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No Contact Orders in Massachusetts Criminal Cases: Modification, Contact Initiated by the Alleged Victim, 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 alleged victim. That order is a condition of release under G.L. c. 276, § 58, Massachusetts’s bail statute. The order 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 alleged victim asks the judge to remove the condition, whether contact initiated by the alleged victim excuses the defendant, and what the Commonwealth may do after a violation.
The No Contact Condition and a 209A Restraining Order Are Separate Orders
The no contact order is a condition of release in the criminal case. The judge imposes the condition 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 the restraining order in a separate civil case. A judge may issue the restraining order under G.L. c. 209A, § 3. A defendant can be subject to both at once, the no contact condition and the 209A restraining order. 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.”
In Commonwealth v. Norman, 484 Mass. 330 (2020), the Supreme Judicial Court 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 plaintiff in a 209A restraining order case may go to the civil session and ask the judge to vacate the restraining order. Conversely, to change the no contact condition, the defendant or the Commonwealth, the parties in the criminal case, must file a motion to modify the conditions of release. The protected person, usually the alleged victim, can tell the court what they want. The judge may give weight to those wishes, but the judge alone decides whether to change the condition.
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. A judge may change a condition of release at any time while the case is pending. Section 58A(5), the dangerousness statute, states that rule expressly for a dangerousness order: 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 decide whether to amend or remove the condition.
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. The alleged victim, however, 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.” A judge ordinarily hears a victim’s position on conditions of release under that provision.
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 judge can modify the no contact order at any stage. The district attorney’s office, however, 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 Supreme Judicial Court held in Commonwealth v. Delaney, 425 Mass. 587 (1997), that the Commonwealth must prove that a 209A restraining order was in effect, that the defendant knew the terms of the order, and that the defendant did what the order prohibited. The Commonwealth does not have to prove that the defendant intended to violate the order.
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 protected person’s phone number, or sees the protected person’s name on the message, and replies has violated the order. The firm’s page on violating a 209A restraining order addresses a reply to an unsolicited text in more detail.
Many defendants in domestic violence cases face a revocation motion after answering contact from the alleged victim. 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 restraining 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 judge holds the revocation hearing 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
The Commonwealth can also charge the defendant with a new crime for contacting the alleged victim. 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 restraining 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 the alleged victim’s out-of-court statements from the jury. If the Commonwealth proves that the defendant caused the alleged victim’s absence, the judge admits into evidence 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 at a hearing before the judge outside the jury’s presence. The witness is unavailable. The defendant was involved in making the witness unavailable. The defendant acted with the intent to make the witness unavailable.
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
Can a no contact order be lifted in a Massachusetts domestic violence case?
A judge can lift or narrow a no contact order on a motion to modify the conditions of release under G.L. c. 276, § 58A. Judges will sometimes narrow the order, for example to allow contact about the children or one escorted visit to the residence. Judges will remove the order completely only if the alleged victim agrees.
Can the alleged victim ask the judge to remove a no contact order?
The alleged victim can ask, but cannot remove the order. G.L. c. 258B, § 3 gives a victim the right to confer with the prosecutor and to be heard when the court allows. That right “does not include the authority to direct the prosecution of the case.” The judge will consider the victim’s wishes and make the final decision.
Can I contact the alleged victim if they contact me first?
A defendant who answers a call or a text from the alleged victim violates the no contact order. The order applies to the defendant only, and only the judge can change it. The Commonwealth can then move to revoke release under G.L. c. 276, § 58B. For a reply to a text from a 209A plaintiff, see the firm’s page on violating a 209A restraining order.
What happens if I violate a no contact order in Massachusetts?
The Commonwealth can move to revoke release under G.L. c. 276, § 58B. If the judge finds the violation by clear and convincing evidence, and finds that no conditions will assure safety or compliance, the judge can order the defendant held. The detention can last up to ninety days, not counting excusable delay under Mass. R. Crim. P. 36(b)(2). If the contact asked the alleged victim to drop the case, the Commonwealth can also charge intimidation of a witness under G.L. c. 268, § 13B.
Who can change a no contact order in a Massachusetts criminal case?
Only the judge in the criminal case. The no contact order is a condition of release under G.L. c. 276, § 58, and the defendant or the Commonwealth asks the judge to change it by filing a motion to modify the conditions of release. The judge may change a condition at any time while the case is pending. The alleged victim may tell the judge what they want, and under G.L. c. 258B, § 3 the judge ordinarily hears that position, but the alleged victim cannot lift the condition. A judge commonly removes the condition completely only when the alleged victim agrees.
Can a judge allow limited contact under a no contact order, such as contact about the children?
Yes. A judge may narrow the condition instead of removing it. Common changes allow contact limited to arranging parenting time, contact through counsel or a named third party, written contact about the children only, or one return to the home with a police escort to collect 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. Until the judge signs the change, the original condition remains in force. Contact the defendant believes the judge will allow later is still a violation.
How long does a no contact order last in a Massachusetts criminal case?
As long as the judge keeps it in place, which is ordinarily for the life of the case. The condition takes effect at arraignment and ends when the case ends by dismissal, acquittal, or sentencing, unless the judge continues it as a condition of probation or of a continuance without a finding. The judge may amend or remove the condition at any time on a motion to modify. A separate 209A restraining order has its own expiration date set by the judge in the civil case, commonly one year. That order does not end when the criminal case ends.
Can I be held in jail for violating a no contact order in Massachusetts?
Yes. The Commonwealth moves to revoke release under G.L. c. 276, § 58B. The judge must first find probable cause that the defendant committed a new crime while on release, or clear and convincing evidence that the defendant violated a condition that is not a crime. The judge must then find that no conditions will reasonably assure that the defendant will not pose a danger, or that the defendant is unlikely to abide by conditions. The judge may then hold the defendant without bail for up to 90 days. When the contact also violated a 209A restraining order, the judge may instead revoke bail for up to 60 days under § 58.
Does answering a text from the alleged victim violate a no contact order?
Yes. The order binds the defendant only, so the alleged victim may call or write, but the defendant violates the order by answering. A defendant who recognizes the alleged victim’s number or name and replies has made knowing contact. The same rule applies to a 209A restraining order, where the Commonwealth must prove that the order was in effect, that the defendant knew its terms, and that the defendant did what the order prohibits. Commonwealth v. Delaney, 425 Mass. 587. A defendant who wants contact restored asks the judge before the contact happens, not after.
What happens at a bail revocation hearing under G.L. c. 276, § 58B?
The judge holds a hearing at which the rules of evidence do not apply, and may find probable cause on the police report and the representations of counsel. Paquette v. Commonwealth, 440 Mass. 121. The Commonwealth must prove the violation by clear and convincing evidence when the contact was not a crime. The defense may present evidence that the contact did not occur, was not knowing, or was initiated and misdescribed by the alleged victim, and may propose new conditions. If the judge revokes release, the defendant is held without bail for up to 90 days absent good cause. Velazquez v. Commonwealth, 491 Mass. 279.
Can a no contact order require me to leave my own home?
Yes. The condition ordinarily orders the defendant to stay away from the alleged victim’s residence, and when the two share the home, the defendant cannot return while the condition is in force, even as the owner or the tenant. The judge may allow one return with a police escort to retrieve clothing, medication, and documents. A 209A restraining order can separately order the defendant to vacate the home. The defendant who wants to return home asks the criminal judge to modify the condition, and asks the 209A judge to modify the restraining order, because each judge controls only that judge’s own order.
Does a no contact order cover social media and messages sent through friends?
Yes. The condition bars calls, texts, emails, letters, social media messages, comments and reactions directed at the alleged victim, and messages passed through friends, relatives, or children. A message a friend delivers at the defendant’s request is the defendant’s contact. A public post about the case that the defendant intends the alleged victim to see can also be treated as contact. The judge decides from the wording of the condition and from whether the defendant directed the communication to the alleged victim. Communication about the children goes only through a method the judge has approved.
A person who has been falsely accused should read the firm’s page on defending a false accusation of domestic violence in Massachusetts, which explains how counsel proves bias and motive.
Related Serpa Law Office Resources
- Massachusetts Domestic Violence Arrest FAQs
- 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)
- Violating a 258E Harassment Prevention Order in Massachusetts
- 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 the Alleged Victim Will Not Testify in a Massachusetts Domestic Violence Case
- How Massachusetts Domestic Violence Charges Are Prosecuted and Resolved
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