On May 10, 2010 "An Act Relative to Harassment Prevention Orders" became effective. This statute authorizes the issuance of a "Harrassment Prevention Order" under certain conditions. Although seemingly similar to M.G.L. 209A Abuse Prevention Provision, the statutes are different relative to the eligibility provisions and relief. Although both are civil orders, an alleged violation can result in a criminal charge of violating the court order and a defendant can receive up to two and one half years in prison if convicted. Both of these orders are considered "Restraining Orders."
An individual may apply for an Abuse Prevention Order ( “209A Order”) from a judge in the following circumstances:
1. The defendant and the complainant are or were:
married, or residing together in the same household;
• or in a substantive dating or engagement relationship;
• or related by blood or marriage;
• or you have a child in common.
2. The complainant alleges that he or she is suffering from abuse because the defendant has:
harmed or attempted to harm the complainant physically, or put the complainant in fear of imminent serious physical harm, or caused the complainant to engage in sexual relations involuntarily by using force, threat or duress.
3. The complainant must:
• currently live within the geographical area of the court in which the complainant applied ofr the order;
• or used to live within the geographical area of the court but left to avoid abuse.
If a judge determines that there is a substantial likelihood of immediate danger of abuse an Abuse Prevention Order (209A) may issue without prior notice to the defendant. If an ex-parte order issues, another hearing date is set approximatley one or two weeks after the temporary order. During this time the police will attempt to serve the defendant with notice of the order and notice of the next hearing date. At the next hearing both sides are given the opportunity to present evidence and the judge determines whether to extend the temporary order. If the judge extends the order it is generally extended for a one year period of time.
An individual may apply for a Harassment Prevention Order (“258E Order’) from a judge under the following conditions:
1. A complainant is suffering from harassment because someone has committed 3 or more acts that werewillful and malicious, Malicious” means characterized by cruelty, hostility or revenge.
These three acts must have been aimed at the complainant, and were intended to cause the complaintnt fear, intimidation, abuse or damage to property.
“Abuse” means causing or attempting to cause physical harm, or causing fear of imminent serious physical harm. The conduct of the defendant must in fact cause you fear, intimidation, abuse or damage to property;
• or someone has caused you at least once to engage in sexual relations involuntarily by using force, threat or duress;
• or someone has committed against you at least once an act that violates any of the following statutes:
General Laws chapter 265, § 139, 13F or 13H (indecent assault and battery), 22 or 22A (rape),
23 (statutory rape), 24 or 24B (assault with intent to rape), 26C (enticing a child), 43 (criminal stalking), 43A (criminal harassment), or chapter 272, § 3 (drugging for sexual intercourse);
and you currently live within the geographical area of this court.
Similar to the 209A Order, a judge may issue a Harassment Prevention Order without prior notice to a defendant if there is a substantial likelihood of immediate danger of harassment.
If you have received notice that you are a defendant to one of these prevention orders it is imperative that you know the standards that must be met for the order to be extended. If a complainant alleges a violation of this order, a criminal complaint will issue. Also, if you are a victim of abuse and want to seek this type of order or have one extended, contact Attorney Kathleen M. McCarthy.
Continue reading "
Overview of Harrassment Prevention Orders v. 209A Abuse Prevention Orders
" »
