Restraining orders are incredibly complex problems for the involved parties, their attorneys, and for the courts.
For abuse victims, the only solution might be a restraining order that prevents contact between the parties. At the same time, people are often falsely accused of abuse. Restraining orders can unfortunately be weaponized to gain leverage in divorce cases, child custody disputes, or for some other ulterior motive.
Whether you are a victim of abuse, or in need of a lawyer to defend against a restraining order, understanding the different types of restraining orders in Massachusetts is an important first step.
209A Restraining Orders offer protection from abuse in Massachusetts
A 209A restraining order is a court order that protects you from being abused by a member or former member of your household, a family member, or someone you have been dating. It is called a 209A restraining order because the law that created it is Massachusetts General Laws Chapter 209A. Restraining orders are also referred to as “protective orders,” “abuse prevention orders,” or “209A’s.” The abused person is designated as the plaintiff, and the alleged abuser is the defendant.
A plaintiff may request a 209A from the court if all of the following conditions are met:
- The plaintiff and defendant are or were married, residing together in the same household, in a substantive dating or engagement relationship, related by blood or marriage, or have a child in common.
- The plaintiff is suffering from abuse because the defendant has harmed or attempted to harm the plaintiff, or put the plaintiff in fear of imminent serious physical harm, or caused the plaintiff to engage in sexual relations involuntarily by using force, threat, or duress.
- The plaintiff currently lives within the geographical area of the issuing court or used to live within the geographical area of the court but left to avoid abuse.
A judge may issue an Abuse Prevention Order without prior notice to the defendant if there is a substantial likelihood of immediate abuse.
An abuse prevention order is a court order. That means that only a judge can change the order. The plaintiff who requested the order cannot change or end the order without contacting the court and asking the judge to change the order. Even if the plaintiff seems to request or allow conduct forbidden by the order, a defendant will be in violation of the abuse prevention order which is a criminal offense.
If a defendant is ordered not to abuse the plaintiff, this means that the defendant cannot:
- Physically assault or threaten the plaintiff.
- Do anything that gives the plaintiff reason to fear physical harm.
- Use force or a threat of any kind to make the plaintiff have sex unwillingly.
If a defendant is ordered to have no contact with the plaintiff, this means that the defendant:
- Cannot live with the plaintiff.
- Must stay a specific number of feet/yards away from the plaintiff.
- Cannot contact the plaintiff in any way. This includes, but isn’t limited to, phone calls, text messages, emails, gifts and contact through friends, relatives, or anyone else.
- Must leave a place as quickly as possible if the defendant arrives at a location and the plaintiff is already at that location.
If a defendant is ordered to leave a home, this means that the defendant:
- Must leave the residence immediately and stay away from that residence while the order is in effect, even if the plaintiff isn’t there at the time.
- Must not damage the residence in any way.
- Must not shut off any utilities or interrupt mail delivery to the plaintiff.
Harassment Prevention Orders prevent individuals from harassment, stalking, and sexual assault
The Harassment Prevention Order law, General Laws Chapter 258E, allows victims of criminal harassment, stalking, and sexual assault to get harassment prevention orders to protect them from further harassment by the perpetrator. These orders are often referred to as “258E Orders” or “HPO’s.”
An HPO does not require a specific relationship between the parties. Contrasted with 209A Orders, which require a special relationship between the parties such as a family or dating relationship, the HPO law does not include relationship requirements.
To obtain an HPO, the plaintiff must show harassment committed by the defendant. Harassment is:
- Three or more acts of willful and malicious conduct aimed at the plaintiff and committed with the intent to cause fear, intimidation, abuse or damage to property that does in fact cause fear, intimidation, abuse or damage to property.
- “Willful” means on purpose.
- “Malicious” means cruel, hostile, or in revenge.
Additionally, harassment is an act that:
- By force, threat or duress causes the plaintiff to involuntarily engage in sexual relations.
- Or violates certain specific criminal laws such as: indecent assault and battery on a mentally retarded person; indecent assault and battery in a person 14 years old or older, rape; rape of a child using force; rape and abuse of a child; assault with intent to commit rape; assault of a child with the intent to commit rape; enticement of a child; criminal stalking; criminal harassment; and drugging for sexual intercourse.
Just like a 209A, a violation of an HPO is a criminal offense. Only the court can change the order, even if the plaintiff seems to request or allow conduct forbidden by the order,
At Silva & Salinas, we have successfully represented clients defending and obtaining 209A and HPO restraining orders across Massachusetts. We have vast experience litigating restraining orders in both the District and Probate and Family Courts in Massachusetts.
If you need us, we’re here to help. Call 978-741-2000 or email us at [email protected].