Restraining Orders in Massachusetts

The Massachusetts court system most often approves two types of restraining orders: the 209A Abuse Prevention Order and the 258E Harassment Prevention Order. Both of these orders generally require that one person, the Defendant, stay away from and not contact the person who requested the order, called the Plaintiff. 

What is the most important thing to know about Restraining Orders in Massachusetts?

If you are the subject of either type of Massachusetts restraining order, you must understand this: both of these orders can lead to criminal charges. 

Although the order itself is not criminal and does not automatically lead to a criminal charge, a violation of the order can and most likely will. 

Those who are the subject of a restraining order and violate its terms can face criminal penalties the extent of which vary depending on the details of the circumstances. It is important to understand the type and scope of the order.  You need to be able to tailor a plan to the situation to avoid – or begin to build a defense against – any additional allegations of wrongdoing.

What is a 209A Restraining Order?

A 209A Restraining Order, also referred to as a Protective Order or Abuse Prevention Order, aims to prevent one individual from contacting or approaching another. These orders are issued between family members, people who have been in a romantic relationship, or who have been living together.

To obtain a 209A restraining order in Massachusetts, commonly known as a domestic violence restraining order or a protective order, an individual must demonstrate to the court that they are suffering from abuse by a family or household member, or romantic partner. 

The requirements for proving abuse under a 209A restraining order include showing that the person you are seeking protection from has:

Harmed or attempted to harm you physically, or has put you in fear of imminent serious physical harm, or has forced you into sexual relations through physical force, threat, or duress; and

That you have a household or family or dating relationship with the defendant, which includes: people who are or were married to each other, are or were residing together in the same household, are or have been related by blood or marriage, have a child in common regardless of whether they have ever married or lived together, or are or have been in a substantive dating or engagement relationship.

When seeking a 209A restraining order, the petitioner must fill out and file an application at a Massachusetts court. This application includes a complaint form detailing the reasons for requesting the order, and a sworn affidavit describing the facts of the abuse. The petitioner must convincingly explain the circumstances and provide any available evidence of abuse, such as physical evidence of harm, police reports, or other documentation.

A Restraining Order is not a criminal charge or criminal case. Unlike criminal charges which may result in jail time, probation, or counseling programs, a 209A Restraining Order doesn't automatically impose criminal penalties on the person against whom it is issued. It is initiated by one individual who seeks the court's intervention to protect themselves from the other party. 

The order usually requires that you stay a certain distance away from a person, their home and workplace, and prohibits any form of contact, including in-person communication, phone calls, text messages, emails, and social media interactions. Violation of a 209A Restraining Order can lead to serious consequences, such as arrest, fines, and imprisonment.

What is a 258E Harassment Prevention Order?

This court order allows an individual to request court protection to keep the subject of the request from abusing or harassing the individual who requests protection. This type of order is available to people who are not related, have not been in a relationship, and do not live together. 

Under this order, the law defines harassment as a willful and malicious act.  “Willful and malicious” means acts that are cruel, hostile, or done for revenge. 

In order to qualify for this type of restraining order the individual filing the request must also establish:

Target. That they were the target of the willful and malicious act.

Intent. That the act was meant to cause fear, intimidation, abuse, or property damage.

Result. That the act actually caused fear, intimidation, abuse, or property damage.

The courts will also approve a request for a 258E Harassment Prevention Order if the subject of the request committed one of the following crimes: rape, assault with intent to rape, indecent assault and battery, criminal stalking, criminal harassment, drugging for sexual intercourse, enticement of a child, or forced the individual to have sex or threatened sex.

These orders can impose the same restrictions as 209A restraining orders:  requiring that you stay a certain distance away from a person, their home and workplace, and prohibiting any form of contact, including in-person communication, phone calls, text messages, emails, and social media interactions. 

Violation of a Harassment Prevention Order can lead to serious consequences, such as arrest, fines, and imprisonment

Will I Know That Someone has Requested a Restraining Order Against Me? 

Usually you will not know right away. In most instances an individual can initially request the order without notifying the subject. This type of order is referred to as an ex parte order and is used by the court if the person can show that there is a substantial likelihood of immediate danger or harassment. In these instances, you are generally made aware of the existence of the temporary order against you when police give you a copy of the order, terms, and date of the next hearing. At that hearing, you will have an opportunity to challenge the order.

The court generally schedules the hearing within 10 days of the initial issuance of the order.

What Happens When A Restraining Order Is Filed Against Me?

A restraining order is obtained when a person asks a judge to issue an order against someone else.  The judge will make an initial finding whether there are sufficient grounds to issue a temporary order. When this initial hearing takes place, only the person requesting the order, called the Plaintiff or Petitioner, is present before the judge.  If you are the target of the order, called the Defendant, you will not be present, and may well not even know that an order is being sought against you. 

Typically, if a judge grants a temporary restraining order, it will be in effect for 10 days. During that time, you will receive notice to vacate the premises if you share an apartment or house with the person who has filed a restraining order against you. Additionally, you will be required to avoid all contact with the person in question, which means avoiding phone calls, e-mails, letters and any physical contact with him or her. You also cannot have a third party contact that person on your behalf. You will then be notified to appear at a hearing to determine if the order will be extended for a longer period of time, typically one year.

You are best served by involving an attorney immediately, so that there is no misunderstanding or allegations that you somehow violated the temporary restraining order. 

What Requirements Will a Restraining or Harassment Prevention Order Put on Me?

It will depend on the language of the order. The order may state that you are not allowed to contact the individual who obtained the order. This can include a requirement that you stay a certain distance away from the individual, refrain from calling, texting, social media contact or even having friends contact the individual.

The order can also state that you must pay for certain expenses, such as medical bills or lost wages that allegedly resulted from incidents of previous harassment.

What should I do if I find out I am the subject of a Restraining Order or 258E Harassment Prevention Order?

It is important to take the time to understand your rights. Navigating this niche area of criminal law is not an easy task, but you do not have to go through it alone. An attorney experienced in these forms of protection orders can review the court order and help you develop a plan that better ensures your rights are protected and reduces the impact of the process on your personal and professional life.

What Happens If I Violate a Restraining Order?

If you violate the terms of a restraining order, you could be charged with a crime, held in custody, and/or be required to post bail. 

If you are found guilty of violating a restraining order, you could receive jail time, a fine, and a permanent criminal record. The record could interfere with your ability to find employment, rent an apartment, or apply for loans. Additionally, if you are sentenced to time in jail, your employment will be at risk. If you are an “at will” employee, you may have little, if any, recourse to save your job.

How is a Violation of a Restraining Order Proven?

When a person is accused of violating an Abuse Prevention Order, the process of proving a violation is not a straightforward task. In order to prove that a violation has occurred, several factors must be proven beyond a reasonable doubt:

  1. The presence of an order. The alleged victim would need to show the court evidence of an official order
  2. That the order was in effect. It is important to review the dates that the order was in effect. The attempt to establish a violation will fail if the order was not in effect at the time of the alleged violation, for example, if it had expired or had not yet been served.
  3. That a violation occurred. The specific terms and conditions outlined within the order are crucial in determining whether a violation has occurred. Depending upon the terms of the order, the prosecution will attempt to prove to the court that the individual either abused, contacted, or failed to remain a certain distance from those named within the order thus causing a violation of the order. For the purpose of such an order, abuse generally means causing or attempt to cause another physical harm or putting that individual in fear of physical harm.
  4. That the individual knew about the order. The prosecutor will also need to show that the individual was actually aware of the order.

Ultimately, if the court finds that all the necessary elements have been met and a violation of the Abuse Prevention Order has occurred, the consequences can vary. The severity and recurrence of the violation, as well as the jurisdiction's laws, will influence the outcome. Potential consequences may include penalties such as fines, mandatory counseling or therapy, probation, or even imprisonment in extreme cases. It is essential to consult with legal professionals to understand the specific consequences that may apply in a given situation.

If I am the subject of a restraining order how can I protect my rights?

If you find yourself subject to a restraining order you can take certain steps to protect your rights. First, it is crucial to have a comprehensive understanding of their rights in such a situation. Seeking guidance from a lawyer with expensive experience in defending restraining orders and violations of restraining orders is critical. He will have the necessary knowledge and experience to review your particular circumstances and provide valuable advice.

Once you are aware of your rights, it is important to develop a plan to minimize the risk of facing further allegations of misconduct. This can involve taking proactive steps such as making arrangements that will ensure you can obey the terms and conditions specified in the restraining order. Additionally, you might want to maintain a record of all interactions and communications with the person who has taken out the restraining order, to provide an accurate account of events if required in the future.  Depending on the circumstances, you may need to take more drastic steps to protect yourself. An experienced criminal defense lawyer can help you come up with an effective plan.

If you are challenging the extension of the order, you may take steps to gather evidence in your favor. This can include gathering witness statements, video or audio recordings, and any other relevant evidence that could help to refute false allegations or misconceptions. Having a strong and well-documented case can be crucial in protecting one's rights in court proceedings or negotiations.

Throughout this process, it is also advisable for individuals to rely on a support network. Seeking emotional support from friends, family, or support groups can be beneficial in coping with the challenges that arise from being subject to a restraining order. These individuals can provide assistance, guidance, and encouragement during legal proceedings, as well as help maintain a positive outlook during a difficult time.

In summary, individuals who are the subject of a restraining order can take several steps to protect their rights. Understanding one's rights, seeking legal advice, adhering to the terms of the order, gathering evidence, and establishing a strong support system are all crucial elements in safeguarding one's rights and moving forward with their life.

Contact Ernest Stone Today

Lead attorney Ernest Stone has more than two decades of experience in multiple criminal defense areas, including successfully defending restraining order violations in both District and Superior Court.

If you or a loved one is the subject of a restraining order in Massachusetts, or are accused of violating one, having a highly knowledgeable and experienced criminal defense attorney by your side is important. Contact H. Ernest Stone, Attorney PC, today for a free consultation. Being accused is traumatic. We understand. Let us get you through the storm.

Schedule a free case review online or by calling (978) 705-4537.

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