Massachusetts has two civil protective order statutes, and they are not interchangeable. An abuse prevention order under M.G.L. c. 209A and a harassment prevention order under M.G.L. c. 258E operate under different evidentiary standards, apply to different categories of parties, and carry different collateral consequences. A party who seeks the wrong order, applies the wrong standard, or fails to distinguish between the two statutes in a defense or prosecution strategy gets the wrong result. Serpa Law Office represents defendants contesting both types of orders and plaintiffs seeking protection under both statutes, in the Boston Municipal Court and in every Massachusetts District Court. Contact Serpa Law Office at 617.936.0201.

Contact with the complaining witness about the case can be charged separately as intimidation of a witness.

Keeping a charge off a client’s record often means fighting for a dismissal. Our page explains how a Massachusetts criminal case can be dismissed.

209A Abuse Prevention Orders (M.G.L. c. 209A)

A 209A abuse prevention order is available only between parties who share a qualifying domestic relationship. That category covers current or former spouses, persons who share a child, current or former cohabitants, and persons in a substantive dating or engagement relationship. The evidentiary standard is proof of abuse or of reasonable fear of imminent serious physical harm. One act of abuse is enough. The order can issue ex parte, without the defendant present, on a showing of immediate danger. Most defendants first learn a 209A order exists when a police officer serves it.

The Consequences Reach Well Beyond the Civil Restraint.

Violation of a 209A order is a criminal offense under M.G.L. c. 209A, § 7 carrying up to 2.5 years in a House of Correction, with mandatory arrest and mandatory prosecution. A 209A order also triggers the federal Lautenberg Amendment firearms disability under 18 U.S.C. § 922(g)(8) automatically, and the defendant must surrender all firearms within 24 hours of service. For licensed professionals who carry or are authorized to possess firearms as a condition of employment, including law enforcement officers, armed security personnel, and military reservists, a 209A order ends that authorization immediately. And for non-citizens, a conviction for violating a 209A order is a deportation ground under 8 U.S.C. § 1227(a)(2)(E)(i).

Defense at the Temporary and Extension Hearings.

Defense of a 209A case begins with the elements. Counsel challenges the existence of a qualifying domestic relationship, the sufficiency of the plaintiff’s evidence of abuse or imminent fear, inconsistencies between the plaintiff’s affidavit and prior text messages or communications, and the plaintiff’s own conduct toward the defendant. The ten-day hearing after an ex parte order is the defendant’s first real opportunity to be heard, and it is often the best one. A defendant who appears unprepared, testifies without a plan, or concedes contested facts at that hearing creates a record that follows the case. Preparation before the ten-day hearing matters more than anything that happens after it. See Massachusetts 209A Abuse Prevention Orders, Defense and Plaintiff Representation and the 209A and 258E Violation FAQs. Recordings surface in these sessions constantly, and they carry criminal exposure of their own under the Massachusetts wiretap statute.

258E Harassment Prevention Orders (M.G.L. c. 258E)

A 258E harassment prevention order is available between any two people regardless of their relationship. Neighbors, coworkers, classmates, acquaintances, and strangers all qualify. In exchange for that broad availability, the 258E statute imposes a more demanding evidentiary standard. The plaintiff must prove three or more separate acts of willful and malicious conduct that would cause a reasonable person to suffer substantial emotional distress, or a single act constituting a qualifying crime such as assault, stalking, rape, or criminal harassment under M.G.L. c. 265.

The Three-Act Standard Is Where 258E Cases Are Won and Lost.

Under O’Brien v. Borowski, 461 Mass. 415 (2012), each alleged act must independently satisfy the willfulness and maliciousness requirements. Conduct that is justified, legally protected, or merely unpleasant does not qualify. Defense of a 258E case therefore examines each alleged act separately. Was the act willful? Was it malicious rather than legally justified? Was it directed at the plaintiff specifically, or was it general conduct that affected the plaintiff only incidentally? A plaintiff who alleges four acts and proves two has not met the statute, and a judge who is walked through the acts one at a time will often deny an order that would have issued on a general impression of conflict.

Unlike a 209A order, a 258E order does not automatically trigger the federal Lautenberg Amendment unless the parties have a qualifying domestic relationship. But Massachusetts law independently requires firearms surrender upon service of a 258E order where the judge includes a surrender provision, and judges include one in most cases. Violation of a 258E order carries up to 2.5 years in a House of Correction, with a mandatory minimum of 60 days for a second violation. See Massachusetts 258E Harassment Prevention Orders, Defense and Plaintiff Representation, When Does Unwanted Contact Become Harassment Under Massachusetts Law, and the 209A and 258E Violation FAQs.

Coordinating Restraining Order Defense with Criminal Charges

In most domestic violence cases, a 209A restraining order and a criminal charge for assault and battery on a family or household member issue at the same time. The civil restraining order case and the criminal case then proceed on parallel tracks in different sessions of the same courthouse, built on the same underlying facts but governed by different procedural rules and different standards of proof. Statements made in the restraining order hearing can be used in the criminal case. Positions taken in the criminal case can affect the restraining order hearing. Defense counsel must coordinate both proceedings from the outset, because an inconsistent position in one damages the client in the other. See Boston Domestic Violence Defense Lawyer and Defending 209A and 258E Violations in Massachusetts.

Violation Charges Can Sometimes Be Stopped Before Arraignment.

Not every alleged violation of a 209A or 258E order begins with an arrest. Where the allegation is a technical or incidental contact, an accidental encounter, or a disputed text message, police sometimes proceed by application for criminal complaint rather than by arrest. That application triggers a clerk-magistrate hearing, a private show cause proceeding at which counsel can contest probable cause or persuade the clerk-magistrate to hold or resolve the matter without issuing a complaint. A complaint that never issues never reaches arraignment, and a charge that is never arraigned never appears on the client’s criminal record. For clients whose careers, licenses, or immigration status depend on a clean record, the difference between resolving an alleged violation at a clerk’s hearing and defending it after arraignment is the whole case.

Students, Professionals, and the Record.

Restraining order litigation is common among college and university students in Boston and Cambridge, where a roommate dispute or a breakup can produce a 258E application, a Title IX complaint, and a campus no-contact directive at the same time. The order itself is civil, but it appears in the statewide registry that courts and police consult, and a criminal violation charge lands on the record that employers, licensing boards, and graduate programs see. Serpa Law Office defends the order, coordinates with school proceedings, and works to keep the client’s record clean or to seal what already exists.

Restraining & Harassment Orders Pages

• Massachusetts 258E Harassment Prevention Orders, Defense and Plaintiff Representation
• Massachusetts 209A Abuse Prevention Orders, Defense and Plaintiff Representation
• Expunging a 209A or 258E Order from the Massachusetts Registry
• Massachusetts 209A and 258E Expungement FAQs

Contact Serpa Law Office at 617.936.0201 for a free consultation. The Boston office is at 20 Park Plaza #400A and the Quincy office is at 500 Victory Rd., Suite 400A. Available 24 hours a day.