A new Massachusetts law passed unanimously by the state legislature and signed by the Governor today is said to “close the loophole” of 209A restraining orders. Until now, the infamous 209A Abuse Prevention Order could have been obtained only against persons falling into certain categories of relationships, like relatives, members of household, persons who are or were dating, etc. Also, a certain pattern of “abuse” had to be demonstrated for the restraining order to be granted, namely: actual or attempted physical abuse, forced sexual relations, or fear of imminent serious physical harm.
This Blog and others like it have demonstrated in our discussions over the years the various avenues for potential abuse of the system, and how 209A Restraining Orders obtained upon false or unsupported allegations have been misused to create substantial problems for Defendants — everything from losing their homes, their belongings, their children, to being incarcerated.
The new law, closing the so-called loophole, EXPANDS the reach of restraining orders in Massachusetts substantially. First and foremost, the relationship limitation is lifted. Under the new law, it does not matter how the parties are related or even that they know each other. It will now be possible to get a restraining order against a neighbor, store clerk, taxi driver, mailman, you name it. Second, the new orders greatly expand the actions upon which the order may be granted. As if “fear of imminent serious physical harm” under the old law wasn’t vague enough, the new law allows anyone who “suffers from harassment” to obtain the restraining orders.
In turn, harassment is defined as “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.” The definition of abuse in essence carries over from the old law: actual physical harm, attempted physical harm, or placing someone in fear of imminent serious physical harm. As evident, in addition to acts of actual abuse, ANY three instances of ANY conduct that cause fear or intimidation will now meet the standard of the new law. Unwanted sex acts, sex crimes, and acts of stalking are specifically listed as automatically qualifying acts requiring only a single instance.
The new law, which will be called Chapter 258E, is not meant to replace Chapter 209A. It is meant to offer a separate and additional avenue of protection (or attack, depending on which side you are on). The procedure of the 258E Orders is written to mimic the 209A procedure almost exactly: there are still the two stages of the hearing with a notice to the Defendant in the interim, the order has various degrees of intensity (no abuse, no contact, stay away, etc), the first extension of the order cannot exceed one year, but later a permanent order may be entered, the criminal punishment for a violation of the new orders is exactly the same as for a violation of a 209A order — up to 2.5 years in jail and/or a $5,000 fine, and the new orders will still end up in the State Domestic Violence Registry with ongoing uncertainty about exactly who is allowed to look at it. It does not appear, however, that surrender of firearms to the police can be ordered under the new law.
The 258E Orders (I don’t actually know if that’s how they will come to be known) are civil proceedings, however violations of the orders are serious crimes. This is a huge step up from the previous “equitable restraining orders” offered in the Superior Court, which, until now, were the only remedy available against a non-relative or against someone who is not a dating partner. Those equitable orders were difficult to obtain, hard to navigate without attorneys, little or no assistance was available, and a violation of those orders merely resulted in a civil contempt of court, which rarely if ever meant jail time.
That was then. 258E is now.
As the new law takes effect and courts are able to flush out and streamline the procedures associated with issuing and litigating these orders, I will be able to offer a better front-line perspective that is more than mere theory. Unfortunately, some day in the near future in some court in this Commonwealth someone will learn the hard way that even three text messages saying “boo” might just be enough to land someone in jail under the new law. Now, we wait.