Defending Against A Harassment Prevention Order Issued Pursuant To Massachusetts General Laws Chapter 258E
In Massachusetts, an individual can go to a local clerk's office and apply for a Harassment Restraining Order pursuant to Massachusetts General Laws Chapter 258E even if the parties have not been dating, are not related and have not been married. Chapter 258E provides the following three definitions of “harassment” warranting relief: (1) ”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, abuse or damage to property”; or (2) a single act that “by force, threat, or duress causes another to involuntarily engage in sexual relations”; or (3) a single act that constitutes one of 12 enumerated crimes involving sexual assault, stalking, or harassment.
The first branch of harassment has five components and appears to be the most utilized portion of the statute for the issuance and extension of orders pursuant to this section. . The first requires that there be three or more acts of harassment. The additional requirements are as follows: (1) Each act must be aimed at a specific person; (2) Each act must have been both willful and malicious; (3) Each act must have been done with intent to cause fear, intimidation, abuse or property damage; and (4) Each act must in fact have caused fear, intimidation, abuse or property damage.
In may cases, a complainant goes to a local district court and applies for a temporary order that requires a defendant to stay away from the plaintiff, the plaintiff's home and the plaintiff's work. A judge must evaluate the available information and decide whether to issue a temporary order. If a temporary order is issued, then the defendant must receive notice of the order and its relevant terms for the order to be enforceable. A defendant usually has no knowledge of the fact that an order has been issued against him or her. After a temporary order issues, there is a hearing date, approximately fourteen days later, in which the defendant can appear and give his or her side of the story. If both parties do not appear the order will expire by operation of law at four o'clock that day. If the plaintiff appears and the defendant does not appear, and the plaintiff claims he or she is still in fear of the defendant, the order is usually extended. The order can be extended for up to one year, however, the judge has discretion to issue it for a shorter period of time. It is important to note that although a Harassment Prevention Order is a civil order, an alleged violation of it can land a defendant in a criminal court.
An order often requires that the defendant refrain from any contact with the complainant. The "no contact" requirement means that a defendant cannot have ANY contact, direct or indirect, with the complainant. Thus, emails, flowers, text messages and contact through a mutual friend would be considered a violation of the order. If the case involves a couple that has children, the judge may make some rulings relative to the parties arrangements for the children. However, most of these situations are best handled in the probate court.
If you have been served with a Harassment Prevention Order, it is important that you have an experienced restraining order attorney on your side. In the unfortunate situation that the order is extended, it can be appealed. At this time, the venue in which to appeal Harassment Restraining Orders has not yet been clearly defined. Pursuant to G.L.c. 211, §3, the Supreme Judicial Court has “general superintendence of all courts of inferior jurisdiction to correct and prevent errors and abuses therein if no other remedy is expressly must 'demonstrate both a substantial claim of violation of [their] substantive rights and error that cannot be remedied under the ordinary review process.' Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990)], quoting Dunbrack v. Commonwealth, 398 Mass. 502, 504, (1986); McGuinness v. Commonwealth, 420 Mass. 495, 497 (1995). Currently, G.L.c.258E does not provide any express appellate remedy from a district Court entering or extending such an order. Prior to Zullo v. Goguen, 423 Mass. 679, 672 (1972), review of restraining orders issued pursuant to G.L. 209A was sought pursuant to the superintendence powers afforded the Supreme Judicial Court under G.L.c.211,§3. Frizado v. Frizado, 420 Mass. 592, 593 (1995) [Challenging an order entered under 209A by suing G.L.c.211,§3 was proper]. However, in Zullo v. Goguen, 423 Mass. 679, 682 (1996) the Massachusetts Supreme Judicial Court directed the appeals from 209A orders to the Massachusetts Appeals Court by holding, “. . . unless and until the Legislature decides otherwise, litigants seeking judicial review of an order made pursuant to G. L. c. 209A are directed to the Appeals Court.”
The outcome of the pending case of Borwoski v. O’Brien will determine the proper venue for filing appeals from the issuance and extension of Harassment Prevention Orders. The case was scheduled for oral argument this month.