A 209A Restraining Order and Criminal Charges From the Same Incident in Massachusetts

The police arrest a person after a 911 call reporting a fight with a spouse. At arraignment the next morning, the judge orders the person, as a condition of release, to stay away from the family home and to have no contact with the spouse. The spouse then files a complaint for a 209A abuse prevention order in the same courthouse. The same afternoon, a judge issues a temporary restraining order without the person present.

The person now faces two cases from one incident. The Commonwealth prosecutes the criminal case. The spouse brings the restraining order case. Each case has its own judge, its own hearing dates, its own standard of proof, and its own court order. This page explains how the 209A restraining order case and the criminal case differ, how the prosecutor and the defense use evidence from one case in the other case, and what happens to each case when the other case ends.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He defends people charged with domestic violence offenses in the district courts and the Boston Municipal Court. He also represents defendants and plaintiffs at 209A restraining order hearings.

Who Brings Each Case

The Commonwealth brings the criminal case. After an arrest, the police apply for a criminal complaint. A clerk-magistrate issues the complaint on a finding of probable cause. The district attorney’s office then prosecutes the case against the defendant.

The alleged victim brings the 209A case. A family or household member, or a person in a substantive dating relationship with the defendant, files a complaint for an abuse prevention order under G.L. c. 209A. In the 209A case, the alleged victim is called the plaintiff. The person accused is the defendant in both cases. A plaintiff can obtain a 209A order when no criminal charge exists. The police can also charge a person when no one has asked for a 209A order.

The district attorney’s office decides whether the Commonwealth continues to prosecute the criminal case. A prosecutor may end the charges by filing a nolle prosequi, a written notice that the Commonwealth will not go forward, under Mass. R. Crim. P. 16. Commonwealth v. Pellegrini, 414 Mass. 402, 405 (1993).

The alleged victim has the right to confer with the prosecutor before a nolle prosequi. G.L. c. 258B, § 3(g) provides that the right to confer does not include the authority to direct the prosecution. The plaintiff, by contrast, may ask a judge in the 209A case to vacate the 209A order at any time. G.L. c. 209A, § 3.

The Courts and the Hearing Dates in Each Case

The judge in the 209A case ordinarily holds a full hearing weeks or months before the criminal trial. A plaintiff files the 209A complaint in the District Court, the Boston Municipal Court, the Probate and Family Court, or the Superior Court for the area where the plaintiff lives. G.L. c. 209A, § 2.

If the plaintiff shows a substantial likelihood of immediate danger of abuse, the judge may issue a temporary order the same day without notice to the defendant. G.L. c. 209A, § 4. The court must then give the defendant an opportunity to be heard within ten court business days. Id. Lawyers and judges call the second hearing the hearing after notice, or the ten-day hearing.

The criminal case proceeds more slowly than the 209A case. After the arraignment, the court schedules a pretrial conference, motion hearings, and a trial date, often over several months. As a result, the 209A hearing after notice often takes place before the Commonwealth has given the defense its discovery in the criminal case.

The judge ordinarily holds the 209A hearing as scheduled while the criminal case is pending. The Trial Court’s guidelines for abuse prevention proceedings tell judges that a pending criminal case is not a basis to continue the 209A hearing. Trial Court, Guidelines for Judicial Practice, Abuse Prevention Proceedings § 8:09 commentary (rev. Oct. 2025).

The Standard of Proof and the Decision Maker in Each Case

In the criminal case, the Commonwealth must prove each element of the charge beyond a reasonable doubt. In the District Court and the Boston Municipal Court, a jury of six decides whether the Commonwealth proved each element. G.L. c. 218, § 26A. The defendant may waive a jury in writing and ask a judge to decide guilt instead. Id.

In the 209A case, the plaintiff must prove abuse by a preponderance of the evidence. Frizado v. Frizado, 420 Mass. 592, 597 (1995). A judge, sitting without a jury, decides whether the plaintiff proved that abuse more likely than not occurred. Id. at 595.

Abuse under G.L. c. 209A, § 1 means causing or attempting to cause physical harm, placing a person in fear of imminent serious physical harm, causing a person to engage in sexual relations involuntarily by force, threat, or duress, or coercive control. The Legislature added coercive control to the definition in 2024. St. 2024, c. 118, § 4.

A judge can issue a 209A order on evidence that would not convince a jury beyond a reasonable doubt. A jury can therefore find a defendant not guilty of the criminal charge while a 209A order based on the same allegation remains in force.

The 209A hearing is less formal than a criminal trial. The judge may consider evidence that the rules of evidence would exclude at a criminal trial, as long as the hearing is fair. Frizado, 420 Mass. at 597-598. The defendant has the right to testify, to present evidence, and to cross-examine the plaintiff. Id. at 597. C.O. v. M.M., 442 Mass. 648, 658 (2004). The judge may limit cross-examination to prevent harassment, intimidation, confusion, or delay. Id.

A criminal defendant who faces possible imprisonment and cannot afford a lawyer has the right to a lawyer appointed by the court. Supreme Judicial Court Rule 3:10. The court appoints no lawyer for either party in the 209A case. Guideline 8:09 commentary. A defendant who wants a lawyer at the 209A hearing must hire a lawyer for the 209A case. A lawyer appointed in the criminal case may advise the defendant at the 209A hearing about the privilege against self-incrimination. The appointed lawyer must file an appearance in the 209A case to question witnesses. Id.

The No Contact Order and the 209A Order

A defendant with both cases is often subject to two court orders at the same time. At arraignment, the judge in the criminal case may order the defendant, as a condition of release, to stay away from and have no contact with the alleged victim. G.L. c. 276, §§ 42A, 58. The judge in the 209A case may order the defendant to stop abusing the plaintiff, to have no contact with the plaintiff, to stay away from the plaintiff’s home, and to leave a home the two share. G.L. c. 209A, § 3.

The two orders have separate terms and separate expiration dates. Only the judge in the criminal case can change the no contact condition of release. The defendant or the Commonwealth asks the criminal judge to change the condition by filing a motion to modify the conditions of release. Only a judge in the 209A case can change the 209A order, on a motion by either party. G.L. c. 209A, § 3.

When a plaintiff asks the 209A judge to vacate the 209A order, the no contact condition in the criminal case stays in force until the judge in the criminal case changes the condition. The firm’s page on no contact orders as conditions of release explains how a defendant asks the criminal court to modify the no contact condition.

Testimony and Evidence From the 209A Case in the Criminal Case

The court records the 209A hearing. Guideline 5:00A. The prosecutor and the defense can each order a copy of the recording from the court and use the recording in the criminal case.

The plaintiff’s sworn affidavit can become substantive evidence at the criminal trial. A plaintiff signs the 209A affidavit under the penalty of perjury. When the plaintiff testifies at the criminal trial and gives an account that contradicts the affidavit, the Commonwealth may offer the affidavit as evidence of what happened, as long as the affidavit led to the issuance of a 209A order and the defense can cross-examine the plaintiff about the affidavit. Commonwealth v. Belmer, 78 Mass. App. Ct. 62, 65 (2010). Mass. G. Evid. § 801(d)(1)(A).

A jury may therefore consider the account in the 209A affidavit even when the alleged victim recants at trial. The defense may also use the plaintiff’s affidavit and the plaintiff’s recorded 209A testimony to cross-examine the plaintiff when the plaintiff’s account changes. Mass. G. Evid. § 613.

A defendant who testifies at the 209A hearing gives the prosecutor a sworn account of the incident. A prosecutor may obtain the recording and seek to use the defendant’s answers against the defendant in the criminal case.

The defendant may decline to testify at the 209A hearing by asserting the privilege against self-incrimination. Frizado, 420 Mass. at 596. The 209A judge may then draw an inference against the defendant from the defendant’s silence. Id. The inference alone cannot satisfy the plaintiff’s burden of proof. Id. The firm’s page on testifying at a 209A hearing while the criminal case is pending explains how counsel weighs whether the defendant should testify.

What Happens to the 209A Order When the Criminal Case Ends

The 209A order stays in force after the criminal case ends in a dismissal, a nolle prosequi, or a not guilty verdict. The order remains in effect until the order expires or a judge in the 209A case modifies or vacates the order. G.L. c. 209A, § 3.

A not guilty verdict does not require the judge in the 209A case to end the order. The Appeals Court rejected a defendant’s argument that his acquittal required the judge to terminate a 209A order, because the burden of proof in a criminal trial is far more stringent than the burden at a 209A extension hearing. L.D. v. C.H., 93 Mass. App. Ct. 1102 (2018) (Rule 1:28 decision).

The 209A order also remains subject to extension after a not guilty verdict. At the extension hearing, the plaintiff must prove by a preponderance of the evidence that an extension is necessary to protect the plaintiff. Iamele v. Asselin, 444 Mass. 734, 739 (2005). The judge considers the totality of the circumstances in deciding whether to extend the order. Id. at 740. The defendant may not use the extension hearing to challenge the evidence on which the judge issued the original order. Id.

A defendant who asks a judge to end a permanent 209A order must prove by clear and convincing evidence that a significant change in circumstances has made the order no longer equitable. MacDonald v. Caruso, 467 Mass. 382, 382-383 (2014). The passage of time and the defendant’s compliance with the order do not establish a significant change by themselves. Id. at 388-389. The firm’s page on terminating or modifying a 209A order explains both standards.

What Happens to the Criminal Case When the 209A Order Ends

The criminal case continues after the 209A order expires or a judge vacates the 209A order. The district attorney’s office decides whether the Commonwealth continues to prosecute the charge.

A plaintiff who asks to vacate the 209A order often also tells the prosecutor that the plaintiff wants the criminal case dismissed. The prosecutor may still go forward with other evidence, such as a 911 recording, body camera video, and statements the alleged victim made to the police at the scene. The firm’s page on when the alleged victim will not testify in a domestic violence case explains how the Commonwealth proceeds without the alleged victim’s testimony.

The no contact condition of release also stays in force until the judge in the criminal case changes the condition.

Violating the 209A Order or the No Contact Condition

Contact that violates a 209A order is a separate crime under G.L. c. 209A, § 7. A person convicted of violating a 209A order faces a fine of up to $5,000, imprisonment in a house of correction for up to two and one-half years, or both. Id.

When the violation case ends in a conviction or a continuance without a finding, the judge must also order the defendant to complete a certified batterer’s intervention program. Id. The judge may excuse the defendant from the program only on written findings of good cause. The batterer’s intervention program may also find the defendant unsuitable for intervention. Id.

The plaintiff’s invitation does not suspend or change the 209A order. The Commonwealth can still prosecute a defendant who answers a call or accepts a visit that the plaintiff begins. Commonwealth v. Consoli, 58 Mass. App. Ct. 734, 738-739 n.8 (2003). Only a judge can change the 209A order. G.L. c. 209A, § 3. The firm’s page on violation of a 209A restraining order explains the elements the Commonwealth must prove and the defenses to the charge.

A violation of the no contact condition of release can lead to detention in the criminal case. After a hearing, the judge may revoke the defendant’s release under G.L. c. 276, § 58B.

The judge must find probable cause that the defendant committed a new crime while on release, or clear and convincing evidence that the defendant violated another condition of release. The judge must also find that no condition of release will reasonably assure the safety of another person or the community, or that the defendant is unlikely to abide by any condition of release.

The judge may then hold the defendant for up to ninety days, not counting periods of delay excluded under Mass. R. Crim. P. 36. G.L. c. 276, § 58B. When a 209A order is also in effect, the same contact can lead to a new 209A violation charge and to the revocation of release in the first criminal case.

Records and Firearms Consequences of Each Case

A criminal charge appears on the defendant’s criminal record. The Department of Criminal Justice Information Services maintains criminal offender record information, known as CORI, for criminal cases that are not dismissed before arraignment. G.L. c. 6, § 167.

A 209A order is a civil order and is not part of the defendant’s CORI. The Commissioner of Probation records every 209A order in the statewide domestic violence record keeping system. St. 1992, c. 188, § 7. Vaccaro v. Vaccaro, 425 Mass. 153, 155 & n.3 (1997). Judges and police can search the system. A firearms licensing authority can also search the system. G.L. c. 140, § 121F(e)(ii). The public has no general access to the system. Vaccaro, 425 Mass. at 159 n.6.

The entry stays in the system after the 209A order expires or a judge vacates the order. Vaccaro, 425 Mass. at 156-158. A judge may expunge the entry only on clear and convincing evidence that the plaintiff obtained the order through fraud on the court. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006). The firm’s page on expunging a 209A or 258E order from the registry explains the fraud on the court standard.

When a judge issues a temporary 209A order without notice to the defendant, the judge must order the defendant to surrender any license to carry, firearms identification card, firearms, and ammunition. G.L. c. 209A, § 3B. At the hearing after notice, the judge continues the surrender order if the judge finds that returning the license or the firearms would present a likelihood of abuse to the plaintiff. G.L. c. 209A, § 3C. While a 209A order is in effect, the defendant cannot hold a Massachusetts license to carry or firearms identification card. G.L. c. 140, § 121F(j)(iii).

Federal law also prohibits firearm possession by a person subject to some 209A orders. Under 18 U.S.C. § 922(g)(8), the federal prohibition applies to a 209A order that a judge issued after a hearing the defendant had notice of and could attend. The order must protect a spouse, a former spouse, a co-parent, or a person who lives or lived with the defendant. The order must also prohibit the use of physical force against the protected person or include a finding that the defendant is a credible threat to the protected person’s physical safety.

A conviction in the criminal case for a misdemeanor crime of domestic violence separately prohibits firearm possession under 18 U.S.C. § 922(g)(9). The firm’s page on losing a gun license after a Massachusetts domestic arrest explains the licensing consequences.

Preparing for the 209A Hearing and the Criminal Case Together

Attorney Serpa represents defendants in the 209A case and the criminal case at the same time. Before the hearing after notice, he reviews the plaintiff’s complaint and affidavit, the police report, messages, and any other evidence that either side may offer at the 209A hearing or at the criminal trial. He then advises the defendant whether to testify at the 209A hearing. He prepares the cross-examination of the plaintiff with both cases in mind.

A person who has a 209A hearing date and a criminal charge from the same incident should speak with a lawyer before the hearing after notice. Request a consultation before the hearing date.

Frequently Asked Questions

Related Serpa Law Office Resources

• Testifying at a 209A Restraining Order Hearing While the Criminal Case Is Pending
• No Contact Orders in Massachusetts Criminal Cases
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)
• Violation of a 209A Restraining Order
• When the Alleged Victim Will Not Testify in a Massachusetts Domestic Violence Case
• Massachusetts 209A Extension Hearings
• Terminating or Modifying a Massachusetts 209A Restraining Order
• Assault and Battery on a Family or Household Member
• State and Federal Records of Massachusetts 209A and 258E Restraining Orders