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.

Yet Something Else Not To Do To Your Child

This article that I was alerted to via the Snopes.com "Daily Snopes" is perhaps this Georgia mother's reply to the following inquiry:

At a party several years ago, I was introduced to a lawyer who was here from China studying taxation law at Harvard Law School. He asked me what field of law I practiced. When I told him Children's Law he said, "I don't think we have that in China." After a brief discussion of what Children's Law was about, he said, "You can probably tell me then, is it true that you're not allowed to beat your children in America?" When I said yes, that was mostly true he asked, "So, what do you do when they don't study?"

And the answer is:

As punishment for bad grades, a Georgia mother forced her 12-year-old son to kill his pet hamster with a hammer, police said.

The day after he was forced to kill his pet, the child told his teacher [...].

The teacher reported the incident to DFCS authorities, who contacted police [who arrested Mom].

See the rest of the article here: Cops: Mom forces son to kill hamster for bad grade | ajc.com

So there's something else to add to my list of Top 10 Discipline Methods Not to Use on your Child.

Another Thing Not to do to Your Child?

Don't let him wear long hair.

At least not if he goes to Floyd Elementary School in Mesquite, Texas.

Texas school board keeps ban on boy's long hair

and continues the in-school suspension for the pre-kindergartner. The article says:

The district is known for standing tough on its dress code. Last year, a seventh-grader was sent home for wearing black skinny pants.

Something Else Not to do to Your Child

Don't hide your child in a crawl space.

An Illinois judge found that it constituted neglect for a mother to hide her then 5 year old son in a crawl space in her mother's house for most of two years to keep him away from his father whom she accused of abuse.

Ill. Judge: Mom's Hiding Of Boy Amounts To Neglect
JIM SUHR, Associated Press Writer
BENTON, Ill. (AP) ― A mother's hiding of her son for nearly two years in his grandmother's home, often in a crawl space behind a wall, amounted to neglect, a judge ruled Friday. See full article here.

Neither child protective services nor the court had believed mother's allegation of abuse. She and the child disappeared two years ago after the court granted the father temporary custody. The article does not say how they were found. There are criminal child abduction charges pending against the mother, the maternal grandmother and the MGM's boyfriend.

The boy is currently having supervised visitation with his parents (which are reportedly going well) and a custody and visitation hearing is scheduled for January 8th.

Top 10 Discipline Methods Not to use on Your Child

On the same day that I received a request to answer a survey for child abuse professionals about what I think my community's beliefs are concerning discipline methods, I saw an article about one type that wasn't on the list.

A pediatrician at the University of North Carolina at Chapel Hill is circulating a survey about opinions about child abuse. Professionals in various disciplines of the child protection field were asked to say whether we think it is the norm in our communities to use certain methods on various age children usually, occasionally, rarely or never. It didn't include the one that turned out to me to be the Number 1 Truly Shocking Thing NOT to do to Your Child.

But first the list:

Top 10 Discipline Methods Not to Use on your Child

Number 10 - Pinching

Number 9 - Kicking

Number 8 - Hot peppers in mouth as punishment

Number 7 - Calling child names such as stupid, ugly or useless

Number 6 - Hitting on the buttocks with an object such as a belt or switch

Number 5 - Slapping child on the face or the back of the head

Number 4 - Hitting child elsewhere than on the buttocks with an object such as a belt, hairbrush or stick

Number 3 - Shaking

Number 2 - Beating (that is hitting over and over again with an object or fist)

and the number 1 Truly Shocking Thing NOT to do to Your Child ...

... TASING.

That's right, I saw an article about a woman who called the police on her 10 year old daughter who curled up on the floor rather than take a shower at bed time. AND THEN the mother gave the officer permission to use his taser on the child if he thought it was necessary. See the November 19, 2009, Associated Press article from Ozark, Arkansas, here.

The girl's father, who reportedly "does not have custody", described the child as having "emotional problems."

The Mayor wants the State Police or FBI to investigate and said:

People here feel like that he made a mistake in using a Taser, and maybe he did, but we will not know until we get an impartial investigation.

Really? Really? The town has to have an independent investigation to determine whether a child having a tantrum at home needs to be shocked into submission?

See also my Guest Commentary on the bill that was then pending in the Massachusetts state legislature to ban corporal punishment in the December 13, 2007, Arlington Advocate.

SJC strikes down Lowell youth curfew

SJC strikes down Lowell youth curfew - Local News Updates - The Boston Globe

Posted using ShareThis

The case is COMMONWEALTH vs. WESTON W., a juvenile (and a companion case), SJC-10299, decided September 25, 2009.

Justice Cordy's decision noted:

We reject the rationale used by some courts to justify a lower standard of review, that the rights of minors are not coextensive with or are weaker than those afforded adults. Minors possess fully formed constitutional rights. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74 (1976) ( "Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority"). However, in applying the strict scrutiny test to their infringement, we recognize that the government has a countervailing compelling interest in "protect[ing] children from actual or potential harm," Blixt v. Blixt, 437 Mass. 649, 656 (2002), cert. denied, 537 U.S. 1189 (2003), an interest that often justifies restrictions that could not be sustained when applied to the fundamental rights of adults. See Bellotti v. Baird, supra at 634 (constitutional principles should be applied with "flexibility" to minors because minors are vulnerable and unable to make decisions in "informed, mature manner"); Matter of Gail, 417 Mass. 321, 326-327 (1994), quoting Custody of a Minor, 375 Mass. 733, 754 (1978) (Commonwealth has "long-standing interest in protecting the welfare of children living within its borders"). In other words, the analysis "should consider whether the state's interests may be more compelling but not whether the rights involved are less fundamental." Nunez, supra at 945, citing H.L. v. Matheson, 450 U.S. 398, 441 n. 32 (1981) (Marshall, J., dissenting). See also Qutb, supra at 492 n. 6.

And then concluded:

Applying the strict scrutiny standard, the ordinance's criminal provision unconstitutionally infringes on the minors' rights to freedom of movement. Status offenses such as being abroad at night may not be "bootstrapped" into criminal delinquency and commitment to DYS custody. See Commonwealth v. Florence F., supra at 528-529 n. 8. In response to the first reported question [Does the Lowell Youth Protection Curfew for Minors violate the equal protection rights of the Juveniles under either the United States Constitution or the Massachusetts Declaration of Rights by subjecting the Juveniles to a restriction upon their rights to movement and travel that persons seventeen and older do not have to endure?], the answer is, "Yes," with regard to criminal penalties resulting from violations of the ordinance. The curfew itself and its civil enforcement mechanism, however, represent, as of the date of the proceedings below, a permissible, narrowly tailored response to Lowell's compelling interest in preventing crime by, and against, minors. Because the ordinance contains a severability clause, those provisions remain in force.

Prof. Gates' Unconstitutional Arrest - Forbes.com

It may have been a Town v. Gown controversy rather than a racial incident. Or even, as Steven Colbert proposed on Comedy Central's "The Colbert Report," a jock v. nerd matter with Sgt. Crowley as the jock and Prof. Gates, pictured riding his tricycle on Martha's Vineyard, as the nerd. But I prefer to agree with Massachusetts criminal defense and civil rights attorney Harvey Silverglate, who, in this Forbes commentary, "Prof. Gate's Unconstitutional Arrest: There's a First Amendment right to be rude to a cop," argued persuasively that "fundamentally the situation can, and should, be analyzed as a free speech case."


In my two plus decade criminal defense career, I too saw many police reports that parroted the words "loud and tumultuous behavior which caused a crowd to gather and created public inconvenience, annoyance and alarm." Disorderly conduct is what the Boston police used when the City's equally unconstitutional "Sauntering and Loitering" Ordinance somehow didn't fit or wasn't enough. As a new, young, white law student in 1976, I was threatened with arrest by a Cambridge police officer for insisting that he shouldn't be smoking inside the front of the Porter Square Star Market right under the "No Smoking" sign. Unlike Prof. Gates, I swallowed my First Amendment rights and stopped my confrontation upon the police officer's threat even though I knew it would have been an unconstitutional arrest.


As Atty. Silverglate points out:

There is a serious problem in this country: Police are overly sensitive to insults from those they confront. And one can hardly blame the confronted citizen, especially if the citizen is doing nothing wrong when confronted by official power. This is, after all, a free country, and if "free" means anything meaningful, it means being left alone--especially in one's own home--when one is not breaking the law.

See the article also for Atty. Silverglate's brief but thorough history of First Amendment jurisprudence and the evolution of the "four exceptions to the First Amendment's protection for free speech."