Massachusetts 258E Harassment Prevention Orders: Defense and Plaintiff Representation

A Massachusetts 258E harassment prevention order is a civil court order that requires the defendant to stop harassing the plaintiff. A person who wants a harassment prevention order files a complaint and an affidavit at the district court or the Boston Municipal Court. A judge may issue an order that day after hearing only the person who filed the complaint. A police officer serves the order on the defendant. The court then hears both parties before deciding whether the order continues.

This page describes what a plaintiff must prove, what relief the court may order, what happens at the hearing after notice, and what a defendant does to contest an order. Attorney Serpa represents either the plaintiff or the defendant in these proceedings.

Being Served With a Harassment Prevention Order

A police officer hands the defendant a copy of the harassment prevention order, the plaintiff’s complaint, and the plaintiff’s affidavit, ordinarily at home or at work and often within a day of the plaintiff’s application. The defendant must comply with the order from the moment the officer serves it.

The order itself states the date and time of the next hearing. Section 5 of Chapter 258E requires the court to give the defendant an opportunity to be heard on continuing the order not later than 10 court business days after the judge enters it. The hearing after notice is the defendant’s first opportunity to answer the accusation.

Section 5 of Chapter 258E also provides that the temporary orders continue in effect without further order of the court if the defendant does not appear at the hearing after notice. A defendant who intends to contest the order appears on the date printed on it.

The served order ordinarily directs the defendant to refrain from abusing or harassing the plaintiff, to refrain from contacting the plaintiff, and to remain away from the plaintiff’s home or workplace. The defendant must follow the terms of the order while the case is pending. A knowing violation is a criminal offense under G.L. c. 258E, § 9, punishable by a fine of not more than $5,000, imprisonment for not more than two and one-half years in a house of correction, or both.

A defendant who contacts the plaintiff to discuss the order, to apologize, or to ask the plaintiff to withdraw the complaint violates the no-contact direction. A defendant who wants the order changed asks the judge at the hearing.

Attorney Serpa appears with the client at the hearing after notice and cross-examines the plaintiff on each act alleged.

Eligibility, the Three-Act Standard, and the Hearing Process

A Massachusetts 258E harassment prevention order is a civil court order available to a person who proves harassment as defined by G.L. c. 258E. The parties do not need a family, household, dating, or other personal relationship. Harassment prevention order cases often arise between neighbors, coworkers, students, former friends, acquaintances, or strangers. A student can also seek an order against a teacher or coach.

A plaintiff may proceed under one of two statutory theories. The first theory requires at least three separate acts of willful and malicious conduct aimed at the plaintiff. Each act must be committed with a specified intent. The pattern must also cause fear, intimidation, abuse, or damage to property. Under the second theory, a judge may issue an order based on one act involving forced sexual relations or an offense listed in G.L. c. 258E, § 1.

A court may order the defendant to stop abusing or harassing the plaintiff, have no contact with the plaintiff, stay away from the plaintiff’s home or workplace, or pay compensation for losses caused by the harassment. The conditions vary from case to case. A defendant who knowingly violates an order after the order has been served, or after the defendant has actual knowledge of it, can be arrested and prosecuted under G.L. c. 258E, § 9.

Serpa Law Office represents defendants who contest 258E harassment prevention orders and plaintiffs who seek protection from harassment. Attorney Joe Serpa also coordinates a 258E harassment prevention order proceeding with any related criminal case, workplace investigation, school disciplinary matter, civil dispute, firearms issue, or professional licensing concern.

How Does a 258E Harassment Prevention Order Differ from a 209A Restraining Order?

A 209A restraining order (abuse prevention order) requires a qualifying family, household, or dating relationship. Chapter 258E has no relationship requirement. A 209A restraining order and a 258E harassment prevention order are not substitutes for each other, because each chapter also has its own definition of prohibited conduct.

Under Chapter 209A, one act may satisfy the definition of abuse. Under Chapter 258E, ordinary civil harassment requires three qualifying acts. A single act is sufficient under Chapter 258E only when it involves involuntary sexual relations by force, threat, or duress or satisfies one of the criminal statutes incorporated into the definition of harassment.

A plaintiff generally must file a new complaint if the evidence does not satisfy the chapter named in the complaint but may support relief under the other chapter. The court must also protect the defendant’s right to notice and a meaningful opportunity to respond. The question whether a judge may issue an order under either chapter depends on the relationship between the parties, the alleged conduct, and the statutory theory presented to the judge.

A complaint for a 258E harassment prevention order may be filed in the District Court, Boston Municipal Court, or Superior Court with venue over the plaintiff’s residence. The Juvenile Court has exclusive jurisdiction if the defendant is under eighteen. The Probate and Family Court does not issue Chapter 258E orders.

What Constitutes Civil Harassment?

For the three-act theory, G.L. c. 258E, § 1 requires proof of each of the following elements.

• three or more separate acts of conduct.
• each act was willful and malicious.
• each act was aimed at the plaintiff.
• each act was committed with the intent to cause fear, intimidation, abuse, or damage to property.
• the cumulative pattern caused fear, intimidation, abuse, or damage to property.

The plaintiff bears the burden of proof by a preponderance of the evidence. The judge must identify a legally sufficient theory and determine whether the credible evidence satisfies each required part of that theory.

Three Separate Acts

Chapter 258E requires at least three distinct acts. A judge cannot divide one continuous episode into several acts merely because the episode included several statements or movements. In F.K. v. S.C., 481 Mass. 325 (2019), the Supreme Judicial Court held that a continuous act could not be separated into multiple predicate acts. The question whether the evidence describes one event or several may depend on the timing, location, interruption, and character of the alleged conduct.

Willful and Malicious Conduct

Willful conduct is intentional rather than accidental. The defendant must intend the conduct and the harmful result specified by the statute. “Malicious” is defined as conduct characterized by cruelty, hostility, or revenge. An unpleasant interaction, careless act, or legitimate disagreement does not become harassment merely because it upset the plaintiff.

The judge decides from the context whether a complaint to an authority counts as an act of harassment. A complaint to a landlord, employer, school, licensing authority, or government agency may be legitimate even when it is unwelcome. A complaint to an authority can still qualify as an act of harassment if the evidence proves the required aim, intent, and malice. The judge must examine what occurred instead of accepting either party’s label for it.

The Required Statutory Effect

Under the three-act civil-harassment theory, the plaintiff does not have to prove that the conduct would cause a reasonable person substantial emotional distress. A judge who finds the other elements proved then decides whether the cumulative pattern caused this plaintiff fear, intimidation, abuse, or damage to property. The statutory definition of abuse includes attempting to cause or causing physical harm and placing another person in fear of imminent serious physical harm.

Substantial emotional distress remains relevant when the plaintiff relies on the separate crimes of stalking or criminal harassment. Stalking and criminal harassment each have their own elements. At the hearing, the judge should therefore identify whether the plaintiff alleges ordinary civil harassment, stalking, criminal harassment, sexual misconduct, or another incorporated offense.

Speech, Social Media, and Electronic Communications

Constitutionally protected speech cannot serve as a predicate act of civil harassment. The court must decide whether the speech constitutes a true threat or fighting words when the plaintiff alleges speech alone. Criticism, insults, complaints, and offensive opinions do not lose First Amendment protection merely because they cause anger or distress.

In a case based on electronic communications, the judge looks closely at the audience and the context of each communication. A message sent directly to the plaintiff differs from a general post, but a public post may still be aimed at a person when its language, tagging, history, or distribution shows that purpose. Complete message threads, account information, dates, and the surrounding exchange are usually more reliable than isolated screenshots. For a fuller discussion, see Criminal Harassment, 258E Harassment Prevention Orders, and the First Amendment.

Formal trial rules of evidence do not apply in the same way at a 258E harassment prevention order hearing. The judge may consider material under a more flexible standard. Even so, the judge examines authenticity, authorship, completeness, context, and source reliability when a party offers isolated screenshots or selected messages. The firm’s guide to admitting and objecting to digital evidence in Massachusetts criminal cases explains the stricter standards for authentication, hearsay, completeness, and extraction that may apply when a party offers the same material in a related criminal case.

The Meaning of Fear Under Section 1

The word fear in G.L. c. 258E, § 1 means fear of physical harm or fear of physical damage to property. O’Brien v. Borowski, 461 Mass. 415, 427 (2012). The Supreme Judicial Court read the word fear narrowly so that Chapter 258E applies to constitutionally unprotected true threats and fighting words. Speech that annoys, offends, or embarrasses the plaintiff does not satisfy Section 1.

The statute defines malicious as characterized by cruelty, hostility or revenge. A plaintiff who proves three unwanted contacts must also prove that the defendant acted maliciously and that the conduct in fact caused fear, intimidation, abuse, or damage to property. The standard at the hearing after notice is a preponderance of the evidence. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016).

The Supreme Judicial Court compared the civil definition with the crime of criminal harassment under G.L. c. 265, § 43A. The civil definition and the crime both require three or more acts of willful and malicious conduct aimed at a specific person. The civil statute adds a second intent, which is the intent to cause fear, intimidation, abuse, or damage to property. The civil statute also requires that the acts in fact cause fear, intimidation, abuse, or damage to property. O’Brien, 461 Mass. at 420.

Chapter 258E defines abuse in the words of chapter 209A, as attempting to cause or causing physical harm or placing another in fear of imminent serious physical harm. The Supreme Judicial Court has written that the words of the chapter 209A definition of abuse closely approximate the common law crime of assault. Commonwealth v. Gordon, 407 Mass. 340, 349 (1990).

When Can One Act Support a 258E Harassment Prevention Order?

The second statutory theory does not require three acts. The second theory applies when the defendant, by force, threat, or duress, causes another person to engage involuntarily in sexual relations. The second theory also applies to conduct that satisfies a criminal statute listed in G.L. c. 258E, § 1.

The incorporated offenses include specified forms of rape and indecent assault and battery, assault with intent to commit rape, enticement of a child, stalking, criminal harassment, distribution of nude or sexual images, and drugging a person for sexual intercourse. The complete list appears in the statute. The image-distribution provisions are discussed separately in Massachusetts Revenge Porn and Nonconsensual Intimate Image Law.

A criminal charge or conviction is not a prerequisite to civil relief. At the hearing, the plaintiff must prove by a preponderance of the evidence that the conduct satisfied the elements of the applicable statutory theory. The judge decides the civil case whether or not the Commonwealth has brought a criminal prosecution. The issuance of a civil order does not itself establish criminal guilt.

Under the single-act theory, the judge applies the elements of the alleged crime. In F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599-600 (2015), the Appeals Court held that a judge who hears a claim based on a listed sex crime must decide whether the defendant committed that crime. The plaintiff must prove the crime by a preponderance of the evidence. The judge may not add the intent and fear elements of the three-act definition. The judge also may not leave to a criminal court the decision whether the defendant committed the crime.

In A.P. v. M.T., 92 Mass. App. Ct. 156, 162-163 (2017), the court applied the elements of indecent assault and battery and upheld an order on proof that the defendant removed a four-year-old child’s clothing or made her remove it.

In Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256-259 (2022), the order was based on two acts of indecent assault and battery. The Appeals Court held that at the extension hearing the judge decides whether the order remains necessary to protect the plaintiff from the impact of the indecent assault and battery, not whether the crime occurred.

The forced sexual relations theory uses the same words as the third definition of abuse under chapter 209A. F.A.P., 87 Mass. App. Ct. at 599 n.9. The Appeals Court gives the word force in the forced sexual relations definition the same meaning that it has in the rape cases. M.G. v. G.A., 94 Mass. App. Ct. 139, 142-143 (2018).

Force includes constructive force, which is the same constructive force that satisfies the force element of rape under G.L. c. 265, § 22. Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186 n.3 (2020). The elements of force, incapacity, and consent in rape and indecent assault and battery cases are explained on the firm’s page on consent in Massachusetts rape and sexual assault cases.

How a 258E Harassment Prevention Order Case Begins

A plaintiff begins the case by filing a complaint and affidavit in a court with jurisdiction. There is no filing fee. The affidavit should identify the statutory theory and describe the alleged conduct with enough detail to give the defendant notice of the claim.

The Temporary Ex Parte Order

A judge may issue temporary relief without notice to the defendant if the plaintiff proves, by a preponderance of the evidence, a substantial likelihood of immediate danger of harassment. The judge may grant all, some, or none of the requested conditions. The defendant must obey the conditions written in the order after service or actual notice.

The court must give the defendant an opportunity to be heard no later than ten court business days after entering an ex parte order. Police generally serve the complaint, summons, and order. A temporary order may continue without further order of the court if the defendant does not appear after proper notice.

The Hearing After Notice

The hearing after notice is the defendant’s first opportunity to contest an ex parte order. The hearing after notice may also be the first hearing in a case in which the judge issued no temporary order. The plaintiff has the burden of proving harassment by a preponderance of the evidence. The judge must give both parties a meaningful opportunity to present evidence and challenge the opposing case.

The Massachusetts rules of evidence apply flexibly at a harassment prevention order hearing, but the evidence must still be reliable. The judge may consider affidavits, messages, photographs, recordings that were lawfully made, witness testimony, and other relevant material. A party should bring complete and organized records rather than selected excerpts that omit context.

Testifying can create a separate risk when a related criminal investigation or prosecution is pending. A statement offered to defeat or obtain a civil order may be used in another proceeding. For more detail about the decision whether to testify, see the firm’s page on the Fifth Amendment in civil cases.

Defending a Harassment Prevention Order Complaint That Alleges Physical Acts

Many harassment prevention order complaints allege acts rather than words. The plaintiff says that the defendant slashed a tire, followed the plaintiff home, waited outside the plaintiff’s workplace, or forced the plaintiff into sexual relations. The First Amendment protects speech but does not protect physical acts. The defendant answers allegations of physical acts with evidence.

The plaintiff must prove each alleged act by a preponderance of the evidence. The plaintiff must also prove that the defendant, and not another person, committed the act. A defendant who denies the act testifies, calls witnesses, and offers records. Phone location records, work schedules, receipts, toll records, and messages the defendant sent at the time of the alleged act can show that the defendant was somewhere else. Doorbell and security camera recordings, repair invoices, and dated photographs can show who damaged the property and when.

Attorney Serpa compares the plaintiff’s affidavit with the plaintiff’s testimony at the hearing and with any police report or message in which the plaintiff described the same event. The judge may doubt an account in which a date changes, an act appears for the first time at the hearing, or a detail contradicts the police report. The firm’s post on how Attorney Serpa cross-examines a witness describes cross-examination at a 209A restraining order or 258E harassment prevention order hearing.

Screenshots are the usual evidence in harassment prevention order cases. A screenshot can be cropped, edited, or taken from an account the defendant does not control. Attorney Serpa asks for the complete thread, the account information, and the dates. He then asks the judge to give little weight to a screenshot that the plaintiff cannot place in context. The firm’s guide to digital evidence in Massachusetts criminal cases explains authentication, authorship, and completeness in detail.

A plaintiff who relies on one act of forced sexual relations must prove force, threat, or duress and must prove that the sexual relations were involuntary. The police often investigate the same allegation at the same time. A defendant who testifies at the hearing gives sworn testimony that the prosecutor can use in a later criminal case.

A defendant who does not testify leaves the plaintiff’s account unanswered. Moreover, the judge in the civil case may weigh the defendant’s failure to testify against the defendant, although that failure alone cannot prove the plaintiff’s case. Frizado v. Frizado, 420 Mass. 592 (1995). Attorney Serpa decides with the client before the hearing whether the client will testify. The firm’s page on consent in Massachusetts rape and sexual assault cases explains force, incapacity, and consent.

A plaintiff who names stalking as the one act must prove the elements of stalking under G.L. c. 265, § 43. The plaintiff must prove a willful and malicious pattern of conduct directed at the plaintiff that seriously alarmed or annoyed the plaintiff and would cause a reasonable person to suffer substantial emotional distress. The plaintiff must also prove a threat made with the intent to place the plaintiff in imminent fear of death or bodily injury. The firm’s stalking defense page explains the elements of stalking and the evidence the Commonwealth uses to prove them.

Preparing the Defense in Ten Court Business Days

G.L. c. 258E, § 5 requires the court to hear the defendant not later than ten court business days after the judge enters the temporary order. Ten court business days is about two calendar weeks. Serpa Law Office is a one-lawyer office. Attorney Serpa reviews the complaint and the affidavit with the client, gathers the records and witnesses described above, prepares the cross-examination of the plaintiff, and appears at the hearing himself. A defendant who calls the office on the day of service gives Attorney Serpa the full period to prepare.

What Relief May the Court Order?

G.L. c. 258E, § 3 authorizes the court to order the defendant to do any of the following.

• refrain from abusing or harassing the plaintiff.
• have no contact with the plaintiff unless the court authorizes the contact.
• remain away from the plaintiff’s household or workplace.
• pay compensation for losses directly caused by the harassment.

Compensable losses may include lost earnings, expenses for injuries or damaged property, replacement locks, medical expenses, the cost of obtaining an unlisted telephone number, and reasonable attorney’s fees. Not every order contains every available condition. The defendant must follow the language of the particular order.

Duration, Extension, Modification, and Termination

An initial order after notice may remain in effect for a fixed period of up to one year. At the expiration hearing, the court may extend the order for any additional period reasonably necessary for protection if the plaintiff appears. A later extension may last for several years or may be permanent.

The plaintiff does not have to prove a new incident of harassment to obtain an extension, even when no harassment occurred while the order was in effect. At an extension hearing, the judge decides whether the plaintiff has a continued need for protection. The original factual basis is not retried. A challenge to the original order ordinarily must be raised through a timely appeal.

Either party may move to modify or terminate an order. A defendant seeking relief must ordinarily prove, by clear and convincing evidence, a significant change in circumstances and show that the disputed condition is no longer necessary to protect the plaintiff from harassment. Passage of time and compliance may be relevant, but neither is sufficient by itself.

A plaintiff may also ask the issuing court to reduce or terminate an order. The existing terms of the order remain enforceable until the court allows a request to reduce or terminate the order. The parties cannot change a court order by private agreement.

Firearms, Ammunition, LTCs, and FID Cards

Massachusetts law requires every ex parte 258E harassment prevention order to include immediate suspension and surrender of the defendant’s LTC or FID card and surrender of firearms and ammunition that the defendant controls, owns, or possesses. The surrender requirement is based on the same finding of a substantial likelihood of immediate danger that the judge must make to issue the temporary order.

At the hearing after notice, the court must decide whether returning the surrendered items would present a likelihood of harassment to the plaintiff. The suspension and surrender order continues while the related harassment prevention order remains in effect if the judge finds that returning the surrendered items would present a likelihood of harassment to the plaintiff.

A defendant may petition the issuing court to review a surrender order, with a hearing required within ten court business days. The court must hold a hearing on the surrender issue within two business days if a firearm or ammunition is required for the defendant’s employment and the defendant files the required affidavit and expedited request.

Counsel must also analyze state licensing rules and any federal firearms restriction. For the Chapter 258E surrender provisions, see Firearm Surrender Under a Massachusetts 258E Harassment Prevention Order. An extreme risk protection order is a separate proceeding with a different statutory standard.

Criminal Violations of a 258E Harassment Prevention Order

A 258E harassment prevention order is civil, but violating an enforceable term is a criminal offense. Under G.L. c. 258E, § 9, the court may punish a defendant convicted of a violation by a fine of up to $5,000, imprisonment for up to two and one-half years in a house of correction, or both. The statute also requires a separate $25 assessment and permits additional orders concerning treatment, damages, or contempt.

The plaintiff cannot give the defendant permission to ignore an order. Plaintiff-initiated contact does not change a no-contact or stay-away provision. The plaintiff’s consent to a violation does not prevent arrest or prosecution. Only the court may modify or terminate the order.

The criminal case has elements and defenses that are distinct from the civil issuance hearing. The defense examines the defendant’s knowledge, the wording of the order, notice, the alleged act, and whether the defendant intentionally violated an enforceable condition. See Violation of a Massachusetts 258E Harassment Prevention Order and the 209A Restraining Order and 258E Harassment Prevention Order Violation FAQs.

The Statewide Record and Expungement

Courts transmit information about 258E harassment prevention orders for entry in a statewide prevention-order recordkeeping system. A civil order is different from a criminal conviction and is not itself a criminal CORI disposition. A prosecution for violating the order creates a separate criminal record.

Expiration or termination of an order does not automatically expunge the court or statewide registry record. Expungement is available only in rare circumstances and generally requires clear and convincing evidence of fraud on the court. The Supreme Judicial Court applied this standard to harassment prevention orders in Piper P. v. Barron B., SJC-13854, holding that G.L. c. 258E does not authorize a court to expunge a harassment prevention order from the statewide registry after a judge vacates the order for insufficient evidence, and that a judge may order expungement only on clear and convincing evidence that the person who sought the order obtained it through fraud on the court. For the governing standards, see Expunging a Massachusetts 209A Restraining Order or 258E Harassment Prevention Order From the Registry and the firm’s restraining order and harassment prevention order expungement FAQs.

Common Settings for 258E Harassment Prevention Order Proceedings

Neighbor and Property Disputes

Noise, parking, boundaries, cameras, shared spaces, and complaints to landlords or municipal agencies often appear in neighbor cases. A hostile relationship is not enough by itself for the judge to issue an order. The evidence must establish the required number of acts, the defendant’s statutory intent, malice, and the actual effect of the alleged pattern.

Workplace and School Proceedings

A 258E harassment prevention order case may proceed at the same time as an HR investigation, school disciplinary case, discrimination complaint, or civil lawsuit. Statements and documents created in one proceeding may affect another. Students should also consider the separate consequences of a court order for housing, campus access, and discipline. See College and University Student Defense in Boston and Cambridge.

Texts, Social Media, and Online Contact

Electronic evidence should be preserved in its original context. Useful records may include complete threads, account information, dates, recipient lists, call logs, and evidence showing who controlled the account. After issuance of an order, the defendant should not send any communication prohibited by the terms of the order, whether directly, through another person, or through a digital platform.

Representation for Defendants and Plaintiffs

Counsel for a defendant begins preparation with the complaint and affidavit. Counsel should separate the narrative into alleged acts, identify the legal theory, and test each act against the required elements. Full communications, a reliable chronology, witnesses, photographs, and records from related proceedings may confirm or contradict the allegations.

Counsel for a plaintiff prepares the case with the same precision. The complaint should identify each alleged act by date, place, participants, conduct, intent, and effect. Documents and witnesses should be organized around the statutory theory. Counsel should present the evidence with particular clarity when the case depends on three separate acts rather than one incorporated offense.

Serpa Law Office represents either side in 258E harassment prevention order proceedings. Attorney Serpa handles harassment prevention order hearings in the Boston Municipal Court and in the District Courts of Greater Boston, including Brookline, Cambridge, Concord, Dedham, Framingham, Hingham, Malden, Newton, Quincy, Somerville, Waltham, and Woburn.

Related Serpa Law Office Resources

• How to Get a 258E Harassment Prevention Order in Massachusetts
• Massachusetts Restraining Orders and Harassment Prevention Orders
• Massachusetts 209A Restraining Orders (Abuse Prevention Orders)
• Criminal Violation of a Massachusetts 258E Harassment Prevention Order
• First Amendment Limits in Massachusetts Criminal Harassment and 258E Harassment Prevention Order Cases
• The Fifth Amendment at a 209A Restraining Order Hearing and in Civil Cases
• Firearm Surrender Under Chapter 258E
• Expunging a Massachusetts 209A Restraining Order or 258E Harassment Prevention Order From the Registry
• Trespass Charges in Massachusetts Under G.L. c. 266, § 120

Contact Serpa Law Office

To discuss a Massachusetts harassment prevention order, call Serpa Law Office at 617.936.0201 or use the contact form on this page. The firm represents defendants and plaintiffs in Greater Boston and throughout Massachusetts. A person in immediate danger should call 911.