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, 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, acquitted him of the other, and acquitted him 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 it. The case turned entirely on which account the jury believed.

The Prosecutor’s Closing Argument

The defendant identified a series of improper statements in the closing. Three categories mattered most. First, the prosecutor told the jury that false accusations motivated by revenge or anger “doesn’t happen.” That statement was improper vouching, because it 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, which no witness had said. 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 these were definitive assertions of guilt, not argued inferences.

The Appeals Court’s Decision

Trial counsel had not objected, so the Appeals Court reviewed for a substantial risk of a miscarriage of justice, and it found one. The case was the complainant’s word against the defendant’s, and the improper remarks went to the heart of the case: her credibility. The judge’s instructions that closing arguments are not evidence came before the closings and were not repeated afterward, and the panel concluded that these standard instructions could not cure errors of this significance. Commonwealth v. Dirgo, 474 Mass. 1012, 1017 (2016). The court vacated the judgment and set aside the verdict. It rejected the defendant’s separate argument that the absence of a specific unanimity instruction was structural error, reviewing that omission under the same substantial risk standard, Commonwealth v. Palermo, 482 Mass. 620, 629 (2019), and it held that the defendant’s double jeopardy argument was premature: if the Commonwealth seeks a retrial, the defendant may then move to dismiss. 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, and this decision confirms that the rules of argument are strictest exactly there. Jurors are the sole judges of credibility, and they want to do that job on the evidence; an argument that tells them the complainant must be believed because false accusations do not happen takes the decision away from them. 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. It is also a reminder that a jury verdict is not always the last word: this conviction was vacated on appeal, and the split verdicts at trial, acquittals on two of the four charges, show a jury that 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. What each record shows and what can be done about it is treated in Domestic Violence Case Records in Massachusetts. A defendant who prevails on appeal should address the records question as part of finishing the case.

The Bottom Line for a Pending Case

A domestic violence trial that comes down to one person’s word against another’s is winnable, and it is also protectable 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 Coercive Control Definition

Chapter 209A defines abuse as the occurrence of any of four categories of acts between family or household members: 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, or coercive control. G. L. c. 209A, § 1. The fourth category is the newest. It was added by An Act to Prevent Abuse and Exploitation, St. 2024, c. 118, which took effect on September 18, 2024, the same statute that 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 that causes that person 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, damaging property, and, as 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 that definition matter 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 it to that statutory effect.

The Facts of the Case

The plaintiff filed a complaint on May 14, 2025, seeking a harassment prevention order under G. L. c. 258E. When the defendant did not appear at the scheduled two-party hearing, a judge issued an ex parte abuse prevention order under c. 209A instead. At the next hearing, on June 11, 2025, the plaintiff appeared pro se, the defendant appeared with counsel, and a second judge extended the 209A 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 and 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 from 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). Before the “potent remedies” of a 209A order may be administered, there must be sufficient “objective evidence” to support the order. 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), and 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 those 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 court acknowledged that the judge had steered the plaintiff away from details out of sensitivity, but that approach left the record with 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. Before any order premised on coercive control issues, the record must be clear about how the defendant’s conduct satisfies the statutory requirements, including not only the specific nature of the conduct but also how it caused the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy. That language 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 and that the Supreme Judicial Court has solicited amicus briefs in G.P. v. S.P., No. SJC-13947, on 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 that question. The pending case means that the ground rules for coercive control orders may change again within the year, and anyone litigating a coercive control allegation now 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 decision confirms that the two-party hearing is an evidentiary proceeding, not a formality. The plaintiff must prove specific conduct, and the judge must be able to evaluate that conduct against the statutory definition. General testimony that a partner was controlling, or that private matters were threatened with disclosure, 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 each element: 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. When a criminal investigation or a companion domestic violence charge is possible, the decision whether to testify at a 209A hearing implicates the Fifth Amendment in civil cases, and it should be made with counsel before the hearing, not at it.

For a person who has obtained an order, the lesson runs the other way. An order built on conclusory testimony is vulnerable 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.

The Records Question After a Vacated Order

Vacatur of a 209A order is not the end of the matter, because the order leaves records behind: the court file, the local police department’s file, and the entry in the statewide domestic violence record keeping system (DVRS) that judges consult in later cases. What a vacated order does and does not remove, and when expungement is available for an order obtained through fraud on the court, is covered in State and Federal Records of Massachusetts 209A and 258E Protective Orders. A defendant who wins on appeal should treat the records question as the second half of the case.

The Bottom Line for a Pending Case

Coercive control is now a distinct statutory basis for a 209A order, and it is being tested in the appellate courts for the first time. V.B. v. B.W.R.T. establishes that the new definition does not lower the evidentiary floor: 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 and 258E hearings in the district courts of Greater Boston. Anyone facing a hearing on a coercive control allegation, on either side of the courtroom, should get advice before the hearing date, because the record made that day is the record the Appeals Court will read.

This post explains which record systems hold a Massachusetts restraining order, meaning a 209A 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, upon a vacatur (dismissal, termination or non-extension) of a restraining order in Massachusetts to notify the appropriate law-enforcement agency and direct that agency to destroy “all records” of the vacated order. The relevant law enforcement agency under this rule is your local police department and that of 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. They do not expressly require deletion from those statewide systems. Massachusetts appellate decisions construe that difference 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 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 proceedings as the “statewide domestic violence record keeping system maintained by the office of the commissioner of probation.” It directs the judge, when considering a complaint, to search that system and review the resulting information. G.L. c. 209A, § 7. When an order requiring the defendant to vacate, refrain from abuse, or have no contact issues, the statute requires the register or clerk-magistrate 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 Restraining Orders (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 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

Massachusetts 209A and 258E Dismissals: The Effect of the Statutory Language

What the statutes expressly require

For both types of orders, the statutory command is triggered 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 a recent 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

Massachusetts appellate authority draws a distinction 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 proceedings.

In substance, those decisions 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 408-410; 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. When considered with out federal record rules, this likely means 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. It tracks 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: it should clear an entry when notified by the court that the order was cancelled, and delete it when the order was expunged or found tp 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. Its 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, before retirement from general NCIC-user access. FBI, NCIC Privacy Impact Assessment (2023)

4. Conclusion

The sum and substance is that a Massachusetts vacatur triggers a mandatory destruction directive to the relevant law-enforcement agency under both c. 209A and c. 258E. This is your local police department and that of the plaintiff. That statutory text does not, however, direct removal from the statewide Commissioner of Probation systems including the domestic violence database. The controlling Massachusetts cases treat the statewide entry as 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. If inactive for whatever reason, the entry should be appropriately cleared, cancelled, modified, or allowed to expire. Federal NCIC materials separately contemplate 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. When that happens 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 and cannot come in unless the accuser testifies. Crawford v. Washington, 541 U.S. 36 (2004).

Under Davis, the officer’s purpose determines 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 stated the rule more favorably to the defense than the federal courts have, holding 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.” Gonsalves also holds the point that organizes this whole analysis: “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, a usage it adopted in Commonwealth v. Gonsalves, 445 Mass. 1, 4 n.1 (2005), and reiterated 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: 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”), and 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: “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

If the Commonwealth argues that my client forfeited the right to confront the accuser, I meet that directly. Forfeiture requires three findings: “(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. Even where forfeiture is found, there is a reliability backstop worth preserving: 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

When the Commonwealth wins the fight to admit the accuser’s words, it exposes that person to impeachment.

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. Where the statement is testimonial, impeachment is not a substitute for confrontation. 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: “[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 strongest ground, and it is 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, and 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, and 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 now obtain a 209A 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 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 one of three single acts that the statute lists. 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. Because the statute provides that the pattern includes, but is not limited to, these examples, 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 at least three acts.

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).

A Pattern of Three or More Acts

The first element is a pattern of behavior. The commentary to § 1:00A of the Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct. 2025) states that “to demonstrate a pattern of behavior, the plaintiff must make a showing of three or more acts.” The Appeals Court quoted that commentary in M.A. v. T.D., No. 25-P-559 (Mass. App. Ct. Mar. 10, 2026).

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.

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. Because the statute requires that the fear be reasonable, 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.

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 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 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.

The Supreme Judicial Court has invited briefs from nonparties (amicus briefs) in G.P. v. S.P., No. SJC-13947, 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.

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.

When a plaintiff’s alleged pattern includes acts before September 18, 2024, defense counsel should object at the hearing to any finding of coercive control based on the earlier acts. 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 the 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. If a defendant is convicted of violating a 209A order, the possible penalties are a fine of up to $5,000, up to two and one half years in a house of correction, or both. When a defendant is convicted of a violation, the judge must also order the defendant to complete a certified batterer’s intervention 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 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 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.

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

Every 209A 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. When the defendant also faces a criminal charge, the firm’s page on domestic violence defense and its domestic violence FAQs describe the criminal case. 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 three or more acts, each intended to threaten, intimidate, harass, isolate, control, coerce or compel compliance, that caused the plaintiff to reasonably fear physical harm or to have a reduced sense of physical safety or autonomy.
• A single act is coercive control only when the defendant 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, with the intent and 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 order based on coercive control is a crime under G.L. c. 209A, § 7.

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

That distinction decides the extension. 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 existence of the order does not relieve the plaintiff of the burden of proving that continued protection is necessary. The evidence should address that present question directly.

The Ten-Day Hearing and the Later Extension Hearing

A 209A 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. If it does, the court must give the defendant an opportunity to be heard within ten court business days. That hearing is ordinarily the defendant’s first opportunity to appear, present evidence, and challenge the request for an order.

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

The Plaintiff Has the Burden of Proof

The plaintiff must prove the facts necessary for an extension by a preponderance of the evidence. That means 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 209A Guideline 6:08 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. When an order rests on fear of imminent serious physical harm, the court considers whether that fear remains reasonable. When it rests on actual physical harm or forced sexual relations, the absence of a new threat does not necessarily answer whether protection remains necessary. The hearing should therefore focus on the statutory ground that supports the order, not a single formula applied to every case.

An Extension Hearing Does Not Retry the Original Order

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, and 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.

This distinction helps organize a defense. Evidence should not merely argue that the first judge was wrong. It 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 proceeding is civil, and courts apply the law of evidence flexibly 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. It may 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. The purpose is not to turn every minor inconsistency into an accusation. It 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 be important 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. Their value depends on authenticity, completeness, timing, and relevance, not simply on 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. The change did not make every unpleasant, possessive, or controlling interaction sufficient for a 209A 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. It 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.” The current Trial Court guideline interprets a pattern to require three or more acts, each committed with the specified intent, but that numerical construction does not appear in the statutory text.

The statute also identifies three narrow categories that may qualify as a single act: harming or attempting to harm a child or relative; committing or attempting to commit abuse to an animal connected to the family or household member; and 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.

Testifying When a Criminal Case Is Pending

A 209A extension hearing may occur while related criminal charges are unresolved. Testimony given in the civil hearing can affect the criminal case. If a party validly invokes the Fifth Amendment in the civil hearing, the judge may draw an adverse inference but is not required to do so. That inference cannot alone support the order and does not shift the plaintiff’s burden of proof. The decision whether to testify should be made only after considering both matters together. The firm’s page on the Fifth Amendment in Massachusetts restraining-order cases explains that conflict.

The Existing Order Must Be Followed Until It Ends or Changes

While an order remains in effect, only the court can change it. A plaintiff cannot give the defendant legal permission to disregard a no-contact or stay-away provision. Invited contact can still lead to 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 it unless and until the court does so.

The firm’s 209A and 258E restraining order violation FAQs explain 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 Recent Woburn Extension Hearing

In 2025, a Woburn District Court judge declined to extend a 209A 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.

That result depended on the evidence and circumstances of that case. It does not predict the outcome of another hearing. It does illustrate why an extension case should be prepared around 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?

When a 209A order expires, its operative restrictions end. 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, other court orders, and state and federal eligibility rules remain separate.

Expiration also does not erase the record from the Statewide Registry of Civil Restraining Orders. 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 Extension Hearing

An extension hearing should be prepared 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 broader framework is collected on the firm’s Massachusetts 209A restraining-order page and domestic-violence defense page.

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

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. What follows assumes that framework.

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 209A or 258E hearing may listen to a secret recording because the rules of evidence do not strictly apply, but the plaintiff still must 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 and 209A Cases

Three features of a domestic case combine to produce recordings that create exposure for the person who made them.

The parties live or lived together, so conversations occur in private settings where no one announces anything. The dispute is continuing, so one side has both motive and opportunity to document the other. And the civil order session moves quickly, often within days, which rewards whoever arrives with something concrete.

The result is a recording made in a home, without the other person’s knowledge, offered by the person who made it. Under § 99 that is an interception, and offering it is a separate act.

What Happens at the 209A or 258E Restraining 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, and the suppression remedy in § 99 P by its terms belongs to a defendant in a criminal trial.

Two further holdings in Frizado bear directly on how a recording is met. The plaintiff must prove the case for relief by a preponderance of the evidence, so a recording that does not establish the statutory grounds does not establish the order simply because the judge listened to it. And a defendant has a general right to cross-examine the witnesses against him, subject to the judge’s discretion to limit it for good cause. Where a recording is offered, that right is the mechanism for establishing what the recording leaves out.

The questions that matter at that hearing are ordinary evidentiary questions asked informally. Who made the recording, and on what device. When it starts, and what preceded it. Whether it is complete or an excerpt. Whether it has been edited, trimmed, or re-saved. Whether the voices can be identified. 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 Create a Separate Charge

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 that offense 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 civil action under § 99 Q follows the same conduct, and 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.

This exposure is not limited to one side. It runs against whoever made and used the recording, which in these cases 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 that assumption is frequently wrong.

Where a private person made the recording and no police or governmental conduct was involved, the Supreme Judicial Court has held that suppression serves no deterrent purpose. Commonwealth v. Santoro, 406 Mass. 421 (1990); Commonwealth v. Rivera, 445 Mass. 119 (2005). The defendant has standing to move under § 99 P, and the Court has described the balance as one the Legislature left to the courts to strike in each case, but the absence of government involvement is ordinarily decisive.

The analysis changes where police participated in the interception, and it changes again 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, and 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

The most common way a restraining order hearing damages a related criminal case is not the recording itself. It is the testimony given about it.

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. And a defendant who testifies at the civil hearing to explain a recording has testified under oath before the criminal case is developed, without the protections that attach at a criminal trial. The relationship between silence and testimony in that setting 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. That statute covers conduct directed at a witness or potential witness that is intended, or made with reckless disregard, to impede an investigation or proceeding. A recording used as leverage in a domestic case is a recurring fact pattern in these prosecutions.

What to Do With a Recording That Already Exists

Do 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, and often it is more than one of those at once.

Bring the original file rather than a forwarded copy, along with the device it was made on if that is possible, because the metadata answers questions that argument cannot. Note the date, the setting, who was present, and whether anything was said about recording. Whether the other person knew is the element on which the analysis turns, and small facts decide it.

There is usually a lawful route to the same conclusion. Testimony, messages, medical records, police reports, and the other side’s own filings prove what the recording was meant to prove, without converting the person holding the phone into a defendant.

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 these 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 defending 209A and 258E restraining order violations and the Massachusetts wiretap and secret recording FAQs.

The practical setting changes how the hearing runs. 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 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, and an extension is not automatic. But a defendant should not assume that taking the stand will change the civil result enough to justify the criminal risk.

The safer defense often relies on 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 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 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.

That timing makes early testimony 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 209A testimony with a police report, grand-jury testimony, 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.

The question is therefore not simply whether testimony might help at the 209A hearing. Counsel must decide whether that possible benefit justifies giving the prosecution a sworn account before the criminal evidence is complete.

The Defendant’s Fifth Amendment Right

When the 209A defendant also faces a related criminal charge or investigation arising from the same alleged conduct, the basis for invoking the privilege against self-incrimination is apparent from the criminal exposure. 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.

This is not the uncertain privilege claim of an unrelated witness whose answer may or may not create criminal exposure. The defendant already faces that exposure. The Fifth Amendment and Article 12 of the Massachusetts Declaration of Rights protect the defendant from compelled testimony about it. 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. It does not prevent the 209A judge 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 hearing is civil. Sections 525 and 1106 of the Massachusetts Guide to Evidence permit the 209A judge to draw an adverse inference when the defendant invokes the privilege against self-incrimination.

The inference has an important limit. Under Frizado v. Frizado, 420 Mass. 592 (1995), the judge cannot issue an order based on the 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 extension hearings, evidence, and burden of proof explains those requirements in greater detail.

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

How 209A Testimony Can Damage the Criminal Case

Testimony at a 209A 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.

Taking the stand also permits cross-examination. The plaintiff or the plaintiff’s lawyer may ask about details that the defense did not intend to address. Once the defendant gives a sworn account of the incident, the defense cannot control every follow-up question or erase an answer that creates a problem.

As a practical matter, testimony almost always presents the greater danger when the same allegations support a pending criminal case. Counsel should recommend it 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 Hearing Either Way

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

The risk of testifying is not that a record will suddenly exist. The record already exists. Testimony adds the defendant’s sworn account to it and preserves that account for possible use in the criminal case.

Defending the 209A Case Without the Defendant’s Testimony

Declining to testify does not mean declining to defend the case. 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 important. 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. Although 209A hearings apply the rules of evidence more flexibly than criminal trials, the source and reliability of the material still matter. 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 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 article on self-defense and mutual combat in Massachusetts domestic violence cases explains how the evidence may distinguish an unlawful assault from defensive conduct.

The Appeals Court decision discussed in V.B. v. B.W.R.T. and coercive control illustrates the central point. 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.

When Testimony May Still Be Worth the Risk

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

That combination is uncommon 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. It does not mean creating a version of events. If the defense cannot identify a substantial civil benefit that justifies the criminal exposure, the defendant should not testify merely because remaining silent feels uncomfortable in the courtroom.

The Criminal Case Usually Will Not Delay the 209A Hearing

A pending criminal charge or investigation does not ordinarily postpone a 209A hearing. The court must address the plaintiff’s request for protection, and 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 build its strategy around the assumption that the judge will wait for the criminal case to end.

Consequences of an Extended 209A Restraining Order

The testimony decision must account for the terms that the judge may impose. A 209A order can prohibit contact, require the defendant to stay away, exclude the defendant from a residence, and address temporary custody or support. It 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. Contact that violates a no-contact provision can produce a separate criminal charge for violating a 209A restraining order.

Firearm surrender and licensing require separate attention. M.G.L. c. 209A, Sections 3B and 3C govern surrender at different stages of the protective-order proceeding. The firm’s current article on firearms after a domestic violence charge or 209A order explains those state and federal rules.

How Attorney Serpa Prepares for Both Proceedings

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He begins with the 209A 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.

The preparation treats the 209A hearing and 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 makes the testimony decision before the hearing after reviewing both cases, not in response to pressure in the courtroom.

Serpa Law Office represents clients in 209A 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 Hearing While a Criminal Case Is Pending?

Usually not 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, cross-examination and independent evidence provide the safer defense.

Can a 209A Judge Consider the Defendant’s Decision Not to Testify?

Yes. Because the hearing is civil, 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?

Not when the defendant faces a related criminal charge or investigation arising from the same alleged conduct. The criminal exposure supplies 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 Hearing Recorded if the Defendant Does Not Testify?

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

Can a Prosecutor Use 209A Hearing Testimony 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 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.

In Massachusetts, once the evidence fairly raises self-defense, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense. When both people used force during a domestic incident, the arrest decision does not resolve whether either person acted in self-defense. The criminal case requires a closer analysis of who initiated the confrontation, whether either person agreed to fight, how the force escalated, and whether the defendant’s response was reasonably necessary.

Those distinctions apply in prosecutions for assault or assault and battery on a family or household member under G.L. c. 265, § 13M. They also apply when the Commonwealth charges simple assault and battery, assault and battery with a dangerous weapon, strangulation, or another offense arising from the same event.

Key Takeaways

• Self-defense is a complete justification. Once the evidence fairly raises it, the Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense.
• Mutual combat means an agreement to fight, not any incident in which both people used force. An agreement is not assumed because each person struck the other.
• Sharing a home does not remove the duty to use reasonable means to avoid combat. G.L. c. 278, § 8A applies to a person unlawfully in the dwelling, not to two lawful occupants.
• First-aggressor evidence under Adjutant requires written notice under Mass. R. Crim. P. 14.3(c) and permits the Commonwealth to respond with the defendant’s own prior violent conduct.

Self-Defense Remains the Commonwealth’s Burden

Self-defense in Massachusetts is a complete justification. Once the evidence fairly raises it, the defendant bears no burden of persuasion. The Commonwealth must prove beyond a reasonable doubt that the accused did not act in self-defense. If it fails to prove that the accused did not act in self-defense, the verdict must be not guilty.

For nondeadly force, the current Massachusetts model instruction addresses an actual and objectively reasonable concern for immediate personal safety. It also addresses reasonable efforts to avoid combat, proportional force, and whether the defendant was the first aggressor. Deadly force is governed by a separate and more demanding standard.

Evidence that both people made physical contact does not by itself refute self-defense. One person may have attacked and the other may have responded with reasonably necessary force. The sequence, the level of force, and any opportunity to avoid further combat must be evaluated from the evidence rather than the arrest label.

Mutual Combat Is Not the Same as Self-Defense

The term “mutual combat” has a narrower meaning than an incident in which both people used force. The notes to the Massachusetts self-defense instructions explain that when two people agree to engage in a fistfight, neither generally acts in self-defense because neither used all reasonable means to avoid combat.

An agreement to fight can be express or inferred from conduct, but it should not be assumed merely because each person struck the other. A responsive use of force after an unlawful attack is analytically different from a fight entered by agreement. The jury must consider the circumstances leading to the first physical act and what each person did next.

Withdrawal and Unexpected Escalation

A first aggressor may regain the right to self-defense by withdrawing in good faith and clearly communicating that withdrawal. If the other person continues the attack, the renewed use of force must still satisfy the requirements of necessity and proportionality.

Massachusetts law also recognizes an important limit on agreed combat. A person may regain the right to defend if that person believes the other participant, contrary to their mutual understanding, has introduced or threatened deadly force, and that belief is objectively reasonable. The responsive force must still satisfy the applicable requirements of reasonable avoidance, necessity, and proportionality.

Shared Homes Do Not Create an Automatic No-Retreat Rule

Massachusetts’s dwelling statute is often misstated in domestic cases. G.L. c. 278, § 8A removes the duty to retreat when a lawful occupant is charged with killing or injuring a person unlawfully in the dwelling, reasonably believes that person is about to inflict great bodily injury or death on the occupant or another lawful occupant, and uses reasonable means to defend.

The statute does not create an automatic no-retreat rule between two lawful occupants of the same home. In that setting, the ordinary self-defense analysis includes whether the defendant used or attempted to use all reasonable means available to avoid physical combat. A person need not take an unsafe avenue of retreat, but shared residence alone does not remove the avoidance requirement.

First-Aggressor Evidence Under Adjutant

When the identity of the first aggressor is genuinely disputed, the defense may ask the judge to admit specific violent incidents that the alleged victim initiated, even if the defendant did not know about them at the time. Commonwealth v. Adjutant, 443 Mass. 649 (2005). The rule is discretionary. Mass. R. Crim. P. 14.3(c) requires detailed written notice no later than 21 days after the pretrial hearing unless the judge sets another time for good cause. Offering the evidence permits the Commonwealth to respond under Commonwealth v. Morales with the defendant’s own prior violent conduct. The firm’s article on Adjutant evidence and prosecution rebuttal explains the limits, reciprocal notice, balancing test, and limiting instructions.

The Fifth Amendment and Spousal Rules Are Separate

A complaining witness who may have committed an offense during the same incident can have a valid privilege against self-incrimination. The privilege is not automatic merely because both people used force. Under Massachusetts Guide to Evidence § 511, the judge determines whether an answer could present a real danger of legal detriment.

The privilege ordinarily must be asserted in response to particular questions. A witness may be permitted to assert it more broadly when most or all relevant questions would create the same danger. Statutory immunity may be available in some proceedings and for some offenses. If immunity is lawfully granted, the witness can be compelled to testify within its scope.

The spousal testimonial rule is different. Under G.L. c. 233, § 20, a currently married witness-spouse generally cannot be compelled to testify against the defendant-spouse at the trial of a criminal case, subject to statutory exceptions. The choice belongs to the witness-spouse. The separate rule for private marital communications has different exceptions and should not be treated as the same privilege.

Neither privilege guarantees dismissal. The Commonwealth may have other admissible evidence, the court may reject an unsupported Fifth Amendment claim, and the scope of a valid privilege may be narrower than the prosecution’s entire examination.

Contact with the Complaining Witness Can Create New Charges

A defendant should not discuss testimony, nonappearance, recantation, or privilege with the complaining witness. Contact may violate a release condition or a 209A order even when the witness initiated it.

G.L. c. 268, § 13B applies to specified willful conduct against a covered person. The statute includes threats, attempts or acts causing physical, emotional, or economic injury or property damage; offers of value; and misleading conduct, intimidation, or harassment.

The Commonwealth must also prove the required mental state. It must prove intent to interfere with a listed proceeding or to punish, harm, or otherwise retaliate against a covered person for participation in one, or reckless disregard that the conduct may have either effect.

Forfeiture by wrongdoing is also not automatic. The Commonwealth must establish the governing intent and causation requirements, and Massachusetts adds a reliability requirement for the statement it seeks to admit. A routine conversation is not necessarily intimidation or forfeiture, but direct contact about the case can create serious evidentiary and criminal consequences. Communication should proceed through counsel.

A Missing Witness Does Not End the Evidence Analysis

The prosecution does not control a witness’s privilege, but it does decide whether to continue the case with other evidence. Police observations, authenticated recordings, photographs, medical evidence, and a defendant’s admissible statements may remain available. Recorded statements require a separate hearsay analysis, and testimonial statements may also implicate the Confrontation Clause.

A 911 statement or body-camera recording is not automatically admissible merely because it was recorded. The purpose and circumstances of the statement control the analysis. The firm’s discussions of excited utterances and the Confrontation Clause and recantation in domestic violence cases explain those separate issues.

Evidence That Can Distinguish Defense from Aggression

Self-defense analysis begins with the sequence of events. A complete 911 recording may show who sought help, what was said before police arrived, and whether either account changed. Body-camera footage may show demeanor, injuries, the physical setting, and statements made close in time to the incident.

Injuries should be documented promptly and from more than one angle. Medical records may help explain whether an injury is consistent with offensive or defensive conduct. Digital evidence should be preserved in full rather than as selected screenshots. The messages before and after the event may provide context that a single image omits.

Prior incidents require their own proof. A defense investigation may identify witnesses, recordings, photographs, or court records that lead to admissible evidence. The investigation should also account for potential rebuttal concerning the defendant. The decision to offer first-aggressor evidence should follow that complete assessment.

Building a Domestic Self-Defense Case

A careful defense identifies the charged form of assault or battery, the level of force the Commonwealth alleges, and every applicable self-defense proposition. It then tests each item of evidence for admissibility and completeness. The broader Massachusetts domestic-violence defense page explains the criminal process and the civil proceedings that may occur at the same time.

Serpa Law Office represents defendants in domestic assault, self-defense, dangerous-weapon, strangulation, and related 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
• Adjutant Evidence and Rebuttal in Massachusetts Self-Defense Cases
• Strangulation or Suffocation in Massachusetts
• Assault and Battery with a Dangerous Weapon
• Intimidation of a Witness
• Massachusetts Domestic Violence Law FAQs

A Massachusetts domestic violence arrest can end a defendant’s access to firearms long before the criminal charge is resolved. A temporary 209A 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. A qualifying protective order or conviction triggers the federal prohibitions in 18 U.S.C. § 922(g)(8) and § 922(g)(9). Which consequence 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.

Those events are governed by different state and federal laws. A domestic violence charge alone does not automatically create the same federal prohibition as a qualifying protective order or conviction. It can, however, prompt a Massachusetts licensing review, and a related 209A or 258E order may require immediate surrender.

These distinctions arise because a person may face several proceedings at once. The criminal court controls bail and the prosecution. 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

Chapter 135 of the Acts of 2024 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. It 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, and 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 in 209A and other civil proceedings explains that decision.

Firearm Surrender Under a Temporary 209A Order

A temporary or emergency 209A order does not invariably produce a court-ordered firearm surrender under G.L. c. 209A, § 3B. The statute requires the plaintiff to demonstrate a substantial likelihood of immediate danger of abuse.

If the judge makes that finding, § 3B requires immediate suspension and surrender of the defendant’s LTC or FID card, firearms, and ammunition. The order may issue without the defendant present. When police serve it, they are directed to take immediate possession of the covered items.

A violation 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.

If a firearm or ammunition is required for the defendant’s employment, § 3B provides a narrower expedited procedure. 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 a 209A Firearm 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. This is one reason the hearing after notice requires preparation. The evidence may determine both the civil restrictions and the person’s access to firearms.

If circumstances later change, a motion to modify or terminate the 209A restraining order requires its own evidence and legal analysis. Agreement by the plaintiff does not end the order or authorize the return of firearms.

Chapter 258E Now Has Separate Firearm Provisions

Chapter 135 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 order has different eligibility requirements from a 209A order, and it should be analyzed under its own statute. The firm’s Massachusetts 258E harassment restraining order guide explains those requirements. A separate page addresses firearm surrender in 258E proceedings.

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

Massachusetts licensing law creates an additional issue 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 or 258E 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 that action. Reinstatement is not available until every disqualifying condition has ended.

These licensing provisions 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 assuming that one document answers every question.

Suitability Review After an Arrest

An arrest may also prompt the local licensing authority to examine suitability. 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 existence of an arrest does not dispense with that standard. The underlying information, its reliability, the alleged conduct, the protective-order record, and the criminal disposition may all matter. A dismissal or acquittal can be important, but it does not automatically resolve a separate licensing decision. A dismissal does not remove the records the arrest created. The CORI entry, the police report, and the abuse designation under G.L. c. 276, § 56A remain, and the page on the records a dismissed domestic violence case leaves behind explains what survives and what sealing can remove.

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. Because the filing does not automatically restore possession or stay the licensing action, both the deadline and the requested relief should be addressed 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 it must contain the required credible-threat finding or prohibition against qualifying physical force.

An ex parte 209A order may require surrender under Massachusetts law even when it 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.

The decision 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.

Federal firearms law looks to the law of the jurisdiction where the proceeding occurred to decide whether a disposition counts as a conviction. Massachusetts does not treat a continuance without a finding as a conviction, so a Massachusetts CWOF alone generally does not trigger § 922(g)(9), even though federal immigration law treats the same disposition as a conviction. A CWOF can still produce separate Massachusetts licensing consequences. The federal question should be analyzed before the plea or admission is entered.

It is also inaccurate to describe every § 922(g)(9) prohibition as 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.

Those provisions are technical, and a person should not possess a firearm unless counsel has confirmed that both federal and Massachusetts law permit it.

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.

Moving a firearm to a relative’s home without legal authorization may leave the defendant with possession or control and may violate the order. A plaintiff’s consent does not change the order. Nor does later communication, reconciliation, or recantation in the domestic violence case.

G.L. c. 140, § 129D regulates storage and transfer after a licensing surrender. It 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 that procedure.

The statute also imposes time limits that can lead to auction after one year, and storage charges may accrue. Ownership, lawful transfer, evidence status, and any return request should therefore be addressed before those issues become urgent.

Separate Criminal Charges Involving Firearms

Failure to surrender may create 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.

Those allegations require 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. When the prosecution seeks preventive detention, the standards are explained in the article on dangerousness hearings under G.L. c. 276, § 58A.

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. If the licensing authority refuses reinstatement, the written decision, review deadline, and available District Court remedy should be examined immediately.

No firearm should be retrieved or possessed until both state and federal eligibility are confirmed. The correct answer 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

The review begins with 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 Fifth Amendment, 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 and 258E 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 Restraining Orders (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 prosecution belongs to the Commonwealth. Massachusetts prosecutors generally follow a no-drop or evidence-based approach, which means they may continue without the complainant’s support. The broader arrest, 209A, and defense framework appears on the firm’s Boston Domestic Violence Defense Lawyer page and in our explanation of how these cases are charged and resolved in Massachusetts.

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.

One of the most misunderstood questions is whether the complaining witness can simply drop the charge. A complainant may express a preference or decline voluntary cooperation, but cannot unilaterally dismiss a Massachusetts criminal case.

The charging and dismissal decisions belong to the Commonwealth. Our 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 Sixth Amendment adds another layer when 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 framework is discussed in our companion article on excited utterances, forfeiture by wrongdoing, and the Confrontation Clause.

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

Handled lawfully through counsel, a genuine recantation can matter, sometimes decisively. 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 restraining order (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 use different burdens of proof, permit different relief, and require different findings. Neither result controls the other. Where speech supplies the alleged acts, the First Amendment limits both proceedings.

The 258E Harassment Restraining 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 that temporary order issues.

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

Chapter 258E covers harassment by anyone, which sets it apart from the 209A restraining order (abuse prevention order) that governs family and household relationships in Massachusetts domestic violence cases. Once a 258E order issues, disobeying it becomes a separate crime, a subject our 209A and 258E restraining order violation FAQ addresses in detail.

The relief available under a 258E order is broad. 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 order also has a firearms consequence. 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 restraining 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. The fine ceiling rises to $15,000, and imprisonment and a fine may be imposed together. G.L. c. 265, § 43A(c).

Section 43A also contains a second, separate offense. Subsection (b) punishes a single act: knowingly distributing intimate visual material of an identifiable person without consent, including material produced by digitization, with its own penalties. The offense, and the computer-generated deepfake imagery it covers, are treated on the page on Massachusetts revenge porn and nonconsensual intimate images.

The 258E defendant holds real procedural rights at the civil hearing, and a defendant who is told otherwise may fail to use them. 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 rules developed for c. 209A hearings supply this procedure, and the SJC applies them to c. 258E. F.K. v. S.C., 481 Mass. 325 (2019).

The privilege against self-incrimination survives at the civil hearing. The judge may draw an adverse inference from the defendant’s silence, but that inference alone cannot meet the plaintiff’s burden. Frizado, 420 Mass. 592. For a client facing a parallel prosecution, this is the pressure point: silence protects the criminal case and costs the client in the civil one. A 258E defendant may appear with retained counsel, and an appeal from a 258E order goes to the Appeals Court as of right, even after the order expires. Seney v. Morhy, 467 Mass. 58 (2014).

What the criminal case alone provides is 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, and the rules of evidence need not be followed, provided there is fairness in what evidence is admitted and relied on. Frizado, 420 Mass. 592.

The consequence of this difference is significant. A 258E order can issue, and frequently does issue, in cases where a criminal harassment charge would not survive. A plaintiff who can meet the preponderance standard at a civil hearing 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 258E civil hearing should not assume that a criminal harassment charge will follow or succeed. The proceedings are separate and the standards are different.

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

Both statutes are built from the same parts, and precision here is where cases are won. 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 258E definition says the same thing in plain terms with its requirement of three or more acts. Each act must be willful and malicious, and an act that lacks either quality does not count toward the required three.

The counting has rules of its own. One continuous act cannot be parsed into its constituent parts to make three, and a single act is 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, and it requires no evil intent, ill will, or malevolence. Commonwealth v. McDonald, 462 Mass. 236, 242 (2012). Accidental contact and inadvertent communication fail the element. A client who says they meant nothing bad by the act is talking about malice, not willfulness. Willfulness asks only whether the act was deliberate.

Malicious. The two statutes define malice differently, and counsel should hold the plaintiff or the Commonwealth to the correct definition. For a 258E 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.

Under O’Brien v. Borowski, 461 Mass. 415 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014), the Supreme Judicial Court gave the harassment definition a narrowing construction precisely so that it would not apply to protected expression, which means aggressive but legitimate conduct falls outside it. 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.

None of them is engaged in malicious harassment, because each has a legal justification for the conduct.

The required harm. This is the element the two statutes define most differently, and the difference is easy to get wrong. A criminal § 43A charge contains two harm elements, and the Commonwealth must prove both. The pattern must have seriously alarmed this target, 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).

Serious alarm is measured against the whole pattern rather than incident by incident. Commonwealth v. Johnson, 470 Mass. 300 (2014). The alarm must also be the target’s own. Distress at what a spouse received is derivative, and the SJC reversed a criminal harassment conviction on exactly that ground. Commonwealth v. Bigelow, 475 Mass. 554 (2016).

A 258E order requires something different. Its three acts must be committed with intent to cause, and must in fact cause, fear, intimidation, abuse, or damage to property, and 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.

Whether the plaintiff was in fact placed in fear is judged subjectively, by what this plaintiff experienced, with no reasonable person overlay on the fear itself. Petriello v. Indresano, 87 Mass. App. Ct. 438 (2015); Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).

The subjective rule has a limit that decides speech cases. Where the acts said to be harassment are speech, the speech must independently qualify as constitutionally unprotected, and whether words are a true threat is measured objectively, by what they reasonably convey to the recipient in the circumstances. Commonwealth v. Cruz, 495 Mass. 110 (2024). A plaintiff’s sincere fear of protected speech supports no order and no conviction. Counsel who assumes the civil and criminal harm standards are the same will misjudge the case.

What Counts as an Act

Non-speech conduct counts. Concealing a GPS tracking device on a person’s vehicle is an act under § 43A, and it qualified 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, and acts of harassment can be directed at more than one person at the same time. Brennan, 481 Mass. 146.

The First Amendment: What It Protects and What It Does Not

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 258E standard and the criminal § 43A charge must be applied in a manner consistent with these protections. Where a harassment prosecution or a 258E order rests on protected expression, it is constitutionally defective.

The Supreme Judicial Court made this explicit for the criminal statute in Commonwealth v. Bigelow, 475 Mass. 554 (2016), holding that § 43A covers only constitutionally unprotected speech and 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 descend on 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 are not identical on the civil and criminal sides. For a 258E 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 other well-defined and limited categories also fall within § 43A, and the courts have applied speech integral to criminal conduct and defamation in that setting. 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 has 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 beyond a reasonable doubt that the defendant consciously disregarded a substantial risk that the communication would be viewed as threatening violence. The Court vacated a conviction because the jury received no instruction on that element.

The objective side survives alongside the new one: whether words are a true threat is still measured by what they reasonably convey to the recipient. Cruz also separates the two mental states: intending to deliver a statement to a person is not the same as understanding its threatening nature.

No Massachusetts appellate decision has yet applied Counterman to criminal harassment under § 43A. The question is open, and it is live in any § 43A prosecution built on speech, because Bigelow makes the protected-or-unprotected question a fact question within the first element. Where the Commonwealth’s pattern rests on statements offered as true threats, the defense should request an instruction requiring the Counterman mental state and preserve the issue if the instruction is refused.

Social Media and the First Amendment in Harassment Cases

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

The medium does not decide that question. Content and context do. 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, including 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.

Public posting is not a safe harbor. 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. The distinction between public commentary and private-sphere targeting still applies in practice. 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 different. Conduct of that kind 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, and the strongest support for it comes from the protected speech cases. 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 the same for the criminal statute.

Public figures keep the same protection 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 elements are the elements.

The setting still counts for the objective half of the criminal harm standard. What would cause a reasonable person substantial emotional distress depends on context, and under Salvatore a court views statements in the context of the conduct around them. The defense weakens where the conduct includes threats, private-sphere contact, or escalation after a clear statement that contact is unwanted.

The Difference Between Annoying and Criminal

The most practically important point in Massachusetts harassment law is that annoying, offensive, and even deeply distressing conduct is not automatically criminal. The statutes require more. They require willfulness, malice, and the required harm: under § 43A, serious alarm to this target together with distress a reasonable person would suffer, and under 258E, actual fear, intimidation, abuse, or property damage. The courts have been consistent that these 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.

Malice separates the two, together with whether the conduct has a legal justification and whether the pattern is something a reasonable person would find 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.

If You Have Been 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. A denial at the clerk-magistrate stage means no arraignment, no public CORI entry, and no criminal record. Our Massachusetts clerk-magistrate hearing FAQ explains what happens at that stage and how counsel prepares for it. For licensed professionals and non-citizens, stopping the case here eliminates the licensing and immigration consequences that arraignment triggers, consequences our licensed professional criminal defense FAQ addresses in detail.

One procedural rule from Salvatore applies at exactly this stage. Where a clerk-magistrate finds probable cause after hearing testimony, a motion to dismiss the complaint is ordinarily reviewed on a record that includes that testimony. 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 attack the complaint must protect the record at the hearing itself.

Whether the complaining witness can drop the charge is a common question, and the answer is the same here as in any Massachusetts criminal case. The decision belongs to the Commonwealth, not to the complainant.

When a case proceeds to arraignment and trial, the defense focuses on several things. It tests the sufficiency of each alleged act under the willful, malicious, and harm requirements. It raises First Amendment challenges to any act that is protected expression, and after Counterman it presses the mens rea question. It probes the credibility of the complainant and any inconsistencies in the account. And it attacks the absence 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 this target 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 order it is conduct characterized by cruelty, hostility or revenge; for a § 43A charge it 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 fall outside that protection
• 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 that rule to the threats statute in Commonwealth v. Cruz, 495 Mass. 110 (2024), and its application to § 43A is an open question the defense should raise
• A 258E civil order can issue at a lower burden of proof than a criminal § 43A charge requires. Losing a 258E hearing 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, and the defense protects 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

• Massachusetts stalking defense under M.G.L. c. 265, § 43
• Massachusetts 258E Harassment Restraining Orders (Harassment Prevention Orders)
• Violation of a 258E Civil Harassment Restraining 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. Each part has a different legal standard and can affect the others.

The process is not controlled by the complaining witness. Once a criminal complaint issues, the Commonwealth decides whether to prosecute. A request to withdraw the allegation, a reconciliation, or a decision not to testify can change the available evidence, but none automatically ends the case.

Marriage changes the analysis in one specific way. 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 who declines to testify cannot be forced. The private-conversation disqualification in the same section does not assist the defendant here, because it does not apply when the charge is a crime against the other spouse. Both clauses are set out on our Massachusetts spousal privilege and marital communications page.

This guide follows a Massachusetts domestic violence charge from the police response through arraignment, pretrial litigation, disposition, and trial. It also explains the points at which careful defense work can change the result.

What Makes a Criminal Charge a Domestic Violence Case

The most common charge 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. It covers spouses and former spouses, people who have a child together, and people in a substantive dating or engagement relationship. The prosecution must prove that relationship as an element.

Chapter 209A uses a broader definition for civil abuse prevention orders. It also includes relatives by blood or marriage and people who live or formerly lived together. A relationship may therefore support a 209A petition even when it 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 the officer witnesses or has probable cause to believe violated a qualifying protective order. When no order is 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 make every domestic call a mandatory arrest. It 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. When both sides accuse each other, the statute requires additional reporting if both are arrested.

An arrest usually removes the clerk-magistrate stage. If the police instead seek a complaint by application, the accused may have a clerk-magistrate hearing, 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. It is a restriction on the timing of bail after an adult arrest.

Arraignment, Bail Conditions, and No-Contact Orders

Arraignment is the first court appearance on the criminal complaint. The charge is read, a plea of not guilty enters, counsel appears, and the judge addresses release, conditions, and any request for a dangerousness hearing.

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

A criminal no-contact order and a civil 209A order are not the same. A 209A order requires a separate complaint and the findings required by Chapter 209A. It is not automatically issued merely because a domestic violence charge is arraigned.

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. The exact source and terms of an order should be confirmed from the court papers.

The Separate 209A Abuse Prevention Proceeding

A plaintiff may request a temporary 209A order without the defendant present, followed by a hearing after notice. The civil judge decides whether the plaintiff proved the applicable definition of abuse and whether relief is necessary. The criminal case applies proof beyond a reasonable doubt to the charged offense.

Because the proceedings are separate, one can continue after the other ends. Testimony given at a 209A hearing may also create evidence for the criminal case. A defendant with both matters pending should make a coordinated decision about testifying while the Fifth Amendment is implicated.

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

Firearms and a 209A Order

A criminal accusation does not by itself apply every firearm consequence in Chapter 209A. For a temporary or emergency order, G.L. c. 209A, § 3B requires suspension and surrender when the plaintiff demonstrates a substantial likelihood of immediate danger of abuse. Section 3C applies a likelihood-of-abuse standard to continuing the suspension and surrender at the hearing after notice. The firm’s guide to firearms after a domestic violence charge or protective order separates the state and federal rules.

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, including a misdemeanor or felony involving abuse as defined in Chapter 209A and certain charges brought while a protective order was active. Detention requires 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 that procedure 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 those routes in more detail.

911 Calls, Body Cameras, and Digital Evidence

The prosecution and defense should preserve the original evidence. That 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. It 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.

Phone evidence requires attention to 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. It does not automatically establish intimidation or forfeiture by wrongdoing.

A Case Without the Complainant’s Testimony

A complainant’s absence does not automatically end the case. 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 is not triggered by ordinary nonappearance, reconciliation, or every prohibited contact. The Commonwealth must prove wrongful conduct intended to cause the witness’s unavailability. The judge must make the required findings before the doctrine removes the Confrontation Clause objection.

Witness intimidation under G.L. c. 268, § 13B also has defined elements. Asking a witness to lie, withhold evidence, avoid court, or change testimony can create a separate charge when the statute’s conduct and intent requirements are proved.

A defendant should comply exactly with every no-contact and stay-away condition and should not ask another person to carry a message. The complainant’s invitation or consent does not authorize conduct that a court order prohibits.

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 that 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 one of the relationships 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. Once the evidence raises a lawful justification, the Commonwealth must prove beyond a reasonable doubt that the conduct was not justified. The amount of force, the perceived threat, reasonable efforts to avoid combat, and the identity of the first aggressor may determine the issue.

A companion felony is overcharged. Strangulation, ABDW, and witness intimidation each require proof beyond the underlying argument or touching. The defense should separate those elements rather than allow the domestic label to substitute for proof.

Necessary evidence is inadmissible. A statement may fail under the hearsay rule, the Confrontation Clause, 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 for a recognized legal reason, including insufficient probable cause. Necessary evidence may also be excluded, leaving the Commonwealth unable to prove the charge.

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

Pretrial probation or another nontrial resolution. Availability depends on the charge, the prosecutor’s position, the court’s authority, the evidence, and the defendant’s circumstances. The conditions and record consequences must be reviewed before agreement.

A continuance without a finding. A CWOF follows an admission or guilty plea and a judicial finding sufficient for guilt, followed by a continuance and probation. It is not a Massachusetts conviction if completed successfully, but other legal systems may treat it as one.

For a § 13M violation or CWOF, the statute requires a certified batterer’s intervention program unless the court makes written good-cause findings or the program finds the defendant unsuitable. The current program is known as the Intimate Partner Abuse Education Program.

Trial. The Commonwealth must prove every element beyond a reasonable doubt with admissible evidence. A trial may focus on 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, and domestic cases can also create entries in the statewide domestic violence record keeping system. The treatment of those records depends on the disposition and the particular system.

Firearm consequences require separate state and federal analysis. The outcome 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.

Immigration analysis must occur before a plea, admission, or CWOF. A reduction from § 13M to another offense does not automatically eliminate federal consequences because federal domestic-violence rules may consider the relationship and record, not only the state offense title.

Professional and educational consequences vary. A board, employer, school, or clinical program may apply its own disclosure and conduct rules, and a dismissal does not necessarily resolve a parallel proceeding.

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

The review begins with the criminal complaint, police report, 911 recordings, body-camera footage, photographs, medical records, digital communications, protective-order file, and release conditions. The charged elements and admissibility issues are identified before choosing a disposition or trial strategy.

When a 209A case, licensing matter, school process, firearm issue, or immigration concern is pending, the defense is coordinated 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 restraining order (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.

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 restraining 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.

The count matters as well. 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 complete treatment, from the statute through the defenses, is on our page on criminal harassment defense in Massachusetts, with short answers in our criminal harassment FAQs.

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.

For a person served with a 258E order, the criminal statutes continue to matter 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, and where a threat is added, the conduct can be charged as stalking under G.L. c. 265, § 43. The moment an application is filed is therefore the moment to stop all contact and speak with counsel, before three acts exist.

If You Have Been Served With a 258E Harassment Restraining Order

If you have been served with a 258E harassment prevention order application and your first court date is approaching, you have the right to appear at the hearing after notice and contest the order. The hearing is civil, not criminal, so there is no right to a court-appointed attorney. You do 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 them from further harassment, under the rules described above.

The most important things to do immediately after service are these.

• Do not contact the plaintiff in any way, not directly, not through a mutual friend, not on social media. The order is enforceable against you once you have been served or otherwise have knowledge of it. 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 moves 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 your account of every alleged interaction in as much factual detail as possible, while the events are fresh
• Retain counsel before the hearing date

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