Articles Posted in Restraining Order

Maksim Zylyftari, a Roslindale man, was arrested April 29, 2013 for a 209A restraining order violation after the alleged victim invited him to her residence. The order issued from the West Roxbury District Court on April 22, 2013. Police allegedly went to the defendant’s address to confirm that the defendant had been served with the restraining order. When they arrived, the alleged victim, the defendant’s wife, told the officers that the defendant was in the home playing with their daughter. The defendant allegedly admitted to being served with the order but said that his wife called him over to the residence to “try to work things out.” The officers arrested the defendant and advised the victim that she should not contact her husband because of the active order.

This story illustrates a misunderstanding that parties to Massachusetts 209A restraining orders and 258E Harassment Prevention Orders commonly encounter. When there is an active restraining order in effect, contact with the plaintiff is a criminal offense, even if the plaintiff welcomes the contact. After the order issues and while it is active, it is not up to the plaintiff to decide, without court involvement, that he or she no longer wants the order to be effective. Often times, persons get restraining orders on a whim and, shortly thereafter, decide that they want to work things out with their partner. Restraining order defendants should be careful to remember that it is the court’s order, not the plaintiff’s order. If a plaintiff changes his or her mind and no longer wants the restraining order to be effective, then he or she should go to the court and ask that it be vacated. Here, an experienced criminal defense lawyer might be able to convince the prosecution not to go forward with this case, as it is apparent that the alleged victim does not desire it. However, particularly when it comes to cases involving domestic violence, prosecutors can be reluctant to do so.

It is an unfortunate reality that Massachusetts 209A abuse prevention orders are often used by vindictive ex-spouses or partners to bully restraining order defendants. Massachusetts courts tend to issue these orders freely and based on very little proof. Victimized restraining order defendants are then restricted in their daily lives and may even be excluded from involvement in the lives of their children. Restraining orders might have the effects of evicting a defendant from a shared residence, forcing a defendant to forfeit firearms, or temporarily causing a defendant to lose custody of minor children. It is critical to retain an experienced Massachusetts attorney to fight issuance of a 209A abuse prevention order.

In Massachusetts, someone can apply for a “restraining order” against another person even if the parties are not related, not roommates and have not been in a dating relationship. Massachusetts restraining order Our Attorney has years of experience fighting for defendants who have been served with civil 209A restraining orders or 258E Harassment Prevention Orders.

Traditionally in Massachusetts, it was necessary for the parties to either be related, living together or involved in a substantial dating relationship to have standing to apply for a civil 209 A restraining order requesting that a judge order one party to stay away or not contact another party. The standard that must be met for a judge to issue a 209A restraining order is that the complainant has a reasonable fear of imminent serious physical harm from the defendant. In Massachusetts, an individual can seek a temporary order in a district court. If the defendant is not readily available a judge often issues the order for a short period of time, one week to ten days, and sets a return date with the expectation that the responding party will be notified of the hearing. This allows a defendant to appear and court and make his or her case why the restraining order should not be extended. Typically the defendant maintains that the plaintiff is not telling the truth and/or that even if what the plaintiff is claiming is true, he or she failed to establish that these actions could reasonably cause the plaintiff to reasonably be in fear of immediate serious physical harm. Massachusetts defense lawyer Our Attorney meticulously prepares for these hearings. Securing the affidavit that the plaintiff filed in support of the order and reviewing all supporting documentation, such as emails, text messages and any other documents to support the clients position is crucial to be prepared to mount a successful defense. A 209A restraining order is a civil order however, any alleged violation can result in a criminal charge against a defendant for violation the restraining order. Additionally, an individual who has a restraining order issued against him or her must surrender all firearms. This fact may effect employment for individuals that are in law enforcement or other professions in which carrying a firearm is part of the job. Clearly, mounting a successful defense and preventing the issuance or continuance of a 2090A order is critical.

Massachusetts General Laws Chapter 258E provides another avenue for plaintiffs to seek a civil restraining order against a defendant. This type of order is often referred to as a “Harassment Prevention Order. The statute 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. One major difference between this order and a 209A order is that the parties do not have to be related, married, roommates or have been involved in a substantial dating relationship.

The most common provision that the District Courts see is the first section in which the plaintiff must demonstrate, “three 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.”

This first branch of harassment has five components. 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. Defending the issuance or extension of this type of order requires an experienced Harassment Prevention Order attorney to attack each prong of the requirements. The attorney must conduct interviews with the defendant and any potential witnesses and review the appropriate documents.

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According to the Lawrence Eagle Tribune, an Andover couple convicted of harassing their neighbor, State Representative James Lyons Jr., will be spending Christmas in jail after a jury in the Lawrence District Court found them guilty of criminal harassment and related charges. Apparently, approximately three years ago, in 2008, William and Gail Johnson were arrested while out on their morning run and charged with making false accusations of child abuse, criminal harassment, identify fraud and making a false report. One of the Commonwealth’s key pieces of evidence was the testimony from Gerald Colton, a former friend of the Johnson’s, who implicated the pair in the illegal activities. Following three hours of deliberations both were found not guilty on the identity fraud count. William Johnson was convicted of criminal harassment and making a false accusation of child abuse to the department of family services. Gail Johnson was convicted of criminal harassment. The judge sentenced William Johnson to eighteen months in prison and Gail Johnson to six months in jail. The pair will also serve a probationary term when they are released. Although criminal harassment is considered a misdemeanor, because the maximum penalty is a sentence in the house of correction as opposed to state prison, the Judge apparently had not patience for the troubling behavior of the Andover couple and sent them to prison for the holidays.

Relative to the crime of criminal harassment Massachusetts General Laws Chapter 265 Section 43 A states the following:

Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished. . .
In Massachusetts, in order to establish that there has been a “pattern of conduct or series of acts” there must be three or more incidents and the alarming conduct must be directed to a specific person, the person who is seriously alarmed by the harassment. See, Commonwealth v. Welch, 444 Mass 80, (2005).

In Massachusetts an individual can apply for civil restraining orders if certain conditions are met. The “traditional” type of restraining order is the “209A” restraining order. In order to have a “209A” restraining order issue the parties must be “family member” or have been involved in a substantial dating relationship. The plaintiff must demonstrate that he or she has been subjected to “abuse”.

Massachusetts recently enacted another type of civil restraining order typically referred to as a “Criminal Harassment Prevention Order.” In order to apply for this type of order the parties do not have to be related, dating or have been involved in a substantial dating relationship. Chapter 258E provides that a plaintiff can get a civil harassment prevention order if it can be established that the defendant engaged in the following conduct: (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. 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.

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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.

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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 Our Attorney.

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The plaintiff alleged in the application for a restraining order that she was afraid to be left alone in the residence that she shared with the defendant. The plaintiff claimed that she was afraid that the defendant was “unable to control” her temper. A temporary 209 A restraining order issued based on the plaintiff’s claim that the defendant verbally and emotionally abused the plaintiff. Following a hearing in which Our Attorney extensively cross examined the plaintiff, the District Court judge vacated the order holding that the plaintiff had not demonstrated that she was in reasonable fear of imminent physical harm.

If you have been served with a temporary restraining order in Massachusetts it is important that you know all of your rights. Although a restraining order is a civil order an alleged violation can result in the issuance of a criminal complaint. Thus, it is not always in one’s best interest to agree to the continuance of the order. M.G.L. Chapter 209A states that a person “suffering from abuse” by a “family or household member” may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim. “Abuse” is defined by the statute as acts “(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” G.L.c. 209A, § 1, as amended through St. 1996, c. 450, 232. See Commonwealth v. Gordon, 407 Mass. 340, 344-345 (1990); Wooldridge v. Hickey, 45 Mass. App. Ct. 637 638-639 (1998). In deciding whether to issue such a c. 209A order, a judge must consider carefully whether serious physical harm is imminent. Smith v. Joyce, 421 Mass. 520, 523 n. 1 (1995). “Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm.” Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998), citing Larkin v. Ayer Div. of the Dist. Ct. Dept., 425 Mass. 1020 (1997). The Court also reads the Legislature’s language in § 1 (“attempting,” “placing,” and “causing”) as revealing an intent to limit the definition of abuse to the present tense. See United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes”). Language in § 3 also suggests that c. 209A was designed to allow persons presently “suffering” from abuse to seek relief. Therefore, the Court concluded that G.L.c. 209A, § 1(b), focuses on preventing imminent serious physical harm, not merely responding to past abuse. Dollan v. Dollan, 55 Mass. App. Ct. 905 (2002). If you oppose the continuance of the restraining order having an experienced Massachusetts domestic violence lawyer on your side who knows the legal standards is important.

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A Dorchester District Court Judge denied the request of a female Boston Police Officer to extend a temporary restraining order issued against a male colleague. According to The Boston Herald, the female officer claimed that the fellow officer raped her back in August when they attended a shooting competition in Connecticut and shared a hotel room. Boston.com reports that during the hearing the woman claimed that she was raped three times on August 25th in a hotel room that she shared with two other officers. According to reports, she reported the rape after determining that she was pregnant and that the defendant could be the father of the baby.

The plaintiff testified that despite her position that she is in fear of the defendant, she sent over 100 text messages to him following the alleged rapes. Additionally, she admitted that after the alleged incidents she requested to be transferred to the Special Operations Unit where the defendant was working. Although all of the facts of this case are not known, the obvious question is, if she was fearful of the defendant, why did she want to be transferred to his unit?

In Massachusetts M.G.L.c. 209A states that a person “suffering from abuse” by a “family or household member” may seek protection from such abuse by application to the court for an order requiring the defendant (among other measures) to refrain from abusing or contacting the victim. “Abuse” is defined by the statute as acts “(a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” In deciding whether to issue such a c. 209A order, a judge must consider carefully whether serious physical harm is imminent. “Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm.” Criminal cases that result from an alleged violation of a restraining order are often categorized as cases of domestic violence.

According to the Boston Herald, in this case the judge held that the plaintiff could not establish the type of “relationship” that is required by the statute to extend the order. It also appears, that based on these facts, the plaintiff really did not fear the defendant because she continued to contact him. Also, the fact that the alleged incident occurred over a month ago could impugn her position that she was in fear of “imminent” physical harm.

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