Violation of a 258E Civil Harassment Prevention Order (M.G.L. c. 258E, § 9)

The Statute: M.G.L. c. 258E, § 9

Violating the terms of a 258E harassment prevention order is a criminal offense under Massachusetts General Laws Chapter 258E, Section 9. The penalties are identical to those for violating a 209A order under M.G.L. c. 209A, § 7: up to two and one-half years in a house of correction and a fine of up to $5,000 for a first offense, with a second or subsequent violation elevated to a felony punishable by up to five years in state prison. A 258E order has no relationship requirement and is available to any person who can establish three or more acts of willful and malicious conduct by the defendant.

How 258E Orders Differ from 209A Orders

Relationship requirement. A 209A order requires a family or household member relationship. A 258E order has no relationship requirement. Neighbors, coworkers, and former acquaintances are frequently parties to 258E proceedings.

Standard for issuance. A 209A order requires a showing of abuse. A 258E order requires three or more acts of willful and malicious conduct.

Mandatory arrest. Both statutes require mandatory arrest on probable cause to believe a violation has occurred.

Firearms surrender. Unlike 209A orders, 258E orders do not automatically require firearms surrender. A judge may impose a firearms condition but is not required to do so.

Elements the Commonwealth Must Prove

• A valid 258E order was in effect at the time of the alleged violation.
• The defendant had actual knowledge of the order and its specific terms.
• The defendant violated a term of the order.
• The violation was intentional.

Lack of notice is a complete defense.

258E Violations and Criminal Harassment Charges

A 258E order violation frequently accompanies a new criminal harassment charge under M.G.L. c. 265, § 43A. When a defendant subject to a 258E order contacts the plaintiff, that contact may simultaneously constitute a violation of the order under Section 9 and new criminal harassment if the contact is part of a course of conduct directed at the plaintiff. The two charges are independent and can both be prosecuted when the underlying conduct is the same. See: Massachusetts 258E Harassment Prevention Orders.

Excited Utterances in 258E Violation Cases

Excited utterance issues in 258E violation cases follow the same framework as in 209A violation cases, with one additional consideration. The relationship between the parties in a 258E case is typically not domestic. The underlying harassment required three or more prior acts of willful and malicious conduct, which means the complainant’s fear response to a violation is often documented over a longer history of contact rather than a single incident. Courts evaluating the excited utterance foundation must consider whether the specific violation that prompted the statement was sufficiently startling in the context of the parties’ prior history, and whether a complainant who had already experienced multiple acts of harassment was in a state of spontaneous excitement when she made the statement or was reporting calmly based on a pattern she had been documenting. Defense counsel can use the complainant’s prior reporting history to argue that the statement was deliberate and reflective rather than spontaneous. See: Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause.

Forfeiture by Wrongdoing

The forfeiture by wrongdoing doctrine recognized in Giles v. California (554 U.S. 353, 2008) applies to 258E violation cases. A defendant who contacts the plaintiff in violation of the 258E order and thereby discourages the plaintiff from testifying forfeits the Confrontation Clause right under Crawford v. Washington (541 U.S. 36, 2004). A 258E violation that also constitutes witness intimidation under M.G.L. c. 268, § 13B generates an additional felony charge with a permanent unsealing consequence. All contact with the plaintiff must go through counsel.

Collateral Consequences

Second offense. A second or subsequent 258E violation is a felony punishable by up to five years in state prison.

Immigration. A conviction may constitute a crime of stalking or harassment under immigration law. See: Immigration Consequences of Massachusetts Criminal Charges.

Professional licensing. A conviction or CWOF is reportable to most Massachusetts professional licensing boards. See: Criminal Defense for Licensed Professionals in Massachusetts.

Defense

Lack of notice. A defendant who was never served with the order and lacked actual knowledge of its terms cannot knowingly violate it.

Challenging the validity of the order. A 258E order issued without an adequate factual basis can be challenged at the extension hearing under M.G.L. c. 258E, § 3.

Accidental or incidental contact. Genuinely accidental contact immediately terminated does not satisfy the intent element.

Challenging the excited utterance foundation. Defense counsel argues that the complainant’s prior reporting history demonstrates deliberate, reflective reporting rather than the spontaneous excited declaration required by Massachusetts Guide to Evidence § 803(2).

Related Pages

• Massachusetts 258E Harassment Prevention Orders. Practice Area Hub
• Massachusetts 209A Abuse Prevention Orders
• Violation of a 209A Abuse Prevention Order (M.G.L. c. 209A, § 7)
• Boston Domestic Violence Defense Lawyer
• Intimidation of a Witness (M.G.L. c. 268, § 13B)
• Arraignment in the Massachusetts Trial Court
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Defending 209A and 258E Restraining Order Violations
• Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause
• Immigration Consequences of Massachusetts Criminal Charges
• Criminal Defense for Licensed Professionals in Massachusetts

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