209A Orders and Violation of a 209A Abuse Prevention Order ('Restraining Order') (Mass. Gen. Laws ch. 209A, §7)
Chapter 209A complaints and orders are civil orders designed to protect family, household or dating relations from abuse. Massachusetts judges issue 209A abuse prevention orders after two hearings. The first hearing is "ex parte." This means that the person asking for protection appears alone and without notice to the other person. This first, temporary order can be issued for up to ten days. On or before the tenth day, the court must hold another hearing that gives the other party an opportunity to appear and demonstrate that there is no need for a 209A order.
To issue the first, temporary 209A abuse prevention order, the court must find that there is "a substantial likelihood of immediate danger of abuse." Mass. Gen. Laws ch. 209A, §4. To extend the order after a full hearing, the court must find a substantial likelihood of continued "abuse" upon a family or household member. Banna v. Banna, 78 Mass. App. Ct. 34 (2010). Massachusetts' 209A law defines "abuse" as (a) attempting to cause or causing physical harm. (b) placing another in fear of imminent serious physical harm, or (c) causing another to engage involuntarily in sexual relations by force, threat or duress. M.G.L. Ch. 209, §1.
A 209A abuse prevention order can order the defendant to do, or not do, many things, including:
- prohibiting the defendant from abusing the defendant;
- prohibiting the defendant from contacting the plaintiff or the plaintiff’s children;
- ordering the defendant to vacate and stay away from any residence or workplace;
- awarding the plaintiff temporary custody of any minor children;
- restricting visitation with any minor children, including ordering supervised visitation or requiring the defendant to attend counseling as a condition of visitation;
- ordering the defendant to pay temporary spousal support or child support;
- ordering the defendant to pay restitution (reimbursement) for any costs incurred as a result of abuse, such as lost earnings, replacement costs for locks, medical expenses, or moving expenses;
- ordering the defendant to pay the plaintiff’s attorney’s fees, and
- ordering the defendant attend counseling.
It is a crime in Massachusetts to violate a 209A abuse prevention order. M.G.L. Ch. 209, §7. If you are found guilty of violating an abuse prevention order, you can be punished for up to two-and-one-half years in the house of correction and be ordered to take a battery's program certified by the state.
Only certain sections of an abuse prevention order can be prosecuted as criminal violations in Massachusetts Those are the no-contact and stay-away sections. Violating other sections of an order can be addressed as civil violations, but cannot be prosecuted
Violations of a 209A abuse prevention orders must be "intentional." The prosecution must prove that the accused had notice of the order. The prosecution must also prove that the violation of the order was deliberate. A person who finds him or herself in the presence of the other person by accident is not guilty of violating the order as long as the person leaves immediately when he or she learns that the other person is nearby. Commonwealth v. Stoltz, 73 Mass. App. Ct. 642 (2009).
Also, a person who has contact with the other person “incidental to,” (while doing) something lawful, is not violating the order as long as the person doesn’t go beyond the lawful conduct to violate the order. A good example is seeing the other person in court or at school. That’s not a violation as long as the there is no “extra” conduct beyond what is needed for that “lawful purpose.”