Harassment vs. Abuse Prevention Orders

Massachusetts offers two statutory mechanisms—Massachusetts General Laws Chapter 209A and Massachusetts General Laws Chapter 258E—for protection of victims of abuse and harassment. In 1978, Massachusetts was among the first states to address domestic violence by creation of abuse prevention orders under 209A. Although 209A provided relief to countless victims of abuse, its mandate of a preexisting relationship left many, including a large percentage of victims of sexual crimes who are attacked by strangers, without relief, and critics argue that 209A is used improperly as a litigious advantage in domestic relations actions. In 2010, legislators filled the gaps and left less room for abuse in enacting 258E. Primarily, this involved eliminating the requirement of an interpersonal or familial relationship between the victim and abuser, and setting a higher standard to obtain relief.
Victims of abuse may seek 209A protection only from a family or household member, defined as those who were married or related by blood or marriage, residing together in the same household, have a child together, or have been in a substantive dating or engagement relationship, M.G.L. c. 209A §1 (2011), whereas under 258E, there is no requirement that the victim and harasser have any preexisting relationship.
To obtain 209A relief, a victim may turn to the district courts, Boston Municipal Court, juvenile courts (if defendant is under 17), and probate and family courts for the county in which he/she resides. M.G.L. c. 209A §2. Probate courts specifically do not have the authority to issue harassment prevention orders, juvenile court is proper only if the defendant is under 17 years of age, and the plaintiff can only apply for protection in the district court having jurisdiction over his/her current residence. M.G.L. c. 258E §2 (2011).
A 209A plaintiff must show that he/she is suffering from “abuse” (attempting to cause/causing physical harm, placing another in fear of imminent physical harm, or causing another to engage in sexual relations by force, threat or duress) for an abuse prevention order. M.G.L. c. 209A §1. A 258E plaintiff must show he/she suffers from harassment, which is defined as: three or more acts by defendant; each of which willful and malicious; each aimed at the plaintiff specifically and each with the intent by defendant to cause the plaintiff fear, intimidation, abuse or damage to property; and each actually so causing fear, intimidation, abuse, or damage to property. M.G.L. c. 258E §1 (emphasis supplied). Abuse under 253E is similar to 209A’s definition of abuse; however, because the plaintiff must first show harassment and then abuse, the standard of relief is more exacting for 253E plaintiffs. Compare M.G.L. c. 258E §1 and M.G.L. c. 209A §1. Plaintiffs must disclose only certain kinds of prior or pending actions between the parties for abuse prevention orders (M.G.L. c.209A §3), but a 258E plaintiff must disclose all prior and pending actions involving both parties. M.G.L. c. 258E §3.
Both statutes allow orders that a defendant refrain from contacting the plaintiff; stay away from the plaintiff’s residence or workplace; and pay the plaintiff restitution for losses; or may impound the plaintiff’s address. M.G.L. c. 258E §3; M.G.L. c. 209A §3. 209A permits a court to make orders relative to custody and support of minor children; surrender of defendant’s firearms; and for defendant to vacate a shared household with plaintiff, and judges are not limited to the specifically enumerated remedies in the statute. M.G.L. c. 209A §§ 3, 3(g). The court may recommend the defendant seek treatment to address the abusive behavior in issuing a 209A order, M.G.L. c. 209A §7; but is required to order the offender to partake in a program to address the behavior if defendant violates the order, absent written findings otherwise. Id. A judge issuing a 258E order cannot order defendant to stay away from plaintiff’s multiple family dwelling, may not make orders relative to custody and support of minor children, cannot order the defendant to vacate a household, and cannot order defendant to surrender his firearms. Compare M.G.L. c. 258E and M.G.L. c. 209A §3B. Further, because there is no relationship contemplated between defendants and plaintiffs, a 253E order may, but is not required to, order the defendant to address his conduct. M.G.L. c. 258E §9. An arrestee charged with violating a 209A order may not be released by clerks, bail commissioners and masters of chancery if the order is still in effect, but there are no such restrictions for arrestees who have allegedly violated a 258E order. M.G.L. c. 276 § 57. In both cases reasonable efforts must be made to alert the victim of the arrestee’s release. M.G.L. c. 258E § 8 and M.G.L. c. 209A § 6.

Therefore, in enacting the statutory scheme of restraining orders in Massachusetts, the legislature has effectively balanced the need to serve a greater class of victims, while protecting against the risk of abuse and harm.

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