 218, § 35A prior to issuance <strong>of</strong> misdemeanor complaint<br />
against him for alleged violation <strong>of</strong> abuse prevention order; judge's dismissal <strong>of</strong> complaint without prejudice affirmed.<br />
Commonwealth v. Tripolone (1997) 44 Mass App 23, 686 NE2d 1325, 1997 Mass App LEXIS 247.<br />
Directive <strong>of</strong> first justice <strong>of</strong> District Court to clerk magistrate that complaint for violation <strong>of</strong> ALM GL c 209A abuse<br />
prevention order should automatically issue without hearing conflicted directly with statutory requirement for hearing<br />
unless exception set forth in statute is available. Commonwealth v. Tripolone (1997) 44 Mass App 23, 686 NE2d 1325,<br />
1997 Mass App LEXIS 247.<br />
Defendant's motion for required finding <strong>of</strong> not guilty on charge <strong>of</strong> violating extended ALM GL c 209A order<br />
should have been allowed because Commonwealth failed to establish that defendant was served with copy <strong>of</strong> order or<br />
had actual knowledge <strong>of</strong> its existence and terms. Commonwealth v. Molloy (1998) 44 Mass App 306, 690 NE2d 836,<br />
1998 Mass App LEXIS 29, review denied (1998) 427 Mass 1107, 699 NE2d 851, 1998 Mass LEXIS 452.<br />
Where defendant was served with abuse prevention order but not with copy <strong>of</strong> complaint and did not appear to
ALM GL ch. 209A, § 7<br />
Page 61<br />
contest extension <strong>of</strong> order, any error in failing to serve defendant with complaint was harmless. Commonwealth v.<br />
Munafo (1998) 45 Mass App 597, 700 NE2d 556, 1998 Mass App LEXIS 1107, review denied (1998) 428 Mass 1110,<br />
707 NE2d 1078, 1998 Mass LEXIS 802.<br />
Commonwealth met its burden <strong>of</strong> proving defendant's knowledge <strong>of</strong> existence <strong>of</strong> extended restraining order, where<br />
it could be inferred reasonably from order and <strong>of</strong>ficer's return <strong>of</strong> service that service was made either by delivering<br />
extended order in hand to defendant or by leaving it at his last and usual address. Commonwealth v. Crimmins (1999)<br />
46 Mass App 489, 707 NE2d 832, 1999 Mass App LEXIS 318.<br />
Where defendant was in court when ALM GL c 209A order was obtained and return <strong>of</strong> service showed that copy <strong>of</strong><br />
original order had been served on him, and victim testified she told defendant he was not supposed to call, evidence was<br />
sufficient to show that defendant had actual knowledge <strong>of</strong> order's terms. Commonwealth v. Mendonca (2001) 50 Mass<br />
App 684, 740 NE2d 1034, 2001 Mass App LEXIS 6, review denied (2001) 434 Mass 1101, 751 NE2d 418, 2001 Mass<br />
LEXIS 236.<br />
To establish that defendant violated restraining order issued pursuant to ALM GL c 209A, § 7, Commonwealth must<br />
prove that (1) there was valid restraining order, (2) defendant knew <strong>of</strong> order, and (3) defendant violated order.<br />
Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001)<br />
434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.<br />
Defendant's conviction for violation <strong>of</strong> an order under ALM GL c 209A, § 7 was reversed where the Commonwealth<br />
failed to prove that he was served with the order by any means that satisfied the dictates <strong>of</strong> due process, and further, that<br />
he had knowledge <strong>of</strong> the terms <strong>of</strong> the order; it was also shown that the Commonwealth had failed to allege facts that<br />
would have put defendant on notice to conduct a reasonably inquiry into the facts, as the victim's testimony regarding<br />
her conversations with defendant did not affirmatively indicate that he had been informed <strong>of</strong> the terms <strong>of</strong> the order.<br />
Commonwealth v. Welch (2003) 58 Mass App 408, 790 NE2d 718, 2003 Mass App LEXIS 707.<br />
9. --Evidence<br />
Hearsay statements attributed to defendant's son by complainant warranted finding that complainant was in fear <strong>of</strong><br />
imminent serious physical harm from defendant (defendant told son he should use toy sword to slit his mother's throat).<br />
Flynn v. Warner (1995) 421 Mass 1002, 654 NE2d 926, 1995 Mass LEXIS 358.<br />
At trial <strong>of</strong> defendant for violating protective order issued under ALM GL c 209A, defendant was prejudiced by<br />
admission <strong>of</strong> evidence <strong>of</strong> events that provided basis for issuance <strong>of</strong> 209A order, where only issue was one <strong>of</strong> credibility<br />
as to whether defendant appeared at his mother's house on particular day. Commonwealth v. Picariello (1996) 40 Mass<br />
App 902, 660 NE2d 1102, 1996 Mass App LEXIS 25, review denied (1996) 422 Mass 1107, 664 NE2d 1197.<br />
In prosecution for stalking, violating domestic protective order and trespassing, evidence <strong>of</strong> defendant's prior<br />
uncharged acts <strong>of</strong> violence against complainant and daughter <strong>of</strong> complainant and defendant, his previous incarceration,<br />
his giving <strong>of</strong> false name to police upon arrest, and his violation <strong>of</strong> "stay away" provision <strong>of</strong> protective order was either<br />
properly admitted, not objected to, or not prejudicial to defendant. Commonwealth v. Martinez (1997) 43 Mass App<br />
408, 683 NE2d 699, 1997 Mass App LEXIS 188, review denied (1997) 426 Mass 1103, 687 NE2d 643, 1997 Mass<br />
LEXIS 546.<br />
At trial <strong>of</strong> defendant for violation <strong>of</strong> abuse prevention order, there was no error in admission <strong>of</strong> certified copy <strong>of</strong><br />
original order indicating on its face that it had been modified, and it was not unfair to place on defendant burden <strong>of</strong><br />
alerting judge to substance <strong>of</strong> modifications. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001<br />
Mass App LEXIS 22, review denied (2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.<br />
Defendant was convicted <strong>of</strong> violating an abuse prevention order issued under ALM GL c 209A, § 7, by going to a<br />
residence where he and the victim used to live. Trial counsel was not ineffective for failing to call defendant as a
ALM GL ch. 209A, § 7<br />
Page 62<br />
witness because defendant's testimony that he did not know that the victim was in the residence would have been<br />
irrelevant, as his guilt did not depend on his knowledge <strong>of</strong> the victim's presence. Commonwealth v. Saladin (2008) 73<br />
Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105, 902 N.E.2d 947,<br />
2009 Mass. LEXIS 479.<br />
Although defendant was acquitted <strong>of</strong> a prior charge <strong>of</strong> assault with a dangerous weapon in connection with an<br />
incident against his brother, evidence <strong>of</strong> the prior charge was admissible in defendant's trial for violating an abuse<br />
prevention order obtained by the brother against defendant because the previous assault charge was introduced to show<br />
defendant's hostility and motive. Commonwealth v. Barboza (2010) 76 Mass App 241, 921 NE2d 117, 2010 Mass. App.<br />
LEXIS 125.<br />
Defendant's convictions <strong>of</strong> violating a ALM GL c 209A order were not duplicative <strong>of</strong> his conviction <strong>of</strong> criminal<br />
harassment, as the two crimes had different elements, and the conduct forming the basis <strong>of</strong> the criminal harassment<br />
charge predated service <strong>of</strong> the 209A order and violations there<strong>of</strong> and thus was distinct from that forming the basis <strong>of</strong> the<br />
209A order violations. Commonwealth v. Kulesa (2009) 455 Mass. 447, 917 NE2d 762, 2009 Mass. LEXIS 902.<br />
Defendant's conviction <strong>of</strong> violating a protective abuse order under ALM GL c 209A, § 7 did not violate due process<br />
as a telephone call between defendant and the victim provided adequate notice <strong>of</strong> the restraining order (RO), defendant's<br />
response to the information evidenced that defendant knew <strong>of</strong> the RO, and defendant violated the RO by calling the<br />
victim the next day. Commonwealth v. Melton (2010) 2010 Mass. App. LEXIS 1176.<br />
In a prosecution for violation <strong>of</strong> an abuse prevention order, a return <strong>of</strong> service completed by an out <strong>of</strong> state police<br />
<strong>of</strong>ficer did not fall under the <strong>of</strong>ficial or public records exception, under ALM GL c 233, § 76, and Mass.R.Crim.P. 40,<br />
due to being maintained by the court, because the statute and Rule pertained to the authenticity <strong>of</strong> a record, which was a<br />
precondition to, not the equivalent <strong>of</strong>, admissibility. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288.<br />
In a prosecution for violation <strong>of</strong> an abuse prevention order, a return <strong>of</strong> service completed by an out <strong>of</strong> state police<br />
<strong>of</strong>ficer was admissible without the <strong>of</strong>ficer's testimony to demonstrate defendant's knowledge <strong>of</strong> the order because (1) the<br />
completed return <strong>of</strong> service fell within an exception to the hearsay rule for public documents, as the return was prepared<br />
by an <strong>of</strong>ficial in the performance <strong>of</strong> an <strong>of</strong>ficial duty, and (2) the return's admission, absent the <strong>of</strong>ficer's live testimony or<br />
a prior opportunity to cross-examine the <strong>of</strong>ficer, did not violate the confrontation clause, as the primary purpose for<br />
which the return <strong>of</strong> service was created was to serve the routine administrative functions <strong>of</strong> the court system, and the<br />
return was not created to prove a fact at a potential future criminal trial, was not per se testimonial, and was not<br />
testimonial in fact. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288.<br />
10. --Jury instructions<br />
Judge was not required to include language on circumstantial evidence in jury instruction regarding elements <strong>of</strong><br />
abuse. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.<br />
At trial <strong>of</strong> defendant for violating abuse prevention order prohibiting defendant from contacting former wife in<br />
person or by telephone or otherwise, judge erred in refusing to instruct jury that it could find that defendant's contacts<br />
with former wife, which occurred in course <strong>of</strong> attempt to speak to daughter by telephone, were "incidental" and that if<br />
jury so found, such contacts did not constitute violation <strong>of</strong> ALM GL c 209A order. Commonwealth v. Leger (2001) 52<br />
Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.<br />
Where ALM GL c 209A "no-contact" order prohibited defendant from contacting former wife but did not limit<br />
right <strong>of</strong> defendant to have contact with his children, judge should have instructed jury to consider whether defendant's<br />
telephoning <strong>of</strong> former wife with whom children lived, including repeated calls after wife hung up, was incidental to<br />
legitimate attempt to telephone daughter, and if so, that such incidental contact was not violation <strong>of</strong> ALM GL c 209A<br />
restraining order. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.
ALM GL ch. 209A, § 7<br />
Page 63<br />
Given the evidence presented, the judge should have instructed the jury that a defendant could not be convicted for<br />
an inadvertent violation <strong>of</strong> the a "no-contact" order. Commonwealth v. Raymond (2002) 54 Mass App 488, 766 NE2d<br />
113, 2002 Mass App LEXIS 478.<br />
It was error for the trial court to deny defendant's request for an instruction on accident or mistake based upon<br />
evidence presented at trial. Defendant admitted that he left a message on his former fiance's answering machine, but<br />
there was evidence that defendant left the message by mistake when he incorrectly dialed and thought he was leaving a<br />
message for his friend with the same name. Commonwealth v. McKay (2006) 67 Mass App 396, 853 NE2d 1098, 2006<br />
Mass App LEXIS 960.<br />
Defendant was convicted <strong>of</strong> violating an abuse prevention order issued under ALM GL c 209A, § 7, by going to a<br />
residence where he and the victim used to live. An instruction on intent adequately conveyed to the jury the fact that the<br />
only intent required was that defendant voluntarily intended the act that constituted the violation. Commonwealth v.<br />
Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105,<br />
902 N.E.2d 947, 2009 Mass. LEXIS 479.<br />
In a prosecution for violateing an order <strong>of</strong> protection, as defendant was served with an order informing him <strong>of</strong> a<br />
hearing date for extension <strong>of</strong> a ALM GL c 209A order, he could not escape being charged with knowledge that the<br />
initial order was extended merely because he failed to attend the hearing on the extension <strong>of</strong> the order. Therefore, the<br />
trial court was not obligated to instruct the jury that defendant had to be made aware <strong>of</strong> the extended order.<br />
Commonwealth v. Kulesa (2009) 455 Mass. 447, 917 NE2d 762, 2009 Mass. LEXIS 902.<br />
11. Penalties<br />
After wife took children out <strong>of</strong> Massachusetts, husband obtained legal custody <strong>of</strong> children under ALM GL c 209A, §<br />
7. Commonwealth v. Beals (1989) 405 Mass 550, 541 NE2d 1011, 1989 Mass LEXIS 235.<br />
For violation <strong>of</strong> protective order issued pursuant to ALM GL c 209A, after being found guilty by jury, defendant<br />
sentenced to one year in house <strong>of</strong> correction, all but 30 days suspended. Commonwealth v. Gordon (1990) 407 Mass<br />
340, 553 NE2d 9<strong>15</strong>, 1990 Mass LEXIS 197.<br />
Convictions <strong>of</strong> defendant and consecutive sentences on indictments for parental kidnapping and violation <strong>of</strong> ALM<br />
GL c 209A restraining order were not duplicative or violative <strong>of</strong> double jeopardy principles. Commonwealth v. Bachir<br />
(1998) 45 Mass App 204, 696 NE2d 948, 1998 Mass App LEXIS 513, review denied (1998) 428 Mass 1104, 702 NE2d<br />
812, 1998 Mass LEXIS 613.
Page 64<br />
12 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 8 (2012)<br />
§ 8. Confidentiality <strong>of</strong> Plaintiff's Address; Records Involving Minors.<br />
The records <strong>of</strong> cases arising out <strong>of</strong> an action brought under the provisions <strong>of</strong> this chapter where the plaintiff or<br />
defendant is a minor shall be withheld from public inspection except by order <strong>of</strong> the court; provided, that such records<br />
shall be open, at all reasonable times, to the inspection <strong>of</strong> the minor, said minor's parent, guardian, attorney, and to the<br />
plaintiff and the plaintiff's attorney, or any <strong>of</strong> them.<br />
The plaintiff's residential address, residential telephone number and workplace name, address and telephone<br />
number, contained within the court records <strong>of</strong> cases arising out <strong>of</strong> an action brought by a plaintiff under the provisions<br />
<strong>of</strong> this chapter, shall be confidential and withheld from public inspection, except by order <strong>of</strong> the court, except that the<br />
plaintiff's residential address and workplace address shall appear on the court order and accessible to the defendant and<br />
the defendant's attorney unless the plaintiff specifically requests that this information be withheld from the order. All<br />
confidential portions <strong>of</strong> the records shall be accessible at all reasonable times to the plaintiff and plaintiff's attorney, to<br />
others specifically authorized by the plaintiff to obtain such information, and to prosecutors, victim-witness advocates<br />
as defined in section 1 <strong>of</strong> chapter 258B, domestic violence victim's counselors as defined in section 20K <strong>of</strong> chapter 233,<br />
sexual assault counselors as defined in section 20J <strong>of</strong> chapter 233, and law enforcement <strong>of</strong>ficers, if such access is<br />
necessary in the performance <strong>of</strong> their duties. The provisions <strong>of</strong> this paragraph shall apply to any protection order issued<br />
by another jurisdiction, as defined in section 1, that is filed with a court <strong>of</strong> the commonwealth pursuant to section 5A.<br />
Such confidential portions <strong>of</strong> the court records shall not be deemed to be public records under the provisions <strong>of</strong> clause<br />
twenty-sixth <strong>of</strong> section 7 <strong>of</strong> chapter 4.<br />
HISTORY: 1983, 678, § 5; 1996, 298, § 9; 1999, 127, § <strong>15</strong>6; 2000, 236, § 24.<br />
NOTES: Editorial Note<br />
The 1996 amendment revised the first paragraph.
ALM GL ch. 209A, § 8<br />
Page 65<br />
The 1999 amendment added the third paragraph.<br />
The 2000 amendment, effective Sept 28, 2000, deleted the former first and third paragraphs and added the current<br />
second paragraph. The former first paragraph read: "Upon the request <strong>of</strong> the plaintiff, the court shall impound the<br />
plaintiff's address by excluding same from the complaint and from all other court documents which are available for<br />
public inspection or a protection order issued by another jurisdiction, and shall ensure that the address is kept<br />
confidential from the defendant and defendant's attorney." The former third paragraph read: "The portions <strong>of</strong> records <strong>of</strong><br />
cases arising out <strong>of</strong> an action brought by a plaintiff under the provisions <strong>of</strong> this chapter, which consist <strong>of</strong> such plaintiff's<br />
current residential address, former residential address, residential telephone number and workplace name, address and<br />
telephone number, shall be kept confidential from the defendant and defendant's attorney and shall be withheld from<br />
public inspection except by order <strong>of</strong> the court; provided, however, that such portions <strong>of</strong> such records shall be accessible<br />
at all reasonable times to inspection by the plaintiff, the plaintiff's attorney and to others specifically authorized by the<br />
plaintiff to obtain such information; and provided, further, that such portions <strong>of</strong> such records shall not be kept<br />
confidential from the defendant and the defendant's attorney if they are required to appear on a court order against such<br />
defendant issued under the provisions <strong>of</strong> this chapter. Such portion <strong>of</strong> the records shall not be deemed to be public under<br />
the provisions <strong>of</strong> clause 26th <strong>of</strong> section 7 <strong>of</strong> chapter 4. Upon request <strong>of</strong> the plaintiff, the court shall impound the<br />
plaintiff's current and former residential address, telephone number and workplace name, address and telephone number<br />
consistent with this section." Section 100 provides:<br />
Section 100. Sections 22, 23 and 24 shall apply to complaints filed pursuant to chapter 209A <strong>of</strong> the General Laws,<br />
on or after 90 days following enactment.<br />
Jurisprudence<br />
24 Am Jur 2d, Divorce & Separation §§ 265-268.<br />
Annotations<br />
Validity and application <strong>of</strong> statute allowing endangered child to be temporarily removed from parental custody. 38<br />
ALR4th 756.<br />
Treatise References<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.12, 16.02, 51:2, Form 208.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Tracia, Navigating the Waters <strong>of</strong> Massachusetts Child Relocation Law: Assessing The Application <strong>of</strong> the Real<br />
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).
ALM GL ch. 209A, § 8<br />
Page 66<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
Public has access to affidavits filed in support <strong>of</strong> domestic abuse protective order. Boston Herald, Inc. v. Sharpe<br />
(2000) 432 Mass 593, 737 NE2d 859, 2000 Mass LEXIS 698.
Page 67<br />
§ 9. Form <strong>of</strong> Complaint.<br />
13 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 9 (2012)<br />
The administrative justices <strong>of</strong> the superior court, probate and family court, district court, and the Boston municipal<br />
court departments shall jointly promulgate a form <strong>of</strong> complaint for use under this chapter which shall be in such form<br />
and language to permit a plaintiff to prepare and file such complaint pro se.<br />
HISTORY: 1983, 678, § 5.<br />
NOTES: Treatise References<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Web References
ALM GL ch. 209A, § 9<br />
Page 68<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
Page 69<br />
14 <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 10 (2012)<br />
§ 10. Assessment Upon Assignment to Batterers' Treatment Program.<br />
The court shall impose an assessment <strong>of</strong> three hundred and fifty dollars against any person who has been referred to a<br />
certified batterers' treatment program as a condition <strong>of</strong> probation. Said assessment shall be in addition to the cost <strong>of</strong> the<br />
treatment program. In the discretion <strong>of</strong> the court, said assessment may be reduced or waived when the court finds that<br />
the person is indigent or that payment <strong>of</strong> the assessment would cause the person, or the dependents <strong>of</strong> such person,<br />
severe financial hardship. Assessments made pursuant to this section shall be in addition to any other fines, assessments,<br />
or restitution imposed in any disposition. All funds collected by the court pursuant to this section shall be transmitted<br />
monthly to the state treasurer, who shall deposit said funds in the General Fund.<br />
HISTORY: 1993, 110, § 217; 1993, <strong>15</strong>1, § 49; 1996, <strong>15</strong>1, § 466.<br />
NOTES: Editorial Note<br />
The 1993 amendment at the end <strong>of</strong> the final sentence, substituted "General Fund" for "Domestic Violence Victims'<br />
Assistance Fund."<br />
The 1996 amendment substituted "three hundred and fifty" dollars for "three hundred" dollars.<br />
Treatise References<br />
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 2.520, Imposing Sentence.<br />
Law Reviews<br />
Buel, Violence Against Women: Effective Assistance <strong>of</strong> Counsel for Battered Women Defendants: A Normative
ALM GL ch. 209A, § 10<br />
Page 70<br />
Construct. 26 Harv Women's LJ 217.<br />
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).<br />
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept <strong>of</strong> Police Interrogation Set Forth in<br />
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,<br />
2007).<br />
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.<br />
Cin. L. Rev. 447 (Winter, 2006).<br />
Web References<br />
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html<br />
ABA Family Law Section, see www.abanet.org/family/home.html<br />
Department <strong>of</strong> Social Services, see www.state.ma.us/dss/<br />
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html<br />
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html<br />
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/<br />
CASE NOTES<br />
Trial court's award <strong>of</strong> legal and primary physical custody to a mother, pursuant to ALM GL c 209C, § 10(a), was<br />
proper where the substance <strong>of</strong> the trial court's opinion indicated that the judge applied the "best interests <strong>of</strong> the child"<br />
standard and also considered the three required factors <strong>of</strong> ALM GL c 209C, § 10(a) in making its custody determination;<br />
the court found that both parents had a close personal and parental relationship with their daughter, it considered where<br />
and with whom the child resided for the six months prior to the initiation <strong>of</strong> the proceeding, and it attempted to preserve<br />
"to the extent possible" the relationship between the child and the primary caregiver. Custody <strong>of</strong> Kali (2003) 439 Mass<br />
834, 792 NE2d 635, 2003 Mass LEXIS 574.
Page 71<br />
<strong>15</strong> <strong>of</strong> <strong>15</strong> <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS<br />
TITLE III DOMESTIC RELATIONS<br />
Chapter 209A Abuse Prevention<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 209A, § 11 (2012)<br />
§ 11. Domesticated Animals -- Possession, Care and Control.<br />
(a) Whenever the court issues a temporary or permanent vacate, stay away, restraining or no contact order or a<br />
judgment under section 18, 34B or 34C <strong>of</strong> chapter 208, or under section 32 <strong>of</strong> chapter 209, or under section 3, 4 or 5 <strong>of</strong><br />
this chapter, or under section <strong>15</strong> or 20 <strong>of</strong> chapter 209C, or under section 3 to 7, inclusive, <strong>of</strong> chapter 258E or a<br />
temporary restraining order or preliminary or permanent injunction relative to a domestic relations, child custody,<br />
domestic abuse or abuse prevention proceeding, the court may order the possession, care and control <strong>of</strong> any<br />
domesticated animal owned, possessed, leased, kept or held by either party or a minor child residing in the household to<br />
the plaintiff or petitioner. The court may order the defendant to refrain from abusing, threatening, taking, interfering<br />
with, transferring, encumbering, concealing, harming or otherwise disposing <strong>of</strong> such animal.<br />
(b) A party to any proceeding listed in subsection (a) may petition the court for an order authorized by said<br />
subsection (a).<br />
(c) Whenever the court issues a warrant for a violation <strong>of</strong> a temporary or permanent vacate, stay away, restraining<br />
or no contact order or a judgment issued under section 18, 34B or 34C <strong>of</strong> chapter 208, or under section 32 <strong>of</strong> chapter<br />
209, or under section 3, 4 or 5 <strong>of</strong> this chapter, or under section <strong>15</strong> or 20 <strong>of</strong> chapter 209C, or section 3 to 7, inclusive, <strong>of</strong><br />
chapter 258E or otherwise becomes aware that an outstanding warrant for such a violation has been issued against a<br />
person before the court, the judge may make a finding, based upon the totality <strong>of</strong> the circumstances, as to whether there<br />
exists an imminent threat <strong>of</strong> bodily injury to any party to such judgment or the petitioner <strong>of</strong> any such protective order, a<br />
member <strong>of</strong> the petitioner's family or household or to a domesticated animal belonging to the petitioner or to a member<br />
<strong>of</strong> the petitioner's family or household. If the court makes a finding that such an imminent threat <strong>of</strong> bodily injury to a<br />
person or domesticated animal exists, the court shall notify the appropriate law enforcement <strong>of</strong>ficials <strong>of</strong> such finding<br />
and the law enforcement <strong>of</strong>ficials shall take all necessary actions to execute any such outstanding warrant as soon as is<br />
practicable.<br />
HISTORY: 2012, 193, § 50.
ALM GL ch. 209A, § 11<br />
Page 72<br />
NOTES: Editorial Note<br />
Acts 2012, 193, § 50, effective Oct 31, 2012, enacted this section.
Page 1<br />
§ 1. Definitions.<br />
1 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 1 (2012)<br />
As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following<br />
meanings:-<br />
"Abuse", attempting to cause or causing physical harm to another or placing another in fear <strong>of</strong> imminent serious<br />
physical harm.<br />
"Harassment", (i) 3 or more acts <strong>of</strong> willful and malicious conduct aimed at a specific person committed with the<br />
intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or<br />
damage to property; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual<br />
relations; or (B) constitutes a violation <strong>of</strong> section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A <strong>of</strong> chapter 265<br />
or section 3 <strong>of</strong> chapter 272.<br />
"Court", the district or Boston municipal court, the superior court or the juvenile court departments <strong>of</strong> the trial<br />
court.<br />
"Law <strong>of</strong>ficer", any <strong>of</strong>ficer authorized to serve criminal process.<br />
"Malicious", characterized by cruelty, hostility or revenge.<br />
"Protection order issued by another jurisdiction", an injunction or other order issued by a court <strong>of</strong> another state,<br />
territory or possession <strong>of</strong> the United States, the Commonwealth <strong>of</strong> Puerto Rico, or the District <strong>of</strong> Columbia, or a tribal<br />
court that is issued for the purpose <strong>of</strong> preventing violent or threatening acts, abuse or harassment against, or contact or<br />
communication with or physical proximity to another person, including temporary and final orders issued by civil and<br />
criminal courts filed by or on behalf <strong>of</strong> a person seeking protection.
ALM GL ch. 258E, § 1<br />
Page 2<br />
HISTORY: 2010, 23.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.<br />
Treatise References<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.740, Violation <strong>of</strong> a Harassment Prevention<br />
Order.<br />
Law Review References<br />
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims <strong>of</strong><br />
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough 17 Suffolk J. Trial & App. Adv. 102<br />
(2012).<br />
CASE NOTES<br />
Civil harassment act is not constitutionally overbroad because it does not prohibit a substantial amount <strong>of</strong> protected<br />
speech, either in an absolute sense or in relation to the statute's legitimate sweep. O'Brien v. Borowski (2012) 461 Mass<br />
4<strong>15</strong>, 961 NE2d 547, 2012 Mass. LEXIS 19.<br />
ALM GL c 258E establishes significant prerequisites to any challenge to rude, uncivil, or pr<strong>of</strong>ane conduct in<br />
general, let alone by police <strong>of</strong>ficials. Ch. 258E provides no easy shortcut to more traditional and appropriate modes <strong>of</strong><br />
challenging police conduct, such as defending criminal proceedings or meeting the burden <strong>of</strong> proving claims under<br />
other civil statutes. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.<br />
Police <strong>of</strong>ficer's lawful exercise <strong>of</strong> discretion, even though implemented in an antagonistic, angry, and unnecessarily<br />
unhelpful manner during two related encounters initiated by plaintiff, was not harassment under ALM GL c 258E.<br />
Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.<br />
"Acts" prohibited by the anti-harassment statute, ALM GL c 258E, include harassing speech. Palumbo v. Tusino<br />
(2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.<br />
Where plaintiff filed a complaint against a police <strong>of</strong>ficer for protection from harassment under ALM GL c 258E,<br />
the court found that while the parties had a rude and angry discussion with raised voices, that conduct did not sink to the<br />
level <strong>of</strong> willful and malicious conduct aimed at plaintiff with the intent to cause fear, intimidation, abuse, or property<br />
damage. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
Page 3<br />
§ 2. Jurisdiction.<br />
2 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 2 (2012)<br />
Proceedings under this chapter shall be filed, heard and determined in the superior court department or the respective<br />
divisions <strong>of</strong> the district court department or the Boston municipal court department having venue over the plaintiff's<br />
residence. The juvenile court department shall have exclusive jurisdiction <strong>of</strong> proceedings under this chapter in which<br />
the defendant is under the age <strong>of</strong> 17. Such proceedings shall be filed, heard and determined in the division <strong>of</strong> the<br />
juvenile court department having venue over the plaintiff's residence.<br />
HISTORY: 2010, 23; 2010, 112, § 29.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.<br />
The 2010 amendment, effective May 22, 2010, rewrote this section.
Page 4<br />
§ 3. Filing <strong>of</strong> Complaint.<br />
3 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 3 (2012)<br />
(a) A person suffering from harassment may file a complaint in the appropriate court requesting protection from such<br />
harassment. A person may petition the court under this chapter for an order that the defendant:<br />
(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor;<br />
(ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or<br />
minor;<br />
(iii) remain away from the plaintiff's household or workplace, whether the defendant is an adult or minor; and<br />
(iv) pay the plaintiff monetary compensation for the losses suffered as a direct result <strong>of</strong> the harassment; provided,<br />
however, that compensatory damages shall include, but shall not be limited to, loss <strong>of</strong> earnings, out-<strong>of</strong>-pocket losses for<br />
injuries sustained or property damaged, cost <strong>of</strong> replacement <strong>of</strong> locks, medical expenses, cost for obtaining an unlisted<br />
phone number and reasonable attorney's fees.<br />
(b) The court may order that information in the case record be impounded in accordance with court rule.<br />
(c) No filing fee shall be charged for the filing <strong>of</strong> the complaint. The plaintiff shall not be charged for certified<br />
copies <strong>of</strong> any orders entered by the court, or any copies <strong>of</strong> the file reasonably required for future court action or as a<br />
result <strong>of</strong> the loss or destruction <strong>of</strong> plaintiff's copies.<br />
(d) Any relief granted by the court shall not extend for a period exceeding 1 year. Every order shall, on its face,<br />
state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the<br />
plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to<br />
extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.<br />
When the expiration date stated on the order is on a date when the court is closed to business, the order shall not expire
ALM GL ch. 258E, § 3<br />
Page 5<br />
until the next date that the court is open to business. The plaintiff may appear on such next court business day at the<br />
time designated by the order to request that the order be extended. The court may also extend the order upon motion <strong>of</strong><br />
the plaintiff, for such additional time as it deems necessary to protect the plaintiff from harassment. The fact that<br />
harassment has not occurred during the pendency <strong>of</strong> an order shall not, in itself, constitute sufficient ground for denying<br />
or failing to extend the order, or allowing an order to expire or be vacated or for refusing to issue a new order.<br />
(e) The court may modify its order at any subsequent time upon motion by either party; provided, however, that the<br />
non-moving party shall receive sufficient notice and opportunity to be heard on said modification. When the plaintiff's<br />
address is inaccessible to the defendant as provided in section 10 and the defendant has filed a motion to modify the<br />
court's order, the court shall be responsible for notifying the plaintiff. In no event shall the court disclose any such<br />
inaccessible address.<br />
(f) The court shall not deny any complaint filed under this chapter solely because it was not filed within a particular<br />
time period after the last alleged incident <strong>of</strong> harassment.<br />
(g) An action commenced under this chapter shall not preclude any other civil or criminal remedies. A party filing a<br />
complaint under this chapter shall be required to disclose any prior or pending actions involving the parties; including,<br />
but not limited to, court actions, administrative proceedings and disciplinary proceedings.<br />
HISTORY: 2010, 23; 2010, 112, § 30.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.<br />
The 2010 amendment, effective May 22, 2010, added "including, but not limited to, court actions, administrative<br />
proceedings and disciplinary proceedings" in the second sentence <strong>of</strong> (g).<br />
Law Review References<br />
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims <strong>of</strong><br />
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough 17 Suffolk J. Trial & App. Adv. 102<br />
(2012).<br />
CASE NOTES<br />
ALM GL c 258E establishes significant prerequisites to any challenge to rude, uncivil, or pr<strong>of</strong>ane conduct in<br />
general, let alone by police <strong>of</strong>ficials. Ch. 258E provides no easy shortcut to more traditional and appropriate modes <strong>of</strong><br />
challenging police conduct, such as defending criminal proceedings or meeting the burden <strong>of</strong> proving claims under<br />
other civil statutes. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.<br />
Police <strong>of</strong>ficer's lawful exercise <strong>of</strong> discretion, even though implemented in an antagonistic, angry, and unnecessarily<br />
unhelpful manner during two related encounters initiated by plaintiff, was not harassment under ALM GL c 258E.<br />
Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.<br />
"Acts" prohibited by the anti-harassment statute, ALM GL c 258E, include harassing speech. Palumbo v. Tusino<br />
(2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.<br />
Where plaintiff filed a complaint against a police <strong>of</strong>ficer for protection from harassment under ALM GL c 258E,<br />
the court found that while the parties had a rude and angry discussion with raised voices, that conduct did not sink to the
ALM GL ch. 258E, § 3<br />
Page 6<br />
level <strong>of</strong> willful and malicious conduct aimed at plaintiff with the intent to cause fear, intimidation, abuse, or property<br />
damage. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
Page 7<br />
§ 4. Nature <strong>of</strong> Complaint.<br />
4 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 4 (2012)<br />
Upon the filing <strong>of</strong> a complaint under this chapter, a complainant shall be informed that the proceedings hereunder are<br />
civil in nature and that violations <strong>of</strong> orders issued hereunder are criminal in nature. Further, a complainant shall be<br />
given information prepared by the appropriate district attorney's <strong>of</strong>fice that other criminal proceedings may be available<br />
and such complainant shall be instructed by such district attorney's <strong>of</strong>fice relative to the procedures required to initiate<br />
criminal proceedings including, but not limited to, a complaint for a violation <strong>of</strong> section 13B, 13F, 13H, 22, 22A, 23,<br />
24, 24B, 26C, 43 and 43A <strong>of</strong> chapter 265 or section 3 <strong>of</strong> chapter 272. Whenever possible, a complainant shall be<br />
provided with such information in the complainant's native language.<br />
HISTORY: 2010, 23.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.
Page 8<br />
5 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
§ 5. Relief -- Temporary Protection Orders.<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 5 (2012)<br />
Upon the filing <strong>of</strong> a complaint under this chapter, the court may enter such temporary orders as it deems necessary to<br />
protect a plaintiff from harassment, including relief as provided in section 3.<br />
If the plaintiff demonstrates a substantial likelihood <strong>of</strong> immediate danger <strong>of</strong> harassment, the court may enter such<br />
temporary relief orders without notice as it deems necessary to protect the plaintiff from harassment and shall<br />
immediately thereafter notify the defendant that the temporary orders have been issued. The court shall give the<br />
defendant an opportunity to be heard on the question <strong>of</strong> continuing the temporary order and <strong>of</strong> granting other relief as<br />
requested by the plaintiff not later than 10 court business days after such orders are entered.<br />
Notice shall be made by the appropriate law enforcement agency as provided in section 9.<br />
If the defendant does not appear at such subsequent hearing, the temporary orders shall continue in effect without<br />
further order <strong>of</strong> the court.<br />
HISTORY: 2010, 23.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.
Page 9<br />
6 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
§ 6. Relief -- When Court is Closed.<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 6 (2012)<br />
[Effective until July 1, 2012.] When the court is closed for business or the plaintiff is unable to appear in court<br />
because <strong>of</strong> severe hardship due to the plaintiff's physical condition, the court may grant relief to the plaintiff as provided<br />
under section 5 if the plaintiff demonstrates a substantial likelihood <strong>of</strong> immediate danger <strong>of</strong> harassment. In the<br />
discretion <strong>of</strong> the justice, such relief may be granted and communicated by telephone to an <strong>of</strong>ficer or employee <strong>of</strong> an<br />
appropriate law enforcement agency, who shall record such order on a form <strong>of</strong> order promulgated for such use by the<br />
chief justice for administration and management and shall deliver a copy <strong>of</strong> such order on the next court day to the clerk<br />
or clerk-magistrate <strong>of</strong> the court having venue and jurisdiction over the matter. If relief has been granted without the<br />
filing <strong>of</strong> a complaint pursuant to this section, the plaintiff shall appear in court on the next available business day to file<br />
a complaint. If the plaintiff in such a case is unable to appear in court without severe hardship due to the plaintiff's<br />
physical condition, a representative may appear in court, on the plaintiff's behalf and file the requisite complaint with an<br />
affidavit setting forth the circumstances preventing the plaintiff from appearing personally. Notice to the plaintiff and<br />
defendant and an opportunity for the defendant to be heard shall be given as provided in said section 5.<br />
[Effective July 1, 2012.]<br />
When the court is closed for business or the plaintiff is unable to appear in court because <strong>of</strong> severe hardship due to<br />
the plaintiff's physical condition, the court may grant relief to the plaintiff as provided under section 5 if the plaintiff<br />
demonstrates a substantial likelihood <strong>of</strong> immediate danger <strong>of</strong> harassment. In the discretion <strong>of</strong> the justice, such relief<br />
may be granted and communicated by telephone to an <strong>of</strong>ficer or employee <strong>of</strong> an appropriate law enforcement agency,<br />
who shall record such order on a form <strong>of</strong> order promulgated for such use by the chief justice <strong>of</strong> the trial court and shall<br />
deliver a copy <strong>of</strong> such order on the next court day to the clerk or clerk-magistrate <strong>of</strong> the court having venue and<br />
jurisdiction over the matter. If relief has been granted without the filing <strong>of</strong> a complaint pursuant to this section, the<br />
plaintiff shall appear in court on the next available business day to file a complaint. If the plaintiff in such a case is<br />
unable to appear in court without severe hardship due to the plaintiff's physical condition, a representative may appear<br />
in court, on the plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances
ALM GL ch. 258E, § 6<br />
Page 10<br />
preventing the plaintiff from appearing personally. Notice to the plaintiff and defendant and an opportunity for the<br />
defendant to be heard shall be given as provided in said section 5.<br />
Any order issued under this section and any documentation in support there<strong>of</strong> shall be certified on the next court<br />
day by the clerk or clerk-magistrate <strong>of</strong> the court issuing such order to the court having venue and jurisdiction over the<br />
matter. Such certification to the court shall have the effect <strong>of</strong> commencing proceedings under this chapter and invoking<br />
the other provisions <strong>of</strong> this chapter but shall not be deemed necessary for an emergency order issued under this section<br />
to take effect.<br />
HISTORY: 2010, 23; 2011, 93, § 113.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.<br />
The 2011 amendment, effective July 1, 2012, substituted "chief justice <strong>of</strong> the trial court" for "chief justice for<br />
administration and management" following "use by the" in the second sentence <strong>of</strong> the first paragraph. Section 137<br />
provides:<br />
Section 137. Sections 2 to 7, inclusive, 10 to 54, inclusive, 57 to 117, inclusive, 122, 123, 124, 125 and 127A shall<br />
take effect on July 1, 2012.
Page 11<br />
7 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
§ 7. Protection Order Issued by another Jurisdiction.<br />
ALM GL ch. 258E, § 7 (2012)<br />
Any protection order issued by another jurisdiction shall be given full faith and credit throughout the commonwealth<br />
and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction.<br />
A person entitled to protection under a protection order issued by another jurisdiction may file such order with the<br />
appropriate court by filing with the court a certified copy <strong>of</strong> such order. Such person shall swear under oath in an<br />
affidavit, to the best <strong>of</strong> such person's knowledge, that such order is presently in effect as written. Upon request by a law<br />
enforcement agency, the clerk or clerk-magistrate <strong>of</strong> such court shall provide a certified copy <strong>of</strong> the protection order<br />
issued by the other jurisdiction.<br />
A law <strong>of</strong>ficer may presume the validity <strong>of</strong>, and enforce in accordance with section 8, a copy <strong>of</strong> a protection order<br />
issued by another jurisdiction which has been provided to the law <strong>of</strong>ficer by any source; provided, however, that the<br />
<strong>of</strong>ficer is also provided with a statement by the person protected by the order that such order remains in effect. Law<br />
<strong>of</strong>ficers may rely on such statement by the person protected by such order.<br />
HISTORY: 2010, 23.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.
Page 12<br />
8 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
§ 8. Law Officers -- Emergency Response.<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 8 (2012)<br />
Whenever a law <strong>of</strong>ficer has reason to believe that a person has been abused or harassed or is in danger <strong>of</strong> being abused<br />
or harassed, such <strong>of</strong>ficer shall use all reasonable means to prevent further abuse or harassment. Law <strong>of</strong>ficers shall make<br />
every reasonable effort to do the following as part <strong>of</strong> the emergency response:<br />
(1) assess the immediate physical danger to the victim and provide assistance reasonably intended to mitigate the<br />
safety risk;<br />
(2) if there is observable injury to the victim or if the victim is complaining <strong>of</strong> injury, encourage the victim to<br />
seek medical attention and arrange for medical assistance or request an ambulance for transport to a hospital;<br />
(3) if a sexual assault has occurred, notify the victim that there are time-sensitive medical or forensic options that<br />
may be available, encourage the victim to seek medical attention and arrange for medical assistance or request an<br />
ambulance for transport to a hospital;<br />
(4) provide the victim with referrals to local resources that may assist the victim in locating and getting to a safe<br />
place;<br />
(5) provide adequate notice to the victim <strong>of</strong> the victim's rights including, but not limited to, obtaining a<br />
harassment prevention order; provided, however, that the notice shall consist <strong>of</strong> providing the victim with a copy <strong>of</strong> the<br />
following statement before the <strong>of</strong>ficer leaves the scene or premises and after reading the statement to the victim;<br />
provided further, that if the victim's native language is not English, the statement shall be then provided in the victim's<br />
native language whenever possible:<br />
"You have the right to appear at the Superior, Juvenile (only if the attacker is under 17), District or Boston<br />
Municipal Court, if you reside within the appropriate jurisdiction, and file a complaint requesting any <strong>of</strong> the following
ALM GL ch. 258E, § 8<br />
Page 13<br />
applicable orders: (i) an order restraining your attacker from harassing or abusing you; (ii) an order directing your<br />
attacker to refrain from contacting you; (iii) an order directing your attacker to stay away from your home and your<br />
workplace; (iv) an order directing your attacker to pay you for losses suffered as a result <strong>of</strong> the harassment or abuse,<br />
including loss <strong>of</strong> earnings, out-<strong>of</strong>-pocket losses for injuries sustained or property damaged, costs <strong>of</strong> replacement <strong>of</strong><br />
locks, medical expenses, cost for obtaining an unlisted phone number, and reasonable attorneys' fees.<br />
For an emergency on weekends, holidays or weeknights, the police will assist you in activating the emergency<br />
response system so that you may file a complaint and request a harassment prevention order.<br />
You have the right to go to the appropriate court and apply for a criminal complaint for sexual assault, threats,<br />
criminal stalking, criminal harassment, assault and battery, assault with a deadly weapon, assault with intent to kill or<br />
other related <strong>of</strong>fenses.<br />
If you are in need <strong>of</strong> medical treatment, you have the right to request that an <strong>of</strong>ficer present drive you to the<br />
nearest hospital or otherwise assist you in obtaining medical treatment.<br />
If you believe that police protection is needed for your physical safety, you have the right to request that the<br />
<strong>of</strong>ficer present remain at the scene until you can leave or until your safety is otherwise ensured. You may also request<br />
that the <strong>of</strong>ficer assist you in locating and taking you to a safe place including, but not limited to, a designated meeting<br />
place for a shelter or a family member's or a friend's residence or a similar place <strong>of</strong> safety.<br />
You may request and obtain a copy <strong>of</strong> the police incident report at no cost from the police department.";<br />
(6) assist the victim by activating the emergency judicial system when the court is closed for business;<br />
(7) inform the victim that the abuser will be eligible for bail and may be promptly released; and<br />
(8) arrest any person that a law <strong>of</strong>ficer witnessed or has probable cause to believe violated a temporary or<br />
permanent vacate, restraining, stay-away or no-contact order or judgment issued under this chapter or similar protection<br />
order issued by another jurisdiction; provided, however, that if there are no vacate, restraining, stay-away or no-contact<br />
orders or judgments in effect, arresting the person shall be the preferred response if the law <strong>of</strong>ficer witnessed or has<br />
probable cause to believe that a person: (i) has committed a felony; (ii) has committed a misdemeanor involving<br />
harassment or abuse as defined in section 1; or (iii) has committed an assault and battery in violation <strong>of</strong> section 13A <strong>of</strong><br />
chapter 265; provided further, that the safety <strong>of</strong> the victim shall be paramount in any decision to arrest; and provided<br />
further, that if a law <strong>of</strong>ficer arrests both parties, the law <strong>of</strong>ficer shall submit a detailed, written report in addition to an<br />
incident report, setting forth the grounds for arresting both parties.<br />
No law <strong>of</strong>ficer shall be held liable in a civil action for personal injury or property damage brought by a party to an<br />
incident <strong>of</strong> abuse or for an arrest based on probable cause when such <strong>of</strong>ficer acted reasonably and in good faith and in<br />
compliance with this chapter.<br />
Whenever a law <strong>of</strong>ficer investigates an incident <strong>of</strong> harassment, the <strong>of</strong>ficer shall immediately file a written incident<br />
report in accordance with the standards <strong>of</strong> the law <strong>of</strong>ficer's law enforcement agency and, wherever possible, in the form<br />
<strong>of</strong> the National Incident-Based Reporting System, as defined by the Federal Bureau <strong>of</strong> Investigation. The latter<br />
information may be submitted voluntarily by the local police on a monthly basis to the crime reporting unit <strong>of</strong> the state<br />
police crime reporting unit established in section 32 <strong>of</strong> chapter 22C.<br />
The victim shall be provided with a copy <strong>of</strong> the full incident report at no cost upon request to the appropriate law<br />
enforcement department.<br />
When a judge or other person authorized to take bail bails any person arrested under this chapter, reasonable efforts<br />
shall be made to inform the victim <strong>of</strong> such release prior to or at the time <strong>of</strong> the release. When any person charged with
ALM GL ch. 258E, § 8<br />
Page 14<br />
or arrested for a crime involving harassment under this chapter is released from custody, the court or the emergency<br />
response judge shall issue, upon the request <strong>of</strong> the victim, a written no-contact order or stay-away order prohibiting the<br />
person charged or arrested from having any contact with the victim and shall use all reasonable means to notify the<br />
victim immediately <strong>of</strong> release from custody. The victim shall be provided, at no cost, with a certified copy <strong>of</strong> the<br />
no-contact or stay-away order.<br />
HISTORY: 2010, 23; 2010, 112, § 31.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.<br />
The 2010 amendment, effective May 22, 2010, rewrote this section.<br />
Law Review References<br />
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims <strong>of</strong><br />
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough 17 Suffolk J. Trial & App. Adv. 102<br />
(2012).
Page <strong>15</strong><br />
§ 9. Review <strong>of</strong> Records.<br />
9 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
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a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 9 (2012)<br />
When considering a complaint filed under this chapter, the court shall order a review <strong>of</strong> the records contained within<br />
the court activity record information system and the statewide domestic violence recordkeeping system, as provided in<br />
chapter 188 <strong>of</strong> the acts <strong>of</strong> 1992 and maintained by the commissioner <strong>of</strong> probation, and shall review the resulting data to<br />
determine whether the named defendant has a civil or criminal record involving violent crimes or abuse. Upon receipt <strong>of</strong><br />
information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law<br />
enforcement <strong>of</strong>ficials be notified and shall order that any information regarding the defendant's most recent whereabouts<br />
shall be forwarded to such <strong>of</strong>ficials. In all instances in which an outstanding warrant exists, the court shall make a<br />
finding, based upon all <strong>of</strong> the circumstances, as to whether an imminent threat <strong>of</strong> bodily injury exists to the petitioner.<br />
In all instances in which such an imminent threat <strong>of</strong> bodily injury is found to exist, the judge shall notify the appropriate<br />
law enforcement <strong>of</strong>ficials <strong>of</strong> such finding and such <strong>of</strong>ficials shall take all necessary actions to execute any such<br />
outstanding warrant as soon as is practicable.<br />
Whenever the court orders that the defendant refrain from harassing the plaintiff or have no contact with the<br />
plaintiff under section 3, 5 or 6, the clerk or clerk-magistrate shall transmit: (i) to the <strong>of</strong>fice <strong>of</strong> the commissioner <strong>of</strong><br />
probation information for filing in the court activity record information system or the statewide domestic violence<br />
recordkeeping system as provided in said chapter 188 <strong>of</strong> the acts <strong>of</strong> 1992 or in a recordkeeping system created by the<br />
commissioner <strong>of</strong> probation to record the issuance <strong>of</strong>, or violation <strong>of</strong>, prevention orders issued pursuant to this chapter;<br />
and (ii) 2 certified copies <strong>of</strong> each such order and 1 copy <strong>of</strong> the complaint and summons forthwith to the appropriate law<br />
enforcement agency which, unless otherwise ordered by the court, shall serve 1 copy <strong>of</strong> each order upon the defendant,<br />
together with a copy <strong>of</strong> the complaint and order and summons. The law enforcement agency shall promptly make its<br />
return <strong>of</strong> service to the court. The commissioner <strong>of</strong> probation may develop and implement a statewide harassment<br />
prevention order recordkeeping system.<br />
Law <strong>of</strong>ficers shall use every reasonable means to enforce such harassment prevention orders. Law enforcement<br />
agencies shall establish procedures adequate to ensure that an <strong>of</strong>ficer on the scene <strong>of</strong> an alleged violation <strong>of</strong> such order
ALM GL ch. 258E, § 9<br />
Page 16<br />
may be informed <strong>of</strong> the existence and terms <strong>of</strong> such order. The court shall notify the appropriate law enforcement<br />
agency in writing whenever any such order is vacated and shall direct the agency to destroy all record <strong>of</strong> such vacated<br />
order and such agency shall comply with that directive.<br />
Each harassment prevention order issued shall contain the following statement:<br />
VIOLATION <strong>OF</strong> THIS ORDER IS A CRIMINAL <strong>OF</strong>FENSE.<br />
Any violation <strong>of</strong> such order or a protection order issued by another jurisdiction shall be punishable by a fine <strong>of</strong> not<br />
more than $5,000, or by imprisonment for not more than 21/2 years in a house <strong>of</strong> correction, or both. In addition to, but<br />
not in lieu <strong>of</strong>, the foregoing penalties and any other sentence, fee or assessment, including the victim witness assessment<br />
in section 8 <strong>of</strong> chapter 258B, the court shall order persons convicted <strong>of</strong> a violation <strong>of</strong> such an order to pay a fine <strong>of</strong> $25<br />
that shall be transmitted to the treasurer for deposit into the General Fund. For any violation <strong>of</strong> such order, the court<br />
may order the defendant to complete an appropriate treatment program based on the <strong>of</strong>fense.<br />
In each instance in which there is a violation <strong>of</strong> a harassment prevention order or a protection order issued by<br />
another jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to,<br />
loss <strong>of</strong> earnings, out-<strong>of</strong>-pocket losses for injuries sustained or property damaged, cost <strong>of</strong> replacement locks, medical<br />
expenses, cost for obtaining an unlisted telephone number and reasonable attorney's fees.<br />
Any such violation may be enforced by the court. Criminal remedies provided herein are not exclusive and do not<br />
preclude any other available civil or criminal remedies. The court may enforce by civil contempt procedure a violation<br />
<strong>of</strong> its own court order.<br />
Section 8 <strong>of</strong> chapter 136 shall not apply to any order, complaint or summons issued pursuant to this section.<br />
HISTORY: 2010, 23.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.
Page 17<br />
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Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
§ 10. Case Records <strong>of</strong> Minors.<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 10 (2012)<br />
The records <strong>of</strong> cases arising out <strong>of</strong> an action brought under this chapter in which the plaintiff or defendant is a minor<br />
shall be withheld from public inspection except by order <strong>of</strong> the court; provided, however, that such records shall be<br />
open, at all reasonable times, to the inspection <strong>of</strong> the minor, such minor's parent, guardian and attorney and to the<br />
plaintiff and the plaintiff's attorney.<br />
The plaintiff's residential address, residential telephone number and workplace name, address and telephone<br />
number, contained within the court records <strong>of</strong> cases arising out <strong>of</strong> an action brought by a plaintiff under this chapter,<br />
shall be confidential and withheld from public inspection, except by order <strong>of</strong> the court; provided, however, that the<br />
plaintiff's residential address and workplace address shall appear on the court order and be accessible to the defendant<br />
and the defendant's attorney unless the plaintiff specifically requests that this information be withheld from the order.<br />
All confidential portions <strong>of</strong> the records shall be accessible at all reasonable times to the plaintiff and plaintiff's attorney,<br />
to others specifically authorized by the plaintiff to obtain such information and to prosecutors, victim-witness advocates<br />
as defined in section 1 <strong>of</strong> chapter 258B, sexual assault counselors as defined in section 20J <strong>of</strong> chapter 233 and law<br />
<strong>of</strong>ficers, if such access is necessary in the performance <strong>of</strong> their duties. This paragraph shall apply to any protection order<br />
issued by another jurisdiction filed with a court <strong>of</strong> the commonwealth pursuant to section 7. Such confidential portions<br />
<strong>of</strong> the court records shall not be deemed to be public records under clause Twenty-sixth <strong>of</strong> section 7 <strong>of</strong> chapter 4.<br />
HISTORY: 2010, 23.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.
Page 18<br />
11 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 11 (2012)<br />
§ 11. Forms.<br />
[Effective until July 1, 2012.] The chief justice for administration and management shall adopt a form <strong>of</strong> complaint<br />
for use under this chapter which shall be in such form and language to permit a plaintiff to prepare and file such<br />
complaint pro se.<br />
[Effective July 1, 2012.]<br />
The chief justice <strong>of</strong> the trial court shall adopt a form <strong>of</strong> complaint for use under this chapter which shall be in such<br />
form and language to permit a plaintiff to prepare and file such complaint pro se.<br />
HISTORY: 2010, 23; 2011, 93, § 114.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.<br />
The 2011 amendment, effective July 1, 2012, substituted "chief justice <strong>of</strong> the trial court" for "chief justice for<br />
administration and management." Section 137 provides:<br />
Section 137. Sections 2 to 7, inclusive, 10 to 54, inclusive, 57 to 117, inclusive, 122, 123, 124, 125 and 127A shall<br />
take effect on July 1, 2012.
Page 19<br />
§ 12. Assessment Fee.<br />
12 <strong>of</strong> 12 <strong>DOCUMENTS</strong><br />
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All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART III COURTS, JUDICIAL <strong>OF</strong>FICERS AND PROCEEDINGS IN CIVIL CASES<br />
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES<br />
Chapter 258E Harassment Prevention Orders<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 258E, § 12 (2012)<br />
The court shall impose an assessment <strong>of</strong> $350 against any person who has been referred to a treatment program as a<br />
condition <strong>of</strong> probation. Such assessment shall be in addition to the cost <strong>of</strong> the treatment program. In the discretion <strong>of</strong> the<br />
court, such assessment may be reduced or waived if the court finds that such person is indigent or that payment <strong>of</strong> the<br />
assessment would cause the person, or the dependents <strong>of</strong> such person, severe financial hardship. Assessments made<br />
pursuant to this section shall be in addition to any other fines, assessments or restitution imposed in any disposition. All<br />
funds collected by the court pursuant to this section shall be transmitted monthly to the state treasurer, who shall deposit<br />
such funds into the General Fund.<br />
HISTORY: 2010, 23.<br />
NOTES: Editorial Note<br />
Acts 2010, 23, effective May 10, 2010, enacted this section.
Page 1<br />
§ 17. Definition; Penalty.<br />
1 <strong>of</strong> 2 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
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All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES<br />
TITLE I CRIMES AND PUNISHMENTS<br />
Chapter 269 Crimes Against Public Peace<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 269, § 17 (2012)<br />
Whoever is a principal organizer or participant in the crime <strong>of</strong> hazing, as defined herein, shall be punished by a fine <strong>of</strong><br />
not more than three thousand dollars or by imprisonment in a house <strong>of</strong> correction for not more than one year, or both<br />
such fine and imprisonment.<br />
The term "hazing" as used in this section and in sections eighteen and nineteen, shall mean any conduct or method<br />
<strong>of</strong> initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers<br />
the physical or mental health <strong>of</strong> any student or other person. Such conduct shall include whipping, beating, branding,<br />
forced calisthenics, exposure to the weather, forced consumption <strong>of</strong> any food, liquor, beverage, drug or other substance,<br />
or any other brutal treatment or forced physical activity which is likely to adversely affect the physical health or safety<br />
<strong>of</strong> any such student or other person, or which subjects such student or other person to extreme mental stress, including<br />
extended deprivation <strong>of</strong> sleep or rest or extended isolation.<br />
Notwithstanding any other provisions <strong>of</strong> this section to the contrary, consent shall not be available as a defense to<br />
any prosecution under this action.<br />
HISTORY: 1985, 536; 1987, 665.<br />
NOTES: Editorial Note<br />
The 1987 amendment added the third paragraph, relating to the unavailability <strong>of</strong> consent as a defense, and, in the<br />
first paragraph, increased the maximum fine from $1000 to $3000 and the maximum prison term from one hundred<br />
days to one year, and, preceding "both", deleted "by".<br />
Jurisprudence
ALM GL ch. 269, § 17<br />
Page 2<br />
68 Am Jur 2d, Schools § 347.<br />
Annotations<br />
Tort liability <strong>of</strong> college, university, fraternity, or sorority for injury or death <strong>of</strong> member or prospective member by<br />
hazing or initiation activity. 68 ALR4th 228.<br />
Validity, construction, and application <strong>of</strong> "hazing" statutes. 30 ALR5th 683.<br />
Law Reviews<br />
Edelman, How to Prevent High School Hazing: A Legal, Ethical and Social Primer. 81 N. Dak. L. Rev. 309 (2005).<br />
CASE NOTES<br />
Brutal treatment or forced physical activity made criminal by ALM GL c 269 § 17 is directed at student<br />
organizations, not at educational institutions themselves. Perkins v. Commonwealth (2001) 52 Mass App 175, 752<br />
NE2d 761, 2001 Mass App LEXIS 745.<br />
Cadet who resigned from training at State Police Academy had no claim for constructive discharge from<br />
employment on ground that hazing by Academy personnel violated public policy, where there was no legislative<br />
directive or enunciated public policy that precluded Academy from discharging cadet who could not tolerate rigors and<br />
discipline required <strong>of</strong> recruits. Perkins v. Commonwealth (2001) 52 Mass App 175, 752 NE2d 761, 2001 Mass App<br />
LEXIS 745.<br />
Hazing statute, ALM GL c 269 § 17, did not apply to State Police Academy because Academy was not student<br />
organization. Perkins v. Commonwealth (2001) 52 Mass App 175, 752 NE2d 761, 2001 Mass App LEXIS 745.<br />
ALM GL c 269 § 17 does not create private cause <strong>of</strong> action. Perkins v. Commonwealth (2001) 52 Mass App 175,<br />
752 NE2d 761, 2001 Mass App LEXIS 745.<br />
Arbitrator's finding that it was error to redact the names <strong>of</strong> student witnesses in a teacher disciplinary proceeding<br />
did not violate: (1) the public policy that incident reports describing harm to a child's health or welfare had to be kept<br />
confidential set forth in ALM GL c 119, §§ 51A and 51E, or (2) the policy respecting the safety <strong>of</strong> children inherent in<br />
statutes prohibiting corporal punishment set forth in ALM GL c 71, § 37G and prohibiting hazing set forth in ALM GL c<br />
269, §§ 17-19. City <strong>of</strong> Boston Sch. Comm. v. Boston Teachers Union, Local 66 (2006) 22 Mass L Rep <strong>15</strong>, 2006 Mass<br />
Super LEXIS 634.<br />
School committee failed to show that disclosure to union <strong>of</strong> unredacted student witness statements concerning<br />
alleged teacher misconduct would violate alleged public policy <strong>of</strong> protecting students' rights to privacy and safety; even<br />
assuming that such policy existed, school committee failed to explain interplay (if any) between statutes it relied on to<br />
support its argument and statements at issue. Boston School Committee and Boston Teachers Union, Local 66,<br />
MFT/AFT/AFL-CIO, 36 MLC 48 (2009).
Page 3<br />
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<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES<br />
TITLE I CRIMES AND PUNISHMENTS<br />
Chapter 269 Crimes Against Public Peace<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 269, § 18 (2012)<br />
§ 18. Reporting Hazing Offense; Penalty for Failure to Report Violation.<br />
Whoever knows that another person is the victim <strong>of</strong> hazing as defined in section seventeen and is at the scene <strong>of</strong> such<br />
crime shall, to the extent that such person can do so without danger or peril to himself or others, report such crime to an<br />
appropriate law enforcement <strong>of</strong>ficial as soon as reasonably practicable. Whoever fails to report such crime shall be<br />
punished by a fine <strong>of</strong> not more than one thousand dollars.<br />
HISTORY: 1985, 536; 1988, 665.<br />
NOTES: Editorial Note<br />
The 1987 amendment in the second sentence, increased the maximum fine from $500 to $1000.<br />
Jurisprudence<br />
68 Am Jur 2d, Schools § 347.<br />
Annotations<br />
Tort liability <strong>of</strong> college, university, fraternity, or sorority for injury or death <strong>of</strong> member or prospective member by<br />
hazing or initiation activity. 68 ALR4th 228.<br />
Validity, construction, and application <strong>of</strong> "hazing" statutes. 30 ALR5th 683.<br />
Law Reviews<br />
Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue. 84 Tex. L. Rev. 653 (February,<br />
2006).
ALM GL ch. 269, § 18<br />
Page 4<br />
Edelman, How to Prevent High School Hazing: A Legal, Ethical and Social Primer. 81 N. Dak. L. Rev. 309 (2005).<br />
Edelman, Addressing the High School Hazing Problem: Why Lawmakers Need to Impose a Duty to Act on School<br />
Personnel. 25 Pace L. Rev. <strong>15</strong> (Fall, 2004).<br />
CASE NOTES<br />
School committee failed to show that disclosure to union <strong>of</strong> unredacted student witness statements concerning<br />
alleged teacher misconduct would violate alleged public policy <strong>of</strong> protecting students' rights to privacy and safety; even<br />
assuming that such policy existed, school committee failed to explain interplay (if any) between statutes it relied on to<br />
support its argument and statements at issue. Boston School Committee and Boston Teachers Union, Local 66,<br />
MFT/AFT/AFL-CIO, 36 MLC 48 (2009).
Page 1<br />
1 <strong>of</strong> 2 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES<br />
TITLE I CRIMES AND PUNISHMENTS<br />
Chapter 266 Crimes Against Property<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 266, § 126A (2012)<br />
§ 126A. Real or Personal Property; Penalty for Intentionally Defacing.<br />
Whoever intentionally, willfully and maliciously or wantonly, paints, marks, scratches, etches or otherwise marks,<br />
injures, mars, defaces or destroys the real or personal property <strong>of</strong> another including but not limited to a wall, fence,<br />
building, sign, rock, monument, gravestone or tablet, shall be punished by imprisonment in a state prison for a term <strong>of</strong><br />
not more than three years or by imprisonment in a house <strong>of</strong> correction for not more than two years or by a fine <strong>of</strong> not<br />
more than fifteen hundred dollars or not more than three times the value <strong>of</strong> the property so marked, injured, marred,<br />
defaced or destroyed, whichever is greater, or both imprisonment and fine, and shall also be required to pay for the<br />
removal or obliteration <strong>of</strong> such painting, marking, scratching or etching, or to remove or obliterate such painting,<br />
marking, scratching or etching; provided, however, that when a fine is levied pursuant to the value <strong>of</strong> the property<br />
marked, injured, marred, defaced or destroyed or when the cost <strong>of</strong> removal or obliteration is assessed, the court shall,<br />
after conviction, conduct an evidentiary hearing to ascertain the value <strong>of</strong> the property so marked, injured, marred,<br />
defaced or destroyed or to ascertain the cost <strong>of</strong> the removal or obliteration; and provided, however, that if the property<br />
marked, injured, marred, defaced or destroyed is a war or veterans' memorial, monument or gravestone, the fine under<br />
this section shall be doubled and the person convicted shall be ordered to perform not less than 500 hours <strong>of</strong><br />
court-approved community service. A police <strong>of</strong>ficer may arrest any person for commission <strong>of</strong> the <strong>of</strong>fenses prohibited by<br />
this section without a warrant if said police <strong>of</strong>ficer has probable cause to believe that said person has committed the<br />
<strong>of</strong>fenses prohibited by this section.<br />
Upon conviction for said <strong>of</strong>fense the individual's driver's license shall be suspended for one year. If the individual<br />
convicted <strong>of</strong> defacing or vandalizing the real or personal property <strong>of</strong> another is under the age <strong>of</strong> sixteen then one year<br />
shall be added to the minimum age eligibility for driving.<br />
HISTORY: 1994, 60, § 174; 2010, 131, § 101.<br />
NOTES: Editorial Note
ALM GL ch. 266, § 126A<br />
Page 2<br />
The 2010 amendment, effective July 1, 2010, added "and provided, however, that if the property marked, injured,<br />
marred, defaced or destroyed is a war or veterans' memorial, monument or gravestone, the fine under this section shall<br />
be doubled and the person convicted shall be ordered to perform not less than 500 hours <strong>of</strong> court-approved community<br />
service" at the end <strong>of</strong> the first sentence <strong>of</strong> the first paragraph. Section 202 provides:<br />
Section 202. Except as otherwise specified, this act shall take effect on July 1, 2010.<br />
Treatise References<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 8.260, Wanton Destruction <strong>of</strong> Property.<br />
LexisNexis 50 State Surveys, Legislation & Regulations<br />
Precious Metal & Gem Dealing<br />
CASE NOTES<br />
The intent required for wanton defacement <strong>of</strong> property under ALM GL c 266, § 126A, is general intent.<br />
Commonwealth v. McDowell (2004) 62 Mass App <strong>15</strong>, 814 NE2d 1139, 2004 Mass App LEXIS 1049, review denied<br />
(2004) 442 Mass 1113, 818 NE2d 1067, 2004 Mass LEXIS 785.<br />
In order to convict defendant <strong>of</strong> defacing personal property, the Commonwealth was required to prove that<br />
defendant's conduct was willful and malicious, or wanton conduct, and that defendant possessed general intent. Ins<strong>of</strong>ar<br />
as the stipulated evidence permitted the inference that defendant intended to drive the car, based on his replacement <strong>of</strong><br />
the car's battery, heedless <strong>of</strong> the consequences, it was enough to establish beyond a reasonable doubt the requisite<br />
general intent and defendant's intoxicated state was irrelevant to his ability to form general intent. Commonwealth v.<br />
McDowell (2004) 62 Mass App <strong>15</strong>, 814 NE2d 1139, 2004 Mass App LEXIS 1049, review denied (2004) 442 Mass 1113,<br />
818 NE2d 1067, 2004 Mass LEXIS 785.<br />
HIERARCHY NOTES:<br />
Pt. IV, Tit. I, Ch. 266 Note
Page 3<br />
2 <strong>of</strong> 2 <strong>DOCUMENTS</strong><br />
<strong>ANNOTATED</strong> <strong>LAWS</strong> <strong>OF</strong> <strong>MASSACHUSETTS</strong><br />
Copyright © 2013 Matthew Bender & Company, Inc.,<br />
a member <strong>of</strong> the LexisNexis Group<br />
All rights reserved<br />
*** Current through Acts 464 <strong>of</strong> the 2012 Legislative Session ***<br />
PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES<br />
TITLE I CRIMES AND PUNISHMENTS<br />
Chapter 266 Crimes Against Property<br />
GO TO <strong>MASSACHUSETTS</strong> CODE ARCHIVE DIRECTORY<br />
ALM GL ch. 266, § 126B (2012)<br />
§ 126B. Public or Personal Property; Penalty for Tagging.<br />
Whoever sprays or applies paint or places a sticker upon a building, wall, fence, sign, tablet, gravestone, monument or<br />
other object or thing on a public way or adjoined to it, or in public view, or on private property, such person known or<br />
commonly known as "taggers" and such conduct or activity known or commonly known as "tagging", or other words or<br />
phrases associated to such persons, conduct or activity, and either as an individual or in a group, joins together with said<br />
group, with the intent to deface, mar, damage, mark or destroy such property, shall be punished by imprisonment in a<br />
house <strong>of</strong> correction for not more than two years or by a fine <strong>of</strong> not less than fifteen hundred dollars or not more than<br />
three times the value <strong>of</strong> such damage to the property so defaced, marked, marred, damaged or destroyed, whichever is<br />
greater, or both fine and imprisonment and shall also be required to pay for the removal or obliteration <strong>of</strong> such "tagging"<br />
or to obliterate such "tagging"; provided, however that when a fine is levied pursuant to the value <strong>of</strong> the property<br />
marred, defaced, marked, damaged or destroyed or where the cost <strong>of</strong> removal or obliteration is assessed the court shall,<br />
after conviction, conduct an evidentiary hearing to ascertain the value <strong>of</strong> the property so defaced, marked, marred,<br />
damaged or destroyed or to ascertain the cost <strong>of</strong> the removal or obliteration. A police <strong>of</strong>ficer may arrest any person for<br />
commission <strong>of</strong> the <strong>of</strong>fenses prohibited by this section without a warrant if said police <strong>of</strong>ficer has probable cause to<br />
believe that said person has committed the <strong>of</strong>fenses prohibited by this section.<br />
Upon conviction for said <strong>of</strong>fense the individual's drivers license shall be suspended for one year. If the individual<br />
convicted <strong>of</strong> defacing or vandalizing the real or personal property <strong>of</strong> another is under the age <strong>of</strong> sixteen then one year<br />
shall be added to the minimum age eligibility for driving.<br />
HISTORY: 1994, 60, § 174.<br />
NOTES: Treatise References<br />
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 8.260, Wanton Destruction <strong>of</strong> Property.
ALM GL ch. 266, § 126B<br />
Page 4<br />
Massachusetts Motor Vehicle Offenses Exhibit 1A, Schedule <strong>of</strong> Suspensions and Revocations.<br />
LexisNexis 50 State Surveys, Legislation & Regulations<br />
Precious Metal & Gem Dealing<br />
CASE NOTES<br />
Defendant should have been granted a new trial as the recited facts did not allege that defendant sprayed or applied<br />
paint or placed a sticker upon anything as required for tagging under ALM GL c 266, § 126B, and the colloquy did not<br />
explain the intent and agreement necessary to convict defendant as a joint venturer. Commonwealth v. Argueta (2009)<br />
73 Mass App 564, 899 NE2d 896, 2009 Mass. App. LEXIS 59.<br />
HIERARCHY NOTES:<br />
Pt. IV, Tit. I, Ch. 266 Note