Tuesday, February 16, 2010

Untold Number of Things You Can Be Restrained from Doing to Anyone

Massachusetts will soon have an Harassment Prevention Order statute.

Chapter 23 of the Acts of 2010: AN ACT RELATIVE TO HARASSMENT PREVENTION ORDERS was enacted on February 9, 2010. By my calculation it will go into effect on May 10th. The act adds a new chapter, 258E, to the Mass. General Laws. It is not yet up in the official, online version of the General Laws, so for now you'll have to use the St. 2010, c. 23 link or, to eventually find it in its codified form, go to M.G.L. c. 258D, § 9 and click the "Next Section" button.

The actions that are restrainable under the new law are defined as follows:
“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. (M.G.L. c. 258D, § 1.)
In contrast to Abuse Prevention Orders (Mass. Gen. Laws chapter 209A), the plaintiff and defendant in a complaint for protection from harassment do not need to have had any family, living or substantial dating relationship. (Cf. M.G.L. c. 209A, § 1.) But similarly to chapter 209A: Violations of chapter 258D orders are criminal offenses, there are no filing fees, the orders can be entered without advance notice, initial orders are valid for 10 court business days after which there is to be an extension hearing and there do not need to have been violations of the order for the order to be extended after its original expiration date.

The relief available to "A person suffering from harassment" is to "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. (G.L. c. 258B, § 3(a).)
Violations of the orders are criminal offenses with potential penalties of:
[A] fine of not more than $5,000, or by imprisonment for not more than 2½ 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. (M.G.L. c. 258D, § 9.)
The orders may be sought in the district, superior, Boston Municipal or, if both the plaintiff and defendant are below the age of 17, in the juvenile courts where the plaintiffs reside. (M.G.L. c. 258A, § 2.)

To discuss obtaining or defending against such an order, read my Initial Consultation Policies and contact The Law Office of Michael L. Rich.


MLR said...

Atty. Deborah Sirotkin Butler commented and prompted ongoing comments at BlueMassGroup; here: http://www.bluemassgroup.com/diary/18919/vast-expansion-of-restraining-orders-protection-or-threat

MLR said...

And several attorney colleagues commented on my Facebook post about this new law; here: http://www.facebook.com/KidLaw?v=feed&story_fbid=310781550665

MLR said...

Still not available in the Mass. General Laws, Chapter 258E was apparently amended by chapter 112 of the Statutes of 2010. See District Court "Transmittal 1046"
http://www.lawlib.state.ma.us/docs/trans1046harassment-prevention-orders-gl-c258e.pdf telling about the amendments and Transmittal 1042 , which came out before 258E went into effect and tells about the differences between it and 209A.

MLR said...

And now my old suggestion of going to chapter 258D section 9 and clicking next section doesn't work either. In their revamp of the Mass. General Laws pages, the legislative webmaster seems to have not included chapter 258E at all.

MLR said...

Finally, Chapter 258E is online at Mass.gov and they have improved the new version of the Mass. General Laws online. There are now Tables of Contents and next section, previous section buttons.

MLR said...

Boston Globe article 4/12/11 about courts and police departments feeling the surge of harassment prevention orders: New kind of restraining order leads to surge in filings - The Boston Globe

MLR said...

Something you canNOT restrain someone from doing

The Mass. Supreme Judicial Court ruled in March 2013 that the father of a 16 year old girl may not use the state's abuse prevention act (Mass. General Laws chapter 209A) to obtain a restraining order against a 24 year old man with whom the daughter was planning to have “a sneaky sleepover’’ or “a day spent in each others arms’’ at a hotel. Because the daughter was 16 years old and therefore legally capable of consenting to sexual intercourse, the activity could not be considered "abuse" under the statute.

The court did expand the definition of "substantive dating relationship" to include relationships that are primarily conducted over the Internet.

E.C.O. vs. GREGORY JAMES COMPTON, 464 Mass. 558 (2013) http://masscases.com/cases/sjc/464/464mass558.html