No Contact Orders in Massachusetts Criminal Cases: Modification, Contact by the Complainant, and Violation

At arraignment on a domestic violence charge, most often assault and battery on a family or household member under G.L. c. 265, § 13M, the judge orders the defendant to have no contact with the person named in the complaint. That order is a condition of release under G.L. c. 276, § 58, Massachusetts’s bail statute, and it often stays in force while the case is pending. It ordinarily bars calls, texts, letters, social media messages, messages passed through friends or family, and returning to a shared home.

This page describes who may change the condition, what happens when the person named in the complaint asks the judge to remove it, whether contact initiated by that person excuses the defendant, and what the Commonwealth may do after a violation.

The No Contact Condition and a 209A Order Are Separate Orders

The no contact order is a condition of release in the criminal case. The judge imposes it on the defendant at arraignment under G.L. c. 276, § 58, or after a dangerousness hearing under G.L. c. 276, § 58A. A 209A abuse prevention order is a restraining order. The plaintiff files for it in a separate civil case, and a judge may issue it under G.L. c. 209A, § 3. A defendant can be subject to both at once. The two orders have different terms, different expiration dates, different enforcement, and different consequences.

Section 58 authorizes the no contact condition in a domestic violence case. In most cases, a judge sets conditions of release under § 58 to ensure that the defendant returns to court. In a case involving domestic abuse, the third paragraph of § 58 also allows conditions “in order to ensure the appearance of the person before the court and the safety of the alleged victim, any other individual or the community.”

The Supreme Judicial Court drew that distinction in Commonwealth v. Norman, 484 Mass. 330 (2020), which held that the general provisions of § 58 address the defendant’s return to court, while the domestic abuse provisions of §§ 42A, 57, and 58 allow conditions imposed for safety.

The difference between the two orders dictates what a defendant has to do to change the no contact condition. A 209A plaintiff may go to the civil session and ask the judge to vacate that order. A defendant or the Commonwealth, who are the parties in a criminal case, must file a motion to modify the conditions of release. The protected person, usually the victim, can communicate their wishes to the court, and those wishes can be persuasive, but the judge makes the final decision.

Asking the Judge to Modify the Stay Away No Contact Order

Defense counsel can file a motion to modify the conditions of release, which asks the judge to amend or remove the no contact condition. Section 58A provides that the judicial officer “may at any time amend the order to impose additional or different conditions of release.” The judge will consider the Commonwealth’s position, hear the defense, and make a decision.

Judges will sometimes narrow conditions of release. Other times, they will remove stay away no contact orders completely, but only if the alleged victim agrees.

A judge may allow contact limited to arranging parenting time. A judge may allow contact through counsel or a named third party, or written contact about the children. A judge may also allow the defendant to return to the residence once, with a police escort, to retrieve belongings. A motion that asks for one specific form of contact, and states the reason for it, gives the judge a narrow change to allow.

When the Alleged Victim Asks to Remove the Condition

An alleged victim may ask the prosecutor to have the condition removed, and may ask the judge to hear from them, but the alleged victim cannot vacate the condition. Chapter 258B, § 3 gives a victim the right to confer with the prosecutor. The same section states that this right “does not include the authority to direct the prosecution of the case.”

Section 3 also gives a victim the right to be heard “at any other time deemed appropriate by the court.” That is how a judge ordinarily hears a victim’s position on conditions of release.

The judge will consider the victim’s wishes, together with the allegations in the police report, the defendant’s record, and the Commonwealth’s position. Judges modify no contact conditions after hearing from the person the condition protects.

An alleged victim who asks to remove the no contact order often also asks the prosecutor to drop the charge. The two requests are different. The judge can modify the no contact order at any stage. The district attorney’s office decides whether the Commonwealth proceeds with the charge, even where the alleged victim wants the case dropped.

Contact Initiated by the Alleged Victim

A defendant who answers a call, a text, or a message from the alleged victim violates the stay away no contact order. The order applies to the defendant only. The alleged victim remains free to call or write, but the defendant violates the order by answering. Only the judge can permit contact.

The same rule applies to a 209A restraining order. The order form states that the defendant must not contact the plaintiff even if the plaintiff seems to allow or request contact. The Supreme Judicial Court held in Commonwealth v. Delaney, 425 Mass. 587 (1997), that the Commonwealth must prove that the defendant knew of the order, and nothing more.

The Appeals Court in Commonwealth v. Raymond, 54 Mass. App. Ct. 488 (2002), limited that rule to knowing contact. A defendant who did not know, and could not reasonably have known, that the protected person would be present has not violated the order. A defendant who recognizes the number, or sees the name on the message, and replies has violated it. The firm’s 209A and 258E violation FAQs address a reply to an unsolicited text in more detail.

Many defendants in domestic violence cases return to court this way. The two people reconcile, the alleged victim calls, the defendant answers, and the Commonwealth moves to revoke release. A defendant who wants contact restored should ask the judge before the contact happens.

Revocation of Release Under G.L. c. 276, § 58B

If the defendant violates the stay away no contact order, the Commonwealth can move to revoke the defendant’s release under G.L. c. 276, § 58B. The judge will hold a hearing and must make two findings before revoking release.

First, the judge must find probable cause to believe that the defendant committed a new crime while on release. Where the violation is not a crime, the judge must instead find by clear and convincing evidence that the defendant violated a condition of release.

Second, the judge must find that no conditions of release will reasonably assure that the defendant will not pose a danger to any other person or the community. The judge may instead find that the defendant is unlikely to abide by any conditions. The Supreme Judicial Court restated both findings in Velazquez v. Commonwealth, 491 Mass. 279 (2023).

A defendant who contacts the alleged victim violates the condition of release, but the contact by itself is not a crime. The Commonwealth must prove that contact by clear and convincing evidence. The Supreme Judicial Court explained in Josh J. v. Commonwealth, 478 Mass. 716 (2018), that when a defendant violates a condition of release that is not a crime, § 58B is the only revocation procedure available to the Commonwealth.

Where the contact is also a crime, for example a violation of a 209A order, the Commonwealth has a second option. The third paragraph of § 58 allows a judge to revoke bail on the earlier charge for up to sixty days. The judge must find probable cause that the defendant committed a new crime while on release, and must find that release would seriously endanger any person or the community.

The Supreme Judicial Court upheld that procedure in Paquette v. Commonwealth, 440 Mass. 121 (2003). The court held that a judge may find probable cause on the police report and the representations of counsel. The rules of evidence do not apply at the hearing.

If the judge revokes release under § 58B, the defendant is held without bail. Section 58B provides that, absent good cause, a person “shall not be detained for a period exceeding ninety days excluding any period of delay as defined in Massachusetts Rules of Criminal Procedure Rule 36(b)(2).”

In Josh J., 478 Mass. at 723 n.8, the court observed that because the ninety days excludes excusable delay under Rule 36(b)(2), the detention can extend well beyond ninety days. In Velazquez, the court held that the ninety days begins on the day the defendant is first detained, not on the later day when the judge enters the formal detention order.

The revocation hearing is held at the defendant’s first appearance in the court that will decide the motion, unless one side asks for a continuance. A continuance on the defendant’s motion is limited to seven days. A continuance on the motion of the Commonwealth or probation is limited to three business days, absent good cause.

A Separate Charge for Contacting the Alleged Victim

Contact with the alleged victim can also result in a new criminal charge. If the defendant asks the alleged victim to drop the case, to change their account, or to stay away from court, the Commonwealth may charge intimidation of a witness under G.L. c. 268, § 13B. If a 209A order is in force, the Commonwealth may also charge a violation of that order under G.L. c. 209A, § 7. A defendant in that position faces the revocation motion and the new complaint at the same time.

Forfeiture by Wrongdoing

A defendant who persuades the alleged victim not to testify can lose the right to keep that person’s out-of-court statements from the jury. If the Commonwealth proves that the defendant caused the alleged victim’s absence, the judge admits the alleged victim’s statements to the police, to the 911 operator, and to others. The jury hears those statements without cross-examination. The rule is called forfeiture by wrongdoing.

The Supreme Judicial Court adopted the rule in Commonwealth v. Edwards, 444 Mass. 526 (2005). The Commonwealth must prove three things by a preponderance of the evidence, and the judge decides them at a hearing outside the jury’s presence. The witness is unavailable. The defendant was involved in procuring that unavailability. The defendant acted with the intent to procure it.

The wrongdoing does not have to be a crime. In Commonwealth v. Szerlong, 457 Mass. 858 (2010), the defendant married the alleged victim after the incident was reported and before his arraignment, so that she could claim the spousal privilege. The court held that he forfeited his objection to her statements. Persuading the alleged victim to stay home, or agreeing with the alleged victim on a plan to avoid testifying, is enough to forfeit the objection.

The firm’s page on the recanting or absent witness covers forfeiture by wrongdoing in more detail.

Preparing the Motion

Counsel should file the motion to modify before any contact has occurred. A motion filed early asks the judge to set terms. A motion filed after a violation asks the judge to excuse a breach. The motion should identify the specific contact the client needs, the reason for it, and the limit the client accepts.

Where there are children, the judge can adopt the terms of an existing Probate and Family Court parenting order. Where the client needs belongings or documents from the residence, counsel can ask for a single escorted visit at a stated time. A judge can allow that visit while leaving the rest of the order in place.

Frequently Asked Questions About No Contact Orders

Related Serpa Law Office Resources

• Assault and Battery on a Family or Household Member (G.L. c. 265, § 13M)
• Boston Domestic Violence Defense Lawyer
• Massachusetts Bail: Release, Conditions, and Review
• Massachusetts Dangerousness Hearings Under M.G.L. c. 276, § 58A
• 209A Restraining Orders in Massachusetts: What to Expect
• Violation of a 209A Restraining Order (G.L. c. 209A, § 7)
• Massachusetts 209A and 258E Violation FAQs
• Intimidation of a Witness (G.L. c. 268, § 13B)
• Massachusetts Witness Intimidation FAQs
• Arraignment in Massachusetts: What Happens and What It Means for Your Record
• When a Massachusetts Domestic Violence Case Goes to Trial Even Though the Alleged Victim Recants or Refuses to Testify
• How Massachusetts Domestic Violence Charges Are Prosecuted and Resolved