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ANNOTATED LAWS OF MASSACHUSETTS
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*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 1 (2012)
§ 1. Definitions.
As used in this chapter the following words shall have the following meanings:
"Abuse", the occurrence of one or more of the following acts between family or household members:
(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm;
(c) causing another to engage involuntarily in sexual relations by force, threat or duress.
"Court", the superior, probate and family, district or Boston municipal court departments of the trial court, except
when the petitioner is in a dating relationship when "Court" shall mean district, probate, or Boston municipal courts.
"Family or household members", persons who:
(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) having a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district,
probate or Boston municipal courts consideration of the following factors:
(1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between
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the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the
termination of the relationship.
"Law officer", any officer authorized to serve criminal process.
"Protection order issued by another jurisdiction", any injunction or other order issued by a court of another state,
territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or tribal
court that is issued for the purpose of preventing violent or threatening acts or harassment against, or contact or
communication with or physical proximity to another person, including temporary and final orders issued by civil and
criminal courts filed by or on behalf of a person seeking protection.
"Vacate order", court order to leave and remain away from a premises and surrendering forthwith any keys to said
premises to the plaintiff. The defendant shall not damage any of the plaintiff's belongings or those of any other occupant
and shall not shut off or cause to be shut off any utilities or mail delivery to the plaintiff. In the case where the premises
designated in the vacate order is a residence, so long as the plaintiff is living at said residence, the defendant shall not
interfere in any way with the plaintiff's right to possess such residence, except by order or judgment of a court of
competent jurisdiction pursuant to appropriate civil eviction proceedings, a petition to partition real estate, or a
proceeding to divide marital property. A vacate order may include in its scope a household, a multiple family dwelling
and the plaintiff's workplace. When issuing an order to vacate the plaintiff's workplace, the presiding justice must
consider whether the plaintiff and defendant work in the same location or for the same employer.
HISTORY: 1978, 447, § 2; 1983, 678, § 2; 1986, 310, § 15; 1990, 403, § 2; 1996, 298, § 1; 1996, 450, § 232.
NOTES: Editorial Note
The 1983 amendment rewrote the definition of "Court" to include the family or Boston municipal court
departments of the trial court.
The 1986 amendment rewrote the definition of "Family or household member" by adding former household
member, and parent of the plaintiff's minor child.
The 1990 amendment in the opening paragraph, substituted "As used" for "The following words as used"; in
paragraph (c) of the definition of "Abuse", substituted "threat" for "threat of force"; in the definition of "Court", inserted
", except when the petitioner is in a dating relationship when 'Court' shall mean district, probate, or Boston municipal
courts"; restructured and changed the definition of "Family or household member" to be applicable and refer to "Family
or household members"; and inserted the definition of "Vacate order." Sections 14 through 16 provide:
Section 14. The secretary of public safety shall establish a policy for law enforcement response to domestic
violence consistent with the provisions of this act; provided, however, that he may revise, terminate, or revoke such
policy at his discretion. Such policy shall be developed after consultation with the director of the victim assistance
office, at least two representatives of a certified or provisionally certified batterer's treatment program, and at least four
representatives from the governor's anti-crime council including at least one district attorney, one member of the
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law
enforcement response to domestic violence shall be promulgated within six months of the effective date of this act.
Section 15. Each law enforcement agency shall establish and implement specific operational guidelines consistent
with the policy established under the provisions of section fourteen or adopt said policy. Local operational guidelines
shall be submitted to the secretary of public safety for review within sixty days of the adoption of said policy. The
secretary shall provide written notice of approval of the local guidelines within thirty days of receipt of said guidelines.
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the
absence of approved guidelines, the law enforcement agency shall implement said policy.
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ALM GL ch. 209A, § 1
Section 16. Within six months of the effective date of this act, guidelines and standards for the certification of
batterer's treatment programs by the department of public health shall be set up by a commission to be established by
the chief justice of the trial court department, one member of which shall be a district attorney or his designee, two of
which shall be members of a recognized batterer's treatment program with training experience, two of which shall be
members of a domestic violence program or the statewide coalition of programs which provide services to victims of
domestic violence and one of whom shall be a member from a probation department. Prior to the establishment of such
guidelines and standards, the department of public health may provisionally certify batterer's treatment programs
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment
of guidelines under this section.
The department of public health shall thereafter certify and monitor batterer's treatment programs according to the
standards established and promulgated by the commission. Programs so certified shall be the only batterer's treatment
programs appropriate for court referrals.
The first 1996 amendment, (ch 298), inserted the definition "Protection order issued by another jurisdiction".
The second 1996 amendment, (ch 450), made grammatical changes in subparagraph (d) of the definition "Family
or household members."
Cross References
State Police forms for reporting incidents to include space to indicate abuse as defined in this section, ALM GL c
22C, § 49.
Protection and care of children, and proceedings against them, ALM GL c 119, § 1 et seq.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
Annotations
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
"Cohabitation" for purposes of domestic violence statutes. 71 ALR5th 285.
Treatise References
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.720, Violation of an Abuse Prevention
Order.
Estate Planning for the Aging or Incapacitated Client § 11.3.1, Abuse.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.05, 4.09, 22:8-22:10, 22:26,
22:29, 22:41, 51:2, Form 208.
Massachusetts Divorce Law Practice Manual § 25.7, Renewal of Protective Orders.
Law Reviews
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ALM GL ch. 209A, § 1
Garvey, The Race Card: Dealing with Domestic Violence in the Courts. 11 Am UJ Gender Soc Pol'y & L 287
(2003).
Maytal, Specialized Domestic Violence Courts: Are They Worth the Trouble In Massachusetts?. 18 B.U. Pub. Int.
L.J. 197 (Fall, 2008).
Volovski, Crime And Punishment Law Chapter: Domestic Violence. 5 Geo J Gender & L 175 (Spring, 2004).
Rousseve, Sixth Annual Review of Gender and Sexuality Law: II. Criminal Law Chapter: Domestic Violence and
the States. 6 Geo. J. Gender & L. 431 (2005).
Hickey, Ninth Annual Review of Gender and Sexuality Law: Criminal Law Chapter: Domestic Violence and the
State. 9 Geo. J. Gender & L. 625 (2008).
Solon, Domestic Violence. 10 Geo. J. Gender & L. 369 (2009).
Morao, Domestic Violence and the State. 7 Geo. J. Gender XXX L. 787 (2006).
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Taylor, Ex Parte Domestic Violence Orders of Protection: How Easing Access To Judicial Process Has Eased the
Possibility for Abuse of the Process. 18 Kan. J.L. & Pub. Pol'y 83 (Fall, 2008).
Harrington, Commonwealth v. Finase: The Scope of Massachusetts Abuse Prevention Order Prosecution and
Efficacy. 29 NE J on Crim & Civ Con 193 (Summer, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).
Alter, Recent Developments in New York Law: Article: What's an Intimate Relationship, Anyway? Expanding
Access to the New York State Family Courts for Civil Orders of Protection. 29 Pace L. Rev. 455 (Spring, 2009).
Tracia, Navigating the Waters of Massachusetts Child Relocation Law: Assessing The Application of the Real
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).
Seidman and Vickers, The Second Wave: An Agenda for the Next Thirty Years of Rape Law Reform. 38 Suffolk U L
Rev 467 (2005).
Gresens, Denying Choice of Forum: An Interference by the Massachusetts Trial Court with Domestic Violence
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Womack, Please Check One - Male or Female?: Confronting Gender Identity Discrimination in Collegiate
Residential Life. 44 U. Rich. L. Rev. 1365 (May, 2010).
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ALM GL ch. 209A, § 1
Cokler, Marriage Mimicry: The Law of Domestic Violence. 47 Wm and Mary L. Rev. 1841 (April, 2006).
Wright and Logan, The Political Economy of Application Fees for Indigent Criminal Defense 47 Wm and Mary L.
Rev. 2045 (April, 2006).
Saperstein, Teen Dating Violence: Eliminating Statutory Barriers to Civil Protection Orders. 39 Fam. L.Q. 181
(Spring, 2005).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
1. In general 2. What is "abuse" 3. --Fear of imminent serious physical harm 4. Warrantless arrest 5. Violation of
order 5.5. Testimony
1. In general
ALM GL c 209A provides statutory mechanism by which victims of family or household abuse can enlist aid of
state to prevent further abuse. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197.
Where man referred to complainant as "former girlfriend," saw her 2-3 times per week, and was sexually active
with her for 14-month period, "substantive dating relationship" existed for purposes of Abuse Prevention Law.
Brossard v. West Roxbury Div. of the Dist. Court Dep't (1994) 417 Mass 183, 629 NE2d 295, 1994 Mass LEXIS 87.
Judge was not required to include language on circumstantial evidence in jury instruction regarding elements of
abuse. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.
Probate Court may issue domestic relations protective order during pendency of divorce proceeding to prohibit
party from imposing restraint upon personal liberty of other party, to order spouse to vacate marital home, and for
temporary relief from actual abuse or immediate threats of physical harm. Champagne v. Champagne (1999) 429 Mass
324, 708 NE2d 100, 1999 Mass LEXIS 136.
Paternal grandmother of child whose parents were not married is "related by blood" to child's mother, and thus has
right to invoke protection from domestic abuse under ALM GL c 209A. Turner v. Lewis (2001) 434 Mass 331, 749
NE2d 122, 2001 Mass LEXIS 329.
Trial court erred in denying a boy's motion to vacate an order for protection from abuse entered pursuant to ALM
GL c 209A, § 4; trial court erred in finding that the boy and a girl he allegedly sexually assaulted had engaged in a
substantive dating relationship as defined by ALM GL c 209A, § 3, and ALM GL c 209A, § 1(e), as the trial court did not
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apply the four factors provided by ALM GL c 209A, § 1(e)(1)-(4) in determining whether a substantive dating
relationship existed, and the trial court erred in refusing to allow the boy to present evidence and cross examine
witnesses at the hearing in question. C.O. v. M.M. (2004) 442 Mass 648, 815 NE2d 582, 2004 Mass LEXIS 665.
Because the trial court made no specific findings and conclusions of law, the supreme judicial court was unable to
determine the standard that was applied in denying a girlfriend's motion to extend a protective order under ALM GL c
209A, § 3; the trial court's sua sponte vacation of the original ALM GL c 209A, § 1 order was error because the only
issue before it was whether the order should be extended. Iamele v. Asselin (2005) 444 Mass 734, 831 NE2d 324, 2005
Mass LEXIS 421.
Where plaintiff lived with her mother and mother's husband for ten years in same household until mother and her
husband were divorced, plaintiff and former husband "resided in same household" and "were related . . . by marriage" as
stepfather and stepdaughter within meaning of ALM GL c 209A, § 1(b) and (c). Sorgman v. Sorgman (2000) 49 Mass
App 416, 729 NE2d 1141, 2000 Mass App LEXIS 470.
There is no time limitation on application of ALM GL c 209A, §§ 1 and 3, so that stepdaughter who last lived with
stepfather in same household in 1977, but who continued to have contact and involvement with stepfather, was not
precluded from seeking protective order under ALM GL c 209A. Sorgman v. Sorgman (2000) 49 Mass App 416, 729
NE2d 1141, 2000 Mass App LEXIS 470.
ALM GL c 209A attempts to remedy violence among family or household members; the proceedings are civil in
nature, and the appellate court accords the trial judge's findings great deference prescribed by Mass. R. Civ. P. 52(a),
which may be supplemented by inspection of the transcript. Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782
NE2d 1085, 2003 Mass App LEXIS 164.
Appellate court reads conflicting evidence in an ALM GL c 209A proceeding granting relief to the plaintiff in the
light most favorable to the plaintiff. Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass
App LEXIS 164.
Court should not issue an ALM GL c 209A order simply because it seems to be a good idea or because it seems it
will not cause the defendant any real inconvenience as a ALM GL c 209A order will infallibly cause inconvenience; in
considering whether to issue a ALM GL c 209A order, the judge must focus on whether serious physical harm is
imminent, and a generalized apprehension does not rise to the level of fear of imminent serious physical harm.
Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass App LEXIS 164.
In considering an application for an ALM GL c 209A order, a judge must be alert against allowing the process to be
used, as it sometimes is, abusively by litigants for purposes of discovery and harassment. Szymkowski v. Szymkowski
(2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass App LEXIS 164.
Although the judge is entitled to reject the ultimate evaluation of a Department of Social Services social worker, a
judge, in the exercise of discretion, may consider the factual content of reports as to an investigation into charges of
abuse and neglect into account in an ALM GL c 209A proceeding. Szymkowski v. Szymkowski (2003) 57 Mass App
284, 782 NE2d 1085, 2003 Mass App LEXIS 164.
Where the trial judge found that abuse had not occurred but the trial judge extended abuse prevention orders to
keep plaintiff and the fiance apart pending resolution of a property dispute, the trial judge erred; where abuse under
ALM GL c 209A, § 1 had not occurred, the remedies under ALM GL c 209A, § 3 were unavailable. Corrado v. Hedrick
(2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.
No error occurred when a district court extended an abuse protection order, which a girlfriend had obtained on an
emergency basis against her boyfriend's son, pursuant to ALM GL c 209A, § 3 (as amended by 1983 Mass. Acts ch.678,
§ 4). The son had lived with them in the same house for two years, he kept a kept a key to the house after he moved out,
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ALM GL ch. 209A, § 1
he continued to receive his mail and to take showers there, he came and left without making prior arrangements, and on
several occasions when he entered without permission, he had shoved and threatened her and her children; the son thus
fit the definition of a "former household member" that was contained in ALM GL c 209A, § 1 (as inserted by 1990 Mass.
Acts ch. 403, § 2). Aguilar v. Hernandez-Mendez (2006) 66 Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.
In issuing and extending for a year an abuse protection order pursuant to ALM GL c 209A, § 3 (as amended by 1983
Mass. Acts ch. 678, § 4) against a son on the petition of a girlfriend, who was the girlfriend of the son's father, a district
court did not abuse its discretion; the son fit within the definition of a "former household member" under ALM GL c
209A, § 1 (as inserted by 1990 Mass. Acts ch. 403, § 2), as he had lived with them for two years and had kept a key and
had continued to use their home after he moved out. The legislature had consistently amended the statute since its
inception in 1978 and had consistently expanded the definition of a "family or household member" in, § 1, the
legislature had drafted the statute with a purposeful flexibility, the categories of persons covered under the statute had
been continually expanded, and a broad and flexible interpretation was appropriate. Aguilar v. Hernandez-Mendez
(2006) 66 Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.
Because the ALM GL c 209A affidavit was factually detailed, based on personal knowledge and observation by the
source, the statements arose under circumstances that supported the veracity of the source, originated from a
disinterested witness, and was trustworthy, it was admissible in the probation revocation hearing. Commonwealth v.
Henderson (2012) 82 Mass App 674, 2012 Mass. App. LEXIS 269.
Because a court could issue an order of prevention and protection even without personal jurisdiction over the father,
who resided in Florida, but could not impose affirmative obligations on the father if there was no personal jurisdiction,
the order's prohibition against abusing, contacting, or approaching the mother or their child required no personal
jurisdiction. However, that portion of the order that required the father to surrender his firearms imposed an affirmative
duty, and such an obligation could only be imposed by a court with personal jurisdiction over the father. accordingly,
that portion of the order was invalid. Caplan v. Donovan (2008) 450 Mass. 463, 879 NE2d 117, 2008 Mass. LEXIS 16,
cert den (2008) 170 L. Ed. 2d 817, 128 S. Ct. 2088, 2008 U.S. LEXIS 3682.
2. What is "abuse"
Party violates order to refrain from abuse when he or she attempts to cause or causes physical harm, places another
in fear of imminent serious physical harm, or causes another to engage involuntarily in sexual relations by force, threat
of force, or duress. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197.
Definition of "abuse" in ALM GL c 209A, § 1, i.e., placing another in fear of imminent serious physical harm,
closely approximates common-law description of crime of assault. Commonwealth v. Gordon (1990) 407 Mass 340,
553 NE2d 915, 1990 Mass LEXIS 197.
There was insufficient evidence that defendant's words carried an indicia of proximate execution of the substantive
abuse violation of causing physical harm under ALM GL c 209A, § 1(a), to support a finding that he attempted to violate
the protective order. Commonwealth v. Fortier (2002) 56 Mass App 116, 775 NE2d 785, 2002 Mass App LEXIS 1219.
Child protective order was vacated as the allegations against the father constituted improper parenting, as opposed
to inflicting physical harm on the child where the father: (1) told his seven-year-old child about peculiar and frightening
dreams; (2) tossed a milk container at the child; (3) cuffed the child under the chin in irritation; (4) gave the child a kick
in the back of her legs while both were in bed, again because he was irritated; and (5) pinched his daughter on the arm
so that it left a mark. Szymkowski v. Szymkowski (2003) 57 Mass App 284, 782 NE2d 1085, 2003 Mass App LEXIS 164.
3. --Fear of imminent serious physical harm
Evidence of defendant's violation of ALM GL c 209A order to refrain from abusing victim was sufficient, where
jury could find that actions and words of defendant placed victim in reasonable apprehension that physical force might
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ALM GL ch. 209A, § 1
be used against her (defendant drove to front of victim's home, got out of car and yelled obscene language to and made
obscene gesture at victim and soon thereafter told victim over telephone that he would kill her)]. Commonwealth v.
Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.
Hearsay statements attributed to defendant's son by complainant warranted finding that complainant was in fear of
imminent serious physical harm from defendant (defendant told son he should use toy sword to slit his mother's throat).
Flynn v. Warner (1995) 421 Mass 1002, 654 NE2d 926, 1995 Mass LEXIS 358.
Testimony before District Court was not sufficient to warrant extension of ALM GL c 209A order entered ex parte
10 days earlier, where complainant's testimony that she suffered emotionally and experienced aggravation of ulcer
condition as result of receiving defendant's notices of lawsuit and court proceedings did not constitute threat of serious
physical harm or "abuse;" petition for relief under ALM GL c 211, § 3 should have been allowed. Larkin v. Ayer Div. of
the Dist. Court Dep't (1997) 425 Mass 1020, 681 NE2d 817, 1997 Mass LEXIS 174.
Where the third party and ex-girlfriend found a hidden video camera in the ex-girlfriend's bedroom in a clock
installed by the ex-boyfriend and the ex-boyfriend left an answering machine message with the ex-girlfriend denying
the installation of the camera and stating that had the ex-boyfriend installed the camera the ex-girlfriend would not have
found it, the trial court erred in issuing a protective order against the ex-boyfriend and any record of the order was to be
destroyed pursuant to ALM GL c 209A, § 7; although the ex-boyfriend allegedly had a temper, joked that the
ex-boyfriend could have someone taken care of, and had guns, there was nothing in the record that showed a history of
violence, threats, or hostility between the parties that would have objectively placed the ex-girlfriend in fear of
imminent serious physical harm pursuant to ALM GL c 209A, § 1. Keene v. Gangi (2004) 60 Mass App 667, 805 NE2d
77, 2004 Mass App LEXIS 299.
Plaintiff established her and her 14-year-old son's reasonable fear of imminent serious physical harm from
defendant with evidence that defendant spent eight years in prison for raping two of the parties' other children,
physically and sexually assaulted plaintiff, engaged in ominously controlling and wrathful behavior towards his family
while in prison, and after his release planned to live in the same general area as plaintiff and the son. Vittone v.
Clairmont (2005) 64 Mass App 479, 834 NE2d 258, 2005 Mass App LEXIS 852, review denied Vittone v. Clairmont
(2005) 445 Mass 1106, 836 NE2d 1096, 2005 Mass LEXIS 633.
Trial court did not err in issuing an ex parte abuse prevention order pursuant to ALM GL c 209A, § 3 against the
fiance and son, as both of them, who resided with plaintiff, were household members under ALM GL c 209A, § 1, the
fiance and plaintiff were in a substantive dating relationship, and plaintiff's affidavits established a sufficient factual
basis for the conclusion that the fiance and son had caused plaintiff physical harm or placed plaintiff in fear of imminent
serious physical harm. Corrado v. Hedrick (2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.
Permanent protective order was improperly entered under ALM GL c 209A as a boyfriend's improper behavior was
directly tied to his refusal in the immediate aftermath of a breakup to accept that his lengthy romantic relationship was
over and that the girlfriend preferred to stay with her husband; nothing suggested that the boyfriend's intensity persisted
for the two-year period between the date of the original order and when the girlfriend sought the permanent order.
Smith v. Jones (2009) 75 Mass App 540, 915 NE2d 260, 2009 Mass. App. LEXIS 1280.
4. Warrantless arrest
ALM GL c 209A, permitting warrantless arrest for certain misdemeanors in context of domestic abuse (including
placing another in fear of imminent serious physical harm) could not be relied on to justify warrantless arrest of
defendant for making threats, where record did not establish that defendant's threats constituted "abuse" as defined by
statute. Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.
If police officers has reason to believe that defendant's conduct with respect to person protected under ALM GL c
209A placed person in fear of imminent serious physical harm, warrantless arrest for assault may be made.
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ALM GL ch. 209A, § 1
Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.
Officers had probable cause to submit request for plaintiff's arrest for assault and battery, even though plaintiff
suggests that "probable cause" analysis went afoul when officers erroneously obtained temporary protective order for
victim stripper under ALM GL c 209A, § 1(e) since plaintiff and stripper were not involved in "substantive dating
relationship," because, while choice to seek ALM GL c 209A order may well have contributed to same sense of gravity
that informed decision to arrest, wisdom of obtaining ex parte restraining order has no bearing on question of whether
police had probable cause to arrest. White v. Town of Marblehead (1997) 989 F Supp 345, 1997 US Dist LEXIS 20902.
5. Violation of order
Mother's conduct, threatening the father through his attorney with economic harm unless her demands in a custody
suit were met, violated a ALM GL c 209A no contact order. As a result, the judge did not err in holding the mother in
contempt. L.F. v. L.J. (2008) 2008 Mass. App. LEXIS 571.
Since a father claimed that a mother's actions in a New Jersey proceeding violated the integrity of a Massachusetts
order, that claim was properly addressed by a Massachusetts court; thus, the trial judge correctly denied the mother's
motion to dismiss for lack of subject matter jurisdiction the father's complaint for civil contempt in violating a ALM GL
c 209A order. L.F. v. L.J. (2008) 2008 Mass. App. LEXIS 571.
5.5. Testimony
Trial court impermissibly prevented plaintiff from calling defendant as a witness at the hearing on an application
for a ALM GL c 209A abuse prevention order because defendant never asserted a privilege not to testify, and trial court
did not inquire if defendant chose to do so; it was not the trial court's prerogative to make that choice for him. S.T. v.
E.M. (2011) 2011 Mass. App. LEXIS 1192.
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ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 2 (2012)
§ 2. Venue.
Proceedings under this chapter shall be filed, heard and determined in the superior court department or the Boston
municipal court department or respective divisions of the probate and family or district court departments having venue
over the plaintiff's residence. If the plaintiff has left a residence or household to avoid abuse, such plaintiff shall have
the option of commencing an action in the court having venue over such prior residence or household, or in the court
having venue over the present residence or household.
HISTORY: 1978, 447, § 2; 1983, 678, § 3.
NOTES: Editorial Note
The 1983 amendment rewrote this section, inserting the Boston municipal and family court departments, and
adding language further specifying venue in the case where a plaintiff has left a residence to avoid abuse.
Cross References
Venue, generally, ALM GL c 223, §§ 1-15.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
Annotations
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
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ALM GL ch. 209A, § 2
Treatise References
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Cross, Fleischner, Elder, Guardianship and Conservatorship in Massachusetts, 2d Ed. (Michie) § 9.02.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.10, 9.05, 51:2, Form 208.
Massachusetts Divorce Law Practice Manual § 11.2.3, Abuse Prevention.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Gresens, Denying Choice of Forum: An Interference by the Massachusetts Trial Court with Domestic Violence
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
Appellate Division of District Court Department lacks subject matter jurisdiction to review ALM GL c 209A cases
in District Courts. Burrill v. Burrill (1993) 1993 Mass App Div 178, 1993 Mass App Div LEXIS 63.
Trial court impermissibly prevented plaintiff from calling defendant as a witness at the hearing on an application
for a ALM GL c 209A abuse prevention order because defendant never asserted a privilege not to testify, and trial court
did not inquire if defendant chose to do so; it was not the trial court's prerogative to make that choice for him. S.T. v.
Page 12
ALM GL ch. 209A, § 2
E.M. (2011) 2011 Mass. App. LEXIS 1192.
Page 13
3 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 3 (2012)
§ 3. Remedies Available Through Order for Protection From Abuse.
A person suffering from abuse from an adult or minor family or household member may file a complaint in the court
requesting protection from such abuse, including, but not limited to, the following orders:
(a) ordering the defendant to refrain from abusing the plaintiff, whether the defendant is an adult or minor;
(b) ordering the defendant to refrain from contacting the plaintiff, unless authorized by the court, whether the
defendant is an adult or minor;
(c) ordering the defendant to vacate forthwith and remain away from the household, multiple family dwelling,
and workplace. Notwithstanding the provisions of section thirty-four B of chapter two hundred and eight, an order to
vacate shall be for a fixed period of time, not to exceed one year, at the expiration of which time the court may extend
any such order upon motion of the plaintiff, with notice to the defendant, for such additional time as it deems necessary
to protect the plaintiff from abuse;
(d) awarding the plaintiff temporary custody of a minor child; provided, however, that in any case brought in the
probate and family court a finding by such court by a preponderance of the evidence that a pattern or serious incident of
abuse, as defined in section 31A of chapter 208, toward a parent or child has occurred shall create a rebuttable
presumption that it is not in the best interests of the child to be placed in sole custody, shared legal custody or shared
physical custody with the abusive parent. Such presumption may be rebutted by a preponderance of the evidence that
such custody award is in the best interests of the child. For the purposes of this section, an "abusive parent" shall mean a
parent who has committed a pattern of abuse or a serious incident of abuse;
For the purposes of this section, the issuance of an order or orders under chapter 209A shall not in and of itself
constitute a pattern or serious incident of abuse; nor shall an order or orders entered ex parte under said chapter 209A be
admissible to show whether a pattern or serious incident of abuse has in fact occurred; provided, however, that an order
Page 14
ALM GL ch. 209A, § 3
or orders entered ex parte under said chapter 209A may be admissible for other purposes as the court may determine,
other than showing whether a pattern or serious incident of abuse has in fact occurred; provided further, that the
underlying facts upon which an order or orders under said chapter 209A was based may also form the basis for a finding
by the probate and family court that a pattern or serious incident of abuse has occurred.
If the court finds that a pattern or serious incident of abuse has occurred and issues a temporary or permanent
custody order, the court shall within 90 days enter written findings of fact as to the effects of the abuse on the child,
which findings demonstrate that such order is in the furtherance of the child's best interests and provides for the safety
and well-being of the child.
If ordering visitation to the abusive parent, the court shall provide for the safety and well-being of the child and
the safety of the abused parent. The court may consider:
(a) ordering an exchange of the child to occur in a protected setting or in the presence of an appropriate third
party;
(b) ordering visitation supervised by an appropriate third party, visitation center or agency;
(c) ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's
treatment program as a condition of visitation;
(d) ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances
during the visitation and for 24 hours preceding visitation;
(e) ordering the abusive parent to pay the costs of supervised visitation;
(f) prohibiting overnight visitation;
(g) requiring a bond from the abusive parent for the return and safety of the child;
(h) ordering an investigation or appointment of a guardian ad litem or attorney for the child; and
(i) imposing any other condition that is deemed necessary to provide for the safety and well-being of the child
and the safety of the abused parent.
Nothing in this section shall be construed to affect the right of the parties to a hearing under the rules of domestic
relations procedure or to affect the discretion of the probate and family court in the conduct of such hearing.
(e) ordering the defendant to pay temporary support for the plaintiff or any child in the plaintiff's custody or both,
when the defendant has a legal obligation to support such a person. In determining the amount to be paid, the court shall
apply the standards established in the child support guidelines. Each judgment or order of support which is issued,
reviewed or modified pursuant to this chapter shall conform to and shall be enforced in accordance with the provisions
of section 12 of chapter 119A;
(f) ordering the defendant to pay the person abused monetary compensation for the losses suffered as a direct
result of such abuse. Compensatory losses shall include, but not be limited to, loss of earnings or support, costs for
restoring utilities, out-of-pocket losses for injuries sustained, replacement costs for locks or personal property removed
or destroyed, medical and moving expenses and reasonable attorney's fees;
(g) ordering information in the case record to be impounded in accordance with court rule;
(h) ordering the defendant to refrain from abusing or contacting the plaintiff's child, or child in plaintiff's care or
custody, unless authorized by the court;
Page 15
ALM GL ch. 209A, § 3
(i) the judge may recommend to the defendant that the defendant attend a batterer's intervention program that is
certified by the department of public health.
No filing fee shall be charged for the filing of the complaint. Neither the plaintiff nor the plaintiff's attorney shall be
charged for certified copies of any orders entered by the court, or any copies of the file reasonably required for future
court action or as a result of the loss or destruction of plaintiff's copies.
Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its
face state the time and date the order is to expire and shall include the date and time that the matter will again be heard.
If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to
extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.
When the expiration date stated on the order is on a weekend day or holiday, or a date when the court is closed to
business, the order shall not expire until the next date that the court is open to business. The plaintiff may appear on
such next court business day at the time designated by the order to request that the order be extended. The court may
also extend the order upon motion of the plaintiff, for such additional time as it deems necessary to protect from abuse
the plaintiff or any child in the plaintiff's care or custody. The fact that abuse has not occurred during the pendency of
an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, of allowing an order
to expire or be vacated, or for refusing to issue a new order.
The court may modify its order at any subsequent time upon motion by either party. When the plaintiff's address is
inaccessible to the defendant as provided in section 8 of this chapter and the defendant has filed a motion to modify the
court's order, the court shall be responsible for notifying the plaintiff. In no event shall the court disclose any such
inaccessible address.
No order under this chapter shall in any manner affect title to real property.
No court shall compel parties to mediate any aspect of their case. Although the court may refer the case to the
family service office of the probation department or victim/witness advocates for information gathering purposes, the
court shall not compel the parties to meet together in such information gathering sessions.
A court shall not deny any complaint filed under this chapter solely because it was not filed within a particular time
period after the last alleged incident of abuse.
A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action
only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently
specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in
violation of the order.
Any action commenced under the provisions of this chapter shall not preclude any other civil or criminal remedies.
A party filing a complaint under this chapter shall be required to disclose any prior or pending actions involving the
parties for divorce, annulment, paternity, custody or support, guardianship, separate support or legal separation, or
abuse prevention.
If there is a prior or pending custody support order from the probate and family court department of the trial court,
an order issued in the superior, district or Boston municipal court departments of the trial court pursuant to this chapter
may include any relief available pursuant to this chapter except orders for custody or support.
If the parties to a proceeding under this chapter are parties in a subsequent proceeding in the probate and family
court department for divorce, annulment, paternity, custody or support, guardianship or separate support, any custody or
support order or judgment issued in the subsequent proceeding shall supersede any prior custody or support order under
this chapter.
Page 16
ALM GL ch. 209A, § 3
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1990, 403, § 3; 1998, 64, § 204; 1998, 179, § 5; 1999, 127, § 155; 2000,
236, §§ 22, 23, 2002, 184, § 113.
NOTES: Editorial Note
Acts 1978, 447, § 2, enacted this section. Section 6 provides:
Section 6. The chief justice of the superior court and the chief judge of the probate court and the chief justice of the
district courts shall jointly promulgate a form of petition for chapter two hundred and nine A of the General Laws,
inserted by section one of this act, which shall be simple and permit a person to file a petition himself.
The 1983 amendment rewrote this section, making, among others, the following changes: (1) adding language to
clause (b) relative to the duration of an order to vacate the household; (2) adding clause (f) relative to the impounding of
plaintiff's address; (3) adding a sentence to the second paragraph providing that plaintiff shall not be charged for copies
of orders entered by the court; (4) adding a sentence to the fifth paragraph requiring the complaining party to disclose
any prior or pending divorce actions; and (5) adding two new paragraphs to the end of the section relative to procedures
to be followed where there exists a prior or pending order for divorce.
The 1990 amendment rewrote this section. Sections 14 through 16 provide:
Section 14. The secretary of public safety shall establish a policy for law enforcement response to domestic
violence consistent with the provisions of this act; provided, however, that he may revise, terminate, or revoke such
policy at his discretion. Such policy shall be developed after consultation with the director of the victim assistance
office, at least two representatives of a certified or provisionally certified batterer's treatment program, and at least four
representatives from the governor's anti-crime council including at least one district attorney, one member of the
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law
enforcement response to domestic violence shall be promulgated within six months of the effective date of this act.
Section 15. Each law enforcement agency shall establish and implement specific operational guidelines consistent
with the policy established under the provisions of section fourteen or adopt said policy. Local operational guidelines
shall be submitted to the secretary of public safety for review within sixty days of the adoption of said policy. The
secretary shall provide written notice of approval of the local guidelines within thirty days of receipt of said guidelines.
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the
absence of approved guidelines, the law enforcement agency shall implement said policy.
Section 16. Within six months of the effective date of this act, guidelines and standards for the certification of
batterer's treatment programs by the department of public health shall be set up by a commission to be established by
the chief justice of the trial court department, one member of which shall be a district attorney or his designee, two of
which shall be members of a recognized batterer's treatment program with training experience, two of which shall be
members of a domestic violence program or the statewide coalition of programs which provide services to victims of
domestic violence and one of whom shall be a member from a probation department. Prior to the establishment of such
guidelines and standards, the department of public health may provisionally certify batterer's treatment programs
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment
of guidelines under this section. The department of public health shall thereafter certify and monitor batterer's treatment
programs according to the standards established and promulgated by the commission. Programs so certified shall be the
only batterer's treatment programs appropriate for court referrals.
The first 1998 amendment, (ch 64), in the first paragraph, revised subparagraph (e).
The second 1998 amendment, (ch 179), in the first paragraph, rewrote subparagraph (d).
The 1999 amendment in paragraph (g) of the first paragraph, substituted "8" for "nine".
Page 17
ALM GL ch. 209A, § 3
The 2000 amendment, effective Sept 28, 2000, by § 22, substituted paragraph (g) of the first paragraph, which
formerly read: "ordering the plaintiff's address to be impounded as provided in section 8" and by § 23, substituted the
fourth paragraph of paragraph (i) of the first paragraph, which formerly read: "The court may modify its order at any
subsequent time upon motion by either party. When the plaintiff's address is impounded and the defendant has filed a
motion to modify the court's order, the court shall be responsible for notifying the plaintiff. In no event shall the court
disclose any impounded address." Section 100 provides:
Section 100. Sections 22, 23 and 24 shall apply to complaints filed pursuant to chapter 209A of the General Laws,
on or after 90 days following enactment.
The 2002 amendment, effective July 1, 2002, in paragraph (i) of the first paragraph, substituted "batterer's
intervention program that is certified by the department of public health" for "recognized batterer's treatment program."
Cross References
Age limitation as to reports concerning abused and neglected children, ALM GL c 119, § 51A.
Abuse of child under 16 years of age, ALM GL c 265, § 23.
Penalty for committing crime of stalking in violation of order or judgment issued pursuant to this section, ALM GL
c 265, § 43.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
33 Am Jur Proof of Facts 3d 303, Proving Child Sexual Abuse in Custody or Visitation Dispute.
Annotations
Admissibility of expert medical testimony on battered child syndrome. 98 ALR3d 306.
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
Treatise References
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.180, Assault and Battery on a Person
Protected by an Abuse Prevention Order.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.360, Assault and Battery with a Dangerous
Weapon on a Person Protected by an Abuse Prevention Order.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.680, Stalking.
Cross, Fleischner, Elder, Guardianship and Conservatorship in Massachusetts, 2d Ed. (Michie) § 9.02.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.11, 4.16, 6.02, 9.02, 17.01,
22:12, 22:17, 22:27-22:38, 22:44-22:46, 51:2, Form 208.
Page 18
ALM GL ch. 209A, § 3
Massachusetts Divorce Law Practice Manual § 3.2.3, Current Use.
Massachusetts Divorce Law Practice Manual § 10.2.3, Chapter 209A: Abuse Prevention.
Massachusetts Divorce Law Practice Manual § 11.2.3, Abuse Prevention.
Massachusetts Divorce Law Practice Manual § 25.2.1, Defining and Proving Domestic Violence.
Massachusetts Divorce Law Practice Manual § 25.4.2, Mutual Restraining Order Actions Filed by Batterers.
Massachusetts Divorce Law Practice Manual § 25.5.1, The Rebuttable Presumption Against Custody to Domestic
Abuse Perpetrators.
Massachusetts Divorce Law Practice Manual § 25.5.3, The Threshold of Abuse to Trigger the Presumption and
Related Issues.
Massachusetts Divorce Law Practice Manual § 25.7.2, The Plaintiff's Burden of Proof at the Renewal Hearing.
Massachusetts Divorce Law Practice Manual § 25.7.3, Attorney Fees in Chapter 209A Actions.
Massachusetts Divorce Law Practice Manual § 25.7, Renewal of Protective Orders.
Massachusetts Divorce Law Practice Manual § 25.10, Litigation Strategy and the Future of Our Clients.
Massachusetts Divorce Law Practice Manual Exhibit 3M, Uniform Rules on Dispute Resolution.
Massachusetts Guardianship and Conservatorship § 8.2.2, Private Custody Actions.
Law Reviews
Domestic Violence. The Georgetown Journal of Gender and the Law (2012).
Saperstein, Teen Dating Violence: Eliminating Statutory Barriers to Civil Protection Orders. 39 Fam. L.Q. 181
(Spring, 2005).
Gonzalez and Reichmann, Representing Children in Civil Cases Involving Domestic Violence. 39 Fam. L.Q. 197
(Spring, 2005).
Volovski, Crime And Punishment Law Chapter: Domestic Violence. 5 Geo J Gender & L 175 (Spring, 2004).
Rousseve, Sixth Annual Review of Gender and Sexuality Law: II. Criminal Law Chapter: Domestic Violence and
the States. 6 Geo. J. Gender & L. 431 (2005).
Hickey, Ninth Annual Review of Gender and Sexuality Law: Criminal Law Chapter: Domestic Violence and the
State. 9 Geo. J. Gender & L. 625 (2008).
Solon, Domestic Violence. 10 Geo. J. Gender & L. 369 (2009).
Morao, Domestic Violence and the State. 7 Geo. J. Gender XXX L. 787 (2006).
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Kohn, Why Doesn't She Leave? The Collision of First Amendment Rights and Effective Court Remedies for Victims
Page 19
ALM GL ch. 209A, § 3
of Domestic Violence. 29 Hastings Const LQ 1 (Fall, 2001).
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Taylor, Ex Parte Domestic Violence Orders of Protection: How Easing Access To Judicial Process Has Eased the
Possibility for Abuse of the Process. 18 Kan. J.L. & Pub. Pol'y 83 (Fall, 2008).
Dunlap, Sometimes I Feel Like a Motherless Child: The Error of Pursuing Battered Mothers for Failure to Protect.
50 Loy L Rev 565.
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).
Tracia, Navigating the Waters of Massachusetts Child Relocation Law: Assessing The Application of the Real
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).
Gresens, Denying Choice of Forum: An Interference by the Massachusetts Trial Court with Domestic Violence
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).
Balos, Creating a Constitutional Right to Counsel in the Civil Context: Domestic Violence Matters: The Case for
Appointed Counsel in Protective Order Proceedings. 15 Temp. Pol. & Civ. Rts. L. Rev. 557 (Summer, 2006).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
ALM GL c 209A, § 3 is clear legislative statement of public policy which is of assistance in construing 1974
revision of rape statutes to eliminate common law spousal exclusion. Commonwealth v. [Name Redacted] (1981) 383
Mass 123, 417 NE2d 1203, 1981 Mass LEXIS 1142.
Evidence of restraining order requiring defendant-husband to vacate marital home issued more than 7 months
Page 20
ALM GL ch. 209A, § 3
before wife was murdered was admissible as showing continued hostility between husband and wife and motive for
husband to murder wife. Commonwealth v. Gil (1984) 393 Mass 204, 471 NE2d 30, 1984 Mass LEXIS 1787.
Orders issued by court for protection from family abuse are for fixed period not to exceed one year but may be
extended if needed. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197.
Only violation of order to refrain from abuse or to vacate household represents criminal offense. Commonwealth v.
Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197.
Defendant ordered to "vacate" marital home must not only surrender legal occupancy but must remain away
without right to enter at any time. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS
197.
Plaintiff could invoke ALM GL c 211, § 3 to review issuance of restraining order under ALM GL c 209A, since
ALM GL c 209A provided no express appellate remedy from issuance of restraining order by Municipal or District
Court. Callahan v. Boston Municipal Court Dep't (1992) 413 Mass 1009, 604 NE2d 1287, 1992 Mass LEXIS 622.
Municipal Court was proper party defendant in plaintiff's proceeding under ALM GL c 211, § 3 to review issuance
of restraining order under ALM GL c 209A, where plaintiff alleged that court personnel denied her access to tape
recordings of court proceedings; tapes ordered released to plaintiff. Callahan v. Boston Municipal Court Dep't (1992)
413 Mass 1009, 604 NE2d 1287, 1992 Mass LEXIS 622.
Even if complainant signed notice of voluntary dismissal several months after protective order had issued and wrote
letter to court asking court to dismiss order, no judicial action was taken on request for voluntary dismissal and order
therefore was not vacated. Brossard v. West Roxbury Div. of the Dist. Court Dep't (1994) 417 Mass 183, 629 NE2d
295, 1994 Mass LEXIS 87.
There is no statutory or constitutional requirement that ALM GL c 209A complainant's affidavit in support of
issuance of complaint be served on defendant with order. Flynn v. Warner (1995) 421 Mass 1002, 654 NE2d 926, 1995
Mass LEXIS 358.
Without legislative change, only route of appeal from District Court's ALM GL c 209A order is to seek relief from
Single Justice of Supreme Judicial Court, and then, if necessary, from full court. Flynn v. Warner (1995) 421 Mass
1002, 654 NE2d 926, 1995 Mass LEXIS 358.
Order entered in ALM GL c 209A abuse prevention proceeding is not interlocutory order of trial court subject to
SJC Rule 2:21. Parekh v. Parekh (1996) 421 Mass 1009, 659 NE2d 740, 1996 Mass LEXIS 9.
Failure to serve defendant with copy of extended abuse prevention order did not deprive District Court of subject
matter jurisdiction and was not required before defendant could be convicted of violating order, where defendant was
served with temporary order at his last and usual place of abode and that order warned that if he failed to appear
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.
Complainant's testimony was insufficient to support issuance of ALM GL c 209A order against complainant's
former husband and father of her two children, where former husband was incarcerated for kidnapping of complainant
during time complainant alleged she was placed in fear of imminent serious physical harm, and complainant's fear that
former husband knew of her home and work addresses or of children's school address did not constitute abuse. Jordan
v. Clerk of the Westfield Div. of the Dist. Court Dep't (1997) 425 Mass 1016, 681 NE2d 276, 1997 Mass LEXIS 156.
Testimony before District Court was not sufficient to warrant extension of 209A order entered ex parte 10 days
earlier, where complainant's testimony that she suffered emotionally and experienced aggravation of ulcer condition as
Page 21
ALM GL ch. 209A, § 3
result of receiving defendant's notices of lawsuit and court proceedings did not constitute threat of serious physical harm
or "abuse;" petition for relief under ALM GL c 211, § 3 should have been allowed. Larkin v. Ayer Div. of the Dist.
Court Dep't (1997) 425 Mass 1020, 681 NE2d 817, 1997 Mass LEXIS 174.
Probate Court may issue domestic relations protective order during pendency of divorce proceeding to prohibit
party from imposing restraint upon personal liberty of other party, to order spouse to vacate marital home, and for
temporary relief from actual abuse or immediate threats of physical harm. Champagne v. Champagne (1999) 429 Mass
324, 708 NE2d 100, 1999 Mass LEXIS 136.
Probate and Family Court has authority to issue or extend permanent protective orders in final judgments to
married parties, separated parties, and unmarried parties with children. Champagne v. Champagne (1999) 429 Mass
324, 708 NE2d 100, 1999 Mass LEXIS 136.
Judge in District Court or any court with jurisdiction of request for protective order is empowered to issue
permanent protective order at renewal hearing. Crenshaw v. Macklin (2000) 430 Mass 633, 722 NE2d 458, 2000 Mass
LEXIS 12.
District Court judge erred in ruling that she had no power to issue permanent protective order at renewal hearing
and in refusing to entertain request for such order; case remanded for reconsideration. Crenshaw v. Macklin (2000) 430
Mass 633, 722 NE2d 458, 2000 Mass LEXIS 12.
Paternal grandmother of child whose parents were not married is "related by blood" to child's mother, and thus has
right to invoke protection from domestic abuse under ALM GL c 209A. Turner v. Lewis (2001) 434 Mass 331, 749
NE2d 122, 2001 Mass LEXIS 329.
Trial court erred in denying a boy's motion to vacate an order for protection from abuse entered pursuant to ALM
GL c 209A, § 4; trial court erred in finding that the boy and a girl he allegedly sexually assaulted had engaged in a
substantive dating relationship as defined by ALM GL c 209A, § 3, and ALM GL c 209A, § 1(e), as the trial court did not
apply the four factors provided by ALM GL c 209A, § 1(e)(1)-(4) in determining whether a substantive dating
relationship existed, and the trial court erred in refusing to allow the boy to present evidence and cross examine
witnesses at the hearing in question. C.O. v. M.M. (2004) 442 Mass 648, 815 NE2d 582, 2004 Mass LEXIS 665.
Evidence consisting of assault victim's affidavit in support of application for 209A abuse prevention order and
order, both identifying defendant as assailant, and police officer's serving of order on defendant were not admissible in
prosecution for assault and battery under judicial notice doctrine or official records exception to hearsay rule, where
victim was available, did not testify, and was not subject to cross-examination; conviction violated article 12 of
Massachusetts Declaration of Rights.Commonwealth v. Kirk (1995) 39 Mass App 225, 654 NE2d 938, 1995 Mass App
LEXIS 754.
Findings of District Court judge were insufficient to justify revocation of defendant's probation imposed after he
pleaded guilty to violating ALM GL c 209A protective order, where only evidence was that another court had revoked
probation for unknown violations on unknown dates. Commonwealth v. Michaels (1996) 39 Mass App 646, 659 NE2d
1209, 1996 Mass App LEXIS 14.
Judge's order for defendant not to "contact" former girlfriend in person, by telephone, in writing, or otherwise was
not unconstitutionally vague. Commonwealth v. Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS
99.
Defendant who arranged for flowers to be sent to former girlfriend violated "no contact" order. Commonwealth v.
Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS 99.
Protestations of "nonhostile intent" or "desire to make amends" are irrelevant to enforcement of no-contact order.
Page 22
ALM GL ch. 209A, § 3
Commonwealth v. Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS 99.
Defendant's motion for required finding of not guilty on charge of violating extended ALM GL c 209A order
should have been allowed because Commonwealth failed to establish that defendant was served with copy of order or
had actual knowledge of its existence and terms. Commonwealth v. Molloy (1998) 44 Mass App 306, 690 NE2d 836,
1998 Mass App LEXIS 29, review denied (1998) 427 Mass 1107, 699 NE2d 851, 1998 Mass LEXIS 452.
Domestic protective order may contain one or more of following restraints: (a) refrain from abusing complainant;
(b) refrain from contacting complainant; and (c) vacate forthwith and remain away from household, multiple family
dwelling, and workplace. Commonwealth v. Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS
1031.
Where domestic protective order forbade defendant from abusing complainant but judge's instructions to jury stated
that Commonwealth had to prove that defendant violated order by abusing and/or contacting her, instruction was
erroneous, and although defendant did not object to instruction, error created substantial risk of miscarriage of justice in
light of admitted evidence that while incarcerated defendant sent complainant over 300 letters. Commonwealth v.
Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS 1031.
Three convictions of defendant for threatening to commit crime (murder, assault and battery, and malicious damage
to property) were not duplicative of conviction of violation of domestic protective order, and judge could impose
consecutive sentences on each threatening charge to run on and after two and one-half year sentence for violating
protective order. Commonwealth v. Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS 1031.
Evidence from complainant that defendant had physically abused her at least eight or nine times previously was
admissible at trial of defendant for violating domestic protective order because it was probative of defendant's hostility
toward complainant and his pattern of acting on that hostility and of complainant's fear that defendant would harm her.
Commonwealth v. Johnson (1998) 45 Mass App 473, 700 NE2d 270, 1998 Mass App LEXIS 1031.
"No contact" provision in abuse prevention order did not violate defendant's right of free speech. Commonwealth v.
Thompson (1998) 45 Mass App 523, 699 NE2d 847, 1998 Mass App LEXIS 1040, review denied (1998) 428 Mass 1108,
707 NE2d 366, 1998 Mass LEXIS 739.
Where judge realized need for former wife to establish that she feared imminent serious physical harm from former
husband and transcript contained inaudible portions of former wife's testimony that may have described her fear of
repeat of past physical harm, appellate court would not disturb judge's issuance of protective order, especially since as
appellant former husband did not furnish appellate court with all evidence and did not utilize procedure to repair
inaudible portions of transcript. Wooldridge v. Hickey (1998) 45 Mass App 637, 700 NE2d 296, 1998 Mass App LEXIS
1112.
Where evidence was that former husband subjected children to verbal harassment and hit son and grabbed him
when angry, evidence of imminent serious physical harm to children was lacking; order for former husband to stay
away from children vacated. Wooldridge v. Hickey (1998) 45 Mass App 637, 700 NE2d 296, 1998 Mass App LEXIS
1112.
Where judge conducted evidentiary hearings and took evidence from both parties before making 209A restraining
order permanent, defendant was not denied fair hearing. Pike v. Maguire (1999) 47 Mass App 929, 716 NE2d 686,
1999 Mass App LEXIS 1081.
Permanent extension of 209A abuse prevention order was justified by former wife's genuine fear of defendant for
five years, which arose from defendant's past abusive acts, recent smashing of windshield of family car, and defendant's
agitated conduct in court. Pike v. Maguire (1999) 47 Mass App 929, 716 NE2d 686, 1999 Mass App LEXIS 1081.
Page 23
ALM GL ch. 209A, § 3
Past as well as present relationships are within ambit of ALM GL c 209A, § 3. Sorgman v. Sorgman (2000) 49
Mass App 416, 729 NE2d 1141, 2000 Mass App LEXIS 470.
Where plaintiff lived with her mother and mother's husband for ten years in same household until mother and her
husband were divorced, plaintiff and former husband "resided in same household" and "were related . . . by marriage" as
stepfather and stepdaughter within meaning of ALM GL c 209A, § 1(b) and (c). Sorgman v. Sorgman (2000) 49 Mass
App 416, 729 NE2d 1141, 2000 Mass App LEXIS 470.
There is no time limitation on application of ALM GL c 209A, §§ 1 and 3, so that stepdaughter who last lived with
stepfather in same household in 1977, but who continued to have contact and involvement with stepfather, was not
precluded from seeking protective order under ALM GL c 209A. Sorgman v. Sorgman (2000) 49 Mass App 416, 729
NE2d 1141, 2000 Mass App LEXIS 470.
Modification of custody or support order in divorce action does not operate to modify orders in 209A proceeding
which were entered to protect plaintiff from defendant's abuse. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740
NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.
If there is preexisting order of Probate and Family Court relative to custody or support, Superior Court, District
Court, or Boston Municipal Court must abstain in 209A proceeding from making orders concerning custody and
support. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied
(2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.
Where probate judge in divorce action issued visitation order which did not specifically modify existing 209A order
issued by Probate Court against husband and was not inconsistent with 209A order, latter order was not modified.
Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001)
434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.
If orders entered in 209A proceeding and another action in Probate Court are inconsistent, protections afforded by
209A order will take precedence over orders for custody or visitation entered in other proceeding. Commonwealth v.
Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001) 434 Mass 1102, 751
NE2d 419, 2001 Mass LEXIS 275.
Judge was warranted in concluding that there was continued need for abuse prevention order and did not err in
extending order beyond initial one-year period, where defendant persisted in contacting wife although prohibited by
order from doing so and wife testified that she continued to be extremely afraid of defendant. Rauseo v. Rauseo (2001)
50 Mass App 911, 740 NE2d 1063, 2001 Mass App LEXIS 9, review denied Commonwealth v. Rauseo (2001) 434 Mass
1103, 751 NE2d 419, 2001 Mass LEXIS 275.
Where one home occupant successfully sought protective order against two other occupants in Orleans District
Court and a few days later two occupants sought protective order against individual occupant in Plymouth District
Court, orders were "mutual" and judge in Plymouth Court was required to make specific written findings of fact;
restraining orders issued by Plymouth court vacated for failure of judge to make findings of fact. Sommi v. Ayer (2001)
51 Mass App 207, 744 NE2d 679, 2001 Mass App LEXIS 210.
In issuing mutual protective order, judge is required to set forth bases for concluding that mutual abuse occurred
and that reciprocal order is warranted. Sommi v. Ayer (2001) 51 Mass App 207, 744 NE2d 679, 2001 Mass App LEXIS
210.
Purpose of requiring judge to provide specific written findings of fact when mutual restraining order or no-contact
order is to be issued is to ensure that judge will carefully consider evidence presented to determine who is real victim
and aggressor in abusive relationship and if mutual order is warranted. Sommi v. Ayer (2001) 51 Mass App 207, 744
NE2d 679, 2001 Mass App LEXIS 210.
Page 24
ALM GL ch. 209A, § 3
Judge properly excluded evidence offered by defendant that clerk-magistrate had declined to issue process on
earlier complaint arising out of similar conduct by defendant, i.e., his effort to telephone daughter at former wife's
residence, inasmuch as order clearly prohibited defendant from contacting wife by telephone and what defendant may
have thought order meant was irrelevant. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass
App LEXIS 761.
Where defendant was on notice that on February 6, 1998 judge of District Court had extended protective order on
permanent basis, there could be no reasonable doubt on his part that order prohibited him from calling his former wife
on April 21, 1999. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.
Complaints for violation of 209A protective orders are not immune from requirement of show-cause hearing under
ALM GL c 218, § 35A, but notice and opportunity to be heard need not be provided if one of three exceptions set forth
in § 35A applies. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.
Applications for retaliatory abuse prevention orders were only allowed if the predicate conditions were shown and
not as a prophylactic agent to prevent putative violations; neither ALM GL c 209A, nor the decisions interpreting it,
contained any authority allowing the fear of arrest, even upon innocent contact, as a basis for a reciprocal restraining
order. Uttaro v. Uttaro (2002) 54 Mass App 871, 768 NE2d 600, 2002 Mass App LEXIS 736.
Woman who had previously been granted a one-year abuse prevention order could automatically obtain a
permanent order without establishing by a preponderance of the evidence that without such an order she would be in
danger. Jones v. Gallagher (2002) 54 Mass App 883, 768 NE2d 1088, 2002 Mass App LEXIS 745.
Given a husband's history of assaults upon the husband's wife and the husband's conviction for illegal possession of
a machine gun, trial court did not exceed its discretion by ordering the husband to stay at least 500 yards away from the
wife and 1 mile away from the wife's home. Litchfield v. Litchfield (2002) 55 Mass App 354, 770 NE2d 554, 2002 Mass
App LEXIS 841.
The 29-year-old daughter did not present any evidence that abuse might resume if the protective order were not
issued; her "generalized apprehension" based on past abuse by her mother was insufficient to justify issuance of a
restraining order. Dollan v. Dollan (2002) 55 Mass App 905, 771 NE2d 825, 2002 Mass App LEXIS 985.
Trial court erred in issuing a protective order where there was no evidence that defendant threatened plaintiff, either
implicitly or explicitly, with physical harm and plaintiff's subjective and unspecified fear was an insufficient basis for
the order. Carroll v. Kartell (2002) 56 Mass App 83, 775 NE2d 457, 2002 Mass App LEXIS 1213.
Denial of an ex-wife's request for a permanent order was vacated, and remanded as it was error to refuse, on the
basis of personal preference or philosophy, a request to give consideration to a permanent order permitted by the law.
Lonergan-Gillen v. Gillen (2003) 57 Mass App 746, 785 NE2d 1285, 2003 Mass App LEXIS 430.
Permanent protective order was granted against two abusers who had allegedly threatened the victim's life, anally
raped him, and abused him, where there was sufficient credible evidence to support such an order and where it was clear
that the victim was still in fear of the abusers; it did not matter that a grand jury had not indicted the abusers on the anal
rape charge, nor that the victim had not been in contact with the abusers for more than two years. Doe v. Keller (2003)
57 Mass App 776, 786 NE2d 422, 2003 Mass App LEXIS 457.
Defendant's convictions for violation of a no contact order were upheld where defendant contended that the
comments he made about his ex-wife were not directed to her, but rather, were directed to a passenger in his vehicle, as
one could not undermine a no contact order by simple expedient of ricocheting prohibited comments off third persons;
the legislature rationally concluded that prohibiting contact, whether or not the contact was itself abusive, sometimes
might be necessary to reduce the likelihood that abuse would occur, under ALM GL c 209A, §§ 3(b), 7. Commonwealth
v. Consoli (2003) 58 Mass App 734, 792 NE2d 1007, 2003 Mass App LEXIS 831, review denied (2003) 440 Mass 1103,
Page 25
ALM GL ch. 209A, § 3
797 NE2d 379, 2003 Mass LEXIS 777.
Standard for determining whether prospective relief from a ALM GL c 209A order is warranted must be a flexible
one under Mass. R. Dom. Rel. P. 60(b)(5); the level of impact on the underlying risk from harm that a ALM GL c 209A
order seeks to protect against will vary from case to case. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79,
2005 Mass App LEXIS 36.
Abuse prevention order, entered after a hearing that satisfies due process requirements, should be set aside only in
the most extraordinary circumstances and where it has been clearly and convincingly established that the order is no
longer needed to protect the victim from harm or the reasonable fear of serious harm; furthermore, if the judge
determines that it is appropriate to allow a motion to vacate or terminate a ALM GL c 209A order, the decision should
be supported by findings of fact. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS
36.
With regard to prospective relief, a husband's motion to vacate an abuse prevention order was improperly granted
because the wife's voluntary contact with the husband regarding family pets and a funeral was insufficient to show that
the order was not needed to protect the wife from harm or the threat of serious harm. Mitchell v. Mitchell (2005) 62
Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.
Motion that seeks to vacate retroactively an order issued under ALM GL c 209A on the ground of newly
discovered evidence cannot properly be granted unless it is found that the evidence relied on was not available to the
party seeking relief for introduction at the original trial by the exercise of reasonable diligence, and that such evidence is
material not only in the sense that it is relevant and admissible but also in the sense that it is important evidence of such
a nature that it likely would have affected the result had it been available at the time. Mitchell v. Mitchell (2005) 62
Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.
With regard to retroactive relief from an abuse prevention order, a trial court improperly granted a husband's
motion to vacate because, even if a wife's voluntary contact with the husband concerning pets and a funeral amounted to
newly discovered evidence, a new trial was not warranted based on the fact that the evidence merely impeached the
wife's credibility. Mitchell v. Mitchell (2005) 62 Mass App 769, 821 NE2d 79, 2005 Mass App LEXIS 36.
Court did not abuse its discretion in issuing a permanent restraining order barring defendant from having contact
with plaintiff or the parties' 14-year-old son after his release from prison, as he spent eight years in prison for raping two
of the parties' children, had physically and sexually assaulted plaintiff, engaged in ominously controlling and wrathful
behavior towards his family while in prison, and upon his release, planned to live in the same general area as plaintiff
and the son. Vittone v. Clairmont (2005) 64 Mass App 479, 834 NE2d 258, 2005 Mass App LEXIS 852, review denied
Vittone v. Clairmont (2005) 445 Mass 1106, 836 NE2d 1096, 2005 Mass LEXIS 633.
Trial court did not err in issuing an ex parte abuse prevention order pursuant to ALM GL c 209A, § 3 against the
fiance and son, as both of them, who resided with plaintiff, were household members under ALM GL c 209A, § 1, the
fiance and plaintiff were in a substantive dating relationship, and plaintiff's affidavits established a sufficient factual
basis for the conclusion that the fiance and son had caused plaintiff physical harm or placed plaintiff in fear of imminent
serious physical harm. Corrado v. Hedrick (2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.
District Judge had the inherent authority to expunge a record of a ALM GL c 209A civil abuse protection order
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation of the
order, nor sealing of the record was sufficient to protect the integrity of the courts, did not send an appropriate message
to the public, and left a record of the order in the system; and (2) the potential harm to the courts and to the victim of the
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL
Page 26
ALM GL ch. 209A, § 3
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's
failure to attend a hearing on a motion to destroy all copies of the ALM GL c 209A order. Comm'r of Prob. v. Adams
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.
Appellate Division of District Court Department lacks subject matter jurisdiction to review ALM GL c 209A cases
in District Courts. Burrill v. Burrill (1993) 1993 Mass App Div 178, 1993 Mass App Div LEXIS 63.
No error occurred when a district court extended an abuse protection order, which a girlfriend had obtained on an
emergency basis against her boyfriend's son, pursuant to ALM GL c 209A, § 3 (as amended by 1983 Mass. Acts ch. 678,
§ 4). The son had lived with them in the same house for two years, he kept a kept a key to the house after he moved out,
he continued to receive his mail and to take showers there, he came and left without making prior arrangements, and on
several occasions when he entered without permission, he had shoved and threatened her and her children; the son thus
fit the definition of a "former household member" that was contained in ALM GL c 209A, § 1 (as inserted by 1990 Mass.
Acts ch. 403, § 2). Aguilar v. Hernandez-Mendez (2006) 66 Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.
In issuing and extending for a year an abuse protection order pursuant to ALM GL c 209A, § 3 (as amended by 1983
Mass. Acts ch. 678, § 4) against a son on the petition of a girlfriend, who was the girlfriend of the son's father, a district
court did not abuse its discretion; the son fit within the definition of a "former household member" under ALM GL c
209A, § 1 (as inserted by 1990 Mass. Acts ch. 403, § 2), as he had lived with them for two years and had kept a key and
had continued to use their home after he moved out. The legislature had consistently amended the statute since its
inception in 1978 and had consistently expanded the definition of a "family or household member" in § 1, the legislature
had drafted the statute with a purposeful flexibility, the categories of persons covered under the statute had been
continually expanded, and a broad and flexible interpretation was appropriate. Aguilar v. Hernandez-Mendez (2006) 66
Mass App 367, 848 NE2d 779, 2006 Mass App LEXIS 567.
Where a mother stated in her affidavit in support of a ALM GL c 209A abuse prevention order that defendant, her
husband, had punched her son, but testified at the assault and battery trial that defendant had accidently struck her son,
pursuant to Commonwealth v. Daye, 393 Mass. 55, 469 NE2d 483, 1984 Mass LEXIS 1737 (1984), the trial court
properly allowed the affidavit to be used as substantive evidence. Commonwealth v Belmer (2010) 78 Mass App 62,
935 NE2d 327, 2010 Mass. App. LEXIS 1320.
Trial court impermissibly prevented plaintiff from calling defendant as a witness at the hearing on an application
for a ALM GL c 209A abuse prevention order because defendant never asserted a privilege not to testify, and trial court
did not inquire if defendant chose to do so; it was not the trial court's prerogative to make that choice for him. S.T. v.
E.M. (2011) 2011 Mass. App. LEXIS 1192.
In a case in which defendant appealed the extension of an abuse prevention order, defendant waived any due
process objection to the procedure followed by the judge. Defense counsel actively participated in requesting, and
crafting the scope of, the out-of-court inquiry that the judge undertook, and defense counsel never mentioned due
process, either before or after the judge obtained a police sergeant's statements. Diaz v. Gomez (2012) 82 Mass App 55,
2012 Mass. App. LEXIS 209.
In a case in which defendant appealed the extension of an abuse prevention order, he unsuccessfully argued that the
evidence was insufficient to support the judge's finding by a preponderance of the evidence that his former spouse was
reasonably in fear of imminent physical harm. The judge found credible the former spouse's testimony that defendant
previously put a gun to her head and threatened to kill her if she left him, and neither that finding, nor any of the others
made by the judge, was clearly erroneous. Diaz v. Gomez (2012) 82 Mass App 55, 2012 Mass. App. LEXIS 209.
Under ALM GL c 209A, household members, including petitioner's stepdaughter who resided with him, are
protected from domestic abuse; thus, petitioner's conviction for indecent assault and battery under ALM GL c 265, §
13H satisfied second prong of 8 USCS § 1227(a)(2)(E)(i), notwithstanding that stepdaughter never obtained protective
Page 27
ALM GL ch. 209A, § 3
order under ALM GL c 209A. Sutherland v. Reno (2000) 228 F3d 171, 2000 US App LEXIS 23363.
General protection for household members under ALM GL c 209A applies regardless of whether they avail
themselves of protective orders. Sutherland v. Reno (2000) 228 F3d 171, 2000 US App LEXIS 23363.
Petitioner's convicted offense of indecent assault and battery on person over age of 14 ( ALM GL c 265, § 13H) was
both (1) "crime of violence" under 18 USCS § 16(b) because it involved substantial risk that physical force may have
been used, and (2) crime committed against person protected by domestic or family violence laws of Massachusetts.
Sutherland v. Reno (2000) 228 F3d 171, 2000 US App LEXIS 23363.
Because the trial court made no specific findings and conclusions of law, the supreme judicial court was unable to
determine the standard that was applied in denying a girlfriend's motion to extend a protective order under ALM GL c
209A, § 3; the trial court's sua sponte vacation of the original ALM GL c 209A, § 1 order was error because the only
issue before it was whether the order should be extended. Iamele v. Asselin (2005) 444 Mass 734, 831 NE2d 324, 2005
Mass LEXIS 421.
Where the trial judge found that abuse had not occurred but the trial judge extended abuse prevention orders to
keep plaintiff and the fiance apart pending resolution of a property dispute, the trial judge erred; where abuse under
ALM GL c 209A, § 1 had not occurred, the remedies under ALM GL c 209A, § 3 were unavailable. Corrado v. Hedrick
(2006) 65 Mass App 477, 841 NE2d 723, 2006 Mass App LEXIS 80.
Page 28
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ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
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All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 3A (2012)
§ 3A. Information Required to be Given to Complainant.
Upon the filing of a complaint under this chapter, a complainant shall be informed that the proceedings hereunder are
civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a complainant shall be
given information prepared by the appropriate district attorney's office that other criminal proceedings may be available
and such complainant shall be instructed by such district attorney's office relative to the procedures required to initiate
criminal proceedings including, but not limited to, a complaint for a violation of section forty-three of chapter two
hundred and sixty-five. Whenever possible, a complainant shall be provided with such information in the complainant's
native language.
HISTORY: 1992, 188, § 3.
NOTES: Treatise References
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Web References
Page 29
ALM GL ch. 209A, § 3A
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
Page 30
5 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 3B (2012)
§ 3B. Suspension of Firearm License and Surrender of Firearms With Temporary or Emergency Order;
Petition for Review.
Upon issuance of a temporary or emergency order under section four or five of this chapter, the court shall, if the
plaintiff demonstrates a substantial likelihood of immediate danger of abuse, order the immediate suspension and
surrender of any license to carry firearms and or firearms identification card which the defendant may hold and order
the defendant to surrender all firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or
possesses in accordance with the provisions of this chapter and any license to carry firearms or firearms identification
cards which the defendant may hold shall be surrendered to the appropriate law enforcement officials in accordance
with the provisions of this chapter and, said law enforcement official may store, transfer or otherwise dispose of any
such weapon in accordance with the provisions of section 129D of chapter 140; provided however, that nothing herein
shall authorize the transfer of any weapons surrendered by the defendant to anyone other than a licensed dealer. Notice
of such suspension and ordered surrender shall be appended to the copy of abuse prevention order served on the
defendant pursuant to section seven. Law enforcement officials, upon the service of said orders, shall immediately take
possession of all firearms, rifles, shotguns, machine guns, ammunition, any license to carry firearms and any firearms
identification cards in the control, ownership, or possession of said defendant. Any violation of such orders shall be
punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half
years in a house of correction, or by both such fine and imprisonment.
Any defendant aggrieved by an order of surrender or suspension as described in the first sentence of this section
may petition the court which issued such suspension or surrender order for a review of such action and such petition
shall be heard no later than ten court business days after the receipt of the notice of the petition by the court. If said
license to carry firearms or firearms identification card has been suspended upon the issuance of an order issued
pursuant to section four or five, said petition may be heard contemporaneously with the hearing specified in the second
sentence of the second paragraph of section four. Upon the filing of an affidavit by the defendant that a firearm, rifle,
shotgun, machine gun or ammunition is required in the performance of the defendant's employment, and upon a request
Page 31
ALM GL ch. 209A, § 3B
for an expedited hearing, the court shall order said hearing within two business days of receipt of such affidavit and
request but only on the issue of surrender and suspension pursuant to this section.
HISTORY: 1994, 24, § 6; 1996, 298, § 2; 1998, 180, § 48.
NOTES: Editorial Note
Acts 1994, 24, § 6, enacted this section. Section 9 provides:
Section 9. Notwithstanding the provisions of any general or special law to the contrary, a licensing authority as
defined in section 121 of chapter one hundred and forty of the General Laws who receives or takes possession of any
firearm, rifle, shotgun, machine gun, ammunition, firearms identification card or license to carry firearms surrendered
pursuant to the provisions of section three B of chapter two hundred and nine A may transport and present to the State
Police all said items or store and maintain said items in the care and custody of said licensing authority. The State Police
or the local licensing authority shall immediately issue a receipt to the owner of said items specifying where said items
will be held. In all cases where the State Police is charged with the care and custody of said items they shall also
forward a duplicate receipt to the local licensing authority. The State Police or a local licensing authority shall store and
keep all said items safely and securely in accordance with standards set forth by the Executive Office of Public Safety
relative to the storage of such items until an item is returned to its owner; provided that such owner shall have the right,
at any time up to one year after any such order has been issued, to transfer such firearms, rifles, shotguns, machine guns
and ammunition to any licensed dealer and upon notification in writing by the licensed dealer and the owner, the
licensing authority shall within ten days deliver such firearms, rifles, shotguns, machine guns and ammunition to the
licensed dealer. Any item stored by the State Police or the local licensing authority pursuant to such order which is not
lawfully reclaimed by its owner within one year after such order has been vacated or has expired shall be destroyed. The
Secretary of the Executive Office of Public Safety is hereby authorized and directed to promulgate rules and regulations
necessary to carry out the provisions of this section.
The 1996 amendment revised the first paragraph.
The 1998 amendment revised the first paragraph.
Jurisprudence
79 Am Jur 2d, Weapons and Firearms § 33.
Annotations
Validity of state gun control legislation under state constitutional provisions securing the right to bear arms. 86
ALR4th 931.
Treatise References
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
Page 32
ALM GL ch. 209A, § 3B
2007).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
Police chief did not unreasonably determine that an applicant for renewal was no longer a suitable person to hold a
weapon carry license where the chief discovered that the applicant recently had been subject to domestic relations
orders that required the surrender of firearms. Howard v. Chief of Police (2003) 59 Mass App 901, 794 NE2d 604, 2003
Mass App LEXIS 903.
Page 33
6 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 3C (2012)
§ 3C. Continuation or Modification of Firearm Suspension and Surrender Order.
Upon the continuation or modification of an order issued pursuant to section 4 or upon petition for review as described
in section 3B, the court shall also order or continue to order the immediate suspension and surrender of a defendant's
license to carry firearms, including a Class A or Class B license, and firearms identification card and the surrender of all
firearms, rifles, shotguns, machine guns or ammunition which such defendant then controls, owns or possesses if the
court makes a determination that the return of such license to carry firearms, including a Class A or Class B license, and
firearm identification card or firearms, rifles, shotguns, machine guns or ammunition presents a likelihood of abuse to
the plaintiff. A suspension and surrender order issued pursuant to this section shall continue so long as the restraining
order to which it relates is in effect; and, any law enforcement official to whom such weapon is surrendered may store,
transfer or otherwise dispose of any such weapon in accordance with the provisions of section 129D of chapter 140;
provided, however, that nothing herein shall authorize the transfer of any weapons surrendered by the defendant to
anyone other than a licensed dealer. Any violation of such order shall be punishable by a fine of not more than $5,000
or by imprisonment for not more than two and one-half years in a house of correction or by both such fine and
imprisonment.
HISTORY: 1994, 24, § 6; 1996, 450, § 233; 1998, 180, § 49.
NOTES: Editorial Note
The 1996 amendment substituted "three B" for "3B of this chapter."
The 1998 amendment rewrote this section.
Treatise References
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Page 34
ALM GL ch. 209A, § 3C
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
Police chief did not unreasonably determine that an applicant for renewal was no longer a suitable person to hold a
weapon carry license where the chief discovered that the applicant recently had been subject to domestic relations
orders that required the surrender of firearms. Howard v. Chief of Police (2003) 59 Mass App 901, 794 NE2d 604, 2003
Mass App LEXIS 903.
Page 35
7 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 4 (2012)
§ 4. Temporary Orders; Orders Without Notice.
Upon the filing of a complaint under this chapter, the court may enter such temporary orders as it deems necessary to
protect a plaintiff from abuse, including relief as provided in section three. Such relief shall not be contingent upon the
filing of a complaint for divorce, separate support, or paternity action.
If the plaintiff demonstrates a substantial likelihood of immediate danger of abuse, the court may enter such
temporary relief orders without notice as it deems necessary to protect the plaintiff from abuse and shall immediately
thereafter notify the defendant that the temporary orders have been issued. The court shall give the defendant an
opportunity to be heard on the question of continuing the temporary order and of granting other relief as requested by
the plaintiff no later than ten court business days after such orders are entered.
Notice shall be made by the appropriate law enforcement agency as provided in section seven.
If the defendant does not appear at such subsequent hearing, the temporary orders shall continue in effect without
further order of the court.
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1984, 189, § 152; 1990, 403, § 4.
NOTES: Editorial Note
The 1983 amendment rewrote this section, making, among others, the following changes: (1) deleting in the first
paragraph references to ALM GL c 208, § 34B and ALM GL c 209 § 32, and substituting therein a reference to the
section three of chapter two hundred and nine A; (2) adding a sentence to the first paragraph providing that relief shall
not be contingent upon the filing of a complaint for divorce or separate support; and (3) adding two sentences to the
second paragraph relative to the furnishing of notice to defendant of temporary orders, and providing for the
continuance of temporary orders where the defendant fails to appear at a hearing on such orders.
Page 36
ALM GL ch. 209A, § 4
The 1984 amendment purported to substitute "schedule" for "schedule" in the second paragraph, but such
amendment could not be executed.
The 1990 amendment in the first paragraph, added at the end ", or paternity action"; in the second sentence of the
second paragraph, changed from seven to ten the number of days a defendant has to appear; and added the third and
fourth paragraphs. Sections 14-16 provide:
Section 14. The secretary of public safety shall establish a policy for law enforcement response to domestic
violence consistent with the provisions of this act; provided, however, that he may revise, terminate, or revoke such
policy at his discretion. Such policy shall be developed after consultation with the director of the victim assistance
office, at least two representatives of a certified or provisionally certified batterer's treatment program, and at least four
representatives from the governor's anti-crime council including at least one district attorney, one member of the
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law
enforcement response to domestic violence shall be promulgated within six months of the effective date of this act.
Section 15. Each law enforcement agency shall establish and implement specific operational guidelines consistent
with the policy established under the provisions of section fourteen or adopt said policy. Local operational guidelines
shall be submitted to the secretary of public safety for review within sixty days of the adoption of said policy. The
secretary shall provide written notice of approval of the local guidelines within thirty days of receipt of said guidelines.
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the
absence of approved guidelines, the law enforcement agency shall implement said policy.
Section 16. Within six months of the effective date of this act, guidelines and standards for the certification of
batterer's treatment programs by the department of public health shall be set up by a commission to be established by
the chief justice of the trial court department, one member of which shall be a district attorney or his designee, two of
which shall be members of a recognized batterer's treatment program with training experience, two of which shall be
members of a domestic violence program or the statewide coalition of programs which provide services to victims of
domestic violence and one of whom shall be a member from a probation department. Prior to the establishment of such
guidelines and standards, the department of public health may provisionally certify batterer's treatment programs
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment
of guidelines under this section. The department of public health shall thereafter certify and monitor batterer's treatment
programs according to the standards established and promulgated by the commission. Programs so certified shall be the
only batterer's treatment programs appropriate for court referrals.
Cross References
Penalty for committing crime of stalking in violation of order or judgment issued pursuant to this section, ALM GL
c 265, § 43.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
Annotations
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
Treatise References
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
Page 37
ALM GL ch. 209A, § 4
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.180, Assault and Battery on a Person
Protected by an Abuse Prevention Order.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.360, Assault and Battery with a Dangerous
Weapon on a Person Protected by an Abuse Prevention Order.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.13, 22:12, 22:20-22:24, 22:35,
22:62, 51:2, Form 208.
Law Reviews
Collaboration and Coercion. Hastings Women's Law Journal (Winter, 2013).
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims of
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough? 17 Suffolk J. Trial & App. Adv. 102
(2012).
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Taylor, Ex Parte Domestic Violence Orders of Protection: How Easing Access To Judicial Process Has Eased the
Possibility for Abuse of the Process. 18 Kan. J.L. & Pub. Pol'y 83 (Fall, 2008).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).
Gresens, Denying Choice of Forum: An Interference by the Massachusetts Trial Court with Domestic Violence
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
Page 38
ALM GL ch. 209A, § 4
CASE NOTES
Emergency hearing regarding transfer of custody of child in need of care and protection may be held ex parte.
Care & Protection of Robert (1990) 408 Mass 52, 556 NE2d 993, 1990 Mass LEXIS 325.
After District Court judge vacated temporary protective order against husband, judge lacked statutory authority to
order expungement of husband's name from statewide domestic violence record keeping system created by St. 1992 ch.
188, § 7. Vaccaro v. Vaccaro (1997) 425 Mass 153, 680 NE2d 55, 1997 Mass LEXIS 121.
Failure to serve defendant with copy of extended abuse prevention order did not deprive District Court of subject
matter jurisdiction and was not required before defendant could be convicted of violating order, where defendant was
served with temporary order at his last and usual place of abode and that order warned that if he failed to appear
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.
Testimony before District Court was not sufficient to warrant extension of 209A order entered ex parte 10 days
earlier, where complainant's testimony that she suffered emotionally and experienced aggravation of ulcer condition as
result of receiving defendant's notices of lawsuit and court proceedings did not constitute threat of serious physical harm
or "abuse;" petition for relief under ALM GL c 211, § 3 should have been allowed. Larkin v. Ayer Div. of the Dist.
Court Dep't (1997) 425 Mass 1020, 681 NE2d 817, 1997 Mass LEXIS 174.
Where incarcerated defendant received actual notice of scheduled hearing on extension of temporary protective
order which had been granted ex parte, knew order could be extended, and never expressed desire to exercise his right
to be heard, defendant's due process rights were not violated and his conviction for violation of protective order would
be affirmed. Commonwealth v. Henderson (2001) 434 Mass 155, 747 NE2d 659, 2001 Mass LEXIS 213.
Trial court erred in denying a boy's motion to vacate an order for protection from abuse entered pursuant to ALM
GL c 209A, § 4; trial court erred in finding that the boy and a girl he allegedly sexually assaulted had engaged in a
substantive dating relationship as defined by ALM GL c 209A, § 3, and ALM GL c 209A, § 1(e), as the trial court did not
apply the four factors provided by ALM GL c 209A, § 1(e)(1)-(4) in determining whether a substantive dating
relationship existed, and the trial court erred in refusing to allow the boy to present evidence and cross examine
witnesses at the hearing in question. C.O. v. M.M. (2004) 442 Mass 648, 815 NE2d 582, 2004 Mass LEXIS 665.
District Judge had the inherent authority to expunge a record of a ALM GL c 209A civil abuse protection order
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation of the
order, nor sealing of the record was sufficient to protect the integrity of the courts, did not send an appropriate message
to the public, and left a record of the order in the system; and (2) the potential harm to the courts and to the victim of the
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's
failure to attend a hearing on a motion to destroy all copies of the ALM GL c 209A order. Comm'r of Prob. v. Adams
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.
Plaintiff could not meet his burden, in action under anti-SLAPP law ( ALM GL c 231, § 59H) to show that
defendant's exercise of her right to petition court for extended orders for protection from abuse was devoid of any
reasonable factual support or arguable basis in law where plaintiff had opportunity to be heard before any temporary
order was extended under ALM GL c 209A, even though he was ultimately acquitted after jury trial for allegedly
violating such order. Franco v. Mudford (2002) 2002 Mass App Div 63, 2002 Mass App Div LEXIS 26.
Page 39
8 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 5 (2012)
§ 5. Granting of Relief When Courts Closed; Notice; Next-Day Certification.
[Effective until July 1, 2012.] When the court is closed for business or the plaintiff is unable to appear in court
because of severe hardship due to the plaintiff's physical condition, any justice of the superior, probate and family,
district or Boston municipal court departments may grant relief to the plaintiff as provided under section four if the
plaintiff demonstrates a substantial likelihood of immediate danger of abuse. In the discretion of the justice, such relief
may be granted and communicated by telephone to an officer or employee of an appropriate law enforcement agency,
who shall record such order on a form of order promulgated for such use by the chief administrative justice and shall
deliver a copy of such order on the next court day to the clerk-magistrate of the court having venue and jurisdiction over
the matter. If relief has been granted without the filing of a complaint pursuant to this section of this chapter, then the
plaintiff shall appear in court on the next available business day to file said complaint. If the plaintiff in such a case is
unable to appear in court without severe hardship due to the plaintiff's physical condition, then a representative may
appear in court on the plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances
preventing the plaintiff from appearing personally. Notice to the plaintiff and defendant and an opportunity for the
defendant to be heard shall be given as provided in said section four.
[Effective July 1, 2012.]
When the court is closed for business or the plaintiff is unable to appear in court because of severe hardship due to
the plaintiff's physical condition, any justice of the superior, probate and family, district or Boston municipal court
departments may grant relief to the plaintiff as provided under section four if the plaintiff demonstrates a substantial
likelihood of immediate danger of abuse. In the discretion of the justice, such relief may be granted and communicated
by telephone to an officer or employee of an appropriate law enforcement agency, who shall record such order on a
form of order promulgated for such use by the chief justice of the trial court and shall deliver a copy of such order on
the next court day to the clerk-magistrate of the court having venue and jurisdiction over the matter. If relief has been
granted without the filing of a complaint pursuant to this section of this chapter, then the plaintiff shall appear in court
on the next available business day to file said complaint. If the plaintiff in such a case is unable to appear in court
Page 40
ALM GL ch. 209A, § 5
without severe hardship due to the plaintiff's physical condition, then a representative may appear in court on the
plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances preventing the plaintiff
from appearing personally. Notice to the plaintiff and defendant and an opportunity for the defendant to be heard shall
be given as provided in said section four.
Any order issued under this section and any documentation in support thereof shall be certified on the next court
day by the clerk-magistrate or register of the court issuing such order to the court having venue and jurisdiction over the
matter. Such certification to the court shall have the effect of commencing proceedings under this chapter and invoking
the other provisions of this chapter but shall not be deemed necessary for an emergency order issued under this section
to take effect.
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1990, 403, §§ 5, 6; 1996, 298, §§ 3, 4; 2011, 93, § 40.
NOTES: Editorial Note
The 1983 amendment substantially rewrote this section, making, among other changes, the following changes: (1)
expanding the category of justices who can grant relief under this section; (2) adding other language in the first
paragraph relative to notice and a subsequent hearing on such relief; (3) deleting the paragraph which provided that
orders issued under this section would terminate as of the close of business on the next day the court is in session; and
(4) adding language to the last paragraph to provide that certification of an order shall not be necessary for such order to
take effect.
The 1990 amendment in the first paragraph, added the second sentence relative to relief granted and
communicated by telephone, and in the first sentence of the second paragraph, following "clerk-magistrate", inserted "or
register." Sections 14-16 provide:
Section 14. The secretary of public safety shall establish a policy for law enforcement response to domestic
violence consistent with the provisions of this act; provided, however, that he may revise, terminate, or revoke such
policy at his discretion. Such policy shall be developed after consultation with the director of the victim assistance
office, at least two representatives of a certified or provisionally certified batterer's treatment program, and at least four
representatives from the governor's anti-crime council including at least one district attorney, one member of the
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law
enforcement response to domestic violence shall be promulgated within six months of the effective date of this act.
Section 15. Each law enforcement agency shall establish and implement specific operational guidelines consistent
with the policy established under the provisions of section fourteen or adopt said policy. Local operational guidelines
shall be submitted to the secretary of public safety for review within sixty days of the adoption of said policy. The
secretary shall provide written notice of approval of the local guidelines within thirty days of receipt of said guidelines.
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the
absence of approved guidelines, the law enforcement agency shall implement said policy.
Section 16. Within six months of the effective date of this act, guidelines and standards for the certification of
batterer's treatment programs by the department of public health shall be set up by a commission to be established by
the chief justice of the trial court department, one member of which shall be a district attorney or his designee, two of
which shall be members of a recognized batterer's treatment program with training experience, two of which shall be
members of a domestic violence program or the statewide coalition of programs which provide services to victims of
domestic violence and one of whom shall be a member from a probation department. Prior to the establishment of such
guidelines and standards, the department of public health may provisionally certify batterer's treatment programs
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment
of guidelines under this section. The department of public health shall thereafter certify and monitor batterer's treatment
programs according to the standards established and promulgated by the commission. Programs so certified shall be the
Page 41
ALM GL ch. 209A, § 5
only batterer's treatment programs appropriate for court referrals.
The 1996 amendment, by § 3, in the first sentence of the first paragraph, following "business" inserted "or the
plaintiff is . . . physical condition"; and by § 4, in the first paragraph, inserted the fourth sentence.
The 2011 amendment, effective July 1, 2012, substituted "chief justice of the trial court" for "chief administrative
justice" in the second sentence of the first paragraph. Section 137 provides:
Section 137. Sections 2 to 7, inclusive, 10 to 54, inclusive, 57 to 117, inclusive, 122, 123, 124, 125 and 127A shall
take effect on July 1, 2012.
Cross References
Penalty for committing crime of stalking in violation of order or judgment issued pursuant to this section, ALM GL
c 265, § 43.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
Annotations
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
Treatise References
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.180, Assault and Battery on a Person
Protected by an Abuse Prevention Order.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.360, Assault and Battery with a Dangerous
Weapon on a Person Protected by an Abuse Prevention Order.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.680, Stalking.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) § 4.13, 51:2, Form 208.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Syrnick, Shifting the Burden: An Argument for a Rebuttable Presumption against Visitation during a 209A
Restraining Order Proceeding. 43 New Eng. L. Rev. 645 (Spring, 2009).
Page 42
ALM GL ch. 209A, § 5
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
Failure to serve defendant with copy of extended abuse prevention order did not deprive District Court of subject
matter jurisdiction and was not required before defendant could be convicted of violating order, where defendant was
served with temporary order at his last and usual place of abode and that order warned that if he failed to appear
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.
Personal service of protective order is not required if Commonwealth can show that defendant had actual or
constructive knowledge of existence and terms of court order. Commonwealth v. Molloy (1998) 44 Mass App 306, 690
NE2d 836, 1998 Mass App LEXIS 29, review denied (1998) 427 Mass 1107, 699 NE2d 851, 1998 Mass LEXIS 452.
District Judge had the inherent authority to expunge a record of a ALM GL c 209A civil abuse protection order
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation of the
order, nor sealing of the record was sufficient to protect the integrity of the courts, did not send an appropriate message
to the public, and left a record of the order in the system; and (2) the potential harm to the courts and to the victim of the
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's
failure to attend a hearing on a motion to destroy all copies of the ALM GL c 209A order. Comm'r of Prob. v. Adams
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.
Page 43
9 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 5A (2012)
§ 5A. Protection Orders Issued By Another Jurisdiction.
Any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit
throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in
effect in the issuing jurisdiction.
A person entitled to protection under a protection order issued by another jurisdiction may file such order in the
superior court department or the Boston municipal court department or any division of the probate and family or district
court departments by filing with the court a certified copy of such order which shall be entered into the statewide
domestic violence record keeping system established pursuant to the provisions of section seven of chapter one hundred
and eighty-eight of the acts of nineteen hundred and ninety-two and maintained by the office of the commissioner of
probation. Such person shall swear under oath in an affidavit, to the best of such person's knowledge, that such order is
presently in effect as written. Upon request by a law enforcement agency, the register or clerk of such court shall
provide a certified copy of the protection order issued by the other jurisdiction.
A law enforcement officer may presume the validity of, and enforce in accordance with section six, a copy of a
protection order issued by another jurisdiction which has been provided to the law enforcement officer by any source;
provided, however, that the officer is also provided with a statement by the person protected by the order that such order
remains in effect. Law enforcement officers may rely on such statement by the person protected by such order.
HISTORY: 1996, 298, § 5.
NOTES: Treatise References
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Law Reviews
Page 44
ALM GL ch. 209A, § 5A
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Smith, Battered Non-Wives and Unequal Protection-Order Coverage: A Call for Reform. 23 Yale L & Pol'y Rev
93.
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
Page 45
10 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 6 (2012)
§ 6. Powers and Duties of Law Officers; Notice of Rights.
Whenever any law officer has reason to believe that a family or household member has been abused or is in danger of
being abused, such officer shall use all reasonable means to prevent further abuse. The officer shall take, but not be
limited to the following action:
(1) remain on the scene of where said abuse occurred or was in danger of occurring as long as the officer has
reason to believe that at least one of the parties involved would be in immediate physical danger without the presence of
a law officer. This shall include, but not be limited to remaining in the dwelling for a reasonable period of time;
(2) assist the abused person in obtaining medical treatment necessitated by an assault, which may include driving
the victim to the emergency room of the nearest hospital, or arranging for appropriate transportation to a health care
facility, notwithstanding any law to the contrary;
(3) assist the abused person in locating and getting to a safe place; including but not limited to a designated
meeting place for a shelter or a family member's or friend's residence. The officer shall consider the victim's preference
in this regard and what is reasonable under all the circumstances;
(4) give such person immediate and adequate notice of his or her rights. Such notice shall consist of handing said
person a copy of the statement which follows below and reading the same to said person. Where said person's native
language is not English, the statement shall be then provided in said person's native language whenever possible.
"You have the right to appear at the Superior, Probate and Family, District or Boston Municipal Court, if you
reside within the appropriate jurisdiction, and file a complaint requesting any of the following applicable orders: (a) an
order restraining your attacker from abusing you; (b) an order directing your attacker to leave your household, building
or workplace; (c) an order awarding you custody of a minor child; (d) an order directing your attacker to pay support for
you or any minor child in your custody, if the attacker has a legal obligation of support; and (e) an order directing your
Page 46
ALM GL ch. 209A, § 6
attacker to pay you for losses suffered as a result of abuse, including medical and moving expenses, loss of earnings or
support, costs for restoring utilities and replacing locks, reasonable attorney's fees and other out-of-pocket losses for
injuries and property damage sustained.
For an emergency on weekends, holidays, or weeknights the police will refer you to a justice of the superior,
probate and family, district, or Boston municipal court departments.
You have the right to go to the appropriate district court or the Boston municipal court and seek a criminal
complaint for threats, assault and battery, assault with a deadly weapon, assault with intent to kill or other related
offenses.
If you are in need of medical treatment, you have the right to request that an officer present drive you to the
nearest hospital or otherwise assist you in obtaining medical treatment.
If you believe that police protection is needed for your physical safety, you have the right to request that the
officer present remain at the scene until you and your children can leave or until your safety is otherwise ensured. You
may also request that the officer assist you in locating and taking you to a safe place, including but not limited to a
designated meeting place for a shelter or a family member's or a friend's residence, or a similar place of safety.
You may request a copy of the police incident report at no cost from the police department."
The officer shall leave a copy of the foregoing statement with such person before leaving the scene or premises.
(5) assist such person by activating the emergency judicial system when the court is closed for business;
(6) inform the victim that the abuser will be eligible for bail and may be promptly released; and
(7) arrest any person a law officer witnesses or has probable cause to believe has violated a temporary or
permanent vacate, restraining, or no-contact order or judgment issued pursuant to section eighteen, thirty-four B or
thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, section three, three
B, three C, four or five of this chapter, or sections fifteen or twenty of chapter two hundred and nine C or similar
protection order issued by another jurisdiction. When there are no vacate, restraining, or no-contact orders or judgments
in effect, arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a
person:
(a) has committed a felony;
(b) has committed a misdemeanor involving abuse as defined in section one of this chapter;
(c) has committed an assault and battery in violation of section thirteen A of chapter two hundred and
sixty-five.
The safety of the victim and any involved children shall be paramount in any decision to arrest. Any officer
arresting both parties must submit a detailed, written report in addition to an incident report, setting forth the grounds
for dual arrest.
No law officer investigating an incident of domestic violence shall threaten, suggest, or otherwise indicate the arrest
of all parties for the purpose of discouraging requests for law enforcement intervention by any party.
No law officer shall be held liable in any civil action regarding personal injury or injury to property brought by any
party to a domestic violence incident for an arrest based on probable cause when such officer acted reasonably and in
good faith and in compliance with this chapter and the statewide policy as established by the secretary of public safety.
Page 47
ALM GL ch. 209A, § 6
Whenever any law officer investigates an incident of domestic violence, the officer shall immediately file a written
incident report in accordance with the standards of the officer's law enforcement agency and, wherever possible, in the
form of the National Incident-Based Reporting System, as defined by the Federal Bureau of Investigation. The latter
information may be submitted voluntarily by the local police on a monthly basis to the crime reporting unit of the
department of criminal justice information services.
The victim shall be provided a copy of the full incident report at no cost upon request to the appropriate law
enforcement department.
When a judge or other person authorized to take bail bails any person arrested under the provisions of this chapter,
he shall make reasonable efforts to inform the victim of such release prior to or at the time of said release.
When any person charged with or arrested for a crime involving abuse under this chapter is released from custody,
the court or the emergency response judge shall issue, upon the request of the victim, a written no-contact order
prohibiting the person charged or arrested from having any contact with the victim and shall use all reasonable means to
notify the victim immediately of release from custody. The victim shall be given at no cost a certified copy of the
no-contact order.
HISTORY: 1978, 447, § 2; 1983, 678, § 4; 1987, 761; 1990, 403, § 7; 1996, 298, §§ 6, 7; 2010, 256, § 103.
NOTES: Editorial Note
The 1983 amendment rewrote this section, making, among other changes, the following changes: (1) inserting
after the word "abused" in the first sentence of the first paragraph, the words "or is in danger of being abused"; (2)
inserting in clause (1) the word "immediate" before the word "danger" and the words "for a reasonable period of time"
after the words "dwelling unit"; (3) inserting language in clause (2) relative to transportation to a health care facility; (4)
inserting in clause (6) a reference to section seven of chapter two hundred and nine A; and (5) inserting a paragraph
relative to the right to obtain emergency relief on weekends, holidays or weeknights.
The 1987 amendment added clause (7) to the first paragraph.
The 1990 amendment restructured and rewrote this section, expanding upon actions and procedures any law
officer may take whenever he has reason to believe that a family or household member has been abused or in is danger
of being abused. Sections 14-16 provide:
Section 14. The secretary of public safety shall establish a policy for law enforcement response to domestic
violence consistent with the provisions of this act; provided, however, that he may revise, terminate, or revoke such
policy at his discretion. Such policy shall be developed after consultation with the director of the victim assistance
office, at least two representatives of a certified or provisionally certified batterer's treatment program, and at least four
representatives from the governor's anti-crime council including at least one district attorney, one member of the
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law
enforcement response to domestic violence shall be promulgated within six months of the effective date of this act.
Section 15. Each law enforcement agency shall establish and implement specific operational guidelines consistent
with the policy established under the provisions of section fourteen or adopt said policy. Local operational guidelines
shall be submitted to the secretary of public safety for review within sixty days of the adoption of said policy. The
secretary shall provide written notice of approval of the local guidelines within thirty days of receipt of said guidelines.
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the
absence of approved guidelines, the law enforcement agency shall implement said policy.
Section 16. Within six months of the effective date of this act, guidelines and standards for the certification of
batterer's treatment programs by the department of public health shall be set up by a commission to be established by
Page 48
ALM GL ch. 209A, § 6
the chief justice of the trial court department, one member of which shall be a district attorney or his designee, two of
which shall be members of a recognized batterer's treatment program with training experience, two of which shall be
members of a domestic violence program or the statewide coalition of programs which provide services to victims of
domestic violence and one of whom shall be a member from a probation department. Prior to the establishment of such
guidelines and standards, the department of public health may provisionally certify batterer's treatment programs
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment
of guidelines under this section. The department of public health shall thereafter certify and monitor batterer's treatment
programs according to the standards established and promulgated by the commission. Programs so certified shall be the
only batterer's treatment programs appropriate for court referrals.
The 1996 amendment, by § 6, in item (7), following "three" inserted ", three B, three C" and by § 7, in item (7),
following "nine C" inserted "or similar protection order issued by another jurisdiction."
The 2010 amendment, effective Nov 4, 2010, substituted "department of criminal justice information services" for
"criminal history systems board" in the second sentence of the fifth paragraph.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
Annotations
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
Treatise References
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.05, 4.14, 51:2, Form 208.
Law Reviews
Domestic Violence. The Georgetown Journal of Gender and the Law (2012).
Roederer, Another Case in Lochner's Legacy, The Court's Assault on New Property: The Right to The Mandatory
Enforcement of a Restraining Order is a "Sham," "Nullity," and "Cruel Deception". 54 Drake L. Rev. 321 (Winter,
2006).
Volovski, Crime And Punishment Law Chapter: Domestic Violence. 5 Geo J Gender & L 175 (Spring, 2004).
Rousseve, Sixth Annual Review of Gender and Sexuality Law: II. Criminal Law Chapter: Domestic Violence and
the States. 6 Geo. J. Gender & L. 431 (2005).
Hickey, Ninth Annual Review of Gender and Sexuality Law: Criminal Law Chapter: Domestic Violence and the
State. 9 Geo. J. Gender & L. 625 (2008).
Solon, Domestic Violence. 10 Geo. J. Gender & L. 369 (2009).
Morao, Domestic Violence and the State. 7 Geo. J. Gender XXX L. 787 (2006).
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Page 49
ALM GL ch. 209A, § 6
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Hirschel, et al, Domestic Violence and Mandatory Arrest Laws: To What Extent Do They Influence Police Arrest
Decisions? 98 J. Crim. L. & Criminology 255 (Fall, 2007).
Moses, Understanding Legal Responses to Technological Change: The Example of In Vitro Fertilization. 6 Minn.
J.L. Sci. & Tech. 505 (May, 2005).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Miccio, Exiled from the Province of Care: Domestic Violence, Duty and Conceptions of State Accountability. 37
Rutgers L. J. 111 (Fall, 2005).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Rizer, Mandatory Arrest: Do We Need To Take a Closer Look? 36 U. West. L.A. L. Rev. 1 (2005).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
ALM GL c 209A, permitting warrantless arrest for certain misdemeanors in context of domestic abuse (including
placing another in fear of imminent serious physical harm) could not be relied on to justify warrantless arrest of
defendant for making threats, where record did not establish that defendant's threats constituted "abuse" as defined by
statute. Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.
If police officers has reason to believe that defendant's conduct with respect to person protected under ALM GL c
209A placed person in fear of imminent serious physical harm, warrantless arrest for assault may be made.
Commonwealth v. Jacobsen (1995) 419 Mass 269, 644 NE2d 213, 1995 Mass LEXIS 1.
After husband had acted in threatening and hostile manner in presence of police officers in home, police officer
acted reasonably and constitutionally in following husband to bedroom in order to protect wife and prevent husband's
access to weapons; motion to suppress drugs seized from bedroom properly denied. Commonwealth v. Rexach (1985)
20 Mass App 919, 478 NE2d 744, 1985 Mass App LEXIS 1748, review den Commonwealth v. Rexach (1985) 395 Mass
Page 50
ALM GL ch. 209A, § 6
1104, 482 NE2d 328, 1985 Mass LEXIS 1659, and among conflicting authorities noted in, Commonwealth v. Wright
(1994) 560 Pa 34, 742 A2d 661, 1999 Pa LEXIS 3774, reconsideration den, Commonwealth v. Wright (2000, Pa) 2000
Pa LEXIS 522.
Although ALM GL c 209A requires police officers to arrest person who has violated protective order, police
officers are not made liable for failing to do so, and, accordingly, claim under last paragraph or "savings clause" of ALM
GL c 258, § 10 (Massachusetts Tort Claims Act) is not supported by police officers' failure to arrest plaintiff's former
husband for repeatedly violating ALM GL c 209A order. Ford v. Town of Grafton (1998) 44 Mass App 715, 693 NE2d
1047, 1998 Mass App LEXIS 401, review denied (1998) 427 Mass 1108, 700 NE2d 268, 1998 Mass LEXIS 389 and
petition for certiorari filed (Sep 30, 1998).
Complaints for violation of 209A protective orders are not immune from requirement of show-cause hearing under
ALM GL c 218, § 35A, but notice and opportunity to be heard need not be provided if one of three exceptions set forth
in ALM GL c 218, § 35A applies. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App
LEXIS 761.
Since defendant had been arrested on warrant for violation of 209A restraining order, requirement of show-cause
hearing under ALM GL c 218, § 35A was obviated. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799,
2001 Mass App LEXIS 761.
Where woman who entered police station was bruised and disheveled and reported that defendant had punched her
in face and had done same thing two days earlier, police had probable cause to believe defendant had committed assault
and battery or misdemeanor involving abuse and could arrest defendant without warrant. Richardson v. City of Boston
(2001) 53 Mass App 201, 758 NE2d 629, 2001 Mass App LEXIS 1070.
Page 51
11 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 7 (2012)
§ 7. Search of Domestic Violence Records; Outstanding Warrants; Service of Order, Complaint and Summons;
Enforcement; Violations.
When considering a complaint filed under this chapter, a judge shall cause a search to be made of the records
contained within the statewide domestic violence record keeping system maintained by the office of the commissioner
of probation and shall review the resulting data to determine whether the named defendant has a civil or criminal record
involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named
defendant, a judge shall order that the appropriate law enforcement officials be notified and shall order that any
information regarding the defendant's most recent whereabouts shall be forwarded to such officials. In all instances
where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether an
imminent threat of bodily injury exists to the petitioner. In all instances where such an imminent threat of bodily injury
is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall
take all necessary actions to execute any such outstanding warrant as soon as is practicable.
Whenever the court orders under sections eighteen, thirty-four B, and thirty-four C of chapter two hundred and
eight, section thirty-two of chapter two hundred and nine, sections three, four and five of this chapter, or sections fifteen
and twenty of chapter two hundred and nine C, the defendant to vacate, refrain from abusing the plaintiff or to have no
contact with the plaintiff or the plaintiff's minor child, the register or clerk-magistrate shall transmit two certified copies
of each such order and one copy of the complaint and summons forthwith to the appropriate law enforcement agency
which, unless otherwise ordered by the court, shall serve one copy of each order upon the defendant, together with a
copy of the complaint, order and summons and notice of any suspension or surrender ordered pursuant to section three
B of this chapter. The law enforcement agency shall promptly make its return of service to the court.
Law enforcement officers shall use every reasonable means to enforce such abuse prevention orders. Law
enforcement agencies shall establish procedures adequate to insure that an officer on the scene of an alleged violation of
such order may be informed of the existence and terms of such order. The court shall notify the appropriate law
enforcement agency in writing whenever any such order is vacated and shall direct the agency to destroy all record of
Page 52
ALM GL ch. 209A, § 7
such vacated order and such agency shall comply with that directive.
Each abuse prevention order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A
CRIMINAL OFFENSE.
Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not
more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction,
or by both such fine and imprisonment. In addition to, but not in lieu of, the forgoing penalties and any other sentence,
fee or assessment, including the victim witness assessment in section 8 of chapter 258B, the court shall order persons
convicted of a crime under this statute to pay a fine of $25 that shall be transmitted to the treasurer for deposit into the
General Fund. For any violation of such order, the court shall order the defendant to complete a certified batterer's
intervention program unless, upon good cause shown, the court issues specific written findings describing the reasons
that batterer's intervention should not be ordered or unless the batterer's intervention program determines that the
defendant is not suitable for intervention. The court shall not order substance abuse or anger management treatment or
any other form of treatment as a substitute for certified batterer's intervention. If a defendant ordered to undergo
treatment has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to
participate in said program as required by the terms of his probation. If the court determines that the violation was in
retaliation for the defendant being reported by the plaintiff to the department of revenue for failure to pay child support
payments or for the establishment of paternity, the defendant shall be punished by a fine of not less than one thousand
dollars and not more than ten thousand dollars and by imprisonment for not less than sixty days; provided, however,
that the sentence shall not be suspended, nor shall any such person be eligible for probation, parole, or furlough or
receive any deduction from his sentence for good conduct until he shall have served sixty days of such sentence.
When a defendant has been ordered to participate in a treatment program pursuant to this section, the defendant
shall be required to regularly attend a certified or provisionally certified batterer's treatment program. To the extent
permitted by professional requirements of confidentiality, said program shall communicate with local battered women's
programs for the purpose of protecting the victim's safety. Additionally, it shall specify the defendant's attendance
requirements and keep the probation department informed of whether the defendant is in compliance.
In addition to, but not in lieu of, such orders for treatment, if the defendant has a substance abuse problem, the court
may order appropriate treatment for such problem. All ordered treatment shall last until the end of the probationary
period or until the treatment program decides to discharge the defendant, whichever comes first. When the defendant is
not in compliance with the terms of probation, the court shall hold a revocation of probation hearing. To the extent
possible, the defendant shall be responsible for paying all costs for court ordered treatment.
Where a defendant has been found in violation of an abuse prevention order under this chapter or a protection order
issued by another jurisdiction, the court may, in addition to the penalties provided for in this section after conviction, as
an alternative to incarceration and, as a condition of probation, prohibit contact with the victim through the
establishment of court defined geographic exclusion zones including, but not limited to, the areas in and around the
complainant's residence, place of employment, and the complainant's child's school, and order that the defendant to
wear a global positioning satellite tracking device designed to transmit and record the defendant's location data. If the
defendant enters a court defined exclusion zone, the defendant's location data shall be immediately transmitted to the
complainant, and to the police, through an appropriate means including, but not limited to, the telephone, an electronic
beeper or a paging device. The global positioning satellite device and its tracking shall be administered by the
department of probation. If a court finds that the defendant has entered a geographic exclusion zone, it shall revoke his
probation and the defendant shall be fined, imprisoned or both as provided in this section. Based on the defendant's
ability to pay, the court may also order him to pay the monthly costs or portion thereof for monitoring through the
global positioning satellite tracking system.
In each instance where there is a violation of an abuse prevention order or a protection order issued by another
jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to, cost for
Page 53
ALM GL ch. 209A, § 7
shelter or emergency housing, loss of earnings or support, out-of-pocket losses for injuries sustained or property
damaged, medical expenses, moving expenses, cost for obtaining an unlisted telephone number, and reasonable
attorney's fees.
Any such violation may be enforced in the superior, the district or Boston municipal court departments. Criminal
remedies provided herein are not exclusive and do not preclude any other available civil or criminal remedies. The
superior, probate and family, district and Boston municipal court departments may each enforce by civil contempt
procedure a violation of its own court order.
The provisions of section eight of chapter one hundred and thirty-six shall not apply to any order, complaint or
summons issued pursuant to this section.
HISTORY: 1983, 678, § 5; 1987, 213; 1990, 403, § 8; 1992, 188, § 4; 1994, 24, § 7; 1995, 5, § 81; 1996, 298, § 8;
2002, 184, § 114; 2003, 26, § 448; 2006, 418, § 1.
NOTES: Editorial Note
The 1987 amendment added the tenth paragraph, relative to the applicability of the provisions of ALM GL c 136, §
8.
The 1990 amendment replaced the former first and second paragraphs with the second through eighth paragraphs.
Sections 14-16 provide:
Section 14. The secretary of public safety shall establish a policy for law enforcement response to domestic
violence consistent with the provisions of this act; provided, however, that he may revise, terminate, or revoke such
policy at his discretion. Such policy shall be developed after consultation with the director of the victim assistance
office, at least two representatives of a certified or provisionally certified batterer's treatment program, and at least four
representatives from the governor's anti-crime council including at least one district attorney, one member of the
Massachusetts bar experienced in criminal defense, one police chief and one judge or his designee. Such policy for law
enforcement response to domestic violence shall be promulgated within six months of the effective date of this act.
Section 15. Each law enforcement agency shall establish and implement specific operational guidelines consistent
with the policy established under the provisions of section fourteen or adopt said policy. Local operational guidelines
shall be submitted to the secretary of public safety for review within sixty days of the adoption of said policy. The
secretary shall provide written notice of approval of the local guidelines within thirty days of receipt of said guidelines.
Upon approval, said guidelines shall be effective immediately at the local law enforcement agency. Prior to, or in the
absence of approved guidelines, the law enforcement agency shall implement said policy.
Section 16. Within six months of the effective date of this act, guidelines and standards for the certification of
batterer's treatment programs by the department of public health shall be set up by a commission to be established by
the chief justice of the trial court department, one member of which shall be a district attorney or his designee, two of
which shall be members of a recognized batterer's treatment program with training experience, two of which shall be
members of a domestic violence program or the statewide coalition of programs which provide services to victims of
domestic violence and one of whom shall be a member from a probation department. Prior to the establishment of such
guidelines and standards, the department of public health may provisionally certify batterer's treatment programs
pursuant to regulations promulgated by the department. Such provisional certification shall expire upon establishment
of guidelines under this section. The department of public health shall thereafter certify and monitor batterer's treatment
programs according to the standards established and promulgated by the commission. Programs so certified shall be the
only batterer's treatment programs appropriate for court referrals.
The 1992 amendment inserted the first paragraph.
Page 54
ALM GL ch. 209A, § 7
The 1994 amendment in the first sentence of the second paragraph, following "summons", inserted "and notice of
any suspension or surrender ordered pursuant to section three B of this chapter."
The 1995 amendment, in the fifth paragraph, added the last sentence. Sections 141 and 142 provide:
Section 141. Each provision of this act, shall, regardless of whether it includes a specific proviso, be subject to
federal approval, if required, and federal financial participation. In any case in which the state fails to receive a waiver
for any said provision of this act or otherwise would fail to receive federal financial participation in the implementation
of such provision, then such provision shall not be implemented unless the full amount required for said implementation
without federal participation is appropriated for said implementation.
Section 142. Any provision of this act that is inconsistent with federal law or regulations shall be void unless the
department receives an exemption or waiver from the federal government to implement said provision.
The 1996 amendment in the fifth and eighth paragraphs, following "order" inserted "or a protection order issued
by another jurisdiction."
The 2002 amendment, effective July 1, 2002, in the fifth paragraph, substituted the second and third sentences,
which formerly read: "Where the defendant has no prior record of any crime of violence and where the court believes,
after evaluation by a certified or provisionally certified batterer's treatment program, that the defendant is amenable to
treatment, the court may, in addition to any other penalty, order appropriate treatment as specified in this section."
The 2003 amendment, effective July 1, 2003, in the fifth paragraph, inserted "In addition to, but not in lieu of, the
forgoing penalties and any other sentence, fee or assessment, including the victim witness assessment in section 8 of
chapter 258B, the court shall order persons convicted of a crime under this statute to pay a fine of $25 that shall be
transmitted to the treasurer for deposit into the General Fund" following the first sentence.
The 2006 amendment, effective Apr. 3, 2007, inserted the eighth paragraph.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
Annotations
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
Treatise References
Blumenson, Fisher, & Kanstroom, Massachusetts Criminal Practice (Michie) § 50.
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 2.520, Imposing Sentence.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.680, Stalking.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.720, Violation of an Abuse Prevention
Order.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.15, 9.05, 22:18, 22:37-22:39,
22:47, 22:49-22:51, 23:62, 51:2, Form 208.
Page 55
ALM GL ch. 209A, § 7
Massachusetts Divorce Law Practice Manual § 25.7.2, The Plaintiff's Burden of Proof at the Renewal Hearing.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Harrington, Commonwealth v. Finase: The Scope of Massachusetts Abuse Prevention Order Prosecution and
Efficacy. 29 NE J on Crim & Civ Con 193 (Summer, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Tracia, Navigating the Waters of Massachusetts Child Relocation Law: Assessing The Application of the Real
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).
Gresens, Denying Choice of Forum: An Interference by the Massachusetts Trial Court with Domestic Violence
Victims' Rights and Safety. 43 Suffolk U. L. Rev. 293 (2010).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Smith, Battered Non-Wives and Unequal Protection-Order Coverage: A Call for Reform. 23 Yale L & Pol'y Rev
93.
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
1. In general 2. Order to refrain from abuse 3. --Violation 4. Order to vacate household 5. --Violation 6. No contact
order; protective order 6.5. District Judge's authority to vacate order 7. --Violation 8. Prosecution; trial 9. --Evidence 10.
--Jury instructions 11. Penalties
1. In general
Record identified for destruction in third paragraph of ALM GL c 209A, § 7 is record of order previously
transmitted to police department called on to serve order and subsequently vacated. Vaccaro v. Vaccaro (1997) 425
Page 56
ALM GL ch. 209A, § 7
Mass 153, 680 NE2d 55, 1997 Mass LEXIS 121.
Section requires judge to search computerized records to determine if person has civil or criminal record involving
domestic or other violence. Vaccaro v. Vaccaro (1997) 425 Mass 153, 680 NE2d 55, 1997 Mass LEXIS 121.
ALM GL c 209A, § 7 establishes distinct statutory crime for violation of ALM GL c 209A order, and while
Commonwealth must show that defendant knew of order, there is no requirement that Commonwealth show intent on
part of defendant to violate order. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass LEXIS
187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.
Challenge to District Court's renewal of 209A order should have been directed to Appeals Court and not made
subject to petition under ALM GL c 211, § 3. Kraytsberg v. Kraytsberg (1998) 427 Mass 1008, 696 NE2d 124, 1998
Mass LEXIS 334.
ALM GL c 209A, § 7 criminalizes violation of three orders: orders to vacate household, orders to refrain from
abusing, and orders to have no contact. Commonwealth v. Finase (2001) 435 Mass 310, 757 NE2d 721, 2001 Mass
LEXIS 642.
2. Order to refrain from abuse
Although abuse prevention orders had expired, defendant's appeal challenging their lawfulness was not moot, since
defendant could be adversely affected by them in future applications for such orders or in bail proceedings. Wooldridge
v. Hickey (1998) 45 Mass App 637, 700 NE2d 296, 1998 Mass App LEXIS 1112.
3. --Violation
Party violates order to refrain from abuse when he or she attempts to cause or causes physical harm, places another
in fear of imminent serious physical harm, or causes another to engage involuntarily in sexual relations by force, threat
of force, or duress. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197.
Although defendant did not physically harm wife or attempt to physically harm her when he arrived at her home
unannounced, defendant's conduct in preventing wife from closing front door by propping his back against it when wife
indicated her unwillingness to speak with him could be considered by jury as placing wife in fear of imminent serious
physical harm. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197.
Evidence that defendant was angry with his wife for seeing another man and that he called her "bitch" and "whore"
5 days before defendant visited wife at marital home from which he was ordered to stay away was relevant to proving
that wife was in fear of defendant. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS
197.
Evidence of defendant's violation of ALM GL c 209A order to refrain from abusing victim was sufficient, where
jury could find that actions and words of defendant placed victim in reasonable apprehension that physical force might
be used against her (defendant drove to front of victim's home, got out of car and yelled obscene language to and made
obscene gesture at victim and soon thereafter told victim over telephone that he would kill her). Commonwealth v.
Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.
First Amendment did not protect defendant's conduct that was threatening to victim and constituted violation of
ALM GL c 209A order to refrain from abusing victim. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d
1196, 1995 Mass LEXIS 359.
Jury verdicts convicting defendant of violating ALM GL c 209A order to refrain from abusing victim and
acquitting defendant of threatening a crime were inconsistent, but they did not violate defendant's due process rights and
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ALM GL ch. 209A, § 7
did not require reversal of guilty verdict. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995
Mass LEXIS 359.
Commonwealth could not prosecute defendant for stalking under ALM GL c 265, § 43(b) without violating
defendant's double jeopardy rights. In trying to prosecute defendant for that offense, the Commonwealth was relying on
conduct for which defendant had been prosecuted, convicted, and sentenced for violating a ALM GL c 209A abuse
prevention order in violation of ALM GL c 209A, § 7, and, thus, the Commonwealth was trying to prosecute the same
violations twice. Edge v. Commonwealth (2008) 451 Mass. 74, 883 NE2d 928, 2008 Mass. LEXIS 209.
4. Order to vacate household
Defendant ordered to "vacate" marital home must not only surrender legal occupancy but must remain away
without right to enter at any time. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS
197.
Abuse prevention order issued under ALM GL c 209A, § 7, was not vague or overbroad, as a person of ordinary
intelligence could not have reasonably understood that the order requiring defendant to stay away from the residence he
and the victim had resided in would have sanctioned his return to the residence without requesting permission from the
court, as expressly provided for in the order. Commonwealth v. Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008
Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105, 902 N.E.2d 947, 2009 Mass. LEXIS 479.
5. --Violation
Defendant could be found criminally liable under ALM GL c 209A, § 7 for violating order to vacate household,
where he returned to marital home for visits after being ordered "to immediately leave and remain away from"
household. Commonwealth v. Gordon (1990) 407 Mass 340, 553 NE2d 915, 1990 Mass LEXIS 197.
Defendant was properly convicted of violating a restraining order issued under ALM GL c 209A, § 7, by going to a
residence where he and the victim used to live. The order did not unconstitutionally violate defendant's right to remain
in his residence, as that right could be suspended by an abuse prevention order obtained in accordance with due process
principles. Commonwealth v. Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review
denied (2009) 453 Mass. 1105, 902 N.E.2d 947, 2009 Mass. LEXIS 479.
6. No contact order; protective order
Evidence was sufficient to show that defendant had knowledge of extension of protective order, where service of
initial order placed defendant on constructive, if not actual, notice of order's existence and terms. Commonwealth v.
Henderson (2001) 434 Mass 155, 747 NE2d 659, 2001 Mass LEXIS 213.
"No contact" order mandates that defendant not communicate by any means with protected party in addition to
remaining physically separate and is broader than "stay away" order, which prohibits defendant from coming within
specified distance of protected party but not from written or oral contact between parties. Commonwealth v. Finase
(2001) 435 Mass 310, 757 NE2d 721, 2001 Mass LEXIS 642.
Judge's order for defendant not to "contact" former girlfriend in person, by telephone, in writing, or otherwise was
not unconstitutionally vague. Commonwealth v. Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS
99.
Where defendant was served with temporary restraining order and had read its contents and order was extended for
one year at hearing at which defendant did not appear, and there was evidence that defendant knew terms of extended
order, personal service of extended order on defendant was not required. Commonwealth v. Bachir (1998) 45 Mass App
204, 696 NE2d 948, 1998 Mass App LEXIS 513, review denied (1998) 428 Mass 1104, 702 NE2d 812, 1998 Mass
Page 58
ALM GL ch. 209A, § 7
LEXIS 613.
"No contact" provision in abuse prevention order did not violate defendant's right of free speech. Commonwealth v.
Thompson (1998) 45 Mass App 523, 699 NE2d 847, 1998 Mass App LEXIS 1040, review denied (1998) 428 Mass 1108,
707 NE2d 366, 1998 Mass LEXIS 739.
Oral orders of judge are not effective to modify restraining orders issued pursuant to ALM GL c 209A, which
contemplates that orders be transmitted in written form to law enforcement agencies and to defendant. Commonwealth
v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001) 434 Mass 1102,
751 NE2d 419, 2001 Mass LEXIS 275.
Where the third party and ex-girlfriend found a hidden video camera in the ex-girlfriend's bedroom in a clock
installed by the ex-boyfriend and the ex-boyfriend left an answering machine message with the ex-girlfriend denying
the installation of the camera and stating that had the ex-boyfriend installed the camera the ex-girlfriend would not have
found it, the trial court erred in issuing a protective order against the ex-boyfriend and any record of the order was to be
destroyed pursuant to ALM GL c 209A, § 7; although the ex-boyfriend allegedly had a temper, joked that the
ex-boyfriend could have someone taken care of, and had guns, there was nothing in the record that showed a history of
violence, threats, or hostility between the parties that would have objectively placed the ex-girlfriend in fear of
imminent serious physical harm pursuant to ALM GL c 209A, § 1. Keene v. Gangi (2004) 60 Mass App 667, 805 NE2d
77, 2004 Mass App LEXIS 299.
6.5. District Judge's authority to vacate order
District Judge had the inherent authority to expunge a record of a ALM GL c 209A civil abuse protection order
from the statewide domestic violence registry system in the rare and limited circumstance that: (1) the judge found
through clear and convincing evidence that the order was obtained through fraud on the court; (2) neither vacation of the
order, nor sealing of the record was sufficient to protect the integrity of the courts, did not send an appropriate message
to the public, and left a record of the order in the system; and (2) the potential harm to the courts and to the victim of the
order outweighed the governmental interest in maintaining and disseminating the fraudulently obtained order, because it
contained absolutely no informational purpose; however, because the action was initiated by a private plaintiff, ALM GL
c 261, § 14 did not authorize the District Court judge to levy costs against the Commissioner due to the Commissioner's
failure to attend a hearing on a motion to destroy all copies of the ALM GL c 209A order. Comm'r of Prob. v. Adams
(2006) 65 Mass App 725, 843 NE2d 1101, 2006 Mass App LEXIS 262.
7. --Violation
In prosecution of defendant for violating protective order by coming within 100 yards of former wife and in so
doing placing her in fear of imminent serious physical harm, Commonwealth was required to prove that defendant
intended to do act that resulted in violation, where defendant was passenger in car driven by son in threatening manner
three feet from former wife as she was entering parking garage after leaving court. Commonwealth v. Collier (1998)
427 Mass 385, 693 NE2d 673, 1998 Mass LEXIS 182.
Although evidence was sufficient to warrant finding that defendant acted intentionally to do act that resulted in
violation of protective order, (i.e., while defendant was passenger in car driven by his son, he directed or assented to
son's driving car in threatening manner three feet from former wife as she was entering parking garage after leaving
court), conviction of violation of protective order reversed because judge did not instruct jury that defendant must have
intended to commit act that resulted in violation. Commonwealth v. Collier (1998) 427 Mass 385, 693 NE2d 673, 1998
Mass LEXIS 182.
In prosecution of defendant for twice violating restraining order not to contact his former wife by telephone,
evidence that defendant placed telephone calls to former wife's home and place of employment was insufficient to prove
essential element of "contacting," because there was no evidence that defendant left message or reached former wife's
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ALM GL ch. 209A, § 7
"voice mail" or that former wife even knew that calls had been made. Commonwealth v. Cove (1998) 427 Mass 474,
693 NE2d 1385, 1998 Mass LEXIS 196.
Defendant who arranged for flowers to be sent to former girlfriend violated "no contact" order; protestations of
"nonhostile intent" or "desire to make amends" are irrelevant to enforcement of no-contact order. Commonwealth v.
Butler (1996) 40 Mass App 906, 661 NE2d 666, 1996 Mass App LEXIS 99.
Circumstantial evidence was competent to persuade jury beyond reasonable doubt that defendant violated
no-contact protective order, where four collect telephone calls were made to telephone number of defendant's wife from
unit of correctional facility where defendant was incarcerated and later that day wife received call from person whose
voice she did not recognize asking if defendant could call her collect. Commonwealth v. Russell (1999) 46 Mass App
307, 705 NE2d 1144, 1999 Mass App LEXIS 93, review denied (1999) 429 Mass 1104, 709 NE2d 1121, 1999 Mass
LEXIS 256.
Elements of crime of violating abuse prevention order are (1) existence of order in effect at time of alleged
violation; (2) defendant's knowledge of terms of order; and (3) violation of terms of order. Commonwealth v. Basile
(1999) 47 Mass App 918, 712 NE2d 633, 1999 Mass App LEXIS 787, review denied (1999) 430 Mass 1106, 720 NE2d
468, 1999 Mass LEXIS 790.
Where defendant was served in hand with abuse prevention order and on next day appeared one block from where
victim was unloading goods acquired on shopping trip and jumped in air and waved his hands, frightening victim and
causing her to go into house, evidence was sufficient to convict defendant of violating "no contact" terms of order.
Commonwealth v. Basile (1999) 47 Mass App 918, 712 NE2d 633, 1999 Mass App LEXIS 787, review denied (1999)
430 Mass 1106, 720 NE2d 468, 1999 Mass LEXIS 790.
Where defendant was charged with violating "no contact" order by having telephoned victim twice while confined
at Bridgewater State Hospital, evidence that defendant was put in fear of imminent serious physical harm, i.e., evidence
of abuse, was not required. Commonwealth v. Mendonca (2001) 50 Mass App 684, 740 NE2d 1034, 2001 Mass App
LEXIS 6, review denied (2001) 434 Mass 1101, 751 NE2d 418, 2001 Mass LEXIS 236.
Violation of order not to contact by telephone is established by proof of unexcused conversation with protected
party over telephone and without proof that protected party was placed in fear. Commonwealth v. Mendonca (2001) 50
Mass App 684, 740 NE2d 1034, 2001 Mass App LEXIS 6, review denied (2001) 434 Mass 1101, 751 NE2d 418, 2001
Mass LEXIS 236.
Where valid restraining order was in effect requiring defendant to refrain from contacting his wife in person and
ordering him to stay away from marital home and defendant had knowledge of order when he went to wife's residence,
rang doorbell and demanded to be let in to see his son, evidence was sufficient to withstand defendant's motion for
required finding of not guilty. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App
LEXIS 22, review denied (2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.
Where protective order prohibited defendant from contacting or coming within 50 yards of former wife except that
he could remain in his vehicle when picking up and dropping off his children for visitation, defendant violated order
when he left vehicle and accompanied child inside foyer of apartment building and stood 4-5 feet away from former
wife's apartment door. Commonwealth v. Stewart (2001) 52 Mass App 755, 756 NE2d 22, 2001 Mass App LEXIS 953.
Even though a protected person was not present when defendant knowingly intruded directly into the protective
person's workplace in violation of a protective order, the evidence was sufficient to show a violation of the order
pursuant to ALM GL c 209A, § 7. Commonwealth v. Habenstreit (2003) 57 Mass App 785, 786 NE2d 425, 2003 Mass
App LEXIS 462, review denied (2003) 439 Mass 1106, 790 NE2d 1089, 2003 Mass LEXIS 490.
Defendant's convictions for violation of a no contact order were upheld where defendant contended that the
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ALM GL ch. 209A, § 7
comments he made about his ex-wife were not directed to her, but rather, were directed to a passenger in his vehicle, as
one could not undermine a no contact order by simple expedient of ricocheting prohibited comments off third persons;
the legislature rationally concluded that prohibiting contact, whether or not the contact was itself abusive, sometimes
might be necessary to reduce the likelihood that abuse would occur, under ALM GL c 209A, §§ 3(b), 7. Commonwealth
v. Consoli (2003) 58 Mass App 734, 792 NE2d 1007, 2003 Mass App LEXIS 831, review denied (2003) 440 Mass 1103,
797 NE2d 379, 2003 Mass LEXIS 777.
Court would not dismiss an indictment charging defendant with failing to comply with a protective order, as he was
permanently restrained from contacting his daughter, yet sent her a 21st birthday card; that she was emancipated at the
time was immaterial. Commonwealth v. Aspen (2003) 17 Mass L Rep 182, 2003 Mass Super LEXIS 439.
Defendant's claim that indicting him for violating an ALM GL c 209A order violated due process was not valid
since the protective order had been sufficiently clear to a person of ordinary intelligence to know what conduct was
prohibited and he had fair notice that the permanent order applied to his daughter, whom he contacted despite the order.
Commonwealth v. Aspen (2003) 17 Mass L Rep 182, 2003 Mass Super LEXIS 439.
8. Prosecution; trial
Judgment for contempt under Abuse Prevention Act ( ALM GL c 209A) did not bar Commonwealth on double
jeopardy grounds from prosecuting defendant for same conduct that resulted in contempt, since contempt was civil in
nature. Mahoney v. Commonwealth (1993) 415 Mass 278, 612 NE2d 1175, 1993 Mass LEXIS 276.
Failure to serve defendant with copy of extended abuse prevention order did not deprive District Court of subject
matter jurisdiction and was not required before defendant could be convicted of violating order, where defendant was
served with temporary order at his last and usual place of abode and that order warned that if he failed to appear
extended order may remain in effect. Commonwealth v. Delaney (1997) 425 Mass 587, 682 NE2d 611, 1997 Mass
LEXIS 187, cert den (1998) 522 US 1058, 139 L Ed 2d 655, 118 S Ct 714, 1998 US LEXIS 216.
Where incarcerated defendant received actual notice of scheduled hearing on extension of temporary protective
order which had been granted ex parte, knew order could be extended, and never expressed desire to exercise his right
to be heard, defendant's due process rights were not violated and his conviction for violation of protective order would
be affirmed. Commonwealth v. Henderson (2001) 434 Mass 155, 747 NE2d 659, 2001 Mass LEXIS 213.
Accidental, mistaken, or unknowing violations of distance requirements of abuse prevention order are not
prosecuted under ALM GL c 209A, § 7. Commonwealth v. Finase (2001) 435 Mass 310, 757 NE2d 721, 2001 Mass
LEXIS 642.
Defendant was entitled to hearing pursuant to ALM GL c 218, § 35A prior to issuance of misdemeanor complaint
against him for alleged violation of abuse prevention order; judge's dismissal of complaint without prejudice affirmed.
Commonwealth v. Tripolone (1997) 44 Mass App 23, 686 NE2d 1325, 1997 Mass App LEXIS 247.
Directive of first justice of District Court to clerk magistrate that complaint for violation of ALM GL c 209A abuse
prevention order should automatically issue without hearing conflicted directly with statutory requirement for hearing
unless exception set forth in statute is available. Commonwealth v. Tripolone (1997) 44 Mass App 23, 686 NE2d 1325,
1997 Mass App LEXIS 247.
Defendant's motion for required finding of not guilty on charge of violating extended ALM GL c 209A order
should have been allowed because Commonwealth failed to establish that defendant was served with copy of order or
had actual knowledge of its existence and terms. Commonwealth v. Molloy (1998) 44 Mass App 306, 690 NE2d 836,
1998 Mass App LEXIS 29, review denied (1998) 427 Mass 1107, 699 NE2d 851, 1998 Mass LEXIS 452.
Where defendant was served with abuse prevention order but not with copy of complaint and did not appear to
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ALM GL ch. 209A, § 7
contest extension of order, any error in failing to serve defendant with complaint was harmless. Commonwealth v.
Munafo (1998) 45 Mass App 597, 700 NE2d 556, 1998 Mass App LEXIS 1107, review denied (1998) 428 Mass 1110,
707 NE2d 1078, 1998 Mass LEXIS 802.
Commonwealth met its burden of proving defendant's knowledge of existence of extended restraining order, where
it could be inferred reasonably from order and officer's return of service that service was made either by delivering
extended order in hand to defendant or by leaving it at his last and usual address. Commonwealth v. Crimmins (1999)
46 Mass App 489, 707 NE2d 832, 1999 Mass App LEXIS 318.
Where defendant was in court when ALM GL c 209A order was obtained and return of service showed that copy of
original order had been served on him, and victim testified she told defendant he was not supposed to call, evidence was
sufficient to show that defendant had actual knowledge of order's terms. Commonwealth v. Mendonca (2001) 50 Mass
App 684, 740 NE2d 1034, 2001 Mass App LEXIS 6, review denied (2001) 434 Mass 1101, 751 NE2d 418, 2001 Mass
LEXIS 236.
To establish that defendant violated restraining order issued pursuant to ALM GL c 209A, § 7, Commonwealth must
prove that (1) there was valid restraining order, (2) defendant knew of order, and (3) defendant violated order.
Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001 Mass App LEXIS 22, review denied (2001)
434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.
Defendant's conviction for violation of an order under ALM GL c 209A, § 7 was reversed where the Commonwealth
failed to prove that he was served with the order by any means that satisfied the dictates of due process, and further, that
he had knowledge of the terms of the order; it was also shown that the Commonwealth had failed to allege facts that
would have put defendant on notice to conduct a reasonably inquiry into the facts, as the victim's testimony regarding
her conversations with defendant did not affirmatively indicate that he had been informed of the terms of the order.
Commonwealth v. Welch (2003) 58 Mass App 408, 790 NE2d 718, 2003 Mass App LEXIS 707.
9. --Evidence
Hearsay statements attributed to defendant's son by complainant warranted finding that complainant was in fear of
imminent serious physical harm from defendant (defendant told son he should use toy sword to slit his mother's throat).
Flynn v. Warner (1995) 421 Mass 1002, 654 NE2d 926, 1995 Mass LEXIS 358.
At trial of defendant for violating protective order issued under ALM GL c 209A, defendant was prejudiced by
admission of evidence of events that provided basis for issuance of 209A order, where only issue was one of credibility
as to whether defendant appeared at his mother's house on particular day. Commonwealth v. Picariello (1996) 40 Mass
App 902, 660 NE2d 1102, 1996 Mass App LEXIS 25, review denied (1996) 422 Mass 1107, 664 NE2d 1197.
In prosecution for stalking, violating domestic protective order and trespassing, evidence of defendant's prior
uncharged acts of violence against complainant and daughter of complainant and defendant, his previous incarceration,
his giving of false name to police upon arrest, and his violation of "stay away" provision of protective order was either
properly admitted, not objected to, or not prejudicial to defendant. Commonwealth v. Martinez (1997) 43 Mass App
408, 683 NE2d 699, 1997 Mass App LEXIS 188, review denied (1997) 426 Mass 1103, 687 NE2d 643, 1997 Mass
LEXIS 546.
At trial of defendant for violation of abuse prevention order, there was no error in admission of certified copy of
original order indicating on its face that it had been modified, and it was not unfair to place on defendant burden of
alerting judge to substance of modifications. Commonwealth v. Rauseo (2001) 50 Mass App 699, 740 NE2d 1053, 2001
Mass App LEXIS 22, review denied (2001) 434 Mass 1102, 751 NE2d 419, 2001 Mass LEXIS 275.
Defendant was convicted of violating an abuse prevention order issued under ALM GL c 209A, § 7, by going to a
residence where he and the victim used to live. Trial counsel was not ineffective for failing to call defendant as a
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ALM GL ch. 209A, § 7
witness because defendant's testimony that he did not know that the victim was in the residence would have been
irrelevant, as his guilt did not depend on his knowledge of the victim's presence. Commonwealth v. Saladin (2008) 73
Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105, 902 N.E.2d 947,
2009 Mass. LEXIS 479.
Although defendant was acquitted of a prior charge of assault with a dangerous weapon in connection with an
incident against his brother, evidence of the prior charge was admissible in defendant's trial for violating an abuse
prevention order obtained by the brother against defendant because the previous assault charge was introduced to show
defendant's hostility and motive. Commonwealth v. Barboza (2010) 76 Mass App 241, 921 NE2d 117, 2010 Mass. App.
LEXIS 125.
Defendant's convictions of violating a ALM GL c 209A order were not duplicative of his conviction of criminal
harassment, as the two crimes had different elements, and the conduct forming the basis of the criminal harassment
charge predated service of the 209A order and violations thereof and thus was distinct from that forming the basis of the
209A order violations. Commonwealth v. Kulesa (2009) 455 Mass. 447, 917 NE2d 762, 2009 Mass. LEXIS 902.
Defendant's conviction of violating a protective abuse order under ALM GL c 209A, § 7 did not violate due process
as a telephone call between defendant and the victim provided adequate notice of the restraining order (RO), defendant's
response to the information evidenced that defendant knew of the RO, and defendant violated the RO by calling the
victim the next day. Commonwealth v. Melton (2010) 2010 Mass. App. LEXIS 1176.
In a prosecution for violation of an abuse prevention order, a return of service completed by an out of state police
officer did not fall under the official or public records exception, under ALM GL c 233, § 76, and Mass.R.Crim.P. 40,
due to being maintained by the court, because the statute and Rule pertained to the authenticity of a record, which was a
precondition to, not the equivalent of, admissibility. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288.
In a prosecution for violation of an abuse prevention order, a return of service completed by an out of state police
officer was admissible without the officer's testimony to demonstrate defendant's knowledge of the order because (1) the
completed return of service fell within an exception to the hearsay rule for public documents, as the return was prepared
by an official in the performance of an official duty, and (2) the return's admission, absent the officer's live testimony or
a prior opportunity to cross-examine the officer, did not violate the confrontation clause, as the primary purpose for
which the return of service was created was to serve the routine administrative functions of the court system, and the
return was not created to prove a fact at a potential future criminal trial, was not per se testimonial, and was not
testimonial in fact. Commonwealth v. Shangkuan (2011) 2011 Mass. App. LEXIS 288.
10. --Jury instructions
Judge was not required to include language on circumstantial evidence in jury instruction regarding elements of
abuse. Commonwealth v. Robicheau (1995) 421 Mass 176, 654 NE2d 1196, 1995 Mass LEXIS 359.
At trial of defendant for violating abuse prevention order prohibiting defendant from contacting former wife in
person or by telephone or otherwise, judge erred in refusing to instruct jury that it could find that defendant's contacts
with former wife, which occurred in course of attempt to speak to daughter by telephone, were "incidental" and that if
jury so found, such contacts did not constitute violation of ALM GL c 209A order. Commonwealth v. Leger (2001) 52
Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.
Where ALM GL c 209A "no-contact" order prohibited defendant from contacting former wife but did not limit
right of defendant to have contact with his children, judge should have instructed jury to consider whether defendant's
telephoning of former wife with whom children lived, including repeated calls after wife hung up, was incidental to
legitimate attempt to telephone daughter, and if so, that such incidental contact was not violation of ALM GL c 209A
restraining order. Commonwealth v. Leger (2001) 52 Mass App 232, 752 NE2d 799, 2001 Mass App LEXIS 761.
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ALM GL ch. 209A, § 7
Given the evidence presented, the judge should have instructed the jury that a defendant could not be convicted for
an inadvertent violation of the a "no-contact" order. Commonwealth v. Raymond (2002) 54 Mass App 488, 766 NE2d
113, 2002 Mass App LEXIS 478.
It was error for the trial court to deny defendant's request for an instruction on accident or mistake based upon
evidence presented at trial. Defendant admitted that he left a message on his former fiance's answering machine, but
there was evidence that defendant left the message by mistake when he incorrectly dialed and thought he was leaving a
message for his friend with the same name. Commonwealth v. McKay (2006) 67 Mass App 396, 853 NE2d 1098, 2006
Mass App LEXIS 960.
Defendant was convicted of violating an abuse prevention order issued under ALM GL c 209A, § 7, by going to a
residence where he and the victim used to live. An instruction on intent adequately conveyed to the jury the fact that the
only intent required was that defendant voluntarily intended the act that constituted the violation. Commonwealth v.
Saladin (2008) 73 Mass App 416, 898 NE2d 514, 2008 Mass. App. LEXIS 1303, review denied (2009) 453 Mass. 1105,
902 N.E.2d 947, 2009 Mass. LEXIS 479.
In a prosecution for violateing an order of protection, as defendant was served with an order informing him of a
hearing date for extension of a ALM GL c 209A order, he could not escape being charged with knowledge that the
initial order was extended merely because he failed to attend the hearing on the extension of the order. Therefore, the
trial court was not obligated to instruct the jury that defendant had to be made aware of the extended order.
Commonwealth v. Kulesa (2009) 455 Mass. 447, 917 NE2d 762, 2009 Mass. LEXIS 902.
11. Penalties
After wife took children out of Massachusetts, husband obtained legal custody of children under ALM GL c 209A, §
7. Commonwealth v. Beals (1989) 405 Mass 550, 541 NE2d 1011, 1989 Mass LEXIS 235.
For violation of protective order issued pursuant to ALM GL c 209A, after being found guilty by jury, defendant
sentenced to one year in house of correction, all but 30 days suspended. Commonwealth v. Gordon (1990) 407 Mass
340, 553 NE2d 915, 1990 Mass LEXIS 197.
Convictions of defendant and consecutive sentences on indictments for parental kidnapping and violation of ALM
GL c 209A restraining order were not duplicative or violative of double jeopardy principles. Commonwealth v. Bachir
(1998) 45 Mass App 204, 696 NE2d 948, 1998 Mass App LEXIS 513, review denied (1998) 428 Mass 1104, 702 NE2d
812, 1998 Mass LEXIS 613.
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12 of 15 DOCUMENTS
ANNOTATED LAWS OF MASSACHUSETTS
Copyright © 2013 Matthew Bender & Company, Inc.,
a member of the LexisNexis Group
All rights reserved
*** Current through Acts 464 of the 2012 Legislative Session ***
PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 8 (2012)
§ 8. Confidentiality of Plaintiff's Address; Records Involving Minors.
The records of cases arising out of an action brought under the provisions of this chapter where the plaintiff or
defendant is a minor shall be withheld from public inspection except by order of the court; provided, that such records
shall be open, at all reasonable times, to the inspection of the minor, said minor's parent, guardian, attorney, and to the
plaintiff and the plaintiff's attorney, or any of them.
The plaintiff's residential address, residential telephone number and workplace name, address and telephone
number, contained within the court records of cases arising out of an action brought by a plaintiff under the provisions
of this chapter, shall be confidential and withheld from public inspection, except by order of the court, except that the
plaintiff's residential address and workplace address shall appear on the court order and accessible to the defendant and
the defendant's attorney unless the plaintiff specifically requests that this information be withheld from the order. All
confidential portions of the records shall be accessible at all reasonable times to the plaintiff and plaintiff's attorney, to
others specifically authorized by the plaintiff to obtain such information, and to prosecutors, victim-witness advocates
as defined in section 1 of chapter 258B, domestic violence victim's counselors as defined in section 20K of chapter 233,
sexual assault counselors as defined in section 20J of chapter 233, and law enforcement officers, if such access is
necessary in the performance of their duties. The provisions of this paragraph shall apply to any protection order issued
by another jurisdiction, as defined in section 1, that is filed with a court of the commonwealth pursuant to section 5A.
Such confidential portions of the court records shall not be deemed to be public records under the provisions of clause
twenty-sixth of section 7 of chapter 4.
HISTORY: 1983, 678, § 5; 1996, 298, § 9; 1999, 127, § 156; 2000, 236, § 24.
NOTES: Editorial Note
The 1996 amendment revised the first paragraph.
Page 65
ALM GL ch. 209A, § 8
The 1999 amendment added the third paragraph.
The 2000 amendment, effective Sept 28, 2000, deleted the former first and third paragraphs and added the current
second paragraph. The former first paragraph read: "Upon the request of the plaintiff, the court shall impound the
plaintiff's address by excluding same from the complaint and from all other court documents which are available for
public inspection or a protection order issued by another jurisdiction, and shall ensure that the address is kept
confidential from the defendant and defendant's attorney." The former third paragraph read: "The portions of records of
cases arising out of an action brought by a plaintiff under the provisions of this chapter, which consist of such plaintiff's
current residential address, former residential address, residential telephone number and workplace name, address and
telephone number, shall be kept confidential from the defendant and defendant's attorney and shall be withheld from
public inspection except by order of the court; provided, however, that such portions of such records shall be accessible
at all reasonable times to inspection by the plaintiff, the plaintiff's attorney and to others specifically authorized by the
plaintiff to obtain such information; and provided, further, that such portions of such records shall not be kept
confidential from the defendant and the defendant's attorney if they are required to appear on a court order against such
defendant issued under the provisions of this chapter. Such portion of the records shall not be deemed to be public under
the provisions of clause 26th of section 7 of chapter 4. Upon request of the plaintiff, the court shall impound the
plaintiff's current and former residential address, telephone number and workplace name, address and telephone number
consistent with this section." Section 100 provides:
Section 100. Sections 22, 23 and 24 shall apply to complaints filed pursuant to chapter 209A of the General Laws,
on or after 90 days following enactment.
Jurisprudence
24 Am Jur 2d, Divorce & Separation §§ 265-268.
Annotations
Validity and application of statute allowing endangered child to be temporarily removed from parental custody. 38
ALR4th 756.
Treatise References
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Harvey, Moriarty, Bryant, Massachusetts Domestic Relations, 2d Ed. (Michie) §§ 4.12, 16.02, 51:2, Form 208.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Tracia, Navigating the Waters of Massachusetts Child Relocation Law: Assessing The Application of the Real
Advantage Standard. 13 Suffolk J. Trial & App. Adv. 139 (2008).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Page 66
ALM GL ch. 209A, § 8
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
Public has access to affidavits filed in support of domestic abuse protective order. Boston Herald, Inc. v. Sharpe
(2000) 432 Mass 593, 737 NE2d 859, 2000 Mass LEXIS 698.
Page 67
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PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 9 (2012)
§ 9. Form of Complaint.
The administrative justices of the superior court, probate and family court, district court, and the Boston municipal
court departments shall jointly promulgate a form of complaint for use under this chapter which shall be in such form
and language to permit a plaintiff to prepare and file such complaint pro se.
HISTORY: 1983, 678, § 5.
NOTES: Treatise References
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Web References
Page 68
ALM GL ch. 209A, § 9
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
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PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 10 (2012)
§ 10. Assessment Upon Assignment to Batterers' Treatment Program.
The court shall impose an assessment of three hundred and fifty dollars against any person who has been referred to a
certified batterers' treatment program as a condition of probation. Said assessment shall be in addition to the cost of the
treatment program. In the discretion of the court, said assessment may be reduced or waived when the court finds that
the person is indigent or that payment of the assessment would cause the person, or the dependents of such person,
severe financial hardship. Assessments made pursuant to this section shall be in addition to any other fines, assessments,
or restitution imposed in any disposition. All funds collected by the court pursuant to this section shall be transmitted
monthly to the state treasurer, who shall deposit said funds in the General Fund.
HISTORY: 1993, 110, § 217; 1993, 151, § 49; 1996, 151, § 466.
NOTES: Editorial Note
The 1993 amendment at the end of the final sentence, substituted "General Fund" for "Domestic Violence Victims'
Assistance Fund."
The 1996 amendment substituted "three hundred and fifty" dollars for "three hundred" dollars.
Treatise References
Brisk, Hoag, MacLaughin-Barck, Massachusetts Elder Law (Michie) §§ 1.7, 2.4.
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 2.520, Imposing Sentence.
Law Reviews
Buel, Violence Against Women: Effective Assistance of Counsel for Battered Women Defendants: A Normative
Page 70
ALM GL ch. 209A, § 10
Construct. 26 Harv Women's LJ 217.
Lininger, A Better Way to Disarm Batterers. 54 Hastings LJ 525 (March, 2003).
Long, Commonwealth v. Gonsalves: Erroneously Expanding the Concept of Police Interrogation Set Forth in
Crawford v. Washington to Include Investigatory Police Interrogations. 33 N.E. J. on Crim. & Civ. Con. 171 (Winter,
2007).
Buel and Drew, Do Ask and Do Tell: Rethinking the Lawyer's Duty to Warn in Domestic Violence Cases. 75 U.
Cin. L. Rev. 447 (Winter, 2006).
Web References
ABA Domestic Violence Section, see www.abanet.org/domviol/home.html
ABA Family Law Section, see www.abanet.org/family/home.html
Department of Social Services, see www.state.ma.us/dss/
Legal Information Institute's Divorce Law Overview, see www.law.cornell.edu/topics/divorce.html
Legal Information Institute's Marriage Law Overview, see www.law.cornell.edu/topics/marriage.html
Probate and Family Court, see www.state.ma.us/courts/courtsandjudges/courts/probateandfamilycourt/
CASE NOTES
Trial court's award of legal and primary physical custody to a mother, pursuant to ALM GL c 209C, § 10(a), was
proper where the substance of the trial court's opinion indicated that the judge applied the "best interests of the child"
standard and also considered the three required factors of ALM GL c 209C, § 10(a) in making its custody determination;
the court found that both parents had a close personal and parental relationship with their daughter, it considered where
and with whom the child resided for the six months prior to the initiation of the proceeding, and it attempted to preserve
"to the extent possible" the relationship between the child and the primary caregiver. Custody of Kali (2003) 439 Mass
834, 792 NE2d 635, 2003 Mass LEXIS 574.
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PART II REAL AND PERSONAL PROPERTY AND DOMESTIC RELATIONS
TITLE III DOMESTIC RELATIONS
Chapter 209A Abuse Prevention
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 209A, § 11 (2012)
§ 11. Domesticated Animals -- Possession, Care and Control.
(a) Whenever the court issues a temporary or permanent vacate, stay away, restraining or no contact order or a
judgment under section 18, 34B or 34C of chapter 208, or under section 32 of chapter 209, or under section 3, 4 or 5 of
this chapter, or under section 15 or 20 of chapter 209C, or under section 3 to 7, inclusive, of chapter 258E or a
temporary restraining order or preliminary or permanent injunction relative to a domestic relations, child custody,
domestic abuse or abuse prevention proceeding, the court may order the possession, care and control of any
domesticated animal owned, possessed, leased, kept or held by either party or a minor child residing in the household to
the plaintiff or petitioner. The court may order the defendant to refrain from abusing, threatening, taking, interfering
with, transferring, encumbering, concealing, harming or otherwise disposing of such animal.
(b) A party to any proceeding listed in subsection (a) may petition the court for an order authorized by said
subsection (a).
(c) Whenever the court issues a warrant for a violation of a temporary or permanent vacate, stay away, restraining
or no contact order or a judgment issued under section 18, 34B or 34C of chapter 208, or under section 32 of chapter
209, or under section 3, 4 or 5 of this chapter, or under section 15 or 20 of chapter 209C, or section 3 to 7, inclusive, of
chapter 258E or otherwise becomes aware that an outstanding warrant for such a violation has been issued against a
person before the court, the judge may make a finding, based upon the totality of the circumstances, as to whether there
exists an imminent threat of bodily injury to any party to such judgment or the petitioner of any such protective order, a
member of the petitioner's family or household or to a domesticated animal belonging to the petitioner or to a member
of the petitioner's family or household. If the court makes a finding that such an imminent threat of bodily injury to a
person or domesticated animal exists, the court shall notify the appropriate law enforcement officials of such finding
and the law enforcement officials shall take all necessary actions to execute any such outstanding warrant as soon as is
practicable.
HISTORY: 2012, 193, § 50.
Page 72
ALM GL ch. 209A, § 11
NOTES: Editorial Note
Acts 2012, 193, § 50, effective Oct 31, 2012, enacted this section.
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 1 (2012)
§ 1. Definitions.
As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following
meanings:"Abuse", attempting to cause or causing physical harm to another or placing another in fear of imminent serious
physical harm.
"Harassment", (i) 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; or (ii) an act that: (A) by force, threat or duress causes another to involuntarily engage in sexual
relations; or (B) constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265
or section 3 of chapter 272.
"Court", the district or Boston municipal court, the superior court or the juvenile court departments of the trial
court.
"Law officer", any officer authorized to serve criminal process.
"Malicious", characterized by cruelty, hostility or revenge.
"Protection order issued by another jurisdiction", an injunction or other order issued by a court of another state,
territory or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or a tribal
court that is issued for the purpose of preventing violent or threatening acts, abuse or harassment against, or contact or
communication with or physical proximity to another person, including temporary and final orders issued by civil and
criminal courts filed by or on behalf of a person seeking protection.
Page 2
ALM GL ch. 258E, § 1
HISTORY: 2010, 23.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
Treatise References
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 6.740, Violation of a Harassment Prevention
Order.
Law Review References
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims of
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough? 17 Suffolk J. Trial & App. Adv. 102
(2012).
CASE NOTES
Civil harassment act is not constitutionally overbroad because it does not prohibit a substantial amount of protected
speech, either in an absolute sense or in relation to the statute's legitimate sweep. O'Brien v. Borowski (2012) 461 Mass
415, 961 NE2d 547, 2012 Mass. LEXIS 19.
ALM GL c 258E establishes significant prerequisites to any challenge to rude, uncivil, or profane conduct in
general, let alone by police officials. Ch. 258E provides no easy shortcut to more traditional and appropriate modes of
challenging police conduct, such as defending criminal proceedings or meeting the burden of proving claims under
other civil statutes. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
Police officer's lawful exercise of discretion, even though implemented in an antagonistic, angry, and unnecessarily
unhelpful manner during two related encounters initiated by plaintiff, was not harassment under ALM GL c 258E.
Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
"Acts" prohibited by the anti-harassment statute, ALM GL c 258E, include harassing speech. Palumbo v. Tusino
(2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
Where plaintiff filed a complaint against a police officer for protection from harassment under ALM GL c 258E,
the court found that while the parties had a rude and angry discussion with raised voices, that conduct did not sink to the
level of willful and malicious conduct aimed at plaintiff with the intent to cause fear, intimidation, abuse, or property
damage. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 2 (2012)
§ 2. Jurisdiction.
Proceedings under this chapter shall be filed, heard and determined in the superior court department or the respective
divisions of the district court department or the Boston municipal court department having venue over the plaintiff's
residence. The juvenile court department shall have exclusive jurisdiction of proceedings under this chapter in which
the defendant is under the age of 17. Such proceedings shall be filed, heard and determined in the division of the
juvenile court department having venue over the plaintiff's residence.
HISTORY: 2010, 23; 2010, 112, § 29.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
The 2010 amendment, effective May 22, 2010, rewrote this section.
Page 4
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 3 (2012)
§ 3. Filing of Complaint.
(a) A person suffering from harassment may file a complaint in the appropriate court requesting protection from such
harassment. A person may petition the court under this chapter for an order that the defendant:
(i) refrain from abusing or harassing the plaintiff, whether the defendant is an adult or minor;
(ii) refrain from contacting the plaintiff, unless authorized by the court, whether the defendant is an adult or
minor;
(iii) remain away from the plaintiff's household or workplace, whether the defendant is an adult or minor; and
(iv) pay the plaintiff monetary compensation for the losses suffered as a direct result of the harassment; provided,
however, that compensatory damages shall include, but shall not be limited to, loss of earnings, out-of-pocket losses for
injuries sustained or property damaged, cost of replacement of locks, medical expenses, cost for obtaining an unlisted
phone number and reasonable attorney's fees.
(b) The court may order that information in the case record be impounded in accordance with court rule.
(c) No filing fee shall be charged for the filing of the complaint. The plaintiff shall not be charged for certified
copies of any orders entered by the court, or any copies of the file reasonably required for future court action or as a
result of the loss or destruction of plaintiff's copies.
(d) Any relief granted by the court shall not extend for a period exceeding 1 year. Every order shall, on its face,
state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the
plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to
extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order.
When the expiration date stated on the order is on a date when the court is closed to business, the order shall not expire
Page 5
ALM GL ch. 258E, § 3
until the next date that the court is open to business. The plaintiff may appear on such next court business day at the
time designated by the order to request that the order be extended. The court may also extend the order upon motion of
the plaintiff, for such additional time as it deems necessary to protect the plaintiff from harassment. The fact that
harassment has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying
or failing to extend the order, or allowing an order to expire or be vacated or for refusing to issue a new order.
(e) The court may modify its order at any subsequent time upon motion by either party; provided, however, that the
non-moving party shall receive sufficient notice and opportunity to be heard on said modification. When the plaintiff's
address is inaccessible to the defendant as provided in section 10 and the defendant has filed a motion to modify the
court's order, the court shall be responsible for notifying the plaintiff. In no event shall the court disclose any such
inaccessible address.
(f) The court shall not deny any complaint filed under this chapter solely because it was not filed within a particular
time period after the last alleged incident of harassment.
(g) An action commenced under this chapter shall not preclude any other civil or criminal remedies. A party filing a
complaint under this chapter shall be required to disclose any prior or pending actions involving the parties; including,
but not limited to, court actions, administrative proceedings and disciplinary proceedings.
HISTORY: 2010, 23; 2010, 112, § 30.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
The 2010 amendment, effective May 22, 2010, added "including, but not limited to, court actions, administrative
proceedings and disciplinary proceedings" in the second sentence of (g).
Law Review References
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims of
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough? 17 Suffolk J. Trial & App. Adv. 102
(2012).
CASE NOTES
ALM GL c 258E establishes significant prerequisites to any challenge to rude, uncivil, or profane conduct in
general, let alone by police officials. Ch. 258E provides no easy shortcut to more traditional and appropriate modes of
challenging police conduct, such as defending criminal proceedings or meeting the burden of proving claims under
other civil statutes. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
Police officer's lawful exercise of discretion, even though implemented in an antagonistic, angry, and unnecessarily
unhelpful manner during two related encounters initiated by plaintiff, was not harassment under ALM GL c 258E.
Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
"Acts" prohibited by the anti-harassment statute, ALM GL c 258E, include harassing speech. Palumbo v. Tusino
(2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
Where plaintiff filed a complaint against a police officer for protection from harassment under ALM GL c 258E,
the court found that while the parties had a rude and angry discussion with raised voices, that conduct did not sink to the
Page 6
ALM GL ch. 258E, § 3
level of willful and malicious conduct aimed at plaintiff with the intent to cause fear, intimidation, abuse, or property
damage. Palumbo v. Tusino (2011) 29 Mass L Rep 125, 2011 Mass. Super. LEXIS 273.
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 4 (2012)
§ 4. Nature of Complaint.
Upon the filing of a complaint under this chapter, a complainant shall be informed that the proceedings hereunder are
civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a complainant shall be
given information prepared by the appropriate district attorney's office that other criminal proceedings may be available
and such complainant shall be instructed by such district attorney's office relative to the procedures required to initiate
criminal proceedings including, but not limited to, a complaint for a violation of section 13B, 13F, 13H, 22, 22A, 23,
24, 24B, 26C, 43 and 43A of chapter 265 or section 3 of chapter 272. Whenever possible, a complainant shall be
provided with such information in the complainant's native language.
HISTORY: 2010, 23.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
Page 8
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 5 (2012)
§ 5. Relief -- Temporary Protection Orders.
Upon the filing of a complaint under this chapter, the court may enter such temporary orders as it deems necessary to
protect a plaintiff from harassment, including relief as provided in section 3.
If the plaintiff demonstrates a substantial likelihood of immediate danger of harassment, the court may enter such
temporary relief orders without notice as it deems necessary to protect the plaintiff from harassment and shall
immediately thereafter notify the defendant that the temporary orders have been issued. The court shall give the
defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief as
requested by the plaintiff not later than 10 court business days after such orders are entered.
Notice shall be made by the appropriate law enforcement agency as provided in section 9.
If the defendant does not appear at such subsequent hearing, the temporary orders shall continue in effect without
further order of the court.
HISTORY: 2010, 23.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
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TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 6 (2012)
§ 6. Relief -- When Court is Closed.
[Effective until July 1, 2012.] When the court is closed for business or the plaintiff is unable to appear in court
because of severe hardship due to the plaintiff's physical condition, the court may grant relief to the plaintiff as provided
under section 5 if the plaintiff demonstrates a substantial likelihood of immediate danger of harassment. In the
discretion of the justice, such relief may be granted and communicated by telephone to an officer or employee of an
appropriate law enforcement agency, who shall record such order on a form of order promulgated for such use by the
chief justice for administration and management and shall deliver a copy of such order on the next court day to the clerk
or clerk-magistrate of the court having venue and jurisdiction over the matter. If relief has been granted without the
filing of a complaint pursuant to this section, the plaintiff shall appear in court on the next available business day to file
a complaint. If the plaintiff in such a case is unable to appear in court without severe hardship due to the plaintiff's
physical condition, a representative may appear in court, on the plaintiff's behalf and file the requisite complaint with an
affidavit setting forth the circumstances preventing the plaintiff from appearing personally. Notice to the plaintiff and
defendant and an opportunity for the defendant to be heard shall be given as provided in said section 5.
[Effective July 1, 2012.]
When the court is closed for business or the plaintiff is unable to appear in court because of severe hardship due to
the plaintiff's physical condition, the court may grant relief to the plaintiff as provided under section 5 if the plaintiff
demonstrates a substantial likelihood of immediate danger of harassment. In the discretion of the justice, such relief
may be granted and communicated by telephone to an officer or employee of an appropriate law enforcement agency,
who shall record such order on a form of order promulgated for such use by the chief justice of the trial court and shall
deliver a copy of such order on the next court day to the clerk or clerk-magistrate of the court having venue and
jurisdiction over the matter. If relief has been granted without the filing of a complaint pursuant to this section, the
plaintiff shall appear in court on the next available business day to file a complaint. If the plaintiff in such a case is
unable to appear in court without severe hardship due to the plaintiff's physical condition, a representative may appear
in court, on the plaintiff's behalf and file the requisite complaint with an affidavit setting forth the circumstances
Page 10
ALM GL ch. 258E, § 6
preventing the plaintiff from appearing personally. Notice to the plaintiff and defendant and an opportunity for the
defendant to be heard shall be given as provided in said section 5.
Any order issued under this section and any documentation in support thereof shall be certified on the next court
day by the clerk or clerk-magistrate of the court issuing such order to the court having venue and jurisdiction over the
matter. Such certification to the court shall have the effect of commencing proceedings under this chapter and invoking
the other provisions of this chapter but shall not be deemed necessary for an emergency order issued under this section
to take effect.
HISTORY: 2010, 23; 2011, 93, § 113.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
The 2011 amendment, effective July 1, 2012, substituted "chief justice of the trial court" for "chief justice for
administration and management" following "use by the" in the second sentence of the first paragraph. Section 137
provides:
Section 137. Sections 2 to 7, inclusive, 10 to 54, inclusive, 57 to 117, inclusive, 122, 123, 124, 125 and 127A shall
take effect on July 1, 2012.
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 7 (2012)
§ 7. Protection Order Issued by another Jurisdiction.
Any protection order issued by another jurisdiction shall be given full faith and credit throughout the commonwealth
and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction.
A person entitled to protection under a protection order issued by another jurisdiction may file such order with the
appropriate court by filing with the court a certified copy of such order. Such person shall swear under oath in an
affidavit, to the best of such person's knowledge, that such order is presently in effect as written. Upon request by a law
enforcement agency, the clerk or clerk-magistrate of such court shall provide a certified copy of the protection order
issued by the other jurisdiction.
A law officer may presume the validity of, and enforce in accordance with section 8, a copy of a protection order
issued by another jurisdiction which has been provided to the law officer by any source; provided, however, that the
officer is also provided with a statement by the person protected by the order that such order remains in effect. Law
officers may rely on such statement by the person protected by such order.
HISTORY: 2010, 23.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
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TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 8 (2012)
§ 8. Law Officers -- Emergency Response.
Whenever a law officer has reason to believe that a person has been abused or harassed or is in danger of being abused
or harassed, such officer shall use all reasonable means to prevent further abuse or harassment. Law officers shall make
every reasonable effort to do the following as part of the emergency response:
(1) assess the immediate physical danger to the victim and provide assistance reasonably intended to mitigate the
safety risk;
(2) if there is observable injury to the victim or if the victim is complaining of injury, encourage the victim to
seek medical attention and arrange for medical assistance or request an ambulance for transport to a hospital;
(3) if a sexual assault has occurred, notify the victim that there are time-sensitive medical or forensic options that
may be available, encourage the victim to seek medical attention and arrange for medical assistance or request an
ambulance for transport to a hospital;
(4) provide the victim with referrals to local resources that may assist the victim in locating and getting to a safe
place;
(5) provide adequate notice to the victim of the victim's rights including, but not limited to, obtaining a
harassment prevention order; provided, however, that the notice shall consist of providing the victim with a copy of the
following statement before the officer leaves the scene or premises and after reading the statement to the victim;
provided further, that if the victim's native language is not English, the statement shall be then provided in the victim's
native language whenever possible:
"You have the right to appear at the Superior, Juvenile (only if the attacker is under 17), District or Boston
Municipal Court, if you reside within the appropriate jurisdiction, and file a complaint requesting any of the following
Page 13
ALM GL ch. 258E, § 8
applicable orders: (i) an order restraining your attacker from harassing or abusing you; (ii) an order directing your
attacker to refrain from contacting you; (iii) an order directing your attacker to stay away from your home and your
workplace; (iv) an order directing your attacker to pay you for losses suffered as a result of the harassment or abuse,
including loss of earnings, out-of-pocket losses for injuries sustained or property damaged, costs of replacement of
locks, medical expenses, cost for obtaining an unlisted phone number, and reasonable attorneys' fees.
For an emergency on weekends, holidays or weeknights, the police will assist you in activating the emergency
response system so that you may file a complaint and request a harassment prevention order.
You have the right to go to the appropriate court and apply for a criminal complaint for sexual assault, threats,
criminal stalking, criminal harassment, assault and battery, assault with a deadly weapon, assault with intent to kill or
other related offenses.
If you are in need of medical treatment, you have the right to request that an officer present drive you to the
nearest hospital or otherwise assist you in obtaining medical treatment.
If you believe that police protection is needed for your physical safety, you have the right to request that the
officer present remain at the scene until you can leave or until your safety is otherwise ensured. You may also request
that the officer assist you in locating and taking you to a safe place including, but not limited to, a designated meeting
place for a shelter or a family member's or a friend's residence or a similar place of safety.
You may request and obtain a copy of the police incident report at no cost from the police department.";
(6) assist the victim by activating the emergency judicial system when the court is closed for business;
(7) inform the victim that the abuser will be eligible for bail and may be promptly released; and
(8) arrest any person that a law officer witnessed or has probable cause to believe violated a temporary or
permanent vacate, restraining, stay-away or no-contact order or judgment issued under this chapter or similar protection
order issued by another jurisdiction; provided, however, that if there are no vacate, restraining, stay-away or no-contact
orders or judgments in effect, arresting the person shall be the preferred response if the law officer witnessed or has
probable cause to believe that a person: (i) has committed a felony; (ii) has committed a misdemeanor involving
harassment or abuse as defined in section 1; or (iii) has committed an assault and battery in violation of section 13A of
chapter 265; provided further, that the safety of the victim shall be paramount in any decision to arrest; and provided
further, that if a law officer arrests both parties, the law officer shall submit a detailed, written report in addition to an
incident report, setting forth the grounds for arresting both parties.
No law officer shall be held liable in a civil action for personal injury or property damage brought by a party to an
incident of abuse or for an arrest based on probable cause when such officer acted reasonably and in good faith and in
compliance with this chapter.
Whenever a law officer investigates an incident of harassment, the officer shall immediately file a written incident
report in accordance with the standards of the law officer's law enforcement agency and, wherever possible, in the form
of the National Incident-Based Reporting System, as defined by the Federal Bureau of Investigation. The latter
information may be submitted voluntarily by the local police on a monthly basis to the crime reporting unit of the state
police crime reporting unit established in section 32 of chapter 22C.
The victim shall be provided with a copy of the full incident report at no cost upon request to the appropriate law
enforcement department.
When a judge or other person authorized to take bail bails any person arrested under this chapter, reasonable efforts
shall be made to inform the victim of such release prior to or at the time of the release. When any person charged with
Page 14
ALM GL ch. 258E, § 8
or arrested for a crime involving harassment under this chapter is released from custody, the court or the emergency
response judge shall issue, upon the request of the victim, a written no-contact order or stay-away order prohibiting the
person charged or arrested from having any contact with the victim and shall use all reasonable means to notify the
victim immediately of release from custody. The victim shall be provided, at no cost, with a certified copy of the
no-contact or stay-away order.
HISTORY: 2010, 23; 2010, 112, § 31.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
The 2010 amendment, effective May 22, 2010, rewrote this section.
Law Review References
Closing the Loophole in Massachusetts Protection Order Legislation to Provide Greater Security for Victims of
Sexual Assault: Has Massachusetts General Laws Chapter 258E Closed It Enough? 17 Suffolk J. Trial & App. Adv. 102
(2012).
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 9 (2012)
§ 9. Review of Records.
When considering a complaint filed under this chapter, the court shall order a review of the records contained within
the court activity record information system and the statewide domestic violence recordkeeping system, as provided in
chapter 188 of the acts of 1992 and maintained by the commissioner of probation, and shall review the resulting data to
determine whether the named defendant has a civil or criminal record involving violent crimes or abuse. Upon receipt of
information that an outstanding warrant exists against the named defendant, a judge shall order that the appropriate law
enforcement officials be notified and shall order that any information regarding the defendant's most recent whereabouts
shall be forwarded to such officials. In all instances in which an outstanding warrant exists, the court shall make a
finding, based upon all of the circumstances, as to whether an imminent threat of bodily injury exists to the petitioner.
In all instances in which such an imminent threat of bodily injury is found to exist, the judge shall notify the appropriate
law enforcement officials of such finding and such officials shall take all necessary actions to execute any such
outstanding warrant as soon as is practicable.
Whenever the court orders that the defendant refrain from harassing the plaintiff or have no contact with the
plaintiff under section 3, 5 or 6, the clerk or clerk-magistrate shall transmit: (i) to the office of the commissioner of
probation information for filing in the court activity record information system or the statewide domestic violence
recordkeeping system as provided in said chapter 188 of the acts of 1992 or in a recordkeeping system created by the
commissioner of probation to record the issuance of, or violation of, prevention orders issued pursuant to this chapter;
and (ii) 2 certified copies of each such order and 1 copy of the complaint and summons forthwith to the appropriate law
enforcement agency which, unless otherwise ordered by the court, shall serve 1 copy of each order upon the defendant,
together with a copy of the complaint and order and summons. The law enforcement agency shall promptly make its
return of service to the court. The commissioner of probation may develop and implement a statewide harassment
prevention order recordkeeping system.
Law officers shall use every reasonable means to enforce such harassment prevention orders. Law enforcement
agencies shall establish procedures adequate to ensure that an officer on the scene of an alleged violation of such order
Page 16
ALM GL ch. 258E, § 9
may be informed of the existence and terms of such order. The court shall notify the appropriate law enforcement
agency in writing whenever any such order is vacated and shall direct the agency to destroy all record of such vacated
order and such agency shall comply with that directive.
Each harassment prevention order issued shall contain the following statement:
VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.
Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not
more than $5,000, or by imprisonment for not more than 21/2 years in a house of correction, or both. In addition to, but
not in lieu of, the foregoing penalties and any other sentence, fee or assessment, including the victim witness assessment
in section 8 of chapter 258B, the court shall order persons convicted of a violation of such an order to pay a fine of $25
that shall be transmitted to the treasurer for deposit into the General Fund. For any violation of such order, the court
may order the defendant to complete an appropriate treatment program based on the offense.
In each instance in which there is a violation of a harassment prevention order or a protection order issued by
another jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to,
loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement locks, medical
expenses, cost for obtaining an unlisted telephone number and reasonable attorney's fees.
Any such violation may be enforced by the court. Criminal remedies provided herein are not exclusive and do not
preclude any other available civil or criminal remedies. The court may enforce by civil contempt procedure a violation
of its own court order.
Section 8 of chapter 136 shall not apply to any order, complaint or summons issued pursuant to this section.
HISTORY: 2010, 23.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 10 (2012)
§ 10. Case Records of Minors.
The records of cases arising out of an action brought under this chapter in which the plaintiff or defendant is a minor
shall be withheld from public inspection except by order of the court; provided, however, that such records shall be
open, at all reasonable times, to the inspection of the minor, such minor's parent, guardian and attorney and to the
plaintiff and the plaintiff's attorney.
The plaintiff's residential address, residential telephone number and workplace name, address and telephone
number, contained within the court records of cases arising out of an action brought by a plaintiff under this chapter,
shall be confidential and withheld from public inspection, except by order of the court; provided, however, that the
plaintiff's residential address and workplace address shall appear on the court order and be accessible to the defendant
and the defendant's attorney unless the plaintiff specifically requests that this information be withheld from the order.
All confidential portions of the records shall be accessible at all reasonable times to the plaintiff and plaintiff's attorney,
to others specifically authorized by the plaintiff to obtain such information and to prosecutors, victim-witness advocates
as defined in section 1 of chapter 258B, sexual assault counselors as defined in section 20J of chapter 233 and law
officers, if such access is necessary in the performance of their duties. This paragraph shall apply to any protection order
issued by another jurisdiction filed with a court of the commonwealth pursuant to section 7. Such confidential portions
of the court records shall not be deemed to be public records under clause Twenty-sixth of section 7 of chapter 4.
HISTORY: 2010, 23.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
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PART III COURTS, JUDICIAL OFFICERS AND PROCEEDINGS IN CIVIL CASES
TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 11 (2012)
§ 11. Forms.
[Effective until July 1, 2012.] The chief justice for administration and management shall adopt a form of complaint
for use under this chapter which shall be in such form and language to permit a plaintiff to prepare and file such
complaint pro se.
[Effective July 1, 2012.]
The chief justice of the trial court shall adopt a form of complaint for use under this chapter which shall be in such
form and language to permit a plaintiff to prepare and file such complaint pro se.
HISTORY: 2010, 23; 2011, 93, § 114.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
The 2011 amendment, effective July 1, 2012, substituted "chief justice of the trial court" for "chief justice for
administration and management." Section 137 provides:
Section 137. Sections 2 to 7, inclusive, 10 to 54, inclusive, 57 to 117, inclusive, 122, 123, 124, 125 and 127A shall
take effect on July 1, 2012.
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TITLE IV CERTAIN WRITS AND PROCEEDINGS IN SPECIAL CASES
Chapter 258E Harassment Prevention Orders
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 258E, § 12 (2012)
§ 12. Assessment Fee.
The court shall impose an assessment of $350 against any person who has been referred to a treatment program as a
condition of probation. Such assessment shall be in addition to the cost of the treatment program. In the discretion of the
court, such assessment may be reduced or waived if the court finds that such person is indigent or that payment of the
assessment would cause the person, or the dependents of such person, severe financial hardship. Assessments made
pursuant to this section shall be in addition to any other fines, assessments or restitution imposed in any disposition. All
funds collected by the court pursuant to this section shall be transmitted monthly to the state treasurer, who shall deposit
such funds into the General Fund.
HISTORY: 2010, 23.
NOTES: Editorial Note
Acts 2010, 23, effective May 10, 2010, enacted this section.
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PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES
TITLE I CRIMES AND PUNISHMENTS
Chapter 269 Crimes Against Public Peace
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 269, § 17 (2012)
§ 17. Definition; Penalty.
Whoever is a principal organizer or participant in the crime of hazing, as defined herein, shall be punished by a fine of
not more than three thousand dollars or by imprisonment in a house of correction for not more than one year, or both
such fine and imprisonment.
The term "hazing" as used in this section and in sections eighteen and nineteen, shall mean any conduct or method
of initiation into any student organization, whether on public or private property, which wilfully or recklessly endangers
the physical or mental health of any student or other person. Such conduct shall include whipping, beating, branding,
forced calisthenics, exposure to the weather, forced consumption of any food, liquor, beverage, drug or other substance,
or any other brutal treatment or forced physical activity which is likely to adversely affect the physical health or safety
of any such student or other person, or which subjects such student or other person to extreme mental stress, including
extended deprivation of sleep or rest or extended isolation.
Notwithstanding any other provisions of this section to the contrary, consent shall not be available as a defense to
any prosecution under this action.
HISTORY: 1985, 536; 1987, 665.
NOTES: Editorial Note
The 1987 amendment added the third paragraph, relating to the unavailability of consent as a defense, and, in the
first paragraph, increased the maximum fine from $1000 to $3000 and the maximum prison term from one hundred
days to one year, and, preceding "both", deleted "by".
Jurisprudence
Page 2
ALM GL ch. 269, § 17
68 Am Jur 2d, Schools § 347.
Annotations
Tort liability of college, university, fraternity, or sorority for injury or death of member or prospective member by
hazing or initiation activity. 68 ALR4th 228.
Validity, construction, and application of "hazing" statutes. 30 ALR5th 683.
Law Reviews
Edelman, How to Prevent High School Hazing: A Legal, Ethical and Social Primer. 81 N. Dak. L. Rev. 309 (2005).
CASE NOTES
Brutal treatment or forced physical activity made criminal by ALM GL c 269 § 17 is directed at student
organizations, not at educational institutions themselves. Perkins v. Commonwealth (2001) 52 Mass App 175, 752
NE2d 761, 2001 Mass App LEXIS 745.
Cadet who resigned from training at State Police Academy had no claim for constructive discharge from
employment on ground that hazing by Academy personnel violated public policy, where there was no legislative
directive or enunciated public policy that precluded Academy from discharging cadet who could not tolerate rigors and
discipline required of recruits. Perkins v. Commonwealth (2001) 52 Mass App 175, 752 NE2d 761, 2001 Mass App
LEXIS 745.
Hazing statute, ALM GL c 269 § 17, did not apply to State Police Academy because Academy was not student
organization. Perkins v. Commonwealth (2001) 52 Mass App 175, 752 NE2d 761, 2001 Mass App LEXIS 745.
ALM GL c 269 § 17 does not create private cause of action. Perkins v. Commonwealth (2001) 52 Mass App 175,
752 NE2d 761, 2001 Mass App LEXIS 745.
Arbitrator's finding that it was error to redact the names of student witnesses in a teacher disciplinary proceeding
did not violate: (1) the public policy that incident reports describing harm to a child's health or welfare had to be kept
confidential set forth in ALM GL c 119, §§ 51A and 51E, or (2) the policy respecting the safety of children inherent in
statutes prohibiting corporal punishment set forth in ALM GL c 71, § 37G and prohibiting hazing set forth in ALM GL c
269, §§ 17-19. City of Boston Sch. Comm. v. Boston Teachers Union, Local 66 (2006) 22 Mass L Rep 15, 2006 Mass
Super LEXIS 634.
School committee failed to show that disclosure to union of unredacted student witness statements concerning
alleged teacher misconduct would violate alleged public policy of protecting students' rights to privacy and safety; even
assuming that such policy existed, school committee failed to explain interplay (if any) between statutes it relied on to
support its argument and statements at issue. Boston School Committee and Boston Teachers Union, Local 66,
MFT/AFT/AFL-CIO, 36 MLC 48 (2009).
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PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES
TITLE I CRIMES AND PUNISHMENTS
Chapter 269 Crimes Against Public Peace
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 269, § 18 (2012)
§ 18. Reporting Hazing Offense; Penalty for Failure to Report Violation.
Whoever knows that another person is the victim of hazing as defined in section seventeen and is at the scene of such
crime shall, to the extent that such person can do so without danger or peril to himself or others, report such crime to an
appropriate law enforcement official as soon as reasonably practicable. Whoever fails to report such crime shall be
punished by a fine of not more than one thousand dollars.
HISTORY: 1985, 536; 1988, 665.
NOTES: Editorial Note
The 1987 amendment in the second sentence, increased the maximum fine from $500 to $1000.
Jurisprudence
68 Am Jur 2d, Schools § 347.
Annotations
Tort liability of college, university, fraternity, or sorority for injury or death of member or prospective member by
hazing or initiation activity. 68 ALR4th 228.
Validity, construction, and application of "hazing" statutes. 30 ALR5th 683.
Law Reviews
Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue. 84 Tex. L. Rev. 653 (February,
2006).
Page 4
ALM GL ch. 269, § 18
Edelman, How to Prevent High School Hazing: A Legal, Ethical and Social Primer. 81 N. Dak. L. Rev. 309 (2005).
Edelman, Addressing the High School Hazing Problem: Why Lawmakers Need to Impose a Duty to Act on School
Personnel. 25 Pace L. Rev. 15 (Fall, 2004).
CASE NOTES
School committee failed to show that disclosure to union of unredacted student witness statements concerning
alleged teacher misconduct would violate alleged public policy of protecting students' rights to privacy and safety; even
assuming that such policy existed, school committee failed to explain interplay (if any) between statutes it relied on to
support its argument and statements at issue. Boston School Committee and Boston Teachers Union, Local 66,
MFT/AFT/AFL-CIO, 36 MLC 48 (2009).
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PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES
TITLE I CRIMES AND PUNISHMENTS
Chapter 266 Crimes Against Property
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 266, § 126A (2012)
§ 126A. Real or Personal Property; Penalty for Intentionally Defacing.
Whoever intentionally, willfully and maliciously or wantonly, paints, marks, scratches, etches or otherwise marks,
injures, mars, defaces or destroys the real or personal property of another including but not limited to a wall, fence,
building, sign, rock, monument, gravestone or tablet, shall be punished by imprisonment in a state prison for a term of
not more than three years or by imprisonment in a house of correction for not more than two years or by a fine of not
more than fifteen hundred dollars or not more than three times the value of the property so marked, injured, marred,
defaced or destroyed, whichever is greater, or both imprisonment and fine, and shall also be required to pay for the
removal or obliteration of such painting, marking, scratching or etching, or to remove or obliterate such painting,
marking, scratching or etching; provided, however, that when a fine is levied pursuant to the value of the property
marked, injured, marred, defaced or destroyed or when the cost of removal or obliteration is assessed, the court shall,
after conviction, conduct an evidentiary hearing to ascertain the value of the property so marked, injured, marred,
defaced or destroyed or to ascertain the cost of the removal or obliteration; and provided, however, that if the property
marked, injured, marred, defaced or destroyed is a war or veterans' memorial, monument or gravestone, the fine under
this section shall be doubled and the person convicted shall be ordered to perform not less than 500 hours of
court-approved community service. A police officer may arrest any person for commission of the offenses prohibited by
this section without a warrant if said police officer has probable cause to believe that said person has committed the
offenses prohibited by this section.
Upon conviction for said offense the individual's driver's license shall be suspended for one year. If the individual
convicted of defacing or vandalizing the real or personal property of another is under the age of sixteen then one year
shall be added to the minimum age eligibility for driving.
HISTORY: 1994, 60, § 174; 2010, 131, § 101.
NOTES: Editorial Note
Page 2
ALM GL ch. 266, § 126A
The 2010 amendment, effective July 1, 2010, added "and provided, however, that if the property marked, injured,
marred, defaced or destroyed is a war or veterans' memorial, monument or gravestone, the fine under this section shall
be doubled and the person convicted shall be ordered to perform not less than 500 hours of court-approved community
service" at the end of the first sentence of the first paragraph. Section 202 provides:
Section 202. Except as otherwise specified, this act shall take effect on July 1, 2010.
Treatise References
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 8.260, Wanton Destruction of Property.
LexisNexis 50 State Surveys, Legislation & Regulations
Precious Metal & Gem Dealing
CASE NOTES
The intent required for wanton defacement of property under ALM GL c 266, § 126A, is general intent.
Commonwealth v. McDowell (2004) 62 Mass App 15, 814 NE2d 1139, 2004 Mass App LEXIS 1049, review denied
(2004) 442 Mass 1113, 818 NE2d 1067, 2004 Mass LEXIS 785.
In order to convict defendant of defacing personal property, the Commonwealth was required to prove that
defendant's conduct was willful and malicious, or wanton conduct, and that defendant possessed general intent. Insofar
as the stipulated evidence permitted the inference that defendant intended to drive the car, based on his replacement of
the car's battery, heedless of the consequences, it was enough to establish beyond a reasonable doubt the requisite
general intent and defendant's intoxicated state was irrelevant to his ability to form general intent. Commonwealth v.
McDowell (2004) 62 Mass App 15, 814 NE2d 1139, 2004 Mass App LEXIS 1049, review denied (2004) 442 Mass 1113,
818 NE2d 1067, 2004 Mass LEXIS 785.
HIERARCHY NOTES:
Pt. IV, Tit. I, Ch. 266 Note
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PART IV CRIMES, PUNISHMENTS AND PROCEEDINGS IN CRIMINAL CASES
TITLE I CRIMES AND PUNISHMENTS
Chapter 266 Crimes Against Property
GO TO MASSACHUSETTS CODE ARCHIVE DIRECTORY
ALM GL ch. 266, § 126B (2012)
§ 126B. Public or Personal Property; Penalty for Tagging.
Whoever sprays or applies paint or places a sticker upon a building, wall, fence, sign, tablet, gravestone, monument or
other object or thing on a public way or adjoined to it, or in public view, or on private property, such person known or
commonly known as "taggers" and such conduct or activity known or commonly known as "tagging", or other words or
phrases associated to such persons, conduct or activity, and either as an individual or in a group, joins together with said
group, with the intent to deface, mar, damage, mark or destroy such property, shall be punished by imprisonment in a
house of correction for not more than two years or by a fine of not less than fifteen hundred dollars or not more than
three times the value of such damage to the property so defaced, marked, marred, damaged or destroyed, whichever is
greater, or both fine and imprisonment and shall also be required to pay for the removal or obliteration of such "tagging"
or to obliterate such "tagging"; provided, however that when a fine is levied pursuant to the value of the property
marred, defaced, marked, damaged or destroyed or where the cost of removal or obliteration is assessed the court shall,
after conviction, conduct an evidentiary hearing to ascertain the value of the property so defaced, marked, marred,
damaged or destroyed or to ascertain the cost of the removal or obliteration. A police officer may arrest any person for
commission of the offenses prohibited by this section without a warrant if said police officer has probable cause to
believe that said person has committed the offenses prohibited by this section.
Upon conviction for said offense the individual's drivers license shall be suspended for one year. If the individual
convicted of defacing or vandalizing the real or personal property of another is under the age of sixteen then one year
shall be added to the minimum age eligibility for driving.
HISTORY: 1994, 60, § 174.
NOTES: Treatise References
CR Model Jur Instructions for use in the Dis Cts - Mass. Instruction 8.260, Wanton Destruction of Property.
Page 4
ALM GL ch. 266, § 126B
Massachusetts Motor Vehicle Offenses Exhibit 1A, Schedule of Suspensions and Revocations.
LexisNexis 50 State Surveys, Legislation & Regulations
Precious Metal & Gem Dealing
CASE NOTES
Defendant should have been granted a new trial as the recited facts did not allege that defendant sprayed or applied
paint or placed a sticker upon anything as required for tagging under ALM GL c 266, § 126B, and the colloquy did not
explain the intent and agreement necessary to convict defendant as a joint venturer. Commonwealth v. Argueta (2009)
73 Mass App 564, 899 NE2d 896, 2009 Mass. App. LEXIS 59.
HIERARCHY NOTES:
Pt. IV, Tit. I, Ch. 266 Note