209A Violations: a one way street

Posted on January 18th, 2007, by Dmitry Lev

A client will often say, “Why am I being accused of violating the 209A order if my (insert Plaintiff wife, husband, boyfriend, girlfriend, ex, etc.) called me first? The Plaintiff violated it, not I!” Understandable line of reasoning, but unfortunately incorrect.

For the sake of this discussion, assume that the Plaintiff took out a 209A Restraining Order against the Defendant, and the order does not allow the Defendant to have any contact with the Plaintiff and also requires the Defendant to stay away. It is legally impossible for the Plaintiff to violate a 209A order. The only person who can be in violation is the Defendant, despite the fact that the Plaintiff may have been the one to initiate contact. Further, the Plaintiff cannot decide to temporarily “suspend” the restraining order or “authorize contact just this one time.” Regardless of what the Plaintiff may say or do, only the court can modify the terms of the restraining order and if the Plaintiff truly wants to communicate, s/he should go to court and ask the judge to vacate the restraining order altogether, or at least modify it to allow contact. Until such action is taken by the judge, any contact by the Defendant, even at the request of the Plaintiff, is a violation of the restraining order which exposes the Defendant to arrest, being held without bail pre-trial, 2.5 years in jail if convicted, monetary fines up to $5,000, and other nasty consequences.

For the Defendant, the best thing to do if the Plaintiff calls is to say nothing and hang up immediately. Any conversation, even if it’s about the fact that the Plaintiff should not be calling, is technically a form of prohibited contact — violation of the order for which the Defendant can be arrested and prosecuted. If the Plaintiff e-mails or sends a text message, do not reply, no matter how temping it may be. If the Plaintiff shows up at the Defendant’s home, do not open the door. If the Plaintiff shows up at the Defendant’s work, try to avoid all contact and have someone else ask the Plaintiff to leave. If the Plaintiff shows up at a public place where the Defendant just happens to be, such as a restaurant, club, or park, the Defendant should leave immediately.

No matter how good the Plaintiff’s intentions are, or seem to be, any responses by the Defendant are violations of the restraining order, and therefore serious crimes under the law. Even if the Defendant merely remains on the phone and “lets the Plaintiff talk,” the Defendant is still committing a violation. Each phone call, e-mail, or text message to which the Defendant replies is considered to be a separate violation. If the Plaintiff continues to initiate contact or expose the Defendant to the risk of violating the order, it is at times advisable for the Defendant to notify the local police. It is always advisable for the Defendant to keep his/her own attorney apprised of these instances.

Short of obtaining a reciprocal restraining order, there are not many things the Defendant can do to “punish” the Plaintiff for initiating contact. But it is important to document the Plaintiff’s instances of initiating contact, because should there be an allegation of a violation and a future criminal proceeding against the Defendant, the fact that the Plaintiff initiated the contacts could possibly serve as a mitigating factor and lessen the strength of the prosecution’s case.

In short, 209A violations are a one way street that only the Defendant can cross.

How about a substantive date?

Posted on January 14th, 2007, by Dmitry Lev

How about a substantive date?

How about not. In Massachusetts, a 209A domestic abuse restraining orders can be issued only when the alleged abuser is a “family or household member.” Interestingly enough, that short definition also includes those who “are or have been in a substantive dating or engagement relationship,” whether or not they are actual household members. What exactly is a substantive dating relationship was explored recently by the Court of Appeals in an unpublished opinion on the matter of Sullivan v. Watkins, 05-P-1552 (November 15, 2006).

The court set out some rather concrete factors for determining whether a relationship is, in fact, a substantial one. Whether the justices of the court apply this reasoning to their personal lives will for now remain a judicial secret. Meanwhile the factors are: 1) the length of time of the relationship; 2) the type of relationship; 3) the frequency of interaction between the parties, and 4) if the relationship has been terminated by either person, the length of time that elapsed since the termination. Further, judicial guidelines encourage judges to give the term “substantive dating relationship” a broad meaning in order to achieve the statute’s purpose.

As the story is told, Plaintiff Shawna Sullivan was seeking a 209A Restraining Order against one Paul Watkins. On the record, Sullivan stated that the two “went out here and there” and had “gone out to eat plenty of times.” Well, the meals must not have been particularly memorable, because Sullivan could not recall a single restaurant or occasion for their dates when asked. Apparently Sullivan’s allegations of fear of imminent physical harm did not include any evidence of Watkins ever having threatened her, neither physically nor verbally. Her affidavit in support of the ex-parte order was based solely on seeing Watkins’ truck driving by her house. According to the Court, “if anything, this record reveals a few casual dates.”

Bottom line: the 209A order was vacated by the Court of Appeals. What remains are two frightening thoughts. First, that Sullivan actually thought she could get a restraining order based on what pretty much amounted to nothing. Second, that Sullivan was right – she did get the order just as she sought. It was initially issued out of Malden District Court by, coincidentally, Judge Sullivan. (I presume that Plaintiff Shawna Sullivan and Judge Mark Sullivan are not related. If, by chance, they were, the judge should have immediately recused himself from the case.) The positive thought is that, once again, the recourse was a successful appeal, and kudos to Watkins for pursuing this matter all the way. Kudos also goes to the Court of Appeals: while their definition of substantive dating is a bit dry, they got this particular case just right.