October 26, 2026

In the week of October 19, 2026, the Massachusetts Appeals Court decided a group of cases about abuse prevention orders under G. L. c. 209A and harassment prevention orders under G. L. c. 258E. One of the decisions, Kehlani K. v. Tripp T., is a published opinion that applies the coercive control definition the Legislature added to c. 209A in 2024. The others are summary decisions under Appeals Court Rule 23.0, which a court may cite for persuasive value but not as binding precedent.

Together the decisions show how District Court and Probate and Family Court judges apply the two statutes, and how the Appeals Court reviews an extension, a sufficiency challenge, and a criminal charge for violating an order. This article summarizes each decision and the practical point a reader on either side of an order can take from it.

The Published Decision on Coercive Control

In Kehlani K. v. Tripp T., No. 25-P-960 (Oct. 22, 2026), the Appeals Court upheld the one-year extension of an abuse prevention order on a finding of coercive control. The court held that the husband’s repeated presence around the plaintiff’s home, his monitoring of her movements, and his photographing of her calendar formed a pattern he intended to use to compel her to drop the divorce. A plaintiff can prove abuse through coercive control without proving a fear of imminent serious physical harm.

Abuse Prevention Order Extensions Under Chapter 209A

In S.S. v. A.C.G., No. 26-P-75 (Oct. 22, 2026), a summary decision, the Appeals Court affirmed the extension of an abuse prevention order. A plaintiff who seeks an order or an extension must prove abuse by a preponderance of the evidence, and a fear of imminent serious physical harm must be both reasonable and current. Iamele v. Asselin, 444 Mass. 734 (2005).

The court held that the parties’ relationship and the plaintiff’s affidavits showed a reasonable and current fear of imminent serious physical harm. The court did not decide whether the evidence would have been enough on a coercive control theory alone, noting that coercive control sets a lower threshold than fear of imminent serious physical harm. See Nan N. v. Rex R., 106 Mass. App. Ct. 601 (2026). As a Rule 23.0 decision, S.S. is persuasive only.

In A.M. v. C.J.M., No. 25-P-1565 (Oct. 20, 2026), a summary decision, the Appeals Court affirmed the five-year extension of an abuse prevention order. The defendant argued that he lacked reasonable notice of the extension hearing and that the judge denied him a meaningful opportunity to be heard.

The court held that the defendant had two years’ notice of the hearing date because he was present when the court set it, and that he did not request a continuance at the hearing or explain how the late service of the plaintiff’s motion prejudiced him. The court also held that the judge did not limit his cross-examination but instead clarified that the plaintiff was not required to produce privileged medical records.

As a Rule 23.0 decision, A.M. is persuasive only. A respondent who believes a late filing prevents a fair hearing should request a continuance on the record and state the specific prejudice at that time.

Harassment Prevention Orders Under Chapter 258E

In D.M. v. A.M., No. 25-P-969 (Oct. 21, 2026), a summary decision, the Appeals Court affirmed the extension of a harassment prevention order. A harassment prevention order under G. L. c. 258E requires three or more acts of willful and malicious conduct aimed at a specific person, committed with the intent to cause fear, intimidation, abuse, or damage to property, that in fact cause fear, intimidation, abuse, or damage to property.

The court held that the defendant’s repeated calls and visits to the plaintiff’s workplace and the threatening statements the District Court judge recited were three or more acts of harassment, and that the plaintiff moved to a different work location out of fear. As a Rule 23.0 decision, D.M. is persuasive only.

In E.A. v. A.N.N., No. 25-P-1436 (Oct. 20, 2026), a summary decision, the Appeals Court affirmed a harassment prevention order and did not decide whether the evidence was sufficient. The defendant argued for the first time on appeal that the evidence did not support the order. The court held that the defendant waived that argument because the judge offered him a hearing on whether the order should issue and the defendant told the judge that he did not object to the order.

As a Rule 23.0 decision, E.A. is persuasive only. A respondent who contests an order must object at the District Court hearing, because a respondent who agrees to the order forfeits a later challenge to the evidence.

Criminal Charges for Violating a Protective Order

In Commonwealth v. Rosenfield, No. 25-P-591 (Oct. 22, 2026), a summary decision, the Appeals Court affirmed a conviction for violating a harassment prevention order under G. L. c. 258E, § 9. The defendant argued that the evidence was insufficient because he did not personally install the surveillance cameras that pointed at the protected neighbor’s home.

The court held that the evidence allowed the judge to find that the defendant intended or shared the intent to install the cameras, based on his earlier threat to install cameras so the neighbor would have no privacy, the placement of a camera aimed at her bathroom window and hot tub, and his presence during the installation.

The Commonwealth may prove a violation by proving that the defendant intended that another person commit the prohibited act. As a Rule 23.0 decision, Rosenfield is persuasive only.

In Commonwealth v. Griffin, No. 24-P-1404 (Oct. 23, 2026), a summary decision, the Appeals Court affirmed convictions that included assault and battery on a family or household member under G. L. c. 265, § 13M, violation of an abuse prevention order under G. L. c. 209A, § 7, and witness intimidation under G. L. c. 268, § 13B.

The court upheld a probation condition of GPS monitoring for the full term of probation. The court held that the judge balanced the Commonwealth’s interest in rehabilitation and public protection against the defendant’s privacy interest and reasonably imposed the condition given the defendant’s violation of the order and his conduct while under earlier supervision.

The court also held that the evidence supported the witness intimidation conviction, because the jury could infer from a letter the defendant sent that he intended to prevent the victim from testifying. As a Rule 23.0 decision, Griffin is persuasive only.

Key Takeaways

• Kehlani K. v. Tripp T., No. 25-P-960 (Oct. 22, 2026), is a published decision upholding the extension of a 209A abuse prevention order on a finding of coercive control, and a plaintiff can prove abuse through coercive control without proving a fear of imminent serious physical harm.
• S.S. v. A.C.G. affirmed the extension of a 209A abuse prevention order on a reasonable and current fear of imminent serious physical harm and did not decide whether coercive control alone would have been enough.
• A.M. v. C.J.M. affirmed a five-year extension of a 209A abuse prevention order and held that a respondent who claims unfair surprise must request a continuance and state the specific prejudice on the record.
• D.M. v. A.M. affirmed the extension of a 258E harassment prevention order on a finding of three or more acts of harassment, and E.A. v. A.N.N. held that a respondent who tells the judge he does not object to the order forfeits a later sufficiency challenge.
• Commonwealth v. Rosenfield affirmed a conviction for violating a 258E harassment prevention order where the defendant intended that another person install the cameras, and Commonwealth v. Griffin upheld a full-term GPS probation condition and a witness intimidation conviction.
• S.S., A.M., D.M., E.A., Rosenfield, and Griffin are Rule 23.0 summary decisions, so counsel should cite them for persuasive value only and rely on published authority as binding.

Related Serpa Law Office resources

• Coercive Control at a Chapter 209A Extension Hearing: Kehlani K. v. Tripp T.
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders): Defense and Plaintiff Representation
• Massachusetts 258E Harassment Prevention Orders: Defense and Plaintiff Representation
• Criminal Violation of a 209A Abuse Prevention Order
• Criminal Violation of a 258E Harassment Prevention Order
• Massachusetts 209A Extension Hearings: Evidence and Burden

October 26, 2026

Updated November 4, 2026

On October 22, 2026, the Massachusetts Appeals Court decided Kehlani K. v. Tripp T., No. 25-P-960, a published decision applying the coercive control definition that the Legislature added to the abuse prevention statute, G. L. c. 209A, in 2024. The plaintiff obtained an abuse prevention order against her husband in the District Court. A District Court judge extended the order for one year at the hearing after notice.

The husband appealed, and the Appeals Court upheld the extension, holding that the plaintiff’s testimony proved abuse by coercive control. This article explains the coercive control definition, the evidence the court found adequate to meet it, and what the decision means for a person on either side of a 209A extension hearing.

The Appeals Court stated that this case was the first in which it interpreted and applied the coercive control language of G. L. c. 209A, § 1.

What the 2024 Amendment Added to Chapter 209A

The 2024 amendment made coercive control a fourth form of abuse under G. L. c. 209A, § 1. Before the amendment, a plaintiff proved abuse by showing that the defendant caused or attempted physical harm, placed the plaintiff in fear of imminent serious physical harm, or caused the plaintiff to engage involuntarily in sexual relations by force, threat, or duress. A plaintiff can now also prove abuse by showing coercive control.

The statute defines coercive control as a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce, or compel the compliance of a family or household member that causes that person reasonably to fear physical harm or to have a reduced sense of physical safety or autonomy. The statute then lists examples, including isolating the person from friends and relatives, depriving the person of basic needs, monitoring the person’s activities, communications, movements, or finances through technological or other means, and damaging the person’s property. The list gives examples and does not limit the conduct that can qualify.

The Evidence the Appeals Court Found Adequate

The Appeals Court held that the plaintiff’s credited testimony proved each part of the coercive control definition. The court broke the definition into three questions and answered each one on the hearing record.

First, the court found a pattern of behavior. Because the statute does not define “pattern,” the court applied the ordinary meaning of the word, a mode of behavior or series of acts that are recognizably consistent. The plaintiff testified that the husband repeatedly intruded into her home and her activities, and the court held that this testimony established a pattern.

The husband did not argue that the plaintiff had proved too few acts. The court therefore left for another day whether a plaintiff must prove some minimum number of acts to establish a pattern. The court noted that, under the criminal harassment statute, G. L. c. 265, § 43A, a pattern of conduct or series of acts requires proof of three or more incidents. A defendant can argue at a hearing that a plaintiff who describes only one or two incidents has not proved a pattern.

Second, the court found that the husband intended the pattern to coerce or compel the plaintiff’s compliance. The plaintiff testified that the husband maintained a presence in and around her home at all hours of the day and, on at least one occasion, photographed her daily calendar. The court held that this conduct was monitoring of the plaintiff’s activities and movements. The court further held that the husband used the information he gathered to press the plaintiff to drop the divorce, and that a judge may infer intent from conduct even without direct evidence of intent.

Third, the court found that the pattern caused the plaintiff a reduced sense of physical safety or autonomy. The plaintiff testified that the husband entered her house through a window, circled her home on foot, blocked her car in the driveway, and appeared to track her movements, and that she feared him for those reasons. The court held that this evidence satisfied the reduced sense of physical safety. The court added that the same evidence satisfied the reduced sense of autonomy, which the court defined as a person’s ability to make significant decisions without concern that making them will expose the person to abuse.

The Defendant’s Due Process and Confrontation Claims

The husband argued that the judge denied him a meaningful opportunity to be heard because the plaintiff referred to photographs during her closing argument without offering them in evidence during her testimony. The Appeals Court rejected that argument. A judge has broad discretion over the scope of cross-examination, and in a 209A proceeding the rules of evidence need not be followed as long as the judge is fair in what evidence the judge admits and relies on. See Frizado v. Frizado, 420 Mass. 592 (1995). The court noted that the photographs illustrated subjects on which the husband had already cross-examined the plaintiff at length.

The husband separately argued that the judge wrongly limited the follow-up questions his counsel could ask him. The Appeals Court declined to address that argument because the husband’s brief cited no part of the record and amounted to a bald assertion of error. A party who raises an argument on appeal must cite the parts of the record the party relies on, and a party who does not do so forfeits the argument.

What the Decision Means for a 209A Extension Hearing

A plaintiff can prove abuse under G. L. c. 209A through coercive control without proving a fear of imminent serious physical harm. Conduct that is not physical, such as repeated surveillance, following, and monitoring, can meet the coercive control definition when it forms a consistent pattern and the defendant intends it to control or compel the plaintiff. A judge may infer the defendant’s intent from the conduct itself.

Before the 2024 amendment, a plaintiff whose spouse tracked her movements and kept showing up at her home generally had to prove a fear of imminent serious physical harm. Under the coercive control definition, that plaintiff can now prove abuse in another way. In this case, the husband monitored the plaintiff to press her to drop the divorce. The decision whether to go forward with a divorce is one of the significant decisions that the court’s definition of autonomy covers.

A plaintiff who seeks an order or an extension based on coercive control should build the record on each part of the definition. The plaintiff must show a consistent pattern, an intent to coerce or compel, and a resulting reasonable fear of physical harm or reduced sense of physical safety or autonomy.

A respondent who contests an extension should test each part of the definition on the record. The respondent can contest whether the conduct forms a consistent pattern, whether the defendant intended it to coerce or compel the plaintiff, and whether it caused the plaintiff a reasonable and reduced sense of physical safety or autonomy.

A respondent who wants to preserve an evidentiary ruling for appeal must object on the record at the hearing and, in any later brief, cite the part of the record where the ruling occurred. Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and represents both plaintiffs and respondents at abuse prevention hearings in the District Court and the Probate and Family Court.

Key Takeaways

• In Kehlani K. v. Tripp T., No. 25-P-960 (Oct. 22, 2026), the Massachusetts Appeals Court upheld the one-year extension of an abuse prevention order on a finding of coercive control.
• The 2024 amendment to G. L. c. 209A, § 1 makes coercive control a form of abuse, defined as an intended pattern of controlling behavior that causes a reasonable fear of physical harm or a reduced sense of physical safety or autonomy.
• The court held that the husband’s repeated presence around the plaintiff’s home, his monitoring of her movements, and his photographing of her calendar formed a pattern he intended to use to compel her to drop the divorce.
• The court defined autonomy as a person’s ability to make significant decisions without concern that making them will expose the person to abuse.
• A plaintiff can prove abuse through coercive control without proving a fear of imminent serious physical harm, and a judge may infer the defendant’s intent from the defendant’s conduct.
• The Appeals Court left open whether a plaintiff must prove a minimum number of acts to establish a pattern of coercive control.
• A respondent who wants to challenge an evidentiary ruling on appeal must object at the hearing and cite the record in any later brief.

Related Serpa Law Office resources

• What Is Coercive Control Under Massachusetts 209A Law?
• Massachusetts 209A Extension Hearings: Evidence and Burden
• Massachusetts Restraining Order and Harassment Prevention Order Appeals: The Week of October 19, 2026
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders): Defense and Plaintiff Representation
• Massachusetts Restraining Orders and Harassment Prevention Orders
• The Fifth Amendment at the 209A Restraining Order Hearing and in Civil Cases

October 16, 2026

On September 24, 2026, the Massachusetts Appeals Court upheld the convictions of a man who pursued a woman he met in high school for about fifteen years, violated the harassment prevention order she obtained against him, and threatened her family in emails sent from other women’s accounts. A Middlesex Superior Court jury convicted Michael Hayes, who represented himself at trial, of stalking, criminal harassment, violating a harassment prevention order, witness intimidation, identity fraud, attempted identity fraud, and unauthorized access to a computer system. The decision is Commonwealth v. Hayes, Nos. 25-P-347 and 25-P-607 (Mass. App. Ct. Sept. 24, 2026).

On appeal, the defendant argued that the police exceeded the search warrant for his phone, that the judge’s instructions about anonymous emails lowered the Commonwealth’s burden of proof, and that a mailing he sent from jail to a witness was protected speech. The Appeals Court rejected each of those arguments. The Commonwealth separately appealed the judge’s decision, almost two years after the original sentencing, to reduce the defendant’s sentence. The Appeals Court upheld the reduction.

The Contact, the Harassment Prevention Orders, and the Threats

The defendant met the woman in 2005, when they were high school juniors. She declined his request for a date and offered to be friends. He called her repeatedly, told her he loved her, waited outside her classes, and followed her around school. When she asked him to leave her alone, he yelled and swore at her until other people intervened. At a meeting with school officials and his parents, the defendant was told to leave her alone. He kept contacting her with notes and emails. After she went to college, his emails used profanity and became angry and threatening.

In 2009, the woman found her car keyed from top to bottom. She reported the damage to the police and obtained an order requiring the defendant to stay away from her. A few years later he twice approached her at a gym. She gave up her membership. In December 2015, while he was hospitalized after a stroke, the defendant emailed her at work to say that he would not stalk her but would always love her. She then obtained a one-year harassment prevention order that barred all direct and indirect contact.

During that year the woman received emails that apparently came from the defendant through anonymous addresses. The emails threatened suicide, blamed her family, and asked her to have the order lifted. The defendant also told her mother on Facebook that the order was ruining his hopes of a career in law enforcement, and that he would make the family come back to court every year to renew the order. In December 2016, the woman obtained a permanent harassment prevention order.

After she obtained the permanent order, the woman began receiving alerts about attempts to log in to her social media accounts. In March 2019, a stranger who described himself as a hacker texted her that someone had tried to hire him to break into her Facebook and Google accounts. She reported the text to the police. In November 2019, she received five unanswered calls in quick succession, the last from a number she connected to the defendant. The police then obtained a warrant for his arrest and a search warrant for his electronic devices.

After the police searched his devices, the defendant was charged with violating the harassment prevention order. The threats continued while that charge was pending. One email told the woman that the sender had succeeded in what he was attempting to do and would embarrass her if she did not stop going forward with the trial. Another email, sent to her mother, threatened to have the woman arrested for possession of child pornography and to ruin her teaching career. In August 2020, the mother received emails threatening to kill her and her husband.

The August 2020 emails came from the accounts of four women. Each woman testified that she did not know the defendant and did not send the emails. Each woman also had private Snapchat photographs that had been compromised. The police obtained a second arrest warrant and a second search warrant. The defendant remained in custody after that arrest. The threats to the family then stopped.

The Search of the Defendant’s Phone

The 2019 search warrant for the defendant’s electronic devices authorized the police to search for internet search history and communication history relating to the woman or her mother, login history for email and social media applications, and data related to software that could be used to break into the woman’s accounts. The police found screenshots of login pages for other people’s accounts, including the woman’s, and screenshots of his conversations with the hacker. The Notes application held entries titled “Hacking Facebook profiles” and “Hacking Snapchats.” A pictures folder held a folder with the woman’s name and a photograph altered to make her appear partially nude.

The defendant argued that the warrant did not authorize the police to search photographs, screenshots, or notes. The Appeals Court held that a search of electronic devices “may be as extensive as reasonably required to locate the items described in the warrant.” Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016). When a warrant does not name particular files or applications, the police may search any file or application that could reasonably contain the evidence the warrant describes. Commonwealth v. Henley, 488 Mass. 95, 119-120 (2021).

A defendant who claims that the police exceeded a warrant bears the burden of showing that the search went beyond its terms. Commonwealth v. Carleton, 497 Mass. 11, 29 (2026). The Appeals Court held that the warrant’s authorization to seize login history included the screenshots of login pages. The authorization to seize communication history and data about software for breaking into accounts included the screenshots of the conversations with the hacker. The police could reasonably open a folder bearing the woman’s name, because communications can be stored in photographic form. The Notes entries about hacking fit the warrant’s description of data about breaking into her accounts.

Authentication of an Anonymous Email

Much of the Commonwealth’s evidence consisted of emails, texts, and calls from anonymous addresses or other people’s accounts. The Commonwealth must authenticate an email or a text, with evidence that the defendant wrote it, before a jury may consider it as the defendant’s message. The judge first decides “whether there is evidence sufficient, if believed, to convince the jury by a preponderance of the evidence that the item in question is what the proponent claims it to be.” Commonwealth v. Purdy, 459 Mass. 442, 447 (2011). The jury then decides for itself, by a preponderance of the evidence, whether the defendant wrote the message.

The defendant argued that the jury had to decide beyond a reasonable doubt who wrote the emails, because authorship was an element of nearly every charge. Authentication, however, is a preliminary question of fact. A preliminary question of fact requires only a preponderance of the evidence, even when the question is closely tied to an element of the crime. Commonwealth v. Oppenheim, 86 Mass. App. Ct. 359, 366-367 (2014). The jury must still decide whether the Commonwealth proved each element of each charge beyond a reasonable doubt.

The jurors asked the judge twice which standard applied to authorship of the emails. The judge told the jurors to decide whether it was more likely true than not true that the defendant wrote an email before considering its content. He told them to disregard any email they could not attribute to the defendant by that standard and to decide the charges on the remaining evidence. He also told them that the Commonwealth always had the burden of proving each charge beyond a reasonable doubt. The Appeals Court held that those instructions were correct and presumed that the jury followed them.

In Commonwealth v. Alden, 93 Mass. App. Ct. 438, 444 (2018), the Appeals Court explained that “authenticity and identity are different legal concepts.” A defendant can still challenge an email after the judge admits it. The defendant can attack the reliability of the email and argue to the jury that someone else wrote it. The jury weighs those arguments with the rest of the evidence. Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019).

A Mailing From Jail as Witness Intimidation

In March 2021, while he was in custody awaiting trial, the defendant mailed the hacker a printout of the hacker’s driver’s license information, including his date of birth and home address. The printout had a photograph of the hacker’s face with a swastika drawn on the forehead, along with handwritten insults and slurs that named people involved in the prosecution. The return address identified the defendant as an inmate at the jail. The jury convicted the defendant of witness intimidation under G.L. c. 268, § 13B for that mailing.

The defendant argued that the witness intimidation statute punishes only speech that the First Amendment does not protect, and that the mailing was not a true threat. The Appeals Court agreed that the statute may not punish protected speech. The court held, however, that the jury could find the mailing to be a true threat. A court measures a true threat objectively, by asking “whether, in light of the attendant circumstances, the words justifiably caused the recipient to fear violence.” Commonwealth v. Cruz, 495 Mass. 110, 113 (2024).

The jury could find that the defendant targeted the hacker because the hacker had helped start the investigation. The jury could also find that the mailing showed the hacker that the defendant could obtain his personal information and send mail to his home while sitting in jail. In addition, the Commonwealth must prove that the defendant was at least aware that others could regard the communication as threatening violence. The United States Supreme Court set that requirement in Counterman v. Colorado, 600 U.S. 66 (2023). The defendant did not raise that element on appeal.

The Reduced Sentence

After the trial, the judge sentenced the defendant and denied his timely motion to revise or revoke the sentence under Rule 29 of the Massachusetts Rules of Criminal Procedure. The judge treated the defendant’s later filings as a motion to reconsider that denial. The judge then asked the Probation Department for a Brief Risk Assessment for Violent Offending, known as a BRAVO report, from a program that did not exist at the original sentencing. After a hearing, almost two years after the original sentencing, the judge reduced the time the defendant had to serve in custody and revised his probation terms.

The Commonwealth argued that the judge could not rely on a report that did not exist at sentencing. On a motion to revise or revoke, a judge may not consider the defendant’s conduct after sentencing, which is a question for the parole board. Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003). Commonwealth v. McGuinness, 421 Mass. 472, 476 n.4 (1995). The judge in Hayes stated that he did not rely on any rehabilitation after sentencing. He used the BRAVO report to analyze the information that existed at sentencing and to impose a just sentence. The Appeals Court held that the judge acted within his discretion.

Stalking and Harassment Prevention Order Cases After Hayes

Many stalking, criminal harassment, and harassment prevention order cases depend on messages from anonymous numbers, new accounts, or accounts that belong to someone else. In Hayes, the evidence connecting the messages to the defendant included screenshots and notes on his devices, account information on his devices for the women’s accounts that sent the threats, records of calls that matched the five missed calls, and the end of the threats once he was held in custody. A person accused of sending anonymous messages can contest each piece of that evidence, first when the judge decides whether to admit a message and again before the jury.

A person seeking a harassment prevention order should keep every message, login alert, and call record, and should report each one to the police when it happens. The woman in Hayes reported the keyed car, the email from the hospital, the hacker’s text, the missed calls, and the threats to her family. Serpa Law Office represents both plaintiffs and defendants in harassment prevention order cases, and defends people charged with stalking, criminal harassment, and violating a harassment prevention order.

Key Takeaways

• A phone search warrant that lists categories of evidence authorizes the police to search any file or application that could reasonably contain that evidence, including photographs and notes. Commonwealth v. Dorelas, 473 Mass. 496, 502 (2016).
• A defendant who claims that the police exceeded a search warrant bears the burden of showing that the search went beyond its terms.
• A jury may consider an email or text as the defendant’s message only if the jury finds, by a preponderance of the evidence, that the defendant wrote it. Commonwealth v. Meola, 95 Mass. App. Ct. 303, 313 (2019).
• The Commonwealth must still prove every element of every charge beyond a reasonable doubt.
• A mailing that uses a witness’s photograph and personal information to frighten the witness can be a true threat and witness intimidation under G.L. c. 268, § 13B.
• On a motion to revise or revoke a sentence, a judge may use a new assessment tool to analyze the information that existed at sentencing, but may not consider the defendant’s conduct after sentencing.
• In Commonwealth v. Hayes, Nos. 25-P-347 and 25-P-607 (Mass. App. Ct. Sept. 24, 2026), the Appeals Court upheld every conviction and the reduced sentence.

Related Serpa Law Office resources

• The Effort to Expose Cornell’s Jane Doe: Doxing, Misogyny, and the Law
• Charged With Violating a Massachusetts 258E Harassment Prevention Order: Contact, Defenses, and Penalties Under G.L. c. 258E, § 9
• Massachusetts Stalking Defense (M.G.L. c. 265, § 43)
• Massachusetts Criminal Harassment Defense (M.G.L. c. 265, § 43A)
• Digital Evidence in Massachusetts Criminal Cases: Admission and Objection
• Massachusetts Text Message and Phone Evidence FAQs
• Phone, Computer, and Digital Device Searches in Massachusetts
• Intimidation of a Witness (G.L. c. 268, § 13B)
• Threats to Commit a Crime in Massachusetts (G.L. c. 275, § 2)
• First Amendment Limits in Massachusetts Criminal Harassment and 258E Cases
• Correcting a Massachusetts Criminal Sentence: Rule 29, Rule 30(a), and the Limits of Finality
• Massachusetts 258E Harassment Prevention Orders: Defense and Plaintiff Representation

The Massachusetts Supreme Judicial Court affirmed the denial of expungement after a Juvenile Court judge terminated a harassment prevention order against a fourth grader. In Piper P. v. Barron B., SJC-13854, decided October 5, 2026, the Court declined to recognize an exception for orders later vacated for insufficient evidence. The judge had found that the evidence did not establish harassment, but had not found fraud on the court.

The Order and the School Investigation

According to the opinion, a fourth grade student sought a 258E harassment prevention order against a classmate in April 2024. A judge declined to issue an order without notice. At a two-party hearing on May 2, the plaintiff testified that the classmate pushed her into a corner during gym class, kicked her in the head, and stepped on her hand. The judge credited that testimony and issued an order through November 1, while stating that he would revisit the order after the school district completed its investigation.

The school district interviewed students and staff but did not substantiate intentional physical contact or the repeated targeting required for a finding of bullying. After another hearing in July 2024, the judge terminated the harassment prevention order. He initially allowed a motion to expunge the records as well. The Massachusetts Probation Service intervened and sought reconsideration, and the judge then vacated the expungement ruling. The child appealed.

The Court’s Reasons for Affirming the Denial

Justice Georges wrote for the Court. The majority concluded that G.L. c. 258E gives judges neither express nor implied authority to expunge an order from the statewide domestic violence record keeping system because later evidence fails to support it. The Court applied its reasoning in Vaccaro v. Vaccaro, 425 Mass. 153 (1997), which concerned the registry record of a 209A abuse prevention order.

The majority also declined to expand the courts’ inherent authority beyond the recognized exception for fraud on the court. A later failure of proof does not itself establish intentional deception. The Juvenile Court judge had expressly found no fraud, and the child did not challenge that finding on appeal. The Court therefore affirmed the denial of expungement.

The Concurrence and Dissent on Proceedings Involving Children

Justice Kafker, joined by Justice Wendlandt, concurred. They urged the Legislature to clarify the treatment of 258E harassment prevention orders involving children under twelve. The concurrence questioned how those proceedings fit with the 2018 criminal justice reform legislation, which excluded children under twelve from delinquency jurisdiction, and how violations by those children could be enforced.

Chief Justice Budd dissented. She would permit a judge to consider expungement where the plaintiff is a child under twelve and the judge finds that the underlying allegations lack factual support or are untrue. Her proposed approach concerned a child who was the reporting party, rather than an adult who listed children as additional plaintiffs. Balancing the government’s interest in retaining the record against the harm to the child in this case, she would have ordered expungement.

The Decision’s Effect and Further Guidance

The majority left any broader expungement remedy to the Legislature. The decision does not create an insufficient-evidence exception for an order against a child. The statewide record continues to show the order and its termination.

The firm’s guide to expunging a Massachusetts 209A restraining order or 258E harassment prevention order explains the governing standard, registry correction, motion procedure, and frequently asked questions. The separate expungement FAQ page addresses additional questions about records and access.

September 28, 2026

Shortly before 2 A.M., a Cambridge police officer walking through Harvard Square saw Shyam Khadgi striking a woman in the face and arms. The officer saw Khadgi strike her ten to fifteen times, hard enough to lift his own foot off the ground. The officer separated the two people, arrested Khadgi, and called an ambulance. The woman was extremely distraught and could not speak to the officer at first. Her face was bruised and she was crying, and photographs later showed large bruises on her face and scratches on her arm. After the ambulance arrived and she began receiving medical care, she told the officer that Khadgi had been beating her for about eight minutes before the officer arrived, that he had kicked her, and that the two of them had been dating for seven years. The woman did not testify at trial. A judge of the District Court, sitting without a jury, found Khadgi guilty of assault and battery on a family or household member under G. L. c. 265, § 13M.

Read the full decision: Commonwealth v. Khadgi, No. 25-P-1208 (Mass. App. Ct. Sept. 24, 2026).

The confrontation issue

The Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights give a defendant the right to confront and cross-examine the witnesses against him. Under Crawford v. Washington, 541 U.S. 36 (2004), the prosecution cannot introduce a testimonial out-of-court statement against a defendant unless the person who made the statement testifies and is cross-examined. A statement is testimonial when a person makes it to establish past events for a later prosecution, rather than to help the police respond to an ongoing emergency.

Because the woman did not testify, the Commonwealth proved its case entirely through the responding officer, including the woman’s statements to him. Before trial, a District Court judge ruled that the statements were admissible as spontaneous utterances, meaning statements made under the stress of a startling event. On appeal, Khadgi did not challenge that hearsay ruling. He argued instead that the statements were testimonial, so admitting them violated his right of confrontation.

Why the Appeals Court described the confrontation argument as strong

The Appeals Court agreed that Khadgi had a strong argument that the statements were testimonial. By the time the woman spoke to the officer, Khadgi was already under arrest, the officer had personally witnessed the assault, and the woman was receiving medical treatment and was about to be taken to a hospital. The court explained that statements are ordinarily testimonial when the emergency has ended and the statements describe past events rather than help the police address a present danger. See Commonwealth v. Rand, 487 Mass. 811, 826 (2021). See also Commonwealth v. Rodriguez, 90 Mass. App. Ct. 315, 326 (2016).

Why the conviction still stood: harmless error

The Appeals Court affirmed Khadgi’s conviction. The court did not decide whether admitting the statements violated the confrontation right, because it held that any error was harmless beyond a reasonable doubt. When a defendant preserves a confrontation objection at trial, an appellate court upholds the conviction only where it is satisfied beyond a reasonable doubt that the improperly admitted evidence did not affect the verdict. The court weighs the properly admitted evidence and the improperly admitted evidence together across the whole record. See Commonwealth v. Gordon, 496 Mass. 554, 584-585 (2025).

Two features of the record made the error harmless. First, the officer personally witnessed the beating and the photographs showed the woman’s injuries, so the woman’s account of the beating added nothing the properly admitted evidence had not already proven. Second, the Commonwealth had to prove that Khadgi and the woman were family or household members, which for this charge means that they were or had been in a substantive dating relationship. In the Commonwealth’s own case, only the woman’s statements established that relationship. Khadgi, however, testified in his own defense that the woman was his girlfriend and that they had lived together for seven years.

The rule that a defendant’s own testimony counts against him

The Appeals Court relied on Commonwealth v. Mendes, 463 Mass. 353 (2012). In Mendes, the Supreme Judicial Court held that a court deciding whether a constitutional error is harmless considers both the Commonwealth’s case and the defendant’s case. The defendants in Mendes had testified about the drugs after the prosecution introduced drug certificates that the United States Supreme Court later held were improperly admitted testimonial hearsay in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). The Supreme Judicial Court considered the defendants’ own testimony and concluded that the error was harmless. Applying that rule, the Appeals Court held that Khadgi’s testimony about the seven-year relationship established the family or household member element, so any confrontation error was harmless beyond a reasonable doubt.

What the decision means for a person charged with domestic assault in Massachusetts

A complaining witness who does not appear at trial does not always end the Commonwealth’s case. Where a police officer witnessed the assault, or where photographs or other evidence prove the assault independently, a Massachusetts court can find that the admission of the absent witness’s statements did not affect the verdict. The decision also shows the consequence of a defendant’s own testimony. For a charge of assault and battery on a family or household member, the Commonwealth must prove the qualifying relationship, and that relationship is often provable only through the complaining witness. A defendant who confirms the relationship from the witness stand can supply the element the Commonwealth needs, and an appellate court will consider that testimony when it decides whether an error at trial was harmless. The decision whether a defendant should testify is a serious one, and a person facing a domestic assault charge should make that decision with the advice of a lawyer who has weighed what each element of the charge requires.

Key Takeaways

• The Confrontation Clause bars a testimonial out-of-court statement unless the person who made it testifies and is cross-examined. See Crawford v. Washington, 541 U.S. 36 (2004).
• A statement to the police is more likely to be testimonial once the emergency has ended and the statement describes past events.
• Even where a court admits a statement in violation of the confrontation right, an appellate court upholds the conviction if it is satisfied beyond a reasonable doubt that the error did not affect the verdict.
• A court deciding whether an error was harmless considers the defendant’s own testimony along with the rest of the record. See Commonwealth v. Mendes, 463 Mass. 353 (2012).
• In Commonwealth v. Khadgi, the defendant’s testimony that he had dated the complainant for seven years established the family or household member element, so the Appeals Court affirmed the conviction.

Related Serpa Law Office resources

• Arrested for Assault and Battery on a Family or Household Member in Massachusetts
• Boston Domestic Violence Defense Lawyer
• Massachusetts Criminal Law Updates

When a Massachusetts defendant claims self-defense and the parties dispute who began the physical confrontation or who first used or threatened deadly force, the defendant may ask the judge to admit evidence of specific violent incidents that the alleged victim is reasonably alleged to have initiated. Commonwealth v. Adjutant, 443 Mass. 649 (2005). The rule also covers qualifying violent acts by a third party acting in concert with or to assist the alleged victim. The judge retains discretion over whether the evidence will be admitted.

Using Adjutant evidence can also permit a response from the prosecution. Under Commonwealth v. Morales, 464 Mass. 302 (2013), the Commonwealth may seek to rebut qualifying evidence about the alleged victim with specific incidents of the defendant’s prior violent conduct. That does not make the defendant’s entire criminal record admissible, and a conviction is not interchangeable with proof of a qualifying violent incident.

The analysis focuses on the particular incidents and the disputed issue they may help resolve. Massachusetts Rule of Criminal Procedure 14.3(c) requires timely notice, and the proffer needs an adequate evidentiary foundation. The judge must then apply the governing balancing test and give a precise limiting instruction. This is not a comparison of two criminal records.

The Adjutant First-Aggressor Rule

Evidence that a person acted violently on another occasion ordinarily cannot be used merely to show that the person probably acted the same way in the charged incident. Commonwealth v. Adjutant, 443 Mass. 649 (2005), created a focused exception for a defendant who raises self-defense and disputes the identity of the first aggressor. The court held that the common law gives a trial judge discretion to admit specific incidents of violence that the alleged victim is reasonably alleged to have initiated. Adjutant, 443 Mass. at 664.

The Massachusetts Guide to Evidence states the current rule at § 404(a)(2)(B) (2026). Where the identity of the first aggressor or the first to use deadly force is in dispute, a defendant may offer evidence of specific incidents of violence allegedly initiated by the alleged victim, or by a third party acting in concert with or to assist the alleged victim, whether or not the defendant knew of them. The same subsection permits the prosecution to rebut with specific incidents of violence by the defendant.

The jury may use that evidence to decide who initiated the confrontation or who escalated it by first using or threatening deadly force. The firm’s Massachusetts self-defense page explains the elements of the defense itself.

The Two First-Aggressor Disputes

Commonwealth v. Chambers, 465 Mass. 520, 529 to 530 (2013), holds that the first aggressor may be either of two people: the person who initiated the confrontation, or the person who first escalated it by using or threatening deadly force. Commonwealth v. Deconinck, 480 Mass. 254, 263 (2018), restates the rule as two circumstances, and Commonwealth v. Souza, 492 Mass. 615 (2023), confirms that Adjutant evidence is admissible only when one or both of those issues are genuinely in dispute. Evidence may be relevant to one issue, the other, or both.

The distinction applies when the parties agree that one person began a nondeadly confrontation but dispute who first used or threatened deadly force. There is no Adjutant issue when the relevant identity is undisputed. In Commonwealth v. Andrade, 496 Mass. 144 (2025), exclusion was proper where the alleged victim was undisputedly the initial aggressor and the defendant unilaterally escalated the encounter by using deadly force.

Commonwealth v. Camacho, 472 Mass. 587 (2015), supplies two further limits. The evidence is inadmissible where the parties dispute only whether the defendant was legally entitled to use the level of force employed, rather than who began or escalated the altercation. Camacho, 472 Mass. at 594. And the evidence is admissible only where the alleged victim was involved in the altercation that led to the charge.

Souza defines the limit on Adjutant evidence. Adjutant evidence is admissible exclusively to help the jury decide who initiated the conflict or who first used or threatened deadly force. It is not admissible more broadly to show that the Commonwealth failed to meet its burden on self-defense.

The exception applies to self-defense. The Supreme Judicial Court has twice declined to extend it to a claim of defense of another, each time on the case before it. Commonwealth v. Camacho, 472 Mass. 587, 596 n.12 (2015); Commonwealth v. Rateree, 495 Mass. 610, 624 (2025). Counsel should assume the evidence will be excluded on a defense of another theory absent a compelling record.

A different subsection, Mass. G. Evid. § 404(a)(2)(C) (2026), governs evidence of violent conduct that the defendant knew about before the charged encounter and that the defense offers to show a reasonable concern for personal safety.

Qualifying Prior and Later Incidents

The proposed evidence must concern specific violent incidents that the alleged victim is reasonably alleged to have initiated, or qualifying violent acts by a third party acting in concert with or to assist the alleged victim. General assertions that a person was violent are not the same as proof of a particular incident. Participation in boxing, martial arts, or another athletic activity does not by itself qualify as first-aggressor evidence. Commonwealth v. Amaral, 78 Mass. App. Ct. 557 (2011).

The incident need not predate the charged event. Andrade confirms that a qualifying incident may have occurred before or after it. Andrade, 496 Mass. at 147 to 148. Under Souza, once the defense shows that the alleged victim initiated the violence in the earlier episode, the entire violent incident is potentially admissible, not only its first moment, so that the jury has an accurate account. The evidence must still comply with the other rules of evidence.

Known and Unknown Incidents Serve Different Purposes

The defendant need not have known about an incident when offering it under Adjutant to identify the first aggressor or the first person to use or threaten deadly force. Andrade confirms that admissibility under Adjutant does not depend on whether the defendant was aware of the violent act at the time of the alleged offense. An unknown incident may bear on the alleged victim’s propensity to initiate violence, subject to the rule’s limits.

Knowledge counts for a different use. If the defendant knew about a specific prior violent act before the charged encounter, Mass. G. Evid. § 404(a)(2)(C) (2026) permits the evidence to explain the defendant’s actual concern for personal safety and whether that concern was reasonable. When admitted only for this state-of-mind purpose, the evidence may not be used as propensity proof that the alleged victim acted in conformity with a violent character during the charged incident.

In Amaral, the Appeals Court noted in a footnote that a defendant’s prior knowledge of an alleged victim’s training as a boxer or martial artist might have supported this state-of-mind theory, even though the training itself was not first-aggressor evidence.

Rule 14.3 Notice and Deadlines

Massachusetts Rule of Criminal Procedure 14.3(c) provides the current procedure. Rule 14.3 took effect March 1, 2025, and consolidated former Rule 14(b)(1), (b)(3), and (b)(4) without substantive change, so older motions, memoranda, and secondary sources describe the same notice requirement as Rule 14(b)(4).

A defendant who intends to claim self-defense and offer the alleged victim’s specific violent acts as first-aggressor evidence must give written notice no later than 21 days after the pretrial hearing, unless the judge sets another time for good cause. The notice must briefly describe each incident, give its location and date to the extent practicable, and identify the witnesses the defense may call with the information required by the rule. The defense must file a copy with the clerk.

The prosecution ordinarily has 30 days after receiving the defense notice to serve written notice of the rebuttal evidence it may introduce, including a brief description and the required witness information. Both sides have a continuing duty to disclose additional responsive evidence. If a party fails to comply, the judge may exclude that party’s evidence on the issue of the identity of the first aggressor.

The rule governs notice only. Morales states that nothing in the rule itself authorizes the admission of any evidence; whether to admit the proffered incidents, and which ones, remains a discretionary determination for the judge.

The Commonwealth’s Rebuttal Evidence

The Commonwealth may respond with two forms of character evidence in addition to ordinary factual rebuttal and impeachment. It may offer evidence of the alleged victim’s peaceful propensities. Commonwealth v. Adjutant, 443 Mass. 649 (2005), citing Commonwealth v. Lapointe, 402 Mass. 321, 325 (1988). Under Commonwealth v. Morales, 464 Mass. 302, 310 to 311 (2013), it may also offer specific incidents of the defendant’s prior violent conduct.

The two sides of the rule are not symmetrical. Adjutant holds that a victim’s general reputation for violence is not admissible to prove who was the first aggressor, because reputation evidence is often “opinion in disguise”; the defense proves that point with specific incidents. The peaceful-propensities rebuttal is available to the prosecution once the defendant’s Adjutant evidence has been admitted.

Morales does not authorize the prosecutor to introduce the defendant’s criminal record generally. The rebuttal is limited to specific prior violent conduct, must satisfy the other rules of evidence, and is subject to its own balancing test, described below. Reciprocal notice gives the defense an opportunity to investigate and challenge the proposed rebuttal.

Defense counsel must weigh that limited rebuttal before offering Adjutant evidence. Counsel should examine the facts and admissibility of the alleged victim’s incidents, the prosecution’s potential response, and the likely jury instruction. The question is not simply which person has more convictions or which record appears worse.

The Two Balancing Tests

The defense proffer and the prosecution rebuttal are weighed under two different formulations, and the judge applies each formulation separately at the motion stage.

For the defendant’s evidence about the alleged victim, the judge must evaluate the circumstances and may admit the evidence only if its probative value outweighs its prejudicial effect. That is Adjutant’s own formulation for this category of evidence. Adjutant, 443 Mass. at 664.

The judge may also limit cumulative testimony or exclude evidence that would cause unfair prejudice, confusion, or delay. Establishing a relevant dispute does not make every proposed incident admissible. Rateree confirms that the judge retains discretion to exclude Adjutant evidence even where the factual predicate for admission is satisfied, and a reviewing court will uphold the ruling absent an abuse of discretion.

For the Commonwealth’s rebuttal with the defendant’s own prior violent acts, Morales states a distinct test. The evidence may be admitted only if it is more probative of its intended purpose than prejudicial to the defendant, and the judge must weigh that balance very carefully because the potential prejudice is to the person on trial. Morales, 464 Mass. 302, 310 to 311 (2013).

The Required Limiting Instruction

When evidence is admitted under the first-aggressor rule, the judge must give a limiting instruction identifying its permitted use.

The operative charge printed in the current model instructions confines the jury’s consideration to deciding who attacked whom first in the altercation. Massachusetts District Court Model Jury Instructions 9.261, 9.262, and 9.263 (rev. Feb. 2026).

Where the parties also dispute who first used or threatened deadly force, the judge must tailor the instruction to that issue, because Chambers and Souza extend the permitted use to that second question. The note to Mass. G. Evid. § 404(a)(2)(B) (2026) states the requirement directly: the instruction must identify the permissible use as first aggressor, first to use deadly force, or both.

Souza confirms the limit in the other direction: where the identity of the person who escalated to deadly force is not in dispute, the defendant is not entitled to an instruction on that branch.

When evidence of specific violent acts by either the alleged victim or the defendant is admitted, the judge must give the limiting instruction when the evidence is introduced and again in the final charge. Morales, 464 Mass. 302 (2013).

The judge gives the instruction because prior-incident evidence can be highly prejudicial. The jury may not use it to draw a general character inference, infer the defendant’s guilt, or decide issues beyond the specific first-aggressor or deadly-force question identified by the judge.

Adjutant Evidence in Domestic Assault Cases

Self-defense and first-aggressor disputes can arise in prosecutions for assault and battery and for assault and battery on a family or household member under G. L. c. 265, §§ 13A and 13M. Even when the § 13M relationship element is charged, and self-defense is fairly raised, the Commonwealth must prove beyond a reasonable doubt that there was no self-defense. Commonwealth v. Harris, 464 Mass. 425 (2013). Body-camera video, 911 calls, photographs, medical evidence, messages, witness accounts, and the sequence of events may be important before prior-incident evidence is considered. The firm’s page on self-defense and mutual combat in domestic violence cases explains how the first-aggressor question arises when both people used force. Its post on false domestic violence allegations in divorce and custody cases addresses first-aggressor evidence alongside bias and motive.

Separate from Adjutant, evidence of prior domestic incidents may sometimes be admitted under § 404(b) for a genuine nonpropensity purpose, such as relationship context, motive, intent, or absence of mistake or accident, subject to the more-exacting bad-act balancing rule. An appropriate limiting instruction should be requested and used when the governing circumstances require it.

A defense review should begin with the charged assault or battery theory and the evidence from the incident itself. Counsel can then determine whether the identity of the initial aggressor or the person who first used or threatened deadly force is genuinely disputed, locate reliable proof of specific incidents, satisfy Rule 14.3, and prepare for possible rebuttal. The firm’s domestic-violence defense page explains the broader criminal process.

Preparing the Evidence Before Trial

Potential first-aggressor evidence should be investigated early. Police reports, court records, recordings, photographs, and witnesses may help identify admissible proof of what occurred and who initiated the violence. Ordinary hearsay rules still apply. When the Commonwealth offers a testimonial statement, the Confrontation Clause may impose a separate restriction. A charge or docket label alone does not establish the underlying conduct.

Serpa Law Office represents people raising self-defense in assault, assault and battery, domestic assault, strangulation, and dangerous-weapon cases throughout Massachusetts. Call 617.936.0201 or use the contact form to request a confidential consultation.

Related Serpa Law Office Resources

• Boston Domestic Violence Defense
• Assault and Battery on a Family or Household Member
• Self-Defense in Massachusetts
• Self-Defense and Mutual Combat in Massachusetts Domestic Violence Cases
• Assault and Battery with a Dangerous Weapon
• Strangulation or Suffocation in Massachusetts
• False Domestic Violence Allegations in Divorce and Custody
• Massachusetts Domestic Violence Law FAQs

The court held that the prosecutor created a substantial risk of a miscarriage of justice by vouching for the complainant’s credibility, misstating the evidence, and asserting the defendant’s guilt in closing argument. The decision was issued under Appeals Court Rule 23.0 and is not binding precedent, but it may be cited for its persuasive value. The decision shows the proper and improper ways to conduct a trial that is a credibility contest.

The Trial and the Verdicts

A criminal complaint issued on August 31, 2022, charging the defendant with threatening to commit a crime, G. L. c. 275, § 2. The complaint also charged the defendant with two counts of assault and battery on a family or household member, G. L. c. 265, § 13M (a), and assault by means of a dangerous weapon.

After a two-day trial in August 2023, the jury convicted the defendant of one count of assault and battery on a family or household member. The jury acquitted the defendant of the other count and of assault by means of a dangerous weapon. The complainant testified that the defendant struck her and held a small kitchen knife to her neck. The defendant testified and denied the complainant’s account. The outcome of the case depended entirely on which account the jury believed.

The Prosecutor’s Closing Argument

The defendant identified a series of improper statements in the closing. The court addressed three categories of statements. First, the prosecutor told the jury that false accusations motivated by revenge or anger “doesn’t happen.” The prosecutor’s statement about false accusations was improper vouching, because the statement implied that the prosecutor had knowledge, independent of the evidence, about how charges are brought.

Improper vouching occurs when an attorney expresses a personal opinion regarding the credibility of a witness or suggests knowledge independent of the evidence before the jury. Commonwealth v. Muller, 477 Mass. 415, 433 (2017); Commonwealth v. Beaudry, 445 Mass. 577, 587 (2005). The Commonwealth conceded on appeal that the phrase was “certainly ill-advised.”

Second, the prosecutor misstated the evidence, including an assertion that the defendant had “slammed” the complainant’s head. No witness had said that the defendant slammed her head. A prosecutor may not misstate the evidence or refer to facts not in evidence in closing argument. Commonwealth v. Kozec, 399 Mass. 514, 516 (1987). Third, the prosecutor declared, “This fight did happen. [The defendant] did do those injuries to [the victim]. He did beat her up.”

A prosecutor may urge the jury to draw inferences from the evidence, Commonwealth v. Martinez, 476 Mass. 186, 199 (2017), but may not express a personal opinion on the defendant’s guilt. Commonwealth v. Penn, 472 Mass. 610, 627 (2015); Commonwealth v. Howell, 394 Mass. 654, 661 (1985). The panel held that the prosecutor’s declarations were definitive assertions of guilt, not argued inferences.

The Appeals Court’s Decision

Trial counsel had not objected, so the Appeals Court reviewed the closing argument for a substantial risk of a miscarriage of justice. The court found that the improper statements created a substantial risk of a miscarriage of justice. The case was the complainant’s word against the defendant’s. The improper remarks concerned the central issue in the case, the complainant’s credibility. The judge instructed the jury before the closings that closing arguments are not evidence but did not repeat those instructions afterward.

The panel concluded that the standard instructions could not cure the significant errors in the prosecutor’s closing argument. Commonwealth v. Dirgo, 474 Mass. 1012, 1017 (2016). The court vacated the judgment and set aside the verdict. The court rejected the defendant’s separate argument that the absence of a specific unanimity instruction was structural error.

The court reviewed the omission of the instruction under the same substantial risk standard, Commonwealth v. Palermo, 482 Mass. 620, 629 (2019). The court also held that the defendant’s double jeopardy argument was premature. The defendant may move to dismiss if the Commonwealth seeks a retrial. Commonwealth v. Hrycenko, 417 Mass. 309, 314-317 (1994).

What the Decision Means for a Domestic Violence Case

Many domestic violence prosecutions are credibility contests with no independent witnesses. The decision confirms that the rules of argument are strictest in a credibility contest. Jurors are the sole judges of credibility. Jurors want to judge credibility on the evidence. A prosecutor who tells the jurors that the complainant must be believed because false accusations do not happen takes the credibility decision away from the jurors.

For the defense, the decision is a reminder that closing arguments must be scrutinized in real time and preserved for appeal, and that even without an objection, pervasive error in a word-against-word case can require a new trial. The decision is also a reminder that a jury verdict does not always end a case. The Appeals Court vacated the defendant’s conviction. The split verdicts at trial, with acquittals on two of the four charges, show that the jury was already weighing the evidence charge by charge.

The Records After a Vacated Conviction

A vacated conviction, like a dismissal or an acquittal, leaves a paper record. The docket, the police reports, and the Board of Probation entry all persist unless further steps are taken. The firm’s page Domestic Violence Case Records in Massachusetts explains what each record shows and what can be done about each record. A defendant who prevails on appeal should address the records question as part of finishing the case.

Summary for a Person With a Pending Case

A domestic violence trial that depends on one person’s word against another’s can end in an acquittal. A conviction in a word-against-word trial can also be challenged on appeal when the Commonwealth argues beyond the evidence. Anyone facing an assault and battery charge involving a family or household member should have trial counsel who knows the boundaries of closing argument and enforces them. Serpa Law Office tries domestic violence cases in the Boston Municipal Court and the district courts of Greater Boston.

The decision was issued under Appeals Court Rule 23.0 and is not binding precedent, but it may be cited for its persuasive value. The decision is an early indication of how appellate judges will read the new statutory language. The firm’s post on coercive control in Massachusetts 209A restraining order cases explains the statutory definition and its elements.

The Coercive Control Definition

Chapter 209A defines abuse as the occurrence of any of four categories of acts between family or household members. The four categories are attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm, causing another to engage involuntarily in sexual relations by force, threat or duress, and coercive control.

G. L. c. 209A, § 1. The fourth category is the newest. The coercive control category was added by An Act to Prevent Abuse and Exploitation, St. 2024, c. 118, which took effect on September 18, 2024. The same statute created the Massachusetts revenge porn law.

The statute defines coercive control as a pattern of behavior intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member. Under the definition, the pattern must also cause the family or household member to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy.

G. L. c. 209A, § 1. The definition lists examples of qualifying conduct, including isolating the person from friends and relatives, depriving the person of basic needs, monitoring the person’s communications and finances, threatening to harm a child or relative, and damaging property. The list also includes the example relevant in this case, threatening to publish sensitive personal information relating to the family or household member, including sexually explicit images. A single act can also qualify in three narrow situations, including publishing or attempting to publish sexually explicit images.

Two features of the coercive control definition apply in every contested hearing. First, the conduct must form a pattern, unless it falls within the short list of single acts. Second, the pattern must cause the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy. Conduct that is unpleasant, embarrassing, or controlling in a general sense does not satisfy the statute unless the evidence connects the conduct to the statutory effect on safety or autonomy.

The Facts of the Case

The plaintiff filed a complaint on May 14, 2025, seeking a harassment prevention order under G. L. c. 258E. A judge instead issued an ex parte abuse prevention order under c. 209A when the defendant did not appear at the scheduled two-party hearing. At the next hearing, on June 11, 2025, the plaintiff appeared pro se and the defendant appeared with counsel. A second judge extended the 209A restraining order for six months. The defendant appealed.

The plaintiff’s affidavit referred generally to a secret communication with the defendant during their relationship and claimed that the defendant “was insistent on sharing things I told him in private that were sexual in nature.” At the hearing, the plaintiff disclaimed any physical violence or threats of violence.

The plaintiff testified that the defendant had tried to “control and humiliate” her, presenting her more than twenty-five times with an ultimatum that they had to disclose the private information to her family. The judge, showing sensitivity, asked her to explain the situation without describing what the communication contained. The defendant declined to testify, and his attorney argued that the evidence was insufficient. The judge found that the plaintiff had established a pattern of threats to communicate sensitive information to family members and issued the order on a coercive control theory.

The Appeals Court’s Decision

The Appeals Court vacated the order. The panel began by stating settled principles. The plaintiff bears the burden of proving abuse by a preponderance of the evidence. Vanna V. v. Tanner T., 102 Mass. App. Ct. 549, 552-553 (2023); Frizado v. Frizado, 420 Mass. 592, 596 (1995). There must be sufficient “objective evidence” to support a 209A restraining order before the “potent remedies” of the order may be administered. Szymkowski v. Szymkowski, 57 Mass. App. Ct. 284, 286 (2003); Keene v. Gangi, 60 Mass. App. Ct. 667, 670 (2004).

The powers of the court under c. 209A must be exercised in accordance with the statutory language. Carroll v. Kartell, 56 Mass. App. Ct. 83, 87 (2002). An order should not issue “simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience.” Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995).

Applying the settled principles, the panel held that the judge could not find a threat to publish sensitive personal information without first evaluating the communication that was allegedly threatened with disclosure. All the judge had before him was the plaintiff’s vague and elliptical reference to a communication that was “private” and “sexual in nature.”

The Appeals Court acknowledged that the judge had asked the plaintiff to avoid details out of sensitivity. As a result, the record contained only conclusory testimony and no underlying facts. Without objective evidence of what the communication was, the record could not support a finding that threatening to reveal it constituted coercive control under the statute.

The panel closed with a broader instruction. The record must be clear about how the defendant’s conduct satisfies the statutory requirements before any order premised on coercive control is issued. The record must show both the specific nature of the conduct and how the conduct caused the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy. The panel’s instruction will appear in defense arguments at two-party hearings across the Commonwealth.

The Pending Constitutional Challenge

The panel also noted that the coercive control definition is broad. The panel further noted that the Supreme Judicial Court has solicited amicus briefs in G.P. v. S.P., No. SJC-13947. The question for the amicus briefs is whether the provision is vague and overbroad in violation of the First and Fifth Amendments to the United States Constitution and the cognate provisions of the Massachusetts Constitution. The Appeals Court expressed no view on the constitutional question.

The rules for coercive control orders may change again within the year when the Supreme Judicial Court decides G.P. v. S.P. Anyone litigating a coercive control allegation while G.P. v. S.P. is pending should preserve constitutional objections on the record.

What the Decision Means for a Pending 209A Restraining Order Case

For a person defending against a coercive control allegation, the Appeals Court confirmed that the two-party hearing is an evidentiary proceeding, not a formality. The plaintiff must prove specific conduct. The judge must be able to evaluate the conduct against the statutory definition. General testimony that a partner was controlling, or that the partner threatened to disclose private information, does not meet the burden without facts a judge can examine. Counsel at a 209A restraining order (abuse prevention order) hearing can hold the plaintiff to proof of each element.

The elements are the pattern, the intent, and the statutory effect on safety or autonomy. The decision also illustrates a separate point about testimony. The defendant in this case declined to testify, and prevailed on appeal on the state of the plaintiff’s evidence alone. The decision whether to testify at a 209A restraining order hearing implicates the Fifth Amendment in civil cases when a criminal investigation or a companion domestic violence charge is possible. The decision whether to testify should be made with counsel before the hearing, not at the hearing.

The decision also has a lesson for a person who has obtained an order. An order based on conclusory testimony may be vacated on appeal. A plaintiff alleging coercive control should be prepared to describe the conduct with enough specificity that the judge can make the statutory findings, even when the subject matter is painful to discuss.

Three months after the decision in V.B. v. B.W.R.T., the Appeals Court upheld a 209A restraining order based on coercive control in Kehlani K. v. Tripp T., No. 25-P-960 (Mass. App. Ct. Oct. 22, 2026), a published decision. The plaintiff in that case described specific conduct, including her husband’s repeated presence in and around her home, his entry into the house through a window, and his photographs of her daily calendar.

The Records Question After a Vacated Order

Records of a 209A restraining order remain after the order is vacated, including the court file and the entry in the statewide domestic violence record keeping system (DVRS) that judges consult in later cases. The post State and Federal Records of Massachusetts 209A Restraining Orders and 258E Harassment Prevention Orders explains which records are removed and which remain when an order is vacated. The post also explains when expungement is available for an order obtained through fraud on the court. A defendant who wins on appeal should then address the records that remain after the order is vacated.

Summary for a Person With a Pending Case

Coercive control has been a distinct statutory basis for a 209A restraining order since September 18, 2024. The Massachusetts appellate courts are reviewing coercive control orders for the first time. In V.B. v. B.W.R.T., the Appeals Court indicated that the new definition does not reduce the evidence a plaintiff must present.

A judge must have objective evidence of specific conduct meeting the statutory elements before the order issues. Serpa Law Office represents both defendants and plaintiffs at 209A restraining order and 258E harassment prevention order hearings in the district courts of Greater Boston. Anyone facing a hearing on a coercive control allegation, as a plaintiff or a defendant, should get advice before the hearing date, because the Appeals Court decides any appeal on the record made at the hearing.

This post explains which record systems hold a Massachusetts 209A restraining order (abuse prevention order) or a 258E harassment prevention order. The post also explains who can see the records in each system. Removing an order from the registry is covered on the expungement page.

Massachusetts statutes require the court to notify the appropriate law-enforcement agency whenever a 209A restraining order or a 258E harassment prevention order is vacated, including an order that the court terminates. The court need not notify the police when an order expires because the plaintiff does not appear at the extension hearing. The court must also direct that agency to destroy “all record” of the vacated order. The relevant law enforcement agencies under the destruction requirement are the local police departments of the defendant and the plaintiff.

The statutes separately require that information concerning issued orders be sent to the Commissioner of Probation’s statewide court record keeping systems, including the domestic violence database. The statutes do not expressly require deletion from the statewide systems. Massachusetts appellate courts construe the difference between the two statutory requirements to mean that a statewide record generally remains in place despite vacatur, absent the narrow fraud-on-the-court expungement exception. Federal law does not condition enforcement of a protection order on registration or filing.

Federal NCIC guidance instead requires that the status of a record remain accurate and current. An active entry must be cleared, cancelled, modified, or allowed to expire to match the state-level status. An inactive NCIC protection-order record may remain available for a defined retention period, usually five years after the year the order is terminated.

The Massachusetts Statutory Text

Abuse-prevention orders under G.L. c. 209A

Section 7 identifies the system used in 209A restraining order proceedings as the “statewide domestic violence record keeping system maintained by the office of the commissioner of probation.” Section 7 directs the judge, when considering a complaint, to search the statewide system and review the resulting information. G.L. c. 209A, § 7.

An order may require the defendant to vacate, refrain from abuse, or have no contact. The statute requires the register or clerk-magistrate, after such an order issues, to transmit “two certified copies of each such order and one copy of the complaint and summons forthwith to the appropriate law enforcement agency.” G.L. c. 209A, § 7

The record-destruction sentence provides, “The court shall notify the appropriate law enforcement agency in writing whenever any such order is vacated and shall direct the agency to destroy all record of such vacated order and such agency shall comply with that directive.” G.L. c. 209A, § 7

Harassment Prevention Orders Under G.L. c. 258E

Section 9 requires a review of “the court activity record information system and the statewide domestic violence recordkeeping system,” maintained by the Commissioner of Probation. G.L. c. 258E, § 9. For a 258E harassment prevention order issued under §§ 3, 5, or 6, the clerk or clerk-magistrate must transmit “to the office of the commissioner of probation information for filing in the court activity record information system or the statewide domestic violence recordkeeping system … or in a recordkeeping system created by the commissioner of probation to record the issuance of, or violation of, prevention orders issued pursuant to this chapter.”

The clerk also must transmit “2 certified copies of each such order and 1 copy of the complaint and summons forthwith to the appropriate law enforcement agency.” G.L. c. 258E, § 9

The corresponding vacatur sentence provides, “The court shall notify the appropriate law enforcement agency in writing whenever any such order is vacated and shall direct the agency to destroy all record of such vacated order and such agency shall comply with that directive.” G.L. c. 258E, § 9

The Effect of the Statutory Language on Dismissed Massachusetts 209A Restraining Orders and 258E Harassment Prevention Orders

What the statutes expressly require

For both types of orders, the statutory command applies when the order is “vacated.” The court must give written notice to the appropriate law-enforcement agency and direct that agency to destroy all record of that vacated order. The language does not expressly say that the Commissioner of Probation, the Court Activity Record Information System, or the statewide domestic-violence recordkeeping system must delete the statewide entry. For an example of the Appeals Court vacating an order issued on a coercive control theory, see V.B. v. B.W.R.T.

Statewide registry records versus police records

The Massachusetts appellate courts distinguish between the local law-enforcement record addressed by the destruction sentence and the statewide recordkeeping system maintained through the Commissioner of Probation. In Vaccaro v. Vaccaro, 425 Mass. 153 (1997), the Supreme Judicial Court held that the statutory destruction direction did not authorize expungement from the statewide domestic-violence recordkeeping system.

Allen v. Allen, 89 Mass. App. Ct. 403 (2016), likewise explains that vacatur and destruction of police records do not ordinarily erase the statewide DVRS entry. J.S.H. v. J.S., 91 Mass. App. Ct. 107 (2017), applies the same distinction to 258E harassment prevention order proceedings.

In substance, the Massachusetts appellate courts treat the statewide system as preserving a record of issued orders, including inactive or terminated orders, for authorized judicial and law-enforcement use. The recognized exception is narrow. Courts have described inherent authority to expunge a statewide record where the order was procured by fraud on the court, established by clear and convincing evidence. See Allen, 89 Mass. App. Ct. at 406; Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725 (2006).

Federal law and NCIC records

The federal full-faith-and-credit provision on protective orders states, “Any protection order that is otherwise consistent with this section shall be accorded full faith and credit, notwithstanding failure to comply with any requirement that the order be registered or filed in the enforcing State, tribal, or territorial jurisdiction.” 18 U.S.C. § 2265(d)(2).

Thus, federal law requires qualifying protection orders to be enforced across jurisdictions, but it does not make registration or filing a prerequisite to enforcement. Section 2265 does not itself include a blanket retention or deletion rule for an NCIC or state-record database. The absence of a blanket retention or deletion rule in Section 2265, considered together with the federal record rules, likely means that the federal record should be updated to reflect the current status of the order.

NCIC Protection Order File

NCIC stands for the National Crime Information Center, a centralized, computerized database run by the FBI. NCIC stores information on criminal records, wanted fugitives, missing persons, protective orders and stolen property for local, state, and federal law enforcement agencies across the United States.

Regarding restraining orders, Department of Justice guidance states that an entering agency must possess an active protection order for an NCIC Protection Order File entry. The entering agency must update the entry as circumstances require. The agency should clear an entry when notified by the court that the order was cancelled and should delete the entry when the order was expunged or found to be inaccurate. U.S. Department of Justice, Entering Orders of Protection into NCIC. The FBI describes NCIC’s retention treatment separately from an order’s active enforceability.

The FBI’s NCIC privacy assessment states that expired and cleared Protection Order File records are maintained in inactive status for the remainder of the calendar year in which they are cleared or expire, plus five years. The records are then retired from general NCIC-user access. FBI, NCIC Privacy Impact Assessment (2023)

4. Conclusion

Under both c. 209A and c. 258E, the court must direct the relevant law-enforcement agency to destroy all record of a vacated order. The relevant agencies are the local police departments of the defendant and the plaintiff. The statutory text does not, however, direct removal from the statewide Commissioner of Probation systems, including the domestic violence database.

Under the controlling Massachusetts cases, the statewide entry is to be retained and updated to reflect the current status of the order unless the narrow fraud-on-the-court expungement standard is met. At the federal level, an order need not be registered or filed to receive full-faith-and-credit enforcement. For NCIC, the operative question is whether the order remains active. The entry for an order that is inactive for whatever reason should be appropriately cleared, cancelled, modified, or allowed to expire. Federal NCIC materials separately provide for retention of inactive entries for a limited period.

Related coverage includes Massachusetts domestic violence records under CORI and the DVRS, and the Massachusetts domestic violence records FAQs.

Last Reviewed: July 2026

The Commonwealth does not always drop those cases. It tries to prove them through the recording and through the officer who repeats what the accuser said at the scene. In that situation the trial becomes a contest over two rules, the spontaneous utterance exception and the Confrontation Clause, and then over a third rule that works in my favor once a statement comes in. This is how I approach that trial.

Sorting the 911 Call From the Statements at the Door

My first task is to separate the 911 call from the statements the officer collected at the door, because the law treats them differently.

A statement is testimonial where its primary purpose is creating an out-of-court substitute for trial testimony, and it is nontestimonial where the primary purpose is to enable the police to meet an ongoing emergency. Michigan v. Bryant, 562 U.S. 344 (2011); Commonwealth v. Imbert, 479 Mass. 575 (2018); Davis v. Washington, 547 U.S. 813 (2006).

A call for help placed during a genuine emergency is usually nontestimonial and can be admitted. The account a person gives to an officer after the scene is secure, in answer to questions about what happened, is often testimonial. A testimonial statement generally cannot come in unless the accuser testifies, or is unavailable after I had an adequate opportunity to cross-examine at an earlier hearing. Crawford v. Washington, 541 U.S. 36 (2004).

Under Davis and Bryant, the judge looks objectively at the statements and actions of both the accuser and the officer to decide whether the statement is testimonial. In the companion case, the officer “was not seeking to determine (as in Davis) ‘what is happening,’ but rather ‘what happened.’”

In Commonwealth v. Gonsalves, 445 Mass. 1 (2005), the Supreme Judicial Court once stated the rule more favorably to the defense than the federal courts have. The court held that “statements made in response to questioning by law enforcement agents are per se testimonial, except when the questioning is meant to secure a volatile scene or to establish the need for or provide medical care.” In Commonwealth v. Wardsworth, 482 Mass. 454, 464 n.18 (2019), the court clarified that the appropriate analysis is the primary purpose test.

Statements made in response to police interrogation are therefore not testimonial per se, although they will qualify as testimonial in many cases. Gonsalves also holds the point that organizes this whole analysis, which is that “a statement can be both testimonial in nature and a spontaneous utterance.” Clearing the hearsay exception does not clear the Confrontation Clause.

So I go through the recording and the report statement by statement and sort each one. I do not concede that everything the accuser said is a single admissible block, because it is not.

Litigating the Spontaneous Utterance Foundation

Next I litigate the foundation for the spontaneous utterance itself. The exception requires “(A) . . . an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer, and (B) . . . that the declarant’s statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought.” Commonwealth v. Barbosa, 477 Mass. 658, 672 (2017); Mass. G. Evid. § 803(2).

The Supreme Judicial Court uses the term spontaneous utterance for what many still call the excited utterance. The court adopted that usage in Commonwealth v. Gonsalves, 445 Mass. 1, 4 n.1 (2005), and reiterated it in Commonwealth v. Hart, 493 Mass. 130 (2023).

I ask for the voir dire the law contemplates before a judge admits the spontaneous utterance of a person who will not testify. Commonwealth v. Hurley, 455 Mass. 53, 68 n.14 (2009). At that hearing I press the officer on what undoes spontaneity. I ask how much time had passed, whether the words came only after a series of questions, and whether the accuser was calm, composed, and giving a narrative rather than reacting to a shock.

Timing alone is not decisive. “[T]here can be no definite and fixed time limit [between the incident and the statement]. Each case must depend upon its own circumstances.” Barbosa, 477 Mass. at 672 to 673. Accord Commonwealth v. King, 436 Mass. 252, 254 (2002); Commonwealth v. Wilcox, 72 Mass. App. Ct. 344, 351 (2008). The question is whether the declarant remained under the influence of the exciting event.

A structured, later account is a different thing. Massachusetts has said so about a written statement. Commonwealth v. DiMonte, 427 Mass. 233, 239 (1998) (“[b]ecause a writing is more suspect as a spontaneous exclamation than is an oral statement, the circumstances of the writing would have to include indicia of reliability even more persuasive than those required for an oral statement”). Massachusetts has said the same about a sexual assault nurse examiner interview conducted two hours after the event and developed by question and answer. Commonwealth v. McCoy, 456 Mass. 838, 849 (2010).

I also tell clients what happens if that fight is lost, because the answer is unwelcome and they should hear it from me first. A spontaneous utterance can support a conviction by itself. “A spontaneous utterance is sufficient, by itself, to support a conviction,” and the Supreme Judicial Court has declined “to add any requirement of corroboration to the spontaneous utterance exception to the hearsay rule.” Commonwealth v. Moquette, 439 Mass. 697 (2003).

Moquette also states the reality a recantation runs into. In the court’s words, “it is up to the jury to determine whether to place greater weight on what the declarant said in the immediate aftermath of the event or on what the declarant is now saying at trial.” That is precisely why the impeachment described below is the center of the defense rather than an afterthought.

A complainant’s motive to lie “goes to the weight to be accorded the statements, rather than to their admissibility,” and “a victim’s motive or lack thereof should play no part in the calculus of determining admissibility.” Commonwealth v. Joyner, 55 Mass. App. Ct. 412, 417 (2002). The motive argument is not an admissibility argument. It is an impeachment argument.

Forfeiture by Wrongdoing

I meet directly any argument by the Commonwealth that my client forfeited the right to confront the accuser. Forfeiture requires three findings, namely that “(1) the witness is unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness’s unavailability.” Commonwealth v. Edwards, 444 Mass. 526, 540 (2005); Giles v. California, 554 U.S. 353 (2008); Mass. G. Evid. § 804(b)(6).

The wrongdoing need not be a criminal act, and it can be persuasion rather than violence, as where a defendant used calls from a house of correction to discourage a complainant from cooperating. Commonwealth v. Szerlong, 457 Mass. 858 (2010); Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 520 (2017). Unavailability need only be a purpose of the conduct rather than the sole purpose. Szerlong.

An accuser who decides independently not to testify, for reasons of their own, does not hand the Commonwealth a forfeiture, and I hold the prosecution to the intent element. There is a reliability backstop worth preserving even where forfeiture is found. Due process requires that hearsay admitted against a defendant be reliable, and where hearsay is the only evidence, “the indicia of reliability must be substantial.” Szerlong, 457 Mass. at 866.

What Section 806 Permits

The Commonwealth exposes the accuser to impeachment when it wins the fight to admit the accuser’s words.

Section 806 of the Massachusetts Guide to Evidence provides that once a hearsay statement is admitted, “the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness,” and that evidence of an inconsistent statement or conduct may be admitted “regardless of when it occurred or whether the declarant had an opportunity to explain or deny it.” Mass. G. Evid. § 806; Commonwealth v. Mahar, 430 Mass. 643, 649 (2000) (“[e]vidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain”).

In Commonwealth v. Gray, 463 Mass. 731 (2012), the Supreme Judicial Court reversed a conviction of murder in the first degree because the judge precluded impeachment of a non-testifying declarant with prior inconsistent grand jury testimony.

Section 806 is impeachment, not cross-examination. It permits attacking credibility through extrinsic evidence. It does not produce a cross-examination of a person who is not present. The only cross-examination the rule contemplates runs the other way, if the party against whom the statement was admitted calls the declarant as a witness.

Section 806 does not solve the Confrontation Clause. Impeachment is not a substitute for confrontation where the statement is testimonial. In Hurley the Supreme Judicial Court found a Sixth Amendment violation because the defendant “did not have an adequate opportunity to cross-examine [the declarant] with respect to the[] accuracy and truth” of specific facts in the utterance.

Section 806 is a parity provision, not an admissibility multiplier. It permits “any evidence that would be admissible for those purposes if the declarant had testified as a witness.” It removes one foundation requirement, the opportunity to explain or deny a prior inconsistent statement.

It creates no new categories of admissible evidence, and Mahar says so directly. In the court’s words, “[t]rial judges, of course, retain the authority to apply to evidence offered under proposed rule 806 rules and principles of evidence that might lead to the exclusion or limitation of evidence, just as they could if the evidence had been offered against the witness had he or she taken the stand.” In Mahar itself the judge’s refusal to admit the defendant’s impeachment evidence was upheld.

So the material divides into two categories, and I treat them differently at trial.

Prior inconsistent statements and conduct. The recantation, the affidavit asking that the case be dropped, and messages inconsistent with the accusation come in under § 806 without the foundation that would otherwise be required. This is the more dependable ground, the one where Mahar and Gray do their work.

Bias, motive, and character. A pending divorce or custody dispute, an immigration benefit connected to the accusation, and a prior conviction are impeachment of a different kind, and each has to satisfy the rules that would apply to a live witness.

For an immigration benefit, that means a threshold showing. “A defendant must make a ‘plausible showing’ of alleged bias, with a factual basis for support,” and without it “the judge may restrict or entirely exclude the inquiry.” Commonwealth v. Chicas, 481 Mass. 316 (2019). The argument “depends on a showing that the witness was testifying in order to curry favor with the Commonwealth.”

In Commonwealth v. Sealy, 467 Mass. 617, 624 (2014), the Supreme Judicial Court upheld a judge who “precluded further cross-examination on the issue of the victim’s prior work authorization, ruling that any relevance it might have had was far outweighed by its prejudicial impact.” The line of attack is legitimate, and it requires a foundation.

For a prior conviction, G.L. c. 233, § 21 sets hard time limits, and the judge retains discretion beyond them. A misdemeanor conviction is inadmissible more than five years after sentencing absent an intervening conviction, a felony with a non-state-prison sentence after ten years, and a state prison felony after ten years from expiration of the minimum term.

And the word “may” in the statute means “the admission of evidence of a prior conviction is subject to the exercise of reviewable discretion by the trial judge,” measured by “whether the danger of unfair prejudice outweighed the probative value.” Commonwealth v. Maguire, 392 Mass. 466 (1984).

I plan the impeachment accordingly. The inconsistent statements are the part I can count on. The bias material is the part I have to earn, with a proffer and a factual basis, before the judge will let me put it before the jury.

Making the Recording Work Against the Report

I also make the recording work against the report. The officer who takes the stand did not see the underlying event and knows only what was reported, so I examine that officer on what the report left out and on how the account was gathered. The cruiser camera, the body camera, and the booking video frequently show a scene calmer and more ambiguous than the words on the page. A jury that can watch the night for itself is not bound by the officer’s summary.

The full discipline of that examination is on my page about cross-examination in Massachusetts criminal trials. The evidentiary framework with the governing cases is set out on my page about excited utterances and spontaneous utterances when an accuser recants or refuses to testify.

The same incident often produces a parallel 209A abuse prevention order or 258E harassment prevention order proceeding, and a charge of assault and battery on a family or household member.

None of this is about attacking a genuine victim. It is about holding the Commonwealth to its proof when it tries to convict a person on words that were never tested under oath.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.

Since September 18, 2024, a person accused of coercive control in Massachusetts can face a 209A restraining order (abuse prevention order) without any allegation of violence or a threat of violence. The Legislature added coercive control to the definition of abuse in G.L. c. 209A, § 1 as a fourth kind of abuse. The three earlier kinds of abuse are causing or attempting to cause physical harm, placing another person in fear of imminent serious physical harm, and causing another person to engage in sexual relations involuntarily by force, threat or duress.

A plaintiff can obtain a 209A restraining order by proving a pattern of isolation, monitoring, financial control, or similar behavior that meets the statutory definition. This post explains what the statute defines as coercive control, what the plaintiff must prove, what the Appeals Court has decided about the new definition, and what a 209A restraining order based on coercive control means for the defendant.

The Statutory Definition of Coercive Control

G.L. c. 209A, § 1 defines coercive control as either a pattern of behavior or any of three single acts specified in the statute. A pattern of behavior is coercive control when the defendant intended the behavior to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member. The behavior must also cause that family or household member to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy.

The statute lists nine examples of behavior that can make up a pattern of coercive control. The statute provides that the pattern includes, but is not limited to, the nine examples, so a judge can also find a pattern based on behavior outside the list. The nine examples in the statute are the following.

• isolating the family or household member from friends, relatives or other sources of support
• depriving the family or household member of basic needs
• controlling, regulating or monitoring the family or household member’s activities, communications, movements, finances, economic resources or access to services, including through technological means
• compelling the family or household member to abstain from or engage in a specific behavior or activity, including engaging in criminal activity
• threatening to harm a child or relative of the family or household member
• threatening to commit cruelty or abuse to an animal connected to the family or household member
• intentionally damaging property belonging to the family or household member
• threatening to publish sensitive personal information relating to the family or household member, including sexually explicit images
• using repeated court actions that a court has found are not warranted by existing law or a good faith argument

Single Acts That Qualify as Coercive Control

Three kinds of single acts are coercive control without any pattern. The defendant must have intended the act to threaten, intimidate, harass, isolate, control, coerce or compel compliance of the family or household member. The act must also have caused that family or household member to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy. The statute lists these three single acts.

• harming or attempting to harm a child or relative of the family or household member
• committing or attempting to commit abuse to an animal connected to the family or household member
• publishing or attempting to publish sexually explicit images of the family or household member

For a single act, the plaintiff must prove actual harm, abuse, or publication, or an attempt to commit that harm, abuse, or publication. A threat to harm a child, a threat to abuse an animal, and a threat to publish sensitive information or images are examples of a pattern of behavior. A judge can rely on one of those threats only as part of a pattern of behavior, not as a single act.

Publishing or threatening to publish an AI-made sexual image of a family or household member can be coercive control under G.L. c. 209A, § 1. The firm’s page on AI crimes in Massachusetts explains the criminal charges for the same conduct.

The Three Elements of a Pattern of Coercive Control

A plaintiff who seeks a 209A restraining order on a pattern of coercive control must prove three elements. The plaintiff has the burden of proof on each element. Frizado v. Frizado, 420 Mass. 592, 596 (1995).

How Many Acts Make a Pattern

The first element is a pattern of behavior. G.L. c. 209A, § 1 does not say how many acts make a pattern. The statute requires a pattern of behavior and lists examples of that behavior, but it sets no minimum number of acts. One act is coercive control only when the act is one of the three single acts described above. For every other kind of conduct, the statute leaves the judge to decide whether the acts the plaintiff proved form a pattern.

The Guidelines for Judicial Practice: Abuse Prevention Proceedings supply the number that judges use. The commentary to Guideline 1:00A (October 2025) states that “to demonstrate a pattern of behavior, the plaintiff must make a showing of three or more acts.” The Trial Court publishes the Guidelines to direct judges and clerks in 209A restraining order cases, and judges follow the Guidelines in practice.

The court’s own 209A complaint and affidavit form, revised in September 2024, gives the plaintiff the same instruction. A plaintiff who alleges coercive control other than one of the single acts listed in the law should describe at least three separate acts of coercively controlling behavior. Neither the Guidelines nor the form is a statute or a court decision. The three-act figure is therefore a working rule for the courtroom, not a requirement that the Legislature enacted.

The Appeals Court quoted the three-act commentary in M.A. v. T.D., No. 25-P-559 (Mass. App. Ct. Mar. 10, 2026), a summary decision under Appeals Court Rule 23.0 that is not binding precedent. The Appeals Court also did not decide that appeal on coercive control. The court upheld the 209A restraining order because the plaintiff reasonably feared imminent serious physical harm. In a footnote, the court added that the evidence showed at least three acts intended to control the plaintiff. The firm has found no published decision of the Appeals Court or the Supreme Judicial Court that holds that a pattern requires three acts.

In Kehlani K. v. Tripp T., No. 25-P-960 (Mass. App. Ct. Oct. 22, 2026), a published decision, the Appeals Court defined a pattern as a mode of behavior or series of acts that are recognizably consistent. The husband in that case did not argue that the plaintiff had proved too few acts. The court therefore left open whether a plaintiff must prove some minimum number of acts. The court noted that, under the criminal harassment statute, G.L. c. 265, § 43A, a pattern of conduct or series of acts requires proof of three or more incidents.

For a defendant, the three-act figure is the standard to argue at the hearing. Defense counsel can ask the judge to apply the Guidelines commentary and to find no pattern when the plaintiff proves only one or two acts. A plaintiff’s lawyer can answer that the statute sets no number and that the judge decides on the facts whether the acts form a pattern. The judge resolves that dispute in each case. The Supreme Judicial Court has not yet ruled on the definition, and its pending decision in G.P. v. S.P., discussed below, may clarify what the pattern element requires.

The Defendant’s Intent

The second element is the defendant’s intent. The same commentary states that each act “must be intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance” of the family or household member. Arguments, jealousy, and hurtful words are common when a relationship ends. Defense counsel can present evidence that the defendant acted out of the ordinary conflict of a failing relationship rather than with an intent to control the plaintiff.

In Kehlani K., the Appeals Court held that a judge may infer the defendant’s intent from the defendant’s conduct without direct evidence of intent. The court upheld a finding that a husband who kept a presence in and around his wife’s home at all hours and photographed her daily calendar intended to press her to drop the divorce.

Reasonable Fear or a Reduced Sense of Physical Safety or Autonomy

The third element is the effect of the pattern on the plaintiff. The pattern must cause the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy. The statute requires that the fear be reasonable, so the judge must decide whether the defendant’s conduct justifies the plaintiff’s fear or reduced sense of safety.

In Nan N. v. Rex R., No. 25-P-524 (Mass. App. Ct. Mar. 20, 2026), the Appeals Court cited the Guidelines commentary on the third element. The commentary states that a reasonable fear of physical harm, or a reduced sense of physical safety, is a lower standard than the fear of imminent serious physical harm that G.L. c. 209A, § 1(b) requires.

In Kehlani K., the Appeals Court held that the word “reasonably” in the definition applies to both alternatives. A plaintiff who relies on a reduced sense of physical safety or autonomy must prove that the reduced sense of safety or autonomy was reasonable. The court defined autonomy as a person’s ability to make significant decisions without concern that making them will expose the person to abuse.

In the same case, the court held that a husband who broke into the plaintiff’s house through a window, circled her home on foot, blocked her car in the driveway, and appeared to track her movements caused her a reasonable and reduced sense of physical safety.

Evidence at a Coercive Control Hearing

To find a pattern, an intent to control, and a reasonable fear or reduced sense of safety, the judge needs evidence of the date, the circumstances, and the effect of each act. At the hearing, defense counsel can cross-examine the plaintiff about the date, the circumstances, and the effect of each act the plaintiff alleges.

The judge often decides whether the plaintiff has proved monitoring, financial control, or isolation based on the parties’ text messages, emails, bank and credit card statements, location data, and calendars. Defense counsel can use the same records to refute the claim. Years of ordinary messages, joint financial decisions, and trips the plaintiff took independently can show that the defendant did not control the plaintiff’s communications, money, or movements.

A party who reads the other party’s phone, tracks the other party’s car, or monitors the other party’s accounts may be engaging in the monitoring that the statute lists as an example of coercive control. Moreover, secretly recording a conversation with the other party is a felony under the Massachusetts wiretap statute, G.L. c. 272, § 99.

The firm’s post on 209A restraining order extension hearings explains the evidence and the burden of proof at the hearing where the judge decides whether to extend the order.

Appeals Court Decisions and the Pending Supreme Judicial Court Case

In V.B. v. B.W.R.T., No. 25-P-1086 (Mass. App. Ct. July 24, 2026), an unpublished decision, the Appeals Court set aside a 209A restraining order based on coercive control. The judge who extended the order after a hearing had found that the defendant threatened to publish sensitive personal information about the plaintiff. The plaintiff testified only that the information was “private” and “sexual in nature.” The Appeals Court held that the vague and conclusory testimony gave the judge no objective evidence that the information was sensitive personal information under the statute.

In the same decision, the Appeals Court stated that, before a judge issues an order based on coercive control, the record must show the specific conduct of the defendant. The record must also show how the defendant’s conduct caused the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy.

In Kehlani K., a published decision, the Appeals Court upheld a 209A restraining order based on coercive control. The court stated that it was interpreting and applying the coercive control definition for the first time. The plaintiff represented herself. The court relied on her testimony that her husband kept a presence in and around her home at all hours, broke into the house through a window, blocked her car in the driveway, and photographed her daily calendar.

The Supreme Judicial Court has invited briefs from nonparties (amicus briefs) in G.P. v. S.P., No. SJC-13947. The Court asked for briefs on whether the coercive control definition is so vague or so broad that it violates the First and Fifth Amendments to the United States Constitution and the corresponding provisions of the Massachusetts Constitution. The Appeals Court noted the Supreme Judicial Court’s request for amicus briefs in V.B. v. B.W.R.T. and expressed no view on whether the definition is constitutional.

The Appeals Court noted the pending G.P. v. S.P. questions again in Kehlani K. The defendant in Kehlani K. did not challenge the constitutionality of the statute. The court therefore did not decide the constitutional question.

Conduct Before the September 18, 2024 Effective Date

In Nan N. v. Rex R., the husband argued that the judge could not base a finding of coercive control on conduct that occurred before September 18, 2024. The Appeals Court did not decide whether the coercive control definition applies to conduct before September 18, 2024. Instead, the court held that the wife’s reasonable fear of imminent serious physical harm supported the extension of the order without any finding of coercive control.

Defense counsel should object at the hearing to any finding of coercive control based on acts in the plaintiff’s alleged pattern that occurred before September 18, 2024. By objecting at the hearing, defense counsel preserves for appeal the argument that the coercive control definition does not apply to conduct before September 18, 2024.

Coercive Control and Criminal Charges

Coercive control is not a crime in Massachusetts. Coercive control is one of four kinds of abuse on which a judge can issue a civil 209A abuse prevention order.

A defendant who violates a 209A restraining order commits a crime under G.L. c. 209A, § 7, whatever kind of abuse the order was based on. The police can arrest a defendant accused of violating the order. A defendant convicted of violating a 209A restraining order can be punished by a fine of up to $5,000, up to two and one half years in a house of correction, or both.

On a conviction for a violation, the judge must also order the defendant to complete a certified intimate partner abuse education program. The same requirement applies when a judge continues the violation case without a finding. The judge can excuse the defendant from the program for good cause that the judge explains in specific written findings. The defendant also does not have to complete the program if the program determines that the defendant is not suitable for intervention.

The Commonwealth can also prosecute some of the conduct that a plaintiff describes as coercive control under other criminal statutes. A threat to commit a crime against a person or property is a separate crime under G.L. c. 275, § 2. A willful and malicious pattern of conduct directed at a specific person is criminal harassment under G.L. c. 265, § 43A when the conduct seriously alarms that person and would cause a reasonable person substantial emotional distress. Distributing sexually explicit images of a person without that person’s consent can be a crime under the Massachusetts law on nonconsensual intimate images.

Consequences of a 209A Restraining Order Based on Coercive Control

A 209A restraining order based on coercive control is the same abuse prevention order that a judge issues on any other kind of abuse. The judge can order the defendant to stay away from the plaintiff, to have no contact with the plaintiff, and to leave and stay away from a home the parties share.

G.L. c. 209A, § 3B requires a judge who issues a temporary 209A restraining order to suspend the defendant’s license to carry and firearm identification card when the plaintiff shows a substantial likelihood of immediate danger of abuse. The judge must also order the defendant to surrender all firearms and ammunition.

Every 209A restraining order, including an order based on coercive control, is entered in the statewide domestic violence registry that the Commissioner of Probation maintains. The record of the order remains in the registry after the order expires and after a judge sets the order aside. A judge may expunge the record from the registry only if the defendant proves by clear and convincing evidence that the plaintiff obtained the order through fraud on the court. Fraud on the court means a deliberate scheme to interfere with the judge’s ability to decide the case impartially.

Defense counsel prepares for a coercive control hearing by comparing each act the plaintiff alleges with the three elements, establishing the date of each act, and gathering the records that show what happened. A defendant who also faces a criminal charge can read about the criminal case on the firm’s page on domestic violence defense and in its domestic violence FAQs. Call 617.936.0201 for a free, confidential consultation.

Key Takeaways

• Since September 18, 2024, a Massachusetts judge can issue a 209A abuse prevention order based on coercive control, without evidence of violence or a threat of violence.
• To prove a pattern of coercive control, the plaintiff must show a pattern of acts, each intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance. The statute sets no minimum number of acts. The commentary to the Guidelines for Judicial Practice calls for three or more acts, and judges follow that commentary in practice. The acts must also have caused the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy.
• Only three kinds of single acts are coercive control without a pattern. The defendant must have harmed or attempted to harm the plaintiff’s child or relative, abused or attempted to abuse an animal connected to the plaintiff, or published or attempted to publish sexually explicit images of the plaintiff. The defendant must also have acted with the intent, and caused the effect, that the statute requires.
• In V.B. v. B.W.R.T., the Appeals Court set aside a coercive control order that a judge issued on vague and conclusory testimony.
• Defense counsel should object to any coercive control finding based on conduct before September 18, 2024, because the Appeals Court has not decided whether the definition applies to that earlier conduct.
• Coercive control is not a crime, but a violation of a 209A restraining order based on coercive control is a crime under G.L. c. 209A, § 7.
• In Kehlani K. v. Tripp T., a published decision, the Appeals Court defined a pattern as recognizably consistent behavior, held that a judge may infer intent from conduct, and left open whether a pattern requires a minimum number of acts.

Related Serpa Law Office resources

• The Appeals Court Vacates a 209A Order Based on Coercive Control: V.B. v. B.W.R.T.
• How to Get a 209A Restraining Order in Massachusetts: The Plaintiff’s Complaint, the Hearing, and the Extension
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders): Defense and Plaintiff Representation
• Massachusetts 209A Extension Hearings: Evidence and Burden
• Violation of a 209A Restraining Order (G.L. c. 209A, § 7)
• Expunging a Massachusetts Restraining Order: Removing a 209A or 258E Order from the Registry
• Secret Recordings at a 209A Hearing in Massachusetts
• Massachusetts Domestic Violence Law FAQs

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

The judge at an extension hearing decides whether the plaintiff still needs protection. A defendant cannot defeat an extension simply by showing that no new incident occurred while the order was in effect. At the same time, the plaintiff still has the burden of proving that continued protection is necessary, even though an order already exists. The evidence should address directly whether the plaintiff still needs protection.

The Ten-Day Hearing and the Later Extension Hearing

A 209A restraining order case can involve several different hearings. Under G.L. c. 209A, § 4, a court may issue an ex parte order when there is a substantial likelihood of immediate danger of abuse. A court that issues an ex parte order must give the defendant an opportunity to be heard within ten court business days. The ten-day hearing is ordinarily the defendant’s first opportunity to appear, present evidence, and challenge the request for an order.

An initial order that the court enters after notice may remain in effect for a fixed period of up to one year. An extension hearing occurs when the initial order approaches its expiration date. At the extension hearing, § 3 permits the court to extend the order for an additional period that is reasonably necessary or to make the order permanent. The issues the court decides and the evidence the judge considers at an extension hearing differ from those at the initial hearing.

The Plaintiff Has the Burden of Proof

The plaintiff must prove the facts necessary for an extension by a preponderance of the evidence. Proof by a preponderance of the evidence means that the plaintiff must show that it is more likely than not that the extension is necessary. The burden does not shift to the defendant merely because an order is already in place.

The governing question is whether an extension is necessary to protect the plaintiff from the likelihood of “abuse” as G.L. c. 209A, § 1 defines that term. Depending on the basis for the order, the inquiry may involve attempting to cause or causing physical harm, reasonable fear of imminent serious physical harm, involuntary sexual relations caused by force, threat, or duress, or coercive control. The Supreme Judicial Court explained in Iamele v. Asselin, 444 Mass. 734 (2005), that a judge deciding whether to extend an order considers the totality of the parties’ circumstances.

Can a 209A Restraining Order Be Extended Without a New Incident?

Yes. The absence of a new incident may reflect compliance with the order. Section 3 provides that the fact that abuse has not occurred during the order is not, by itself, sufficient to deny an extension. The court must still decide whether continued protection is necessary.

The Massachusetts Trial Court’s Guideline 6:08 for 209A abuse prevention proceedings directs judges to consider the entire relationship and any relevant change in circumstances. The analysis may include the nature and severity of the conduct supporting the original order, later threats or violations, the likelihood of future encounters, ongoing custody or other litigation, hostility between the parties, and evidence that circumstances have materially changed.

The precise inquiry also depends on the original basis for relief. For an order based on fear of imminent serious physical harm, the court considers whether that fear remains reasonable. For an order based on actual physical harm or forced sexual relations, the absence of a new threat does not by itself show that protection is no longer necessary. The parties should therefore focus the hearing on the statutory ground that supports the order, not on a single formula applied to every case.

In Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-187 (2020), the Appeals Court addressed an order based on past sexual abuse. A plaintiff who was sexually abused in the past does not need to prove fear of a future sexual assault. The judge decides whether an order is necessary to protect the plaintiff from the continuing effects of the past abuse.

In Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256-259 (2022), the Appeals Court applied the same rule at the extension hearing of a 258E harassment prevention order based on a sex offense. The plaintiff must prove that the order remains necessary to protect her from the impact of that offense. The judge does not retry whether the offense occurred. The firm’s page on consent in Massachusetts rape and sexual assault cases explains what force and consent mean in those cases.

The Judge Does Not Retry the Original Order at an Extension Hearing

A defendant generally cannot use the expiration hearing to relitigate whether the original order should have entered. The time to appeal the original order is limited. An extension hearing has a different purpose. The judge may consider the conduct that supported the order because it forms part of the parties’ history, but the ultimate question is whether protection remains necessary at the time of the extension hearing.

The defense should therefore focus on present risk, not on the original order. Counsel should not merely argue that the first judge was wrong. The defense evidence should show why the current record does not establish a continuing likelihood of abuse, why circumstances have changed, or why particular claims about present risk are inconsistent with reliable evidence.

Evidence, Fairness, and Cross-Examination

A 209A restraining order proceeding is civil. Courts apply the law of evidence flexibly in the proceeding while preserving fairness to both parties. Under Section 1106 of the Massachusetts Guide to Evidence, each party must have a meaningful opportunity to present and challenge evidence. The parties generally have a right to cross-examine witnesses, subject to the judge’s authority to limit questioning for good cause.

Effective cross-examination is specific and restrained. Counsel may use cross-examination to test dates, sequences of events, changes between an affidavit and hearing testimony, claimed injuries, reports to police or medical providers, and whether other records support or contradict a material allegation. Counsel should not turn every minor inconsistency into an accusation. The purpose of cross-examination is to help the judge determine which disputed facts bear on the present need for an order.

Preparation usually begins with a chronology. The application, affidavits, prior orders, police reports, court filings, and relevant communications should be placed in date order. A short, labeled set of exhibits is easier to evaluate than hundreds of unsorted pages. Any exhibit should preserve enough context to be understood accurately.

Messages, Photographs, and Video

Digital evidence can help the judge when it addresses a disputed allegation or the parties’ circumstances after the order entered. Complete message threads may provide context that isolated screenshots omit. Dated photographs, videos, call records, and social-media material can also corroborate or contradict a specific claim. The weight that the judge gives digital evidence depends on its authenticity, completeness, timing, and relevance, not simply on its volume.

Evidence must be collected lawfully. Massachusetts wiretap law restricts the secret interception of oral and wire communications, subject to statutory definitions and exceptions. A person should not make, obtain, or attempt to use a secret recording without case-specific legal advice. Lawfully retained messages and records should be preserved in their original form whenever possible.

Coercive Control at an Extension Hearing

Massachusetts added coercive control to the definition of abuse in 2024. Under the amended definition, not every unpleasant, possessive, or controlling interaction is sufficient for a 209A restraining order. The statute defines a specific form of conduct and requires proof of its purpose and effect.

Under the pattern-based definition, the conduct must be intended to threaten, intimidate, harass, isolate, control, coerce, or compel compliance. The conduct must also cause the family or household member reasonably to fear physical harm or to have a reduced sense of physical safety or autonomy. The statute lists examples, including isolating a person from support, depriving a person of basic needs, controlling economic resources, and monitoring movements or communications.

Another statutory example is “using repeated court actions found by a court not to be warranted by existing law or good faith argument.” The statute itself does not assign a numerical minimum to a “pattern.” In its guideline, the Trial Court interprets a pattern to require three or more acts, each committed with the specified intent. That numerical requirement does not appear in the statutory text.

The statute also identifies three narrow categories in which a single act may qualify as coercive control. The first is harming or attempting to harm a child or relative. The second is committing or attempting to commit abuse to an animal connected to the family or household member. The third is publishing or attempting to publish sexually explicit images of the family or household member. The same statutory requirements concerning intent and effect apply. The firm’s article on coercive control under Chapter 209A addresses the amended definition in more detail.

In Kehlani K. v. Tripp T., No. 25-P-960 (Mass. App. Ct. Oct. 22, 2026), the Appeals Court upheld an order, entered at the hearing after notice, that extended an abuse prevention order for one year on a finding of coercive control. The court held that a judge may infer the defendant’s intent from the defendant’s conduct. The court left open whether a pattern requires a minimum number of acts. A defendant at an extension hearing can still argue the three-act figure in the Trial Court guideline.

Testifying When a Criminal Case Is Pending

A 209A restraining order extension hearing may occur while related criminal charges are unresolved. Testimony given in the civil hearing can affect the criminal case. The judge may draw an adverse inference against a party who validly invokes the Fifth Amendment in the civil hearing, but the judge is not required to draw the inference.

The adverse inference cannot alone support the order and does not shift the plaintiff’s burden of proof. A party should decide whether to testify only after considering the civil hearing and the criminal case together. The firm’s page on the Fifth Amendment in Massachusetts restraining-order cases explains the conflict between testifying in the civil hearing and protecting the criminal defense.

The Defendant Must Obey the Existing Order Until It Expires or the Court Changes It

Only the court can change an order that remains in effect. A plaintiff cannot give the defendant legal permission to disregard a no-contact or stay-away provision. A defendant who has contact at the plaintiff’s invitation can still face an allegation of a criminal violation. A defendant who needs a term changed must ask the court to modify the order and must continue to obey the order unless and until the court modifies it.

The firm’s page on violating a 209A restraining order explains the elements of a violation charge. The separate page on terminating or modifying a Massachusetts 209A restraining order addresses the procedure for requesting a court-ordered change.

A Woburn District Court Extension Hearing in 2025

In 2025, a Woburn District Court judge declined to extend a 209A restraining order against a client of Serpa Law Office. The plaintiff alleged repeated domestic violence over a period of years. At the hearing, the plaintiff was cross-examined, and the court reviewed messages and video relevant to the allegations. The judge declined to extend the order, and it expired.

The result in the Woburn case depended on the evidence and circumstances of that case. Another hearing may have a different outcome. The Woburn case shows why counsel should focus the preparation of an extension case on the statutory burden, the history the court may properly consider, and reliable evidence addressing whether continued protection is necessary.

What Happens if the Order Expires?

The operative restrictions of a 209A restraining order end when the order expires. A firearm-surrender order entered under G.L. c. 209A, § 3C as part of that order also ends. Expiration does not itself reinstate a license to carry or firearm identification card or require the immediate return of surrendered firearms or ammunition. Licensing status, storage or disposition of the firearms, other court orders, and state and federal eligibility rules are separate from the expiration of the order.

The record of the order also remains in the Statewide Registry of Civil Restraining Orders after the order expires. The standards for removing a registry entry are narrow and are explained on the firm’s page about expunging a Massachusetts restraining-order record.

Preparing for a Massachusetts 209A Restraining Order Extension Hearing

Counsel should prepare for an extension hearing before the expiration date. Counsel should identify the statutory basis for the existing order, review the prior record, determine what has changed, preserve relevant communications, and coordinate any related criminal, Probate and Family Court, or firearm issue. The firm’s Massachusetts 209A restraining-order page and domestic-violence defense page explain the broader framework.

Serpa Law Office represents plaintiffs and defendants in 209A restraining order and 258E harassment prevention order proceedings throughout Greater Boston. Call 617.936.0201 for a free, confidential consultation.

A person records an argument, a threat, or a later apology, and then brings the file to a restraining order hearing or hands it to a police officer, expecting the recording to prove the case. The statute is often described as an all-party consent rule. The statute prohibits the secret recording of any party. This post addresses what happens to a secret recording, and to the person holding it, in a Massachusetts domestic violence case and at the related hearings on 209A abuse prevention orders and 258E harassment prevention orders.

The statute itself, G.L. c. 272, § 99, is treated in full on the secret recordings and the Massachusetts wiretap statute page, including the elements, the penalties, the law enforcement exception, and the suppression rules.

Key Takeaways

• Recording a conversation secretly, without the knowledge of every party, is a felony under G.L. c. 272, § 99. Playing or handing over the recording is a separate offense.
• A judge at a hearing on a 209A restraining order or a 258E harassment prevention order may listen to a secret recording, because the rules of evidence do not strictly apply. The plaintiff must still prove the statutory grounds by a preponderance of the evidence.
• In the criminal case, a recording made by a private person without police involvement is usually not suppressed, while warrantless surveillance inside a home may not be used for any purpose.
• Testimony about a recording at the civil hearing can be used at the criminal trial. Using a recording to pressure a witness can be charged as witness intimidation.

Why Secret Recordings Are Common in Domestic Violence and 209A Restraining Order Cases

Parties in domestic cases often make recordings that expose them to liability, for three reasons.

The parties live or lived together, so conversations occur in private settings where no one announces a recording. The dispute is continuing, so one side has both motive and opportunity to document the other. A judge also decides quickly, often within days, whether to issue a civil order, so a party who arrives with concrete evidence has an advantage.

In a typical domestic case, the recording is made in a home, without the other person’s knowledge, and offered by the person who made it. Under § 99, making such a recording is an interception. Offering the recording is a separate offense.

What Happens at the 209A Restraining Order or 258E Harassment Prevention Order Hearing

A hearing under c. 209A or c. 258E is a civil proceeding and is not bound by the strict rules of evidence. The Supreme Judicial Court has held that “the rules of evidence need not be followed, provided that there is fairness in what evidence is admitted and relied on.” Frizado v. Frizado, 420 Mass. 592 (1995). A judge therefore has discretion to listen to a recording that would draw sustained objections at a criminal trial. The suppression remedy in § 99 P by its terms belongs to a defendant in a criminal trial.

Two further holdings in Frizado affect how a defendant responds to a recording offered at the hearing. The plaintiff must prove the case for relief by a preponderance of the evidence. A recording that does not prove the statutory grounds therefore does not entitle the plaintiff to the order simply because the judge listened to it. A defendant also has a general right to cross-examine the witnesses against him, subject to the judge’s discretion to limit cross-examination for good cause. A defendant facing a recording can use cross-examination to establish what the recording leaves out.

The judge at a hearing under c. 209A or c. 258E asks the ordinary evidentiary questions in an informal way. The judge asks who made the recording and on what device, when the recording starts and what preceded it, and whether the recording is complete or an excerpt. The judge also asks whether the recording has been edited, trimmed, or re-saved, and whether the voices can be identified. Finally, the judge asks whether the file offered is the original or a copy forwarded through a messaging application, which strips the metadata that would answer several of those questions.

Playing or Submitting an Illegal Recording Can Be a Separate Offense

Playing a secretly made recording in open court, or providing it to a police officer, is a disclosure or use of an unlawful interception under G.L. c. 272, § 99 C 3. The statute classifies disclosure or use as a misdemeanor punishable by up to two years in a jail or house of correction, a fine of up to $5,000, or both. Making the recording is the more serious offense, punishable under § 99 C 1 by up to five years in state prison.

The person recorded can also bring a civil action under § 99 Q for the same conduct. The civil action provides actual damages but not less than liquidated damages of $100 per day of violation or $1,000, whichever is higher, together with punitive damages and attorney’s fees.

The criminal and civil exposure under § 99 is not limited to one side. The person who made and used the recording can face a criminal charge and a civil action. In abuse prevention and harassment prevention cases, that person is as often the party seeking the order as the party opposing it.

Can the Illegal Recording Still Be Used Against a Defendant?

A defendant who learns that the other party recorded him unlawfully often assumes the recording is therefore unusable. In a criminal case, the assumption that an unlawful recording is unusable is frequently wrong.

The Supreme Judicial Court has held that suppression serves no deterrent purpose where a private person made the recording and no police or governmental conduct was involved. Commonwealth v. Santoro, 406 Mass. 421 (1990); Commonwealth v. Rivera, 445 Mass. 119 (2005). The defendant has standing to move to suppress under § 99 P. The Court has said that the Legislature left the courts to weigh the competing interests in each case, but a judge ordinarily denies suppression when the government was not involved in the recording.

Other rules apply where police participated in the interception. A further rule applies where the surveillance occurred inside a home. Warrantless electronic surveillance of conversations in a private home violates art. 14 of the Massachusetts Declaration of Rights. The resulting recording may not be used for any purpose, including impeachment. Commonwealth v. Fini, 403 Mass. 567 (1988). A participant in the conversation may nonetheless testify from memory.

Different rules govern probation matters, protective-order hearings, civil cases, and federal court. The firm’s guide to secret-recording evidence in different proceedings compares those rules with the Massachusetts criminal-trial rule and also addresses derivative evidence, authentication, hearsay, and completeness.

What a Witness Says About the Recording Can Be Used in the Criminal Case

At a restraining order hearing, the harm to a related criminal case often comes from testimony about a recording, not from the recording itself.

A party who describes making the recording has described conduct that may itself be an offense. A party who describes what the recording contains has given sworn testimony that can be compared against later testimony at a criminal trial. A defendant who testifies at the civil hearing to explain a recording has also testified under oath before the criminal case is developed, without the protections that a defendant has at a criminal trial. The relationship between silence and testimony at the civil hearing is addressed on the Fifth Amendment at the 209A restraining order hearing page.

Using a Recording to Pressure a Witness

Playing a recording for a reluctant witness, or threatening to release one, can support a charge of intimidation of a witness under G.L. c. 268, § 13B, for which the maximum sentence is substantially longer than for either wiretap offense. Section 13B covers conduct directed at a witness or potential witness that is intended, or made with reckless disregard, to impede an investigation or proceeding. Witness intimidation prosecutions often involve a recording used to pressure a witness in a domestic case.

What to Do With a Recording That Already Exists

A person who holds a secret recording should not send it, play it, or attach it to an affidavit before counsel has reviewed it. The recording may be admissible against the other party, useless, or evidence of an offense by the person holding it. Often the recording is more than one of those things at once.

A person who consults counsel about a recording should bring the original file rather than a forwarded copy, along with the device the recording was made on if that is possible. The metadata in the original file answers questions about the recording. The person should also note the date, the setting, who was present, and whether anything was said about recording. The analysis depends on whether the other person knew about the recording. Small facts can answer that question.

There is usually a lawful way to prove the facts that a recording shows. Testimony, messages, medical records, police reports, and the other side’s own filings prove those facts without exposing the person holding the phone to a criminal charge.

Frequently Asked Questions About Secret Recordings in Domestic Cases

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and defends both wiretap charges and the underlying domestic violence cases, most often assault and battery on a family or household member, in which secret recordings appear. Serpa Law Office can be reached at 617.936.0201 for a free and confidential consultation. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A. See also violating a 209A restraining order and the Massachusetts wiretap and secret recording FAQs.

For the defendant, the harm that testifying at the hearing causes in the criminal case is usually far greater than the harm that the adverse inference causes in the civil case. Testifying gives the prosecutor a sworn statement, exposes the defendant to cross-examination before criminal discovery is complete, and creates material the prosecutor may use as an admission or to challenge later testimony. The firm’s page on the Fifth Amendment in 209A restraining order hearings and other civil proceedings explains the privilege itself and how a judge makes a decision on a claim of the privilege.

The plaintiff is seeking the order and is often the alleged victim and principal witness in the related criminal case. In Massachusetts domestic violence cases, judges most often extend the 209A restraining order when the plaintiff testifies in support of it and a criminal charge involving the same allegations is pending. The plaintiff still has the burden of proof. An extension is not automatic. A defendant should not assume, however, that taking the stand will change the civil result enough to justify the criminal risk.

Counsel can often defend the case more safely through cross-examination, complete records, messages, video, photographs, neutral witnesses, and other evidence that does not require the defendant to give a sworn account. Counsel should consider testimony only when its expected benefit at the 209A restraining order hearing is concrete and substantial enough to outweigh the possible damage to the criminal defense.

The Testimony Decision Usually Depends on the Criminal Risk

A 209A restraining order hearing commonly occurs before defense counsel has received the complete police report, 911 recording, body-camera video, medical records, digital extraction, or other criminal discovery. The defendant may know what happened but may not yet know what another witness said, what an officer wrote, or what a recording shows.

Testimony that a defendant gives before counsel has received the criminal discovery is dangerous. A prosecutor may later present a mistaken date, an incomplete answer, or an answer drawn from imperfect memory as an inconsistency. A prosecutor may compare the defendant’s testimony at the 209A restraining order hearing with a police report, grand-jury testimony, testimony at a later motion hearing, or trial testimony. The defendant may also disclose a fact that leads police or prosecutors to evidence they did not previously have.

Counsel must therefore assess whether any benefit that testimony might bring at the 209A restraining order hearing justifies giving the prosecution a sworn account before the criminal evidence is complete.

The Defendant’s Fifth Amendment Right

The basis for invoking the privilege against self-incrimination is apparent from the criminal exposure when the defendant in the 209A restraining order case also faces a related criminal charge or investigation arising from the same alleged conduct. The defendant does not need to prove, question by question, that each proposed answer would tend to incriminate the defendant. The defendant may decline to testify rather than take the stand and answer questions about the alleged incident.

The defendant’s privilege claim differs from the uncertain claim of an unrelated witness whose answer may or may not create criminal exposure. The defendant already faces criminal exposure from the related charge or investigation. The Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights protect the defendant from compelled testimony about the alleged incident. The firm’s page on the right to remain silent in Massachusetts explains how the privilege protects a person during a criminal investigation and prosecution.

The privilege prevents the court from compelling the incriminating testimony. The privilege does not prevent the judge at the 209A restraining order hearing from drawing the civil adverse inference that Massachusetts law permits.

The Adverse Inference and the Plaintiff’s Burden

A criminal judge or jury may not treat a defendant’s decision not to testify at trial as evidence of guilt. A 209A restraining order hearing is civil. Sections 525 and 1106 of the Massachusetts Guide to Evidence permit the judge at a 209A restraining order hearing to draw an adverse inference when the defendant invokes the privilege against self-incrimination.

Under Frizado v. Frizado, 420 Mass. 592 (1995), the judge cannot issue an order based on the adverse inference alone. The plaintiff must present other evidence that proves the statutory requirements by a preponderance of the evidence.

At a hearing after notice, the plaintiff must prove abuse as M.G.L. c. 209A, Section 1 defines it. At an extension hearing, the plaintiff must prove a continuing need for protection, but does not have to prove a new incident of abuse. The firm’s article on Massachusetts 209A restraining order extension hearings, evidence, and burden of proof explains the plaintiff’s burden at each hearing in greater detail.

The adverse inference is often a smaller risk for the defendant than testifying. The plaintiff usually supplies the required evidence through testimony, an affidavit, messages, photographs, police involvement, or medical records. The defense can challenge the plaintiff’s evidence without adding the defendant’s sworn account to the criminal case.

How Testimony at a 209A Restraining Order Hearing Can Damage the Criminal Case

Testimony at a 209A restraining order hearing does not receive immunity because the defendant gave it in a civil proceeding. A prosecutor may obtain the recording or transcript and seek to use the defendant’s answers in the related criminal case.

The prosecutor may offer an admissible statement as the defendant’s own statement, use it to impeach later testimony, or use it to identify other evidence. The criminal judge decides whether a particular statement is admissible for the purpose offered, but the defense should assume that the prosecutor will obtain and examine the testimony.

A defendant who takes the stand also faces cross-examination. The plaintiff or the plaintiff’s lawyer may ask about details that the defense did not intend to address. The defense cannot control every follow-up question or erase an answer that creates a problem once the defendant has given a sworn account of the incident.

Testimony almost always presents a greater danger to the defendant than silence when the same allegations support a pending criminal case. Counsel should recommend testimony only after reviewing the expected testimony, likely cross-examination, prior statements, available discovery, and the precise criminal exposure created by the answers.

The Court Records the 209A Restraining Order Hearing Whether or Not the Defendant Testifies

The court creates a record of the 209A restraining order proceeding and records the hearing, regardless of whether the defendant testifies. The record includes the complaint, affidavit, exhibits, the plaintiff’s testimony, the lawyers’ arguments, the judge’s decisions, and the resulting order, even if the defendant remains silent.

The risk of testifying is that the defendant’s testimony adds a sworn account to the existing record and preserves that account for possible use in the criminal case.

Defending the 209A Restraining Order Case Without the Defendant’s Testimony

Counsel can still defend the case when the defendant declines to testify. Counsel may cross-examine the plaintiff, test the chronology, expose inconsistencies, challenge whether the statutory relationship or alleged conduct supports the requested order, and offer evidence from sources other than the defendant.

Complete digital records can be especially useful to the defense. A selected screenshot may omit the messages immediately before or after it. Video, photographs, location records, call logs, and device records may establish timing, context, or who created a communication.

A judge at a 209A restraining order hearing applies the rules of evidence more flexibly than a judge at a criminal trial, but still weighs the source and reliability of the material. The firm’s guide to digital evidence in Massachusetts criminal cases explains authentication, completeness, screenshots, and device attribution. A separate article addresses secret recordings in Massachusetts domestic violence and 209A restraining order cases.

The defense may also use neutral witnesses, business records, photographs, prior sworn affidavits, or evidence concerning who initiated a physical confrontation. The firm’s page on self-defense and mutual combat in Massachusetts domestic violence cases explains how the evidence may show the difference between an unlawful assault and defensive conduct.

In the Appeals Court decision discussed in V.B. v. B.W.R.T. and coercive control, the defendant did not testify, but the plaintiff’s evidence still failed to satisfy the statute. The unpublished decision has limited precedential value, but it shows why the defense should first examine what the plaintiff can prove without expecting the defendant to answer the accusation personally.

Cases in Which Testimony May Still Be Worth the Risk

There is no rule that a defendant can never testify. Counsel may consider testimony when the plaintiff has substantial evidence that the defense cannot rebut through cross-examination and independent records, the disputed civil issue has serious immediate consequences, and the expected testimony creates limited criminal risk.

All three conditions seldom exist together when a criminal domestic violence case is pending. Before calling the defendant, counsel should identify the precise testimony that would help, every likely subject of cross-examination, any prior statement the prosecutor could use to impeach the defendant, and the information still missing from criminal discovery.

Preparation means reviewing the existing record, distinguishing an honest lack of memory from an estimate, and answering accurately. Preparation does not mean creating a version of events. A defendant whose counsel cannot identify a substantial civil benefit that justifies the criminal exposure should not testify merely because remaining silent feels uncomfortable in the courtroom.

The Court Usually Will Not Delay the 209A Restraining Order Hearing for the Criminal Case

A judge does not ordinarily postpone a 209A restraining order hearing because of a pending criminal charge or investigation. The court must address the plaintiff’s request for protection. The defendant should prepare for the scheduled hearing unless the judge grants a continuance for a separate valid reason.

Counsel should make any continuance request promptly and identify the specific circumstance that supports it. The defense should not assume that the judge will wait for the criminal case to end.

Consequences of an Extended 209A Restraining Order

Counsel must consider the terms that the judge may impose when advising the defendant whether to testify. A 209A restraining order can prohibit contact, require the defendant to stay away, exclude the defendant from a residence, and address temporary custody or support. The order may also affect employment or a Massachusetts professional license.

The defendant must obey every operative term, even while contesting the order or defending the criminal case. A defendant whose contact violates a no-contact provision can face a separate criminal charge for violating a 209A restraining order.

Counsel must address firearm surrender and licensing separately. M.G.L. c. 209A, Sections 3B and 3C govern surrender at different stages of the protective-order proceeding. The firm’s article on firearms after a domestic violence charge or 209A restraining order explains the state and federal firearm rules.

How Attorney Serpa Prepares for Both Proceedings

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He begins with the 209A restraining order complaint and affidavit, criminal complaint, police reports, 911 material, available recordings, messages, photographs, medical records, and hearing history. He then identifies what the plaintiff can prove, what the defense can present without the defendant’s testimony, and how each possible answer could affect the criminal case.

Attorney Serpa prepares for the 209A restraining order hearing and the criminal prosecution as separate proceedings arising from the same allegations. The civil defense must address the requested order, while the criminal defense must avoid unnecessary sworn statements and preserve the defendant’s trial position. Attorney Serpa reviews both cases and advises the client whether to testify. The client makes the testimony decision before the hearing, not in response to pressure in the courtroom.

Serpa Law Office represents clients in 209A restraining order hearings and related Massachusetts criminal cases. People facing a pending protective-order hearing or criminal charge may call 617.936.0201 or request a confidential consultation.

Frequently Asked Questions

Should a Defendant Testify at a 209A Restraining Order Hearing While a Criminal Case Is Pending?

A defendant usually should not testify unless counsel identifies a substantial civil benefit that outweighs the criminal risk. The judge may draw an adverse inference if the defendant declines to testify, but testimony can give the prosecutor a sworn admission, impeachment material, or a lead to other evidence. In many cases, counsel can defend the case more safely through cross-examination and independent evidence than through the defendant’s testimony.

Can the Judge at a 209A Restraining Order Hearing Consider the Defendant’s Decision Not to Testify?

Yes. The hearing is civil, so the judge may draw an adverse inference when the defendant invokes the privilege against self-incrimination. Under Frizado v. Frizado, 420 Mass. 592 (1995), the inference cannot by itself support the order. The plaintiff must present other evidence that proves the statutory requirements.

Does the Defendant Have to Prove That Each Answer Would Be Incriminating?

A defendant who faces a related criminal charge or investigation arising from the same alleged conduct does not have to prove that each answer would be incriminating. The criminal exposure is the basis for invoking the privilege. The defendant may decline to testify instead of taking the stand and litigating the privilege one question at a time.

Is the 209A Restraining Order Hearing Recorded if the Defendant Does Not Testify?

Yes. The court creates a record of the proceeding and records the hearing regardless of whether the defendant testifies. Testifying adds the defendant’s sworn account to the existing record and makes the account available for possible use in the criminal case.

Can a Prosecutor Use Testimony From a 209A Restraining Order Hearing in the Criminal Case?

A prosecutor may obtain the recording or transcript and seek to use the testimony as the defendant’s own statement, for impeachment, or for another purpose permitted by the rules of evidence. The criminal judge decides whether a particular statement is admissible, but the defense should assume that the prosecutor will review it.

Will the Court Postpone the 209A Restraining Order Hearing Until the Criminal Case Ends?

Ordinarily, no. The court must address the request for protection and usually proceeds while the criminal matter remains pending. Counsel may request a continuance for a separate valid reason, but the defendant should prepare for the scheduled hearing unless the judge grants it.

A defendant arrested for domestic violence in Massachusetts can lose access to firearms long before the criminal charge is resolved. A temporary 209A restraining order can require immediate surrender of firearms, ammunition, and the license to carry under G.L. c. 209A, § 3B. The licensing authority can suspend the license on a suitability review after the arrest.

The federal prohibitions in 18 U.S.C. § 922(g)(8) and § 922(g)(9) apply to a person who is subject to a qualifying protective order or has a qualifying conviction. The consequence that applies depends on what has occurred, whether an arrest, a temporary protective order, a continued order after notice, a licensing decision, or a criminal disposition.

Different state and federal laws govern an arrest, a protective order, a licensing decision, and a criminal disposition. A domestic violence charge alone does not automatically create the same federal prohibition as a qualifying protective order or conviction. A Massachusetts licensing authority may, however, review the license after a domestic violence charge. A related 209A restraining order or 258E harassment prevention order may also require immediate surrender.

A person arrested for domestic violence may face several proceedings at once. The Commonwealth prosecutes the charge in the criminal court, where the judge decides whether to release the defendant on personal recognizance or set bail. The court hearing the protective-order case decides whether the order and any court-ordered surrender should continue.

The local licensing authority addresses the License to Carry or Firearms Identification Card. Federal law may impose an additional prohibition that a Massachusetts court or police chief cannot remove.

Chapter 135 Remains in Effect in August 2026

In Chapter 135 of the Acts of 2024, the Legislature reorganized Massachusetts firearms licensing law and added firearm provisions to Chapter 258E. Most of the act became effective on October 2, 2024.

Question 9, the firearms referendum scheduled for November 3, 2026, concerns repeal of Chapter 135. The act remains current law before that vote. The firm’s Massachusetts Question 9 guide explains the referendum and the provisions that already apply.

A Domestic Violence Charge Is Not the Same as a Firearm Prohibition

An arrest or complaint under G.L. c. 265, § 13M does not, by itself, satisfy the federal prohibitions for a qualifying protective order or a misdemeanor domestic violence conviction. An arrest or complaint also does not prove that the person is unsuitable to hold a Massachusetts firearms license.

The charge may nevertheless have immediate consequences. The police chief can review the license. The prosecution may seek restrictive bail conditions. The alleged facts may also support an application for a 209A restraining order (abuse prevention order).

The criminal case and the protective-order case must be evaluated together. Testimony at the civil hearing may affect the criminal prosecution, while declining to testify can leave the civil allegations unanswered. The firm’s guide to the Fifth Amendment at a 209A restraining order hearing and in other civil proceedings explains the decision whether to testify.

Firearm Surrender Under a Temporary 209A Restraining Order

A judge who issues a temporary or emergency 209A restraining order without notice to the defendant must order a firearm surrender under G.L. c. 209A, § 3B. Section 3B requires the plaintiff to demonstrate a substantial likelihood of immediate danger of abuse, which is the same showing that §§ 4 and 5 require for any order without notice.

Section 3B requires immediate suspension and surrender of the defendant’s LTC or FID card, firearms, and ammunition when the judge finds a substantial likelihood of immediate danger of abuse. The order may issue without the defendant present. The police who serve the order are directed to take immediate possession of the covered items.

A defendant convicted of violating the surrender order can be punished by a fine of up to $5,000, imprisonment for up to two and one-half years, or both. The defendant may petition the issuing court for review, which must be heard no later than ten court business days after the court receives notice of the petition.

Section 3B provides a narrower expedited procedure for a defendant whose employment requires a firearm or ammunition. After the required affidavit and request, the court must hold a hearing within two business days, limited to the surrender and suspension issue.

Continuation of Firearm Surrender Under a 209A Restraining Order

At a hearing after notice, the judge applies a different statutory formulation. Under G.L. c. 209A, § 3C, the court must order or continue surrender if returning the license, firearms, or ammunition presents a likelihood of abuse to the plaintiff.

A § 3C suspension and surrender order continues while the related restraining order remains in effect. A defendant should therefore prepare for the hearing after notice. At the hearing after notice, the judge may rely on the same evidence to decide whether to continue the civil restrictions and whether to order or continue the firearm surrender.

A motion to modify or terminate the 209A restraining order after a later change in circumstances requires its own evidence and legal analysis. The plaintiff cannot end the order or authorize the return of firearms by agreement.

Chapter 258E Has Separate Firearm Provisions

In Chapter 135, the Legislature added firearm procedures to harassment prevention orders. Under G.L. c. 258E, § 4A, a court issuing a temporary or emergency order must direct immediate suspension and surrender if the plaintiff demonstrates a substantial likelihood of immediate danger of harassment.

At the later hearing, § 4B requires surrender or continuation when return would present a likelihood of harassment. The review deadlines and employment-related procedure substantially resemble those in §§ 3B and 3C.

A 258E harassment prevention order has different eligibility requirements from a 209A restraining order. Counsel should analyze a 258E harassment prevention order under its own statute. The firm’s Massachusetts 258E harassment prevention order guide explains those requirements. A separate page addresses firearm surrender under a 258E harassment prevention order.

State Licensing Consequences Under G.L. c. 140, § 121F

Massachusetts licensing law imposes its own consequences even when the protective-order judge has not entered a separate firearm surrender provision. G.L. c. 140, § 121F treats a person who is currently subject to a temporary or permanent 209A restraining order or 258E harassment prevention order as a prohibited person for state licensing purposes.

The statute also includes qualifying out-of-state orders, extreme risk protection orders, and orders covered by 18 U.S.C. § 922(g)(8).

Section 121F directs the licensing authority to suspend or revoke a license when the licensee becomes a prohibited person. A pending court challenge does not automatically stay the suspension or revocation. Reinstatement is not available until every disqualifying condition has ended.

The licensing provisions of § 121F and the court’s authority under §§ 3B, 3C, 4A, and 4B are related but distinct. Counsel should examine the protective order, the firearm endorsement, the service record, and every notice from the licensing authority, rather than relying on a single document.

Suitability Review After an Arrest

The local licensing authority may also examine suitability after an arrest. Section 121F defines an unsuitable person through reliable, articulable, and credible information suggesting that the person may create a risk to public safety or a risk of danger to self or others.

The suitability standard of § 121F still applies after an arrest. The licensing authority may consider the underlying information, its reliability, the alleged conduct, the protective-order record, and the criminal disposition. A dismissal or acquittal can be relevant to the licensing decision, but the licensing authority still makes that decision separately. The records of the arrest remain after a dismissal. The CORI entry, the police report, and the abuse designation under G.L. c. 276, § 56A remain. The page on the records of a dismissed domestic violence case explains which of those records can be sealed.

The procedures also differ for an LTC and an FID card. A licensing authority may deny, suspend, or revoke an LTC based on unsuitability, subject to judicial review. For an FID card, the licensing authority must petition the District Court for a suitability determination and prove the statutory standard by a preponderance of the evidence.

Section 121F generally allows an aggrieved applicant or licensee to seek District Court review within 90 days. The filing does not automatically restore possession or stay the licensing action, so the applicant or licensee should address both the deadline and the requested relief promptly.

The Federal Protective-Order Prohibition

18 U.S.C. § 922(g)(8) applies only when the order satisfies the federal requirements. The person must have received actual notice of a hearing and an opportunity to participate. The order must restrain specified conduct toward an intimate partner or child and must contain the required credible-threat finding or prohibition against qualifying physical force.

An ex parte 209A restraining order may require surrender under Massachusetts law even when the order does not yet satisfy the federal notice-and-hearing requirement. Conversely, a continued order may create both state and federal restrictions. The order’s language, the parties’ relationship, and the procedure that preceded it must be reviewed.

In United States v. Rahimi, 602 U.S. 680 (2024), the Supreme Court held § 922(g)(8) constitutional as applied to a person whom a court had found posed a credible threat to another person’s physical safety.

In Rahimi, the Supreme Court did not declare that every protective order satisfies the federal statute or resolve every possible constitutional application.

The Federal Misdemeanor Domestic Violence Prohibition

Section 922(g)(9) prohibits firearm and ammunition possession after a conviction for a misdemeanor crime of domestic violence as federal law defines that term. The analysis depends on the elements of the offense, the domestic relationship, the disposition, and the federal rules governing what counts as a conviction.

Under federal firearms law, the question whether a disposition counts as a conviction depends on the law of the jurisdiction where the proceeding occurred. Massachusetts does not treat a continuance without a finding as a conviction. Section 922(g)(9) therefore generally does not apply to a person with only a Massachusetts CWOF, even though federal immigration law treats the same disposition as a conviction. A defendant who receives a CWOF can still face separate Massachusetts licensing consequences. The federal question should be analyzed before the plea or admission is entered.

A § 922(g)(9) prohibition is also not automatically permanent. 18 U.S.C. § 921(a)(33) contains rules for expungement, set-aside dispositions, pardons, restoration of rights, and certain dating-relationship convictions after five years.

The § 921(a)(33) rules are technical. A person should not possess a firearm unless counsel has confirmed that both federal and Massachusetts law permit possession.

The firm’s explanation of a CWOF, pretrial probation, and diversion describes the Massachusetts dispositions. A domestic violence case also requires separate review of employment, licensing, and immigration consequences.

Compliance With a Surrender Order

A person served with a firearm surrender order should comply immediately and preserve a complete record of that compliance. The inventory should identify each firearm, its serial number and condition, the ammunition, the surrendered license or card, the receiving agency, and the date.

A defendant who moves a firearm to a relative’s home without legal authorization may still have possession or control of the firearm and may violate the order. A plaintiff’s consent does not change the order. Later communication, reconciliation, or recantation in the domestic violence case also does not change the order.

G.L. c. 140, § 129D regulates storage and transfer after a licensing surrender. Section 129D provides procedures for transfer to an eligible purchaser or licensed dealer, subject to written notice and other limits. A firearm that may be evidence in a pending criminal investigation cannot be transferred under the § 129D procedure.

Section 129D also imposes time limits, under which a stored firearm may be sold at auction after one year. Storage charges may also accrue. Ownership, lawful transfer, evidence status, and any return request should therefore be addressed before those issues become urgent.

Separate Criminal Charges Involving Firearms

A defendant who fails to surrender firearms as ordered may be charged with a new offense. Police may also discover a firearm during the domestic violence investigation and pursue an independent charge for unlawful possession, storage, ammunition, or possession after suspension.

A firearm charge brought after a domestic violence investigation requires the same detailed analysis as any other Massachusetts firearm prosecution. The Commonwealth must prove possession and the elements of the charged offense. Search-and-seizure issues, licensing records, notice of suspension, access by other occupants, and whether the firearm was operable or legally classified as alleged may be disputed.

The firm’s Massachusetts firearm-charge defense guide addresses those issues. The article on dangerousness hearings under G.L. c. 276, § 58A explains the standards that apply when the prosecution seeks preventive detention.

Returning Firearms and Reinstating a License

The expiration or termination of a protective order may remove one disqualification, but it does not establish that every state or federal restriction has ended. A criminal disposition, another active order, or a separate suitability decision may still prevent possession.

The police chief and the agency holding the firearms may require proof that all disqualifying conditions have terminated. The written decision, review deadline, and available District Court remedy should be examined immediately if the licensing authority refuses reinstatement.

No firearm should be retrieved or possessed until both state and federal eligibility are confirmed. Eligibility depends on the final protective order, the criminal docket, the license record, and the exact federal category at issue.

How Attorney Serpa Handles the Criminal, Protective-Order, and Licensing Issues

Attorney Serpa begins by reviewing the criminal complaint, police reports, 911 material, protective-order application and affidavit, hearing recordings, surrender order, proof of service, firearm inventory, and licensing notices. Attorney Serpa then identifies each asserted source of authority and the deadline for contesting it.

The immediate objectives may include documented compliance, preparation for the hearing after notice, protection of the client’s Fifth Amendment privilege, opposition to restrictive bail or dangerousness detention, and preservation of licensing arguments. Any proposed criminal disposition is reviewed for state licensing, federal firearm, professional, and immigration consequences before an admission is made.

Serpa Law Office represents clients in Massachusetts domestic violence cases, 209A restraining order and 258E harassment prevention order proceedings, and related firearm charges. To discuss a pending charge, order, or licensing problem, call 617.936.0201 or request a confidential consultation.

Related Serpa Law Office Resources

• Boston Domestic Violence Defense
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)
• Massachusetts 258E Harassment Prevention Orders
• Violation of a 209A Restraining Order
• Massachusetts Firearm Charges
• Domestic Violence Defense for Professionals, Students, and Noncitizens
• Massachusetts Criminal Defense Results

A complainant cannot drop a domestic violence charge in Massachusetts. Once the police file a complaint, the district attorney, not the complainant, decides whether the case proceeds. Recantation is common in Massachusetts domestic violence cases. Days or weeks after an arrest, a complainant may say that the police report is inaccurate, that the incident was exaggerated in the moment, or that they no longer want to participate. A defendant may hear that and assume the case is over. It is not.

The Commonwealth, not the complainant, prosecutes a criminal case. Massachusetts prosecutors generally follow a no-drop or evidence-based approach, which means that prosecutors may continue the case without the complainant’s support. The firm’s Boston Domestic Violence Defense Lawyer page describes domestic violence arrests, 209A abuse prevention orders, and the defense of these cases. The firm’s explanation of how these cases are charged and resolved in Massachusetts gives more detail.

That rule applies in the Boston Municipal Court, Quincy District Court, and every other Massachusetts trial court. The most damaging response to a recantation is direct or indirect contact intended to influence the complainant’s account. The case should be handled through counsel.

Section 13B does not turn every conversation into a crime. It does, however, prohibit threats, injury, gifts, promises, misleading conduct, intimidation, or harassment, whether direct or indirect, when accompanied by the intent or reckless disregard specified in the statute. Depending on the words and circumstances, an effort to shape a recantation can produce a separate felony charge.

A complaining witness cannot drop a Massachusetts criminal charge, although many people believe otherwise. A complainant may express a preference or decline voluntary cooperation, but cannot unilaterally dismiss the case.

The Commonwealth makes the charging decision and the decision whether to dismiss the case. The firm’s guide to how criminal cases get dismissed in Massachusetts explains what can happen when a witness wants a case to end, and why a judge’s authority to dismiss over the prosecutor’s objection is narrow.

The Charging Decision Belongs to the Commonwealth

Once an arrest is made or a complaint issues, the case is captioned Commonwealth versus the defendant. The complainant is a witness, not a party with authority to end the prosecution.

Prosecutors expect accounts to change in domestic cases and often collect independent evidence from the first night. That evidence can include the 911 recording, body-camera footage, photographs, medical records, and the responding officers’ observations.

This approach is often called evidence-based prosecution. When the independent proof is strong, a prosecutor may proceed without a cooperative complainant. Waiting for a recantation is therefore not a defense strategy.

A Recanting Witness Can Still Be the Prosecution’s Witness

If the complainant testifies consistently with the recantation, the Commonwealth may use prior inconsistent statements to challenge that testimony. The disputed material may include a 911 call, statements at the scene, and prior sworn testimony from a 209A restraining order hearing or grand jury.

Most prior inconsistent statements are admitted only to impeach credibility. Certain sworn prior statements may be admitted for their truth when the Massachusetts requirements are satisfied. An excited utterance presents a separate route to substantive admission if the judge finds that the statement was a spontaneous response to a sufficiently startling event.

The Confrontation Clause of the Sixth Amendment also applies if the declarant does not testify. Under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), the court must determine whether a statement was testimonial or instead was made during an ongoing emergency. The firm’s companion article on excited utterances, forfeiture by wrongdoing, and the Confrontation Clause explains these rules.

The practical point is straightforward: a recantation does not erase what was said to a dispatcher, an officer, a grand jury, or a judge. Whether any particular statement is admissible depends on its form, purpose, foundation, and the right to confrontation.

Silence Is Governed by Privilege, Not by Recantation

A changed account does not excuse a subpoena or automatically remove a witness from trial. Two privileges recur in domestic cases:

• Spousal privilege. Under M.G.L. c. 233, § 20, Second, a legally married witness generally may decline to testify against the defendant-spouse at a criminal trial. The privilege belongs to the witness-spouse. A willing spouse may testify, and the privilege has defined limits.
• Privilege against self-incrimination. A witness may invoke the Fifth Amendment and Article 12 when truthful answers would create a real risk of self-incrimination. The privilege is ordinarily evaluated by the judge as to particular questions or subjects, often after the witness consults independent counsel. See the Fifth Amendment in Massachusetts civil and related proceedings.

When both people may have used force, for example during mutual pushing, an object being thrown, or a disputed threat, the same facts can also support a self-defense or mutual-combat theory for the defendant. The witness’s potential exposure and the defendant’s trial defense are related but legally distinct.

These privileges belong to the witness, not to the defendant. Defense counsel may identify the issue, bring it to the court’s attention, and facilitate independent advice where appropriate. Neither a defendant nor counsel may pressure a witness to assert a privilege or tell the witness what testimony to give.

The Line That Ends Defenses: Witness Intimidation and Forfeiture by Wrongdoing

A defendant risks a separate charge by pressuring, threatening, rewarding, misleading, intimidating, or harassing a witness in order to affect an investigation or proceeding. Witness intimidation under M.G.L. c. 268, § 13B is a felony punishable by up to ten years in state prison or two and one-half years in a house of correction, along with a fine.

A Section 13B charge also permits the Commonwealth to seek a dangerousness hearing under M.G.L. c. 276, § 58A. A conviction under chapter 268 is excluded from the ordinary sealing standards in M.G.L. c. 276, § 100A.

Witness interference can also damage the original defense. Under the forfeiture-by-wrongdoing doctrine, a judge may find after an evidentiary hearing that a defendant intentionally helped make a witness unavailable. A supported finding can forfeit hearsay and confrontation objections to statements covered by the doctrine, although Massachusetts due process still requires reliability.

Commonwealth v. Edwards, 444 Mass. 526 (2005), supplies the Massachusetts framework. Giles v. California, 554 U.S. 353 (2008), requires an intent to make the witness unavailable, not merely conduct that happens to have that effect. In Commonwealth v. Szerlong, 457 Mass. 858 (2010), evidence supported forfeiture where the defendant helped create the witness’s unavailability by marrying her so that she could invoke the spousal privilege.

Jail calls are recorded, and messages passed through relatives or friends may become evidence of indirect contact. Court orders and bail conditions may separately prohibit contact. The safest rule, beginning at arraignment, is to follow every order and let counsel handle all case-related communication.

Do not ask the complainant to recant, stay away from court, claim a privilege, or change testimony. Do not use another person to send that message.

What a Genuine Recantation Is Worth

A genuine recantation, handled lawfully through counsel, can change the outcome of the case. Its value depends on credibility, timing, consistency, and corroboration. A recantation may:

• expose material inconsistencies if the complainant testifies for the Commonwealth;
• change the prosecutor’s evaluation of the evidence and the terms of negotiation; or
• support reasonable doubt when physical, medical, digital, or eyewitness evidence does not match the original account.

The defense should investigate the change in account without the defendant directing the process. Counsel can compare the recantation with the 911 call, body-camera footage, photographs, medical records, messages, prior testimony, and any evidence of intoxication, anger, or a custody dispute. Where appropriate, counsel can arrange for an independent investigator or attorney to document the account.

A prepared defense assumes that any of three things may happen on the trial date:

1. the complainant testifies for the prosecution;
2. the complainant is unavailable and the Commonwealth seeks to use admissible prior statements; or
3. the complainant testifies consistently with the recantation and is challenged with the earlier account.

That preparation must account for the client’s other exposure. The stakes can be especially significant for students and non-citizens. See the firm’s Boston domestic violence defense page and Massachusetts Criminal Defense Results for the broader defense framework.

Do not secretly record a recanting witness. Massachusetts generally requires prior authorization from every party to an audio recording. A secret recording can create criminal exposure under the Massachusetts wiretap statute, and knowingly using or disclosing an unlawful recording may create additional exposure. Consult counsel before making, playing, or sharing any recording.

Key Takeaways

• A complainant cannot unilaterally drop a Massachusetts domestic violence charge. The Commonwealth controls the prosecution.
• A recantation does not erase prior statements. Admissibility depends on why the statement is offered and whether the hearsay and confrontation requirements are satisfied.
• The spousal privilege and the privilege against self-incrimination belong to the witness. Their existence and scope are legal questions, not decisions for the defendant.
• Threats, promises, gifts, misleading conduct, intimidation, harassment, or indirect pressure can create a Section 13B charge and support forfeiture by wrongdoing.
• A credible, corroborated recantation can materially help the defense when it is investigated lawfully through counsel.

I defend domestic violence cases in the Boston Municipal Court and the District and Superior Courts across Eastern Massachusetts. Contact me at 617.936.0201 for a confidential consultation.

Related Serpa Law Office resources

• Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause
• Assault and Battery on a Family or Household Member (M.G.L. c. 265, § 13M)
• Intimidation of a Witness (M.G.L. c. 268, § 13B)
• Violation of a 209A Restraining Order (M.G.L. c. 209A, § 7)
• Massachusetts Domestic Violence Law FAQs
• Massachusetts Criminal Defense Results
• Boston Domestic Violence Defense Lawyer

Massachusetts uses the word “harassment” in several distinct laws. Criminal harassment under M.G.L. c. 265, § 43A is a criminal charge. A 258E harassment prevention order is a civil remedy. Under the three-act ground in Chapter 258E, the plaintiff must prove three willful and malicious acts. Chapter 258E also authorizes relief on separate statutory grounds that do not require three acts.

The criminal case and the civil order proceeding differ in the burden of proof, the relief available, and the findings required. The judge or jury in one proceeding is ordinarily not bound by the result in the other proceeding. After a conviction at a criminal trial, however, the judge in a later civil proceeding can bar the defendant from disputing the facts that the conviction established. The First Amendment limits both proceedings when the alleged acts are speech.

The 258E Harassment Prevention Order and the Criminal Harassment Charge

At the hearing after notice, a plaintiff relying on the three-act harassment ground must prove entitlement to relief by a preponderance of the evidence, the ordinary civil standard. F.K. v. S.C., 481 Mass. 325 (2019). A judge may issue a temporary order ex parte, without the defendant present, when the plaintiff satisfies the emergency standard in M.G.L. c. 258E. The defendant receives notice after the judge issues the temporary order.

The court holds a two-party hearing not later than ten court business days after the ex parte order. The defendant first appears and contests the order at the two-party hearing. The temporary orders continue in effect without further order of the court if the defendant does not appear at the two-party hearing. G.L. c. 258E, § 5. The plaintiff’s burden at the two-party hearing remains a preponderance of the evidence.

Chapter 258E covers harassment by anyone. By contrast, the 209A restraining order (abuse prevention order) applies only to family and household relationships in Massachusetts domestic violence cases. A defendant who violates a 258E harassment prevention order after a judge issues the order commits a separate crime. Serpa Law Office addresses violations of 258E harassment prevention orders in detail on its page on violating a 258E harassment prevention order.

A judge who issues a 258E harassment prevention order may grant broad relief. The court may order the defendant to refrain from abusing or harassing the plaintiff, to have no contact, to remain away from the plaintiff’s household or workplace, and to pay monetary compensation for losses, including reasonable attorney’s fees. G.L. c. 258E, § 3(a).

Relief is limited to one year at a time. At the expiration hearing, the court may extend the order for the time reasonably necessary to protect the plaintiff or enter a permanent order. G.L. c. 258E, § 3(d). The extension hearing has its own standard, covered in the post on when unwanted contact becomes harassment.

A 258E harassment prevention order can also impose firearms consequences on the defendant. On a temporary or emergency order, where the plaintiff demonstrates a substantial likelihood of immediate danger of harassment, the court orders the suspension of any license to carry or firearm identification card. The court also orders the surrender of all firearms and ammunition the defendant owns, possesses, or controls. G.L. c. 258E, § 4A. The surrender mechanics and the review hearing are covered in the page on 258E harassment prevention orders and firearm surrender.

The criminal harassment charge under G.L. c. 265, § 43A requires the Commonwealth to prove guilt beyond a reasonable doubt, the highest standard in the legal system. A charge under § 43A proceeds through arraignment, pretrial proceedings, and trial before a judge or jury. The defendant has the right to counsel, including appointed counsel for an indigent defendant facing incarceration. The defendant also has the right to remain silent, the right to confront witnesses, the right to automatic criminal discovery, and the right to a jury trial. Evidence is subject to the rules of evidence.

A conviction under § 43A(a) is punishable by up to two and one half years in a house of correction, a fine of up to $5,000, or both. A second or subsequent offense, or a § 43A offense committed after a stalking conviction, is punishable by up to two and one half years in a house of correction or up to ten years in state prison.

For a second or subsequent offense, or a § 43A offense committed after a stalking conviction, the maximum fine is $15,000. The judge may impose imprisonment and a fine together. G.L. c. 265, § 43A(c).

Section 43A also contains a second, separate offense. Under subsection (b), a single act of knowingly distributing intimate visual material of an identifiable person, including material produced by digitization, is a crime with its own penalties.

The distribution must cause the person depicted physical or economic injury or substantial emotional distress. The Commonwealth must prove that the defendant distributed the material with intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress.

The Commonwealth may instead prove that the defendant recklessly disregarded the likelihood of any of those harms to the person depicted, the depicted person’s lack of consent, and the depicted person’s reasonable expectation that the material would remain private. Serpa Law Office explains the subsection (b) offense and the computer-generated deepfake imagery that the offense covers on the page on Massachusetts revenge porn and nonconsensual intimate images.

The defendant in a 258E harassment prevention order case has real procedural rights at the civil hearing. A defendant who is told otherwise may fail to use those rights. The defendant has the right to be heard, which includes the right to testify and to present evidence. The defendant also has a general right to cross-examine the witnesses on the other side, subject to the judge’s discretion to limit cross-examination for good cause.

The defendant or counsel must receive an adequate opportunity to review any affidavit the judge intends to rely on before electing whether to cross-examine. Frizado v. Frizado, 420 Mass. 592 (1995), abrogated on another ground by Zullo v. Goguen, 423 Mass. 679, 681 (1996). The courts developed the rules on the right to be heard, cross-examination, and review of affidavits for hearings under c. 209A. The SJC applies the same rules to hearings under c. 258E. F.K. v. S.C., 481 Mass. 325 (2019).

The defendant keeps the privilege against self-incrimination at the civil hearing. The judge may draw an adverse inference from the defendant’s silence, but the plaintiff cannot meet the burden of proof with the adverse inference alone. Frizado, 420 Mass. 592. A client who faces a parallel criminal prosecution must decide whether to testify at the civil hearing. Remaining silent protects the client’s defense in the criminal case, but the judge in the civil case may draw an adverse inference from the silence.

A defendant in a 258E harassment prevention order case may appear with retained counsel. The defendant may appeal a 258E harassment prevention order to the Appeals Court as of right, even after the order expires. Seney v. Morhy, 467 Mass. 58 (2014).

Only the criminal case gives the defendant the protection of proof beyond a reasonable doubt, a jury, the rules of evidence, confrontation, automatic discovery, and appointed counsel for the indigent. The civil hearing is before a judge without a jury, as under c. 209A. The rules of evidence need not be followed at the civil hearing, provided there is fairness in what evidence is admitted and relied on. Frizado, 420 Mass. 592.

Judges frequently issue 258E harassment prevention orders in cases where a criminal harassment charge would not result in a conviction. A plaintiff may prove conduct by a preponderance of the evidence at a civil hearing. The Commonwealth may be unable to prove the same conduct beyond a reasonable doubt at a criminal trial with all constitutional protections in place.

A defendant who loses a civil hearing on a 258E harassment prevention order should not assume that a criminal harassment charge will be filed or will end in a conviction. The civil proceeding and the criminal case are separate, with different standards.

The Shared Elements: Willful, Malicious, and the Required Harm

The criminal harassment statute and Chapter 258E contain the same basic elements. The result of a harassment case often depends on a precise application of each element. Each statute requires at least three qualifying acts. Under Commonwealth v. Welch, 444 Mass. 80 (2005), overruled in part on another ground by O’Brien v. Borowski, 461 Mass. 415 (2012), the criminal statute’s “pattern of conduct or series of acts” means three or more incidents.

The definition of harassment in Chapter 258E expressly requires three or more acts. Each act must be willful and malicious. An act that lacks either quality does not count toward the three required acts.

Courts apply specific rules when counting the acts. One continuous act cannot be parsed into its constituent parts to make three acts. A single act is also not multiplied by the number of people who witness it. F.K. v. S.C., 481 Mass. 325 (2019). The SJC applied both rules to hold that one song posted to two platforms was one act.

Willful. Wilful conduct is conduct that is intentional rather than accidental. Wilful conduct requires no evil intent, ill will, or malevolence. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). Accidental contact and inadvertent communication do not satisfy the element of willfulness. A client who says they meant nothing bad by the act is talking about malice, not willfulness. On willfulness, the judge or jury asks only whether the act was deliberate.

Malicious. The criminal harassment statute and Chapter 258E define malice differently. Counsel should hold the plaintiff or the Commonwealth to the correct definition. For a 258E harassment prevention order, the statute defines malicious as characterized by cruelty, hostility or revenge. G.L. c. 258E, § 1. For a criminal § 43A charge, a malicious act is an intentional, wrongful act done willfully or intentionally against another without legal justification or excuse. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). Malice in either setting requires more than conduct that is merely unwelcome, offensive, or even deeply distressing.

In O’Brien v. Borowski, 461 Mass. 415 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014), the Supreme Judicial Court construed the harassment definition narrowly to exclude protected expression. As a result, the harassment definition does not cover aggressive but legitimate conduct.

A co-parent who must communicate about a child, a neighbor who reports a code violation, a consumer who posts a negative review, and a litigant who files a lawsuit may each alarm and distress the recipient. The co-parent, neighbor, consumer, and litigant are not engaged in malicious harassment, because each has a legal justification for the conduct.

The required harm. The criminal harassment statute and Chapter 258E differ more on the required harm than on any other element. The difference between the two definitions of harm is easy to get wrong. On a criminal § 43A charge, the Commonwealth must prove two harm elements. The pattern must have seriously alarmed the targeted person. Serious alarm is a demanding, subjective element, proved by the victim’s own testimony rather than by conjecture. Commonwealth v. Johnson, 470 Mass. 300 (2014), quoting Commonwealth v. Braica, 68 Mass. App. Ct. 244, 247 (2007).

The pattern must also have been of a kind that would cause a reasonable person to suffer substantial emotional distress, an objective element. Substantial emotional distress means distress more than merely trifling or passing, and markedly greater than the distress commonly experienced as part of ordinary living. Commonwealth v. Robinson, 444 Mass. 102, 108 (2005).

The judge or jury measures serious alarm against the whole pattern of conduct rather than incident by incident. Commonwealth v. Johnson, 470 Mass. 300 (2014). The targeted person must personally experience the serious alarm. Distress at what a spouse received is derivative. The SJC reversed a criminal harassment conviction on the ground that the distress was derivative. Commonwealth v. Bigelow, 475 Mass. 554 (2016).

A 258E harassment prevention order requires a different kind of harm. Under Chapter 258E, the three acts must be committed with intent to cause, and must in fact cause, fear, intimidation, abuse, or damage to property. Under O’Brien v. Borowski, the word “fear” is limited to fear of physical harm or of physical damage to property. Intimidation, abuse as the statute defines it, and property damage remain independent alternatives to fear.

The judge decides whether the plaintiff was in fact placed in fear by a subjective standard, based on what the plaintiff experienced. The judge does not apply a reasonable person standard to the fear itself. Petriello v. Indresano, 87 Mass. App. Ct. 438 (2015); Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).

The plaintiff’s actual fear does not by itself establish harassment when the alleged acts are speech. Speech alleged to be harassment must independently qualify as constitutionally unprotected. The judge or jury decides whether words are a true threat by an objective standard, based on what the words reasonably convey to the recipient in the circumstances. Commonwealth v. Cruz, 495 Mass. 110 (2024). A plaintiff’s sincere fear of protected speech is not a basis for an order or a conviction. Counsel who assumes the civil and criminal harm standards are the same will misjudge the case.

What Counts as an Act

Conduct that is not speech can also count as an act of harassment. Concealing a GPS tracking device on a person’s vehicle is an act under § 43A. Concealing the device qualified as an act even though the targets learned of the tracking only later. Commonwealth v. Brennan, 481 Mass. 146 (2018). Otherwise lawful conduct can qualify as an act of harassment when considered with other evidence. Acts of harassment can also be directed at more than one person at the same time. Brennan, 481 Mass. 146.

What the First Amendment Protects and What It Does Not Protect

The First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights protect freedom of speech, freedom of expression, and the right to petition the government for redress of grievances. Both the civil standard for a 258E harassment prevention order and the criminal harassment statute, § 43A, must be applied in a manner consistent with the First Amendment and Article 16. A harassment prosecution or a 258E harassment prevention order that is based on protected expression is constitutionally defective.

In Commonwealth v. Bigelow, 475 Mass. 554 (2016), the Supreme Judicial Court held that § 43A covers only constitutionally unprotected speech. The Court also held that letters criticizing an elected official’s performance could not form the basis of a criminal harassment conviction.

Protected speech includes the following.

• Public commentary and criticism, including criticism of public figures, public officials, businesses, and institutions, regardless of how harsh or how personally distressing the target finds it
• Commentary and criticism posted on social media, which are evaluated under the same rules as any other speech
• Public reviews of businesses and professionals, including negative reviews that the subject disputes or finds damaging
• Protest, demonstration, and picketing directed at a business, institution, or public figure, even when conducted in a manner the target finds alarming
• Petitions, complaints, and reports filed with government agencies, regulatory bodies, or courts, even when the subject of the complaint views the filing as harassment
• Satire and parody of public figures and public institutions

Speech that is not protected, and that can support a harassment prosecution, includes the following.

• True threats, meaning statements that communicate a serious expression of an intent to commit unlawful violence against a specific person. After Counterman v. Colorado, 600 U.S. 66 (2023), the First Amendment also requires proof that the speaker at least consciously disregarded a substantial risk that the statement would be understood as threatening violence. Hyperbolic statements and statements a reasonable person would understand as venting rather than threatening are not true threats
• Fighting words, meaning direct personal insults addressed to a person that are inherently likely to provoke violence, an extremely narrow category. O’Brien v. Borowski, 461 Mass. 415, 423 (2012)
• Speech integral to criminal conduct, meaning speech that functions as the instrument of a crime rather than as expression addressed to the target. The false Craigslist advertisements in Commonwealth v. Johnson, 470 Mass. 300 (2014), which recruited strangers to go to the victims’ home, are the Massachusetts example
• Defamatory speech. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), false accusations that the complainant was a child abuser were unprotected

The lists of unprotected speech are not identical for a 258E harassment prevention order and a criminal § 43A charge. For a 258E harassment prevention order, the SJC has limited the qualifying categories of unprotected speech to two, fighting words and true threats. Van Liew v. Stansfield, 474 Mass. 31, 37 (2016).

For the criminal statute, the SJC has said that § 43A also covers other well-defined and limited categories of unprotected speech. The courts have applied the categories of speech integral to criminal conduct and defamation in criminal harassment cases. Commonwealth v. Bigelow, 475 Mass. 554 (2016); Commonwealth v. Johnson, 470 Mass. 300 (2014); Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023).

The Mens Rea Question After Counterman

Massachusetts courts have begun applying Counterman. In Commonwealth v. Cruz, 495 Mass. 110, 111 (2024), the SJC construed the threats statute, G.L. c. 275, § 2, to require proof of a mental state. The Commonwealth must prove beyond a reasonable doubt that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence. The SJC vacated the defendant’s conviction because the jury received no instruction on conscious disregard.

The objective test still applies alongside the mental state requirement. The judge or jury decides whether words are a true threat by what the words reasonably convey to the recipient. In Cruz, the SJC also distinguished two mental states. Intending to deliver a statement to a person is not the same as understanding the threatening nature of the statement.

No Massachusetts appellate court has yet applied Counterman to criminal harassment under § 43A. The question whether Counterman applies to § 43A is open. The issue arises in any § 43A prosecution based on speech, because under Bigelow the question whether the speech is protected or unprotected is a fact question within the first element. The defense should request an instruction requiring the Counterman mental state whenever the Commonwealth relies on statements offered as true threats to prove the pattern. The defense should also preserve the issue if the judge refuses the instruction.

Social Media and the First Amendment in Harassment Cases

Social media harassment prosecutions present recurring First Amendment questions. Defense counsel for a defendant charged under § 43A for a pattern of social media conduct must examine whether each act the Commonwealth relies on is protected expression or unprotected speech or conduct.

Courts do not decide whether a statement is a true threat by the medium the speaker used. Courts decide whether a statement is a true threat from the content and context of the statement. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), the Appeals Court read the defendant’s social media statements in the context of his conduct at the time.

The defendant’s conduct included his indications of his constant physical presence in the town where the complainant lived. Based on their content, frequency, duration, and escalating obsessiveness, a fact finder could view the statements as objectively threatening and therefore unprotected.

A defendant cannot avoid liability for harassment by posting harassing statements publicly. In Johnson, the SJC said the defendants “cannot launder their harassment . . . through the Internet to escape liability.” Commonwealth v. Johnson, 470 Mass. 300 (2014).

Criticism remains protected on any platform. After Bigelow, statements that criticize an elected official’s qualifications and performance on issues of public concern cannot be counted toward a criminal harassment pattern, even where they include personal insults. In practice, courts still distinguish between public commentary and private-sphere targeting. A message sent to a person’s private inbox, to their employer, or to a family member in order to damage the person’s relationships is private-sphere targeting rather than public commentary. Private-sphere targeting is more likely to satisfy the malice element than commentary posted where the person chose to engage the public.

The Public Figure Defense

A defendant who engages with a public figure has a distinct First Amendment position. The protected speech cases support the defendant’s position. In Van Liew v. Stansfield, 474 Mass. 31 (2016), the SJC held that sharp and even caustic criticism of a local public official was core political speech, protected by the First Amendment, and could not constitute harassment under c. 258E. Bigelow holds that criticism of an elected official’s performance cannot form the basis of a criminal harassment conviction.

Public figures keep the same protection against harassment that everyone else has. A public figure who is threatened, stalked, or subjected to a targeted campaign of abuse is entitled to relief, and to prosecution of the offender, on the same proof as any other person.

The judge or jury still considers the setting of the conduct when applying the objective part of the criminal harm standard. What would cause a reasonable person substantial emotional distress depends on context. Under Salvatore, a court views statements in the context of the conduct around them. The public figure defense is less likely to succeed when the conduct includes threats, private-sphere contact, or escalation after a clear statement that contact is unwanted.

The Difference Between Annoying and Criminal

Under Massachusetts harassment law, annoying, offensive, and even deeply distressing conduct is not automatically criminal. The harassment statutes require willfulness, malice, and a specified harm. Under § 43A, the harm is serious alarm to the targeted person together with distress that a reasonable person would suffer. Under Chapter 258E, the harm is actual fear, intimidation, abuse, or property damage. The courts have been consistent that the harassment statutes do not criminalize every uncomfortable social interaction.

A person who sends repeated emails asking for a professional relationship after being turned down is annoying. A person who shows up at someone’s workplace again and again after being told to stay away is potentially dangerous.

The legal difference between the annoying person and the potentially dangerous person depends on malice, on whether the conduct has a legal justification, and on whether a reasonable person would find the pattern genuinely threatening rather than merely persistent. Under the civil statute, persistence alone does not establish harassment. R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019). The analysis is fact specific, but the statutory and constitutional boundaries are clear. Not every course of unwanted contact is harassment under Massachusetts law.

A Person Charged with Criminal Harassment

A criminal harassment charge under G.L. c. 265, § 43A can begin with a clerk-magistrate hearing when police did not make an arrest at the scene. No arraignment, public CORI entry, or criminal record results from an application that the clerk-magistrate denies. Serpa Law Office’s Massachusetts clerk-magistrate hearing FAQ explains what happens at the clerk-magistrate hearing and how counsel prepares for the hearing.

A licensed professional whose case ends at the clerk-magistrate hearing avoids the licensing consequences of an arraignment. A non-citizen whose case ends at the clerk-magistrate hearing faces no conviction or continuance without a finding, the obvious and usually only risk to an immigration petition or application. Disclosure of the incident and an officer’s questions at an interview about the conduct described in the complaint application or police report can still create obstacles of their own.

An immigration lawyer should review the exact question, the client’s status, and the court record before the client files a petition or sits for an interview. Serpa Law Office addresses the licensing and immigration consequences of an arraignment in detail in its licensed professional criminal defense FAQ.

One procedural rule from Salvatore applies at the clerk-magistrate stage. A judge ordinarily reviews a motion to dismiss the complaint on a record that includes any testimony the clerk-magistrate heard before finding probable cause. The defendant bears the responsibility of putting the complete show cause record before the judge. Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023). Counsel who may later move to dismiss the complaint must preserve the record at the clerk-magistrate hearing.

A common question is whether the complaining witness can drop the charge. The answer in a criminal harassment case is the same as in any Massachusetts criminal case. The Commonwealth, not the complainant, decides whether to drop the charge.

In a case that proceeds to arraignment and trial, the defense focuses on several issues. The defense tests the sufficiency of each alleged act under the willful, malicious, and harm requirements. The defense raises First Amendment challenges to any act that is protected expression. After Counterman, the defense also presses the mens rea question. The defense probes the credibility of the complainant and any inconsistencies in the complainant’s account. The defense also challenges the Commonwealth’s proof of a qualifying pattern of three or more acts directed at the specific person on each occasion.

Key Takeaways

• Criminal harassment under G.L. c. 265, § 43A(a) requires three or more acts, each willful and malicious, and a pattern that both seriously alarmed the targeted person and would cause a reasonable person to suffer substantial emotional distress. The Commonwealth must prove the subjective harm element and the objective harm element separately
• Malice has two definitions. For a 258E harassment prevention order, malice is conduct characterized by cruelty, hostility or revenge. For a § 43A charge, malice is an intentional, wrongful act without legal justification or excuse. Conduct with a legal justification is not malicious even when it causes real distress
• The First Amendment protects public commentary, social media criticism, negative reviews, protests, and government petitions even when the subject finds them deeply distressing. True threats, fighting words, speech integral to criminal conduct, and defamation are not protected by the First Amendment
• After Counterman v. Colorado, 600 U.S. 66 (2023), a true threat requires at a minimum the speaker’s conscious disregard of the risk that the statement would be understood as threatening violence. The SJC applied the Counterman rule to the threats statute in Commonwealth v. Cruz, 495 Mass. 110 (2024). The defense should raise the open question whether the Counterman rule applies to § 43A
• A judge can issue a 258E harassment prevention order on a lower burden of proof than the burden that applies to a criminal § 43A charge. Losing a hearing on a 258E harassment prevention order does not establish that criminal harassment occurred
• A criminal harassment charge that begins with a citation rather than an arrest may be resolved at a clerk-magistrate hearing before any public criminal record is created. The defense preserves the show cause record for any later motion

Serpa Law Office represents defendants in criminal harassment and stalking cases across the Massachusetts District Courts and the Boston Municipal Court. Contact Serpa Law Office at 617.936.0201 for a confidential consultation. The Boston office is at 20 Park Plaza #400A, and the Quincy Office is at 500 Victory Road, Suite 400A.

Related Resources

• The Effort to Expose Cornell’s Jane Doe: Doxing, Misogyny, and the Law
• Massachusetts stalking defense under M.G.L. c. 265, § 43
• Massachusetts 258E Harassment Prevention Orders
• Violation of a 258E Harassment Prevention Order
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)
• Violation of a 209A Restraining Order (M.G.L. c. 209A, § 7)
• When Does Unwanted Contact Become Harassment Under Massachusetts Law?
• Clerk-Magistrate Hearings in Massachusetts
• I Received a Show Cause Notice in Massachusetts. What Do I Do?
• Arraignment in the Massachusetts Trial Court
• Illegal Searches and Seizures in Massachusetts
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• Massachusetts CORI Sealing and Expungement

Prepared by Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995 | Serpa Law Office, Boston and Quincy | Last Reviewed: August 2026

A Massachusetts domestic violence case begins with a criminal allegation, but it may quickly involve bail conditions, a 209A abuse prevention proceeding, firearm restrictions, and employment or immigration concerns. The criminal charge, the bail conditions, the 209A abuse prevention proceeding, the firearm restrictions, and any employment or immigration concerns each involve a different legal standard and can affect one another.

The complaining witness does not control the criminal process. The Commonwealth decides whether to prosecute after a criminal complaint issues. A request to withdraw the allegation, a reconciliation, or a decision not to testify can change the available evidence, but the case does not end automatically because of any of those events.

Under G.L. c. 233, § 20, neither spouse may be compelled to testify in a criminal proceeding against the other, apart from the child abuse exception, so a married complainant may decline to testify against the defendant. The private-conversation disqualification in the same section does not assist a defendant charged with a crime against a spouse, because the disqualification does not apply to that charge. The spousal testimonial privilege and the private-conversation disqualification are both set out on the firm’s Massachusetts spousal privilege and marital communications page.

This guide explains each stage of a Massachusetts domestic violence charge, from the police response through arraignment, pretrial litigation, disposition, and trial. The guide also identifies the stages at which defense counsel, through careful work, can change the result.

What Makes a Criminal Charge a Domestic Violence Case

The charge brought most often in a domestic violence case is assault or assault and battery on a family or household member under G.L. c. 265, § 13M. A first offense is punishable by up to two and one-half years in a house of correction, a fine of up to $5,000, or both.

Section 13M uses a specific relationship definition that covers spouses and former spouses, people who have a child together, and people who are or have been in a substantive dating or engagement relationship. The prosecution must prove the qualifying relationship as an element of the offense.

Chapter 209A uses a broader definition for civil abuse prevention orders. The Chapter 209A definition also includes relatives by blood or marriage and people who live or formerly lived together. A relationship may therefore support a petition for a 209A abuse prevention order even when the relationship does not satisfy § 13M.

The facts may support additional charges, but the conduct must satisfy each statute. Taking a phone does not automatically prove witness intimidation. Neck contact does not by itself prove strangulation, and the presence of an object does not establish a dangerous-weapon offense.

Common companion allegations include strangulation or suffocation, ADW or ABDW, witness intimidation, threats, malicious destruction of property, and violation of an active protective order.

The Police Response and the Arrest Decision

G.L. c. 209A, § 6 requires an officer to arrest a person whom the officer witnesses violating, or has probable cause to believe has violated, a qualifying protective order. Without a protective order in effect, arrest is the preferred response for a felony, a misdemeanor involving Chapter 209A abuse, or an assault and battery under § 13A.

The statute does not require an arrest on every domestic call. The statute distinguishes an order violation, for which the arrest command applies, from other alleged abuse, for which arrest is the preferred response. Probable cause is still required.

The complaining witness cannot require or prevent an arrest. Officers evaluate statements, injuries, the scene, recordings, witnesses, active orders, and other circumstances. The statute requires additional reporting by the police when both sides accuse each other and the police arrest both of them.

A person who is arrested usually does not have a clerk-magistrate hearing. The accused may have a clerk-magistrate hearing if the police seek a complaint by application instead of making an arrest, depending on the charge and how the application began.

The Six-Hour Bail Rule

The six-hour rule appears in G.L. c. 276, § 42A, not in the general bail statute. An adult arrested for a qualifying protective-order violation, an act that would constitute Chapter 209A abuse, or a violation of §§ 13M or 15D ordinarily may not be admitted to bail sooner than six hours after arrest.

A judge in open court may order an earlier release. The statute also permits release conditions designed to protect the alleged victim, another person, or the community. Police or the district attorney must make a reasonable effort to provide notice of release in the circumstances specified by the statute.

The six-hour period does not establish guilt and is not a minimum sentence. The six-hour period is a restriction on the timing of bail after an adult arrest.

Arraignment, Bail Conditions, and Stay Away No Contact Orders

Arraignment is the first court appearance on the criminal complaint. The charge is read, the court enters a plea of not guilty, and counsel appears for the defendant. The judge then decides whether to release the defendant on personal recognizance or set bail, sets any conditions of release, and addresses any request for a dangerousness hearing.

Under § 42A, the criminal court may impose conditions after a hearing and finding to protect the alleged victim and prevent a recurrence of abuse. Conditions may restrict contact, travel, association, or residence. Every condition remains binding until a judge changes it, even if the complainant requests contact.

A stay away no contact order in a criminal case is different from a civil 209A abuse prevention order. A 209A abuse prevention order requires a separate complaint and the findings required by Chapter 209A. A judge does not automatically issue a 209A abuse prevention order merely because a defendant is arraigned on a domestic violence charge.

Section 6 of Chapter 209A also provides for a written no-contact order upon the alleged victim’s request when a person charged with or arrested for a crime involving abuse is released. Defense counsel should confirm the exact source and terms of an order from the court papers.

The Separate 209A Abuse Prevention Proceeding

A plaintiff may request a temporary 209A abuse prevention order without the defendant present. The court then holds a hearing after notice to the defendant. The civil judge decides whether the plaintiff proved abuse as defined in Chapter 209A and whether an abuse prevention order is necessary. In the criminal case, the Commonwealth must prove the charged offense beyond a reasonable doubt.

The criminal case and the 209A abuse prevention proceeding are separate, so one can continue after the other ends. Testimony given at a hearing on a 209A abuse prevention order may also become evidence in the criminal case. A defendant with both a criminal case and a 209A abuse prevention proceeding pending should make a coordinated decision about testifying while the Fifth Amendment is implicated.

A 209A abuse prevention order may include no-contact, stay-away, residence, custody, and other terms authorized by the statute. A defendant who violates a 209A abuse prevention order can face a new criminal charge even if the underlying criminal case is later dismissed.

Firearms and a 209A Abuse Prevention Order

A person accused of a crime does not, for that reason alone, face every firearm consequence in Chapter 209A. For a temporary or emergency order, G.L. c. 209A, § 3B requires the suspension and surrender of the defendant’s firearms licenses and firearms when the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. Under § 3C, the judge applies a likelihood-of-abuse standard when deciding at the hearing after notice whether to continue the suspension and surrender. The firm’s guide to firearms after a domestic violence charge or protective order explains the state and federal rules separately.

Dangerousness Hearings Under G.L. c. 276, § 58A

The Commonwealth may move for a dangerousness hearing when the charge fits a category listed in G.L. c. 276, § 58A. The listed categories include a misdemeanor or felony involving abuse as defined in Chapter 209A and certain charges brought while a protective order was active.

A judge may order the defendant detained only after finding by clear and convincing evidence that no release conditions will reasonably assure the safety of another person or the community. Absent good cause, detention is limited to 120 days in the District Court or 180 days in the Superior Court. The dangerousness hearing page explains the evidence, the defendant’s rights, and Superior Court review.

Why the Complainant Cannot Drop the Charge

A criminal complaint is prosecuted by the Commonwealth. The complainant may tell the prosecutor that the allegation was mistaken, provide additional evidence, decline a voluntary interview, or assert a lawful privilege. The prosecutor still decides whether the available evidence supports continued prosecution.

Massachusetts also excludes domestic abuse from accord and satisfaction. G.L. c. 276, § 55 does not authorize accord and satisfaction for a § 13M or § 15D violation, a qualifying protective-order violation, or conduct that would constitute Chapter 209A abuse.

A judge generally cannot dismiss a valid complaint over the prosecutor’s objection merely because the complainant wants the case to end. A dismissal can still result from a legal defect, insufficient probable cause, exclusion of necessary evidence, a prosecution decision, or inability to proceed at trial.

The pages on how Massachusetts criminal cases are dismissed and recantation in a domestic violence case explain the grounds for dismissal in more detail.

911 Calls, Body Cameras, and Digital Evidence

The prosecution and defense should preserve the original evidence. The original evidence may include the complete 911 call, dispatch records, body-camera footage, photographs, medical records, surveillance video, messages, call logs, and the phones or accounts from which communications came.

Body-camera footage can corroborate or contradict the report. The footage may show the timing of statements, the condition of the scene, visible injuries, the conduct of each participant, the questions officers asked, and gaps between the recording and the written narrative.

For phone evidence, defense counsel examines who owned the device, who supplied the communication, the scope of any consent, and whether police used a warrant. Riley v. California generally requires a warrant to search the digital contents of a phone seized from an arrestee, subject to recognized exceptions.

A message sent while a no-contact order is active may establish a violation if the Commonwealth proves the order, knowledge, prohibited contact, and the defendant’s responsibility for the message. A message sent in violation of a no-contact order does not automatically establish intimidation or forfeiture by wrongdoing.

A Case Without the Complainant’s Testimony

The case does not end automatically when the complainant is absent. The Commonwealth may rely on other witnesses, recordings, photographs, records, or prior statements admitted under an exception such as the excited utterance rule in Massachusetts Guide to Evidence § 803(2). A testimonial statement by an unavailable witness generally cannot be admitted without a prior opportunity for cross-examination. The related guides to excited utterances and an unavailable accuser and impeaching an absent declarant under Section 806 address the trial analysis.

Forfeiture by Wrongdoing and Witness Intimidation

Forfeiture by wrongdoing does not result from ordinary nonappearance, reconciliation, or every prohibited contact. The Commonwealth must prove wrongful conduct intended to cause the witness’s unavailability. The defendant forfeits the Confrontation Clause objection only after the judge makes the required findings.

Witness intimidation under G.L. c. 268, § 13B also has defined elements. A defendant who asks a witness to lie, withhold evidence, avoid court, or change testimony can face a separate charge when the Commonwealth can prove the statute’s conduct and intent requirements.

A defendant should comply exactly with every stay away no contact order and should not ask another person to carry a message. Conduct that a court order prohibits remains prohibited even if the complainant invites or consents to the conduct.

The Spousal Testimonial Privilege

Under G.L. c. 233, § 20, a spouse generally cannot be compelled to testify in a criminal proceeding against the other spouse. The witness spouse controls the spousal testimonial privilege, subject to the statute’s exceptions, including proceedings relating to child abuse. The separate rule for private marital conversations does not apply in a criminal proceeding alleging that one spouse committed a crime against the other or violated a qualifying protective order obtained by the other spouse. The firm’s page on Massachusetts spousal privilege and marital communications explains both rules.

Defenses That Address the Charged Elements

The qualifying relationship is not proved. Section 13M does not cover every relative, roommate, or person who dated briefly. The Commonwealth must prove a relationship listed in the statute.

No assault or battery occurred. Video, physical evidence, the scene, timing, and prior statements may show that the alleged contact did not occur, was accidental, or cannot be attributed to the defendant beyond a reasonable doubt.

Self-defense or defense of another applies. The Commonwealth must prove beyond a reasonable doubt that the conduct was not justified once the evidence raises a lawful justification. The question whether the conduct was justified may depend on the amount of force, the perceived threat, reasonable efforts to avoid combat, and the identity of the first aggressor.

A companion felony is overcharged. Strangulation, ABDW, and witness intimidation each require proof beyond the underlying argument or touching. The defense should address the elements of each companion felony separately and should not allow the prosecution to use the domestic violence label as a substitute for proof.

Necessary evidence is inadmissible. A statement may be inadmissible under the hearsay rule or the Confrontation Clause, or for lack of authentication or a records foundation. Digital evidence may also be subject to suppression if police exceeded lawful authority.

The firm’s Massachusetts self-defense guide explains nondeadly force, deadly force, retreat, and prior-act evidence.

How Massachusetts Domestic Violence Cases End

Dismissal before trial. The prosecutor may enter a nolle prosequi or decide not to proceed. A judge may dismiss the complaint for a recognized legal reason, including insufficient probable cause. A judge may also exclude necessary evidence, leaving the Commonwealth unable to prove the charge.

Dismissal on the trial date. A witness may be absent or may invoke a valid privilege. The remaining admissible evidence may then be insufficient. The prosecutor, not the witness, determines whether the Commonwealth can proceed. A dismissal ends the prosecution but does not clear the records created during the case. The arraignment CORI entry, the confidential police file, and the abuse designation under G.L. c. 276, § 56A all remain. The page on the records a dismissed domestic violence case leaves behind explains those records in more detail.

Pretrial probation or another nontrial resolution. The availability of pretrial probation or another nontrial resolution depends on the charge, the prosecutor’s position, the court’s authority, the evidence, and the defendant’s circumstances. The defendant and defense counsel must review the conditions and record consequences before the defendant agrees to pretrial probation or another nontrial resolution.

A continuance without a finding. A CWOF comes after an admission or guilty plea and a judicial finding sufficient for guilt. The judge then continues the case without a finding and places the defendant on probation. A CWOF completed successfully is not a Massachusetts conviction, but other legal systems may treat a CWOF as a conviction.

For a § 13M violation or CWOF, the statute requires a certified Intimate Partner Abuse Education Program unless the court makes written good-cause findings or the program finds the defendant unsuitable.

Trial. The Commonwealth must prove every element beyond a reasonable doubt with admissible evidence. The issues at trial may include credibility, identity, injury, the relationship element, self-defense, or whether the evidence proves the charged felony rather than a different or lesser offense.

Records, Firearms, Immigration, and Professional Licensing

An arraignment creates a CORI entry. A domestic case can also create entries in the statewide domestic violence record keeping system. The treatment of the CORI entry and of any domestic violence record keeping entries depends on the disposition and the particular system.

Defense counsel must analyze firearm consequences separately under state and federal law. The firearm consequences may depend on a protective order, release condition, licensing decision, offense elements, relationship, plea record, sentence, and whether federal law treats the disposition as a conviction.

Defense counsel must analyze the immigration consequences before the defendant enters a plea, makes an admission, or accepts a CWOF. A reduction from § 13M to another offense does not automatically eliminate federal consequences, because the application of federal domestic-violence rules may depend on the relationship and the record, not only on the state offense title.

Professional and educational consequences vary. A board, employer, school, or clinical program may apply its own disclosure and conduct rules. A parallel proceeding may continue even after the criminal case is dismissed.

The firm’s guides to domestic violence defense for professionals, students, and noncitizens, domestic violence immigration consequences, and criminal records and outcomes explain those issues.

Frequently Asked Questions

How Attorney Serpa Handles a Domestic Violence Case

Attorney Serpa begins by reviewing the criminal complaint, police report, 911 recordings, body-camera footage, photographs, medical records, digital communications, protective-order file, and release conditions. Attorney Serpa identifies the charged elements and admissibility issues before the defense chooses a disposition or trial strategy.

Attorney Serpa coordinates the defense when a 209A abuse prevention proceeding, licensing matter, school process, firearm issue, or immigration concern is pending, so that a decision in one proceeding does not unnecessarily damage another.

Serpa Law Office represents defendants in the Boston Municipal Court and Massachusetts District and Superior Courts. To discuss a pending domestic violence charge, call 617.936.0201 or request a confidential consultation.

Related Serpa Law Office Resources

• Boston Domestic Violence Defense Guide
• Massachusetts Domestic Violence FAQs
• Criminal Violation of a 209A Restraining Order
• Recantation in a Domestic Violence Case
• CWOF, Pretrial Probation, and Diversion
• Massachusetts Criminal Defense Results

August 2026

A judge issues a harassment prevention order under G.L. c. 258E only on proof of a specific statutory definition of harassment. The Appeals Court has said outright that the statutory definition is much more exacting than the everyday meaning of the word. Unwelcome, uncomfortable, or offensive conduct is not enough. For anyone who has been served with a 258E application in a Massachusetts District Court, the defense begins with holding the plaintiff to every element of that definition.

The Statutory Standard: What “Harassment” Means Under G.L. c. 258E

G.L. c. 258E, § 1 gives harassment two alternative definitions. The first requires a pattern: three or more acts of willful and malicious conduct aimed at a specific person, committed with the intent to cause fear, intimidation, abuse or damage to property. The acts as a whole must also in fact cause one of those harms. The second requires a single act. It covers an act that by force, threat or duress causes another person to involuntarily engage in sexual relations, and an act that violates one of the criminal statutes listed in the definition.

The listed offenses are the indecent assault and battery offenses, the rape offenses, assault with intent to commit rape, enticement of a child under 16, drugging for sexual intercourse, stalking under G.L. c. 265, § 43, and criminal harassment under G.L. c. 265, § 43A. Simple assault and simple assault and battery are not on the list.

When a plaintiff relies on one of the listed offenses, the judge decides whether the plaintiff proved the elements of that crime by a preponderance of the evidence. F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599-600 (2015). The plaintiff does not need to prove the intent and fear elements of the three-act definition. 87 Mass. App. Ct. at 599. The firm’s page on consent in Massachusetts rape and sexual assault cases explains the elements of the rape and indecent assault and battery offenses.

In the vast majority of civil 258E cases, the plaintiff proceeds under the three-act definition. That definition imposes independent requirements on each alleged act.

• The act must have been willful, meaning intentional rather than accidental
• The act must have been malicious, which the statute defines as “characterized by cruelty, hostility or revenge”
• The act must have been aimed at the plaintiff specifically. An act routed through other people can qualify where its object was the plaintiff
• The act must have been committed with the intent to cause fear, intimidation, abuse or damage to property
• The course of conduct as a whole must in fact have caused fear, intimidation, abuse or damage to property

The Supreme Judicial Court has narrowed the fear element even further. The word “fear” in the statute means fear of physical harm or fear of physical damage to property. O’Brien v. Borowski, 461 Mass. 415, 427 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014). Fear of embarrassment, economic loss, or unfavorable publicity falls outside the statute. A plaintiff who can identify three unwelcome interactions but cannot establish every element for each one cannot obtain a 258E harassment prevention order under the three-act definition.

A G.L. c. 209A abuse prevention order requires a family, household, or dating relationship and is the order judges issue in domestic violence matters. The Legislature enacted c. 258E in 2010 to cover everyone else, so neighbors, coworkers, strangers, and social media followers can all be 258E defendants. That breadth is exactly why the courts police the elements so carefully.

The Controlling Cases: O’Brien, Gassman, Seney, and Van Liew

O’Brien v. Borowski, 461 Mass. 415 (2012): Malice Means Cruelty, Hostility, or Revenge, Not Just Unwelcomeness

The Supreme Judicial Court’s 2012 decision in O’Brien v. Borowski is the foundational 258E decision. The SJC explained that the three-act definition contains two layers of intent. The acts must be willful and malicious, with malicious defined by the statute as characterized by cruelty, hostility or revenge. The acts must also be committed with the intent to cause fear, intimidation, abuse or damage to property. Conduct that is merely unwelcome or offensive satisfies neither layer. On the record before it, the Court directed that the order be vacated.

O’Brien also explained how the proof works. The plaintiff must prove the intent elements for each of the three acts, one act at a time. The effect element works differently: the fact finder measures fear, intimidation, abuse, or property damage from the cumulative pattern of harassment rather than act by act. A course of conduct can cause a fear that no single act would cause on its own.

O’Brien then gave the statute a constitutional limiting construction. Where the alleged acts are speech rather than physical conduct, the meaning of harassment is confined to constitutionally unprotected speech, principally fighting words and true threats. O’Brien, 461 Mass. at 425. Fighting words are direct personal insults addressed to a person that are inherently likely to provoke violence. O’Brien, 461 Mass. at 423. The Supreme Judicial Court has also applied a third unprotected category, speech integral to criminal conduct, in the harassment context. Commonwealth v. Johnson, 470 Mass. 300 (2014).

The practical implication of O’Brien is significant. A neighbor who files a noise complaint, a landlord who pursues eviction, and a business competitor who sends aggressive but lawful correspondence may all be engaging in conduct the other party finds unwelcome. None of that is malicious conduct under O’Brien unless it is characterized by cruelty, hostility, or revenge and is intended to place the person in fear of physical harm or property damage.

Unwelcomeness, standing alone, is not malice, and annoyance, standing alone, is not fear. The Appeals Court has held that persistence alone does not establish harassment either. R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019).

What a True Threat Requires After Counterman

In Counterman v. Colorado, 600 U.S. 66 (2023), the United States Supreme Court held that the First Amendment requires proof of the speaker’s mental state in a true threats case. The speaker must have had some subjective understanding of the statements’ threatening nature. Recklessness is the minimum: the speaker was aware that others could regard the statements as threatening violence and delivered them anyway. Whether a statement is a threat at all is still judged by what it conveys to the person on the receiving end.

Counterman decided a criminal case. The Supreme Judicial Court applied its recklessness requirement to a prosecution for threatening to commit a crime in Commonwealth v. Cruz, 495 Mass. 110, 111 (2024). Whether the same requirement governs a civil 258E hearing is an open question in the published Massachusetts decisions. A defendant whose alleged acts are speech should argue that it does, because O’Brien confined civil harassment to constitutionally unprotected speech, and the constitutional definition of a true threat now includes the speaker’s mental state.

The threat must also be the right kind of threat. A true threat under c. 258E must be intended to cause fear of physical harm or fear of physical damage to property, and it must in fact cause that fear. Kareem K. v. Ida I., 100 Mass. App. Ct. 902 (2022). A promise to inflict reputational damage is a different thing from a threat of physical harm, and the statute addresses the second.

Gassman v. Reason, 90 Mass. App. Ct. 1 (2016): An Exacting Definition, and Fear Measured Subjectively

The Appeals Court’s decision in Gassman v. Reason involved feuding neighbors and complaints about piano playing. The court vacated the extension of a 258E order and restated how demanding the statute is: the term has “a definition much more exacting than common usage.” Gassman, 90 Mass. App. Ct. at 8. The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, a rule that comes from O’Brien itself. O’Brien, 461 Mass. at 427.

Under the three-act definition there is no reasonable person test for the plaintiff’s fear. The question is whether this plaintiff was in fact placed in fear. Gassman, 90 Mass. App. Ct. at 7. That rule belongs to the three-act definition alone. A petition that proceeds under the single-act definition through criminal harassment imports an objective element, because G.L. c. 265, § 43A requires conduct that would cause a reasonable person to suffer substantial emotional distress. A.S.R. v. A.K.A., 92 Mass. App. Ct. 270 (2017).

Subjective fear cannot substitute for proof of the defendant’s intent, however, so a plaintiff who genuinely feels afraid still loses without evidence that the defendant intended to cause fear, intimidation, abuse, or property damage. In Gassman itself, repeated noise complaints to the police and one unsuccessful application for an assault and battery complaint at a clerk-magistrate hearing were not acts of harassment. The court found no evidence of any intent to harm.

Seney v. Morhy, 467 Mass. 58 (2014): Each Act Must Be Aimed at the Plaintiff, and Three Acts Means Three

In Seney v. Morhy, a dispute between a youth baseball parent and an assistant coach, the SJC vacated a 258E order for insufficient evidence. The defendant’s email to the head coach, which described the plaintiff in unflattering terms, failed on two independent grounds: it was not directed at the plaintiff, and it was not motivated by cruelty, hostility, or revenge. Even accepting that a telephone threat relayed through the head coach could qualify, the plaintiff could not assemble three qualifying acts.

Seney depended on its record. The controlling question in these cases is the defendant’s object. In Commonwealth v. Johnson, 470 Mass. 300 (2014), false Craigslist postings that sent strangers to the victims’ home at all hours counted as acts directed at the victims, because the sole immediate object of the postings was to produce exactly that harassment. An act routed through other people can therefore be aimed at the plaintiff. An act whose object was the third party, like the email in Seney, is not.

A plaintiff who fears more unwelcome interactions must still prove three completed qualifying acts, and generalized worry about what a defendant might do next cannot substitute for past conduct that caused fear or intimidation.

Seney also confirmed that an appeal is decided on its merits even after the order expires, because a wrongly issued order continues to stigmatize the person named in it. Vacatur has a further consequence. Where a judge vacates a harassment prevention order, G.L. c. 258E, § 9 requires law enforcement to destroy all record of the order, a subject covered in the post on the record treatment of 209A and 258E protective orders.

Van Liew v. Stansfield, 474 Mass. 31 (2016): Speech on Matters of Public Concern Is Not Harassment

Van Liew arose out of a municipal election dispute, and it came to the SJC on a special motion to dismiss under the anti-SLAPP statute, G.L. c. 231, § 59H, after a local official sought a 258E order against a political critic. The Court held that the challenged statements were political speech at the core of the First Amendment’s protection.

They were neither fighting words nor true threats, and at most amounted to political hyperbole. The Court assumed without deciding that one statement, “I’m coming after you,” could have qualified, and the application still described no valid basis for an order.

Even a phone call in which the critic loudly called the official wrong, uneducated, or stupid did not qualify. Insults of that kind are not inherently likely to provoke violence, and they threaten nothing. Van Liew adds one more point for a person wrongly named in a 258E application: where the application was improper petitioning, the costs of defending against it, once proved, are evidence of recoverable damages in an anti-SLAPP action.

The One Year Limit and the Extension Hearing

G.L. c. 258E, § 3 limits any relief granted by the court to one year. Section 3 requires every order to state, on its face, the time and date it expires and the date and time the matter will be heard again. If the plaintiff appears at the expiration date, the judge determines whether to extend the order for any additional time reasonably necessary to protect the plaintiff, or to enter a permanent order.

The extension hearing has its own standard. The plaintiff must prove, by a preponderance of the evidence, that an extension is reasonably necessary to protect the plaintiff from further harassment. Danny D. v. Eli E., 102 Mass. App. Ct. 901 (2023).

The plaintiff does not prove the original three acts a second time. Where the original order issued after a hearing with notice, the defendant may not challenge the evidence underlying it either. Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 259 (2022). An ex parte order has no such effect, so the first hearing after notice remains the place to contest the underlying allegations.

Section 3 also provides that the absence of harassment while an order was in effect is not, by itself, sufficient ground to deny an extension. A defendant cannot rely on a quiet year alone. The plaintiff’s burden remains real all the same. A judge’s discretion to extend is not so broad as to eliminate the plaintiff’s evidentiary burden, and arguments of counsel are not evidence. Danny D., 102 Mass. App. Ct. 901 (2023).

The evidence that bears on continued need includes prior violations of protective orders, ongoing litigation likely to engender hostility, and the parties’ demeanor in court. It also includes the likelihood that the parties will encounter one another in their usual activities, and significant changes in their circumstances. Yasmin Y., 101 Mass. App. Ct. 252 (2022). The Appeals Court reviews an extension for abuse of discretion or other error of law. Wilhelmina W. v. Uri U., 102 Mass. App. Ct. 634, 637 (2023).

A defendant who did not appeal the original order keeps the right to appeal an extension. Gassman, 90 Mass. App. Ct. 1 (2016). The extension hearing is nevertheless not a second chance to try the original case. The defense at an extension hearing is directed at continued need: what has happened since the order issued, what has changed, and whether the plaintiff’s evidence establishes a present need for protection from harassment.

Public Figures and Public Criticism

The protection for critics, commentators, and audiences of public people comes from two doctrines that apply in every case and do the most work when the plaintiff lives a public life.

The first is the constitutional limit from O’Brien and Van Liew. Speech about a person, however harsh, is an act of harassment only if it is constitutionally unprotected, principally a true threat or fighting words. Commentary, criticism, and accusations on matters of public concern are protected.

The second is the narrowed fear element. The statute addresses fear of physical harm or physical damage to property, and the SJC has said that fear of economic loss, of unfavorable publicity, or of defeat at the ballot box falls outside it. O’Brien, 461 Mass. at 427.

A public figure who is stalked, physically threatened, or subjected to a campaign of true threats is entitled to the same protection as any other plaintiff, on the same proof. The elements do not change in either direction.

What Crosses the Line

The analysis above is not an argument that 258E orders should never issue. The statute addresses genuine harm. Conduct that satisfies the standard under O’Brien, Seney, and Gassman includes the following.

• Repeated threatening communications, meaning emails, texts, or messages that convey explicit or implied threats of physical harm. True threats are exactly what the statute covers
• Showing up at the plaintiff’s home or workplace uninvited after being told to stop, in circumstances that communicate a threat of harm
• Targeted online campaigns built on threats or menace, designed to place the plaintiff in fear for personal safety
• Following or surveilling the plaintiff in physical space over time, conduct that also risks a stalking charge under G.L. c. 265, § 43
• Contacting the plaintiff’s family members, friends, or employer in a manner intended to intimidate the plaintiff or place the plaintiff in fear
• Any single enumerated offense, most commonly criminal harassment under G.L. c. 265, § 43A or stalking under G.L. c. 265, § 43

The criminal harassment statute was amended in 2024. Chapter 118 of the Acts of 2024 amended G.L. c. 265, § 43A to address abuse accomplished through digitization, including computer-generated deepfake imagery. I covered that amendment in my post on the Massachusetts revenge porn law. A single act violating § 43A can support a 258E order under the single-act definition.

The distinguishing feature of all of these is the combination of cruelty, hostility, or revenge, an intent to place a specific person in fear, and conduct that causes fear of physical harm or property damage. Attention, however intense or unwelcome, is different from targeted harassment.

The Criminal Statute Behind the Civil Standard

The three-act architecture of 258E has a criminal counterpart. Criminal harassment under G.L. c. 265, § 43A(a) requires proof beyond a reasonable doubt of a knowing pattern of conduct or series of acts on at least three separate occasions. The defendant must have intended to target the victim on each occasion.

The conduct must have seriously alarmed the victim, and it must have been of a kind that would cause a reasonable person to suffer substantial emotional distress. The defendant must have acted willfully and maliciously. Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). Commonwealth v. Welch, 444 Mass. 80 (2005), fixed the three-incident minimum.

The penalties are set by the statute. A first offense is punishable by up to two and one half years in a house of correction, a fine of up to $5,000, or both. G.L. c. 265, § 43A(a). A second or subsequent offense is punishable by up to two and one half years in a house of correction or up to ten years in state prison, by a fine of up to $15,000, or by both. G.L. c. 265, § 43A(c). The same penalties apply to a § 43A offense committed after a stalking conviction.

The firm’s page on criminal harassment defense in Massachusetts explains the statute and the defenses in full. The firm’s criminal harassment FAQs give short answers to common questions.

The constitutional limits described above apply with at least equal force to the crime. Commonwealth v. Bigelow, 475 Mass. 554 (2016), was a prosecution built on letters about a town selectman’s performance. The Supreme Judicial Court held that where the charged acts are pure speech, the jury must find the speech constitutionally unprotected as a true threat. The Court reversed a conviction where the jury received no such instruction.

The pattern can also be assembled online. In Commonwealth v. Johnson, 470 Mass. 300 (2014), false internet postings that sent strangers to the victims’ home counted as acts of harassment committed through third parties. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), the charged pattern consisted largely of social media postings about the complainant rather than messages to him.

A person served with a 258E harassment prevention order still faces the criminal statutes after service. Conduct after service can be charged as a criminal violation of the order under G.L. c. 258E, § 9 and as criminal harassment at the same time. The Commonwealth can charge the conduct as stalking under G.L. c. 265, § 43 if the conduct also includes a threat. For these reasons, a person who learns that an application has been filed should stop all contact and speak with a lawyer at once, before the conduct can amount to three acts.

After Service of a 258E Harassment Prevention Order

A person served with a 258E harassment prevention order application has the right to appear at the hearing after notice and contest the order. The hearing is civil, not criminal, so the person has no right to a court-appointed attorney. The person does have the right to retain counsel, to present evidence, and to challenge the plaintiff’s account. At the end of the order’s term, the plaintiff must prove that an extension is reasonably necessary to protect the plaintiff from further harassment, under the rules described above.

A person who has been served should take the following steps right away.

• Do not contact the plaintiff in any way, not directly, not through a mutual friend, not on social media. The order is enforceable against the defendant once the defendant has been served or otherwise knows of the order. Any contact is a criminal violation under G.L. c. 258E, § 9, punishable by up to two and one half years in a house of correction, a fine of up to $5,000, or both, and the violation case proceeds through the ordinary Massachusetts criminal process
• Preserve all evidence, including every social media communication, every email, every text, and every record of the interactions the plaintiff has characterized as harassment
• Write down a detailed account of every alleged interaction while the events are fresh
• Retain counsel before the hearing date

Related Serpa Law Office Resources: Massachusetts 258E Harassment Prevention Orders: Defense and Plaintiff Representation, Violating a 258E Harassment Prevention Order in Massachusetts, and Massachusetts 209A Restraining Orders (Abuse Prevention Orders).

Key Takeaways

• Under G.L. c. 258E, § 1, the three-act definition requires three or more willful and malicious acts aimed at a specific person, each committed with the intent to cause fear, intimidation, abuse or damage to property, and the course of conduct must in fact cause one of those harms
• Malice under the statute and O’Brien v. Borowski, 461 Mass. 415 (2012) means conduct characterized by cruelty, hostility, or revenge. Unwelcomeness, even genuine unwelcomeness, is not malice, and persistence alone is not harassment. R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019)
• Where the alleged acts are speech, they must be constitutionally unprotected, principally true threats or fighting words. After Counterman v. Colorado, 600 U.S. 66 (2023), a true threat requires at a minimum the speaker’s recklessness about how the statement would be received
• The fear the statute addresses is fear of physical harm or physical damage to property. Under the three-act definition the fear is measured subjectively, with no reasonable person test, but a petition routed through G.L. c. 265, § 43A is subject to that statute’s objective element. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016); A.S.R. v. A.K.A., 92 Mass. App. Ct. 270 (2017)
• Each act must be aimed at the plaintiff. Acts routed through third parties count where their object was the plaintiff, and three acts means three. Seney v. Morhy, 467 Mass. 58 (2014); Commonwealth v. Johnson, 470 Mass. 300 (2014)
• An extension requires proof that it is reasonably necessary to protect the plaintiff from further harassment. Neither side retries the original order, and a quiet year alone is not sufficient ground to deny the extension. Danny D. v. Eli E., 102 Mass. App. Ct. 901 (2023); Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252 (2022); G.L. c. 258E, § 3.

Contact Serpa Law Office at 617.936.0201 for a free consultation on a 258E matter. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.