Protective orders, sometimes referred to as restraining orders or orders of protection, are an important legal tool meant to provide protection to those who are at risk of serious physical injury. They are commonly used by victims of domestic violence, but also may be available to stop other types of harassing or violent behavior. In Massachusetts, there are two main types of protective orders:
- Domestic violence prevention orders ("209A Orders")
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Harassment prevention orders
Domestic Violence Prevention Orders
When most people think of a protective order, they think of a domestic violence prevention order, more commonly referred to in Massachusetts as a 209A order. To be eligible for a 209A order, the victim and the alleged aggressor must have one of the following relationships with one another:
- Current or former spouses
- Current or former dating partners
- Currently or formally shared a residence
- Related by blood or marriage
- Share a child in common
Additionally, the abuse the victim is seeking protection from must fit into one of the following categories:
- The aggressor has harmed the victim physically or attempted to do so
- The victim is in fear of imminent serious physical harm
- The aggressor made the victim engage in nonconsensual sexual relations through force, threat or duress
Domestic violence prevention orders/209A orders are civil, not criminal, orders. A victim of domestic violence can seek a 209A order by submitting a petition to their local court, or in emergencies, at the local police department. Judges have great discretion in deciding what to include in the order. For example, the 209A order may prohibit the aggressor from having any contact with the victim or with their children. It also may include a stay-away order, which means the aggressor cannot return to the residence he or she shares with the victim, even if the residence is in his or her name.
The order also can require the aggressor to pay temporary child and spousal support as well as damages for any harm caused to the victim from the abuse, including lost wages and medical bills. Additionally, the court can award temporary custody of any children in common to the victim as well as limit the aggressor's visitation rights, if any are granted.
Those who have had a domestic violence prevention order issued against them also are required to turn over any firearms in their possession to the police and cannot own or possess any other weapons while the order is in effect.
Violating a domestic violence prevention order is a crime. Those convicted of violating a 209A order may be sentenced up to 40 months in prison as well as ordered to pay up to a $5,000 fine. Domestic violence prevention orders can last up to one year, but are eligible for renewal.
Harassment Prevention Orders
Harassment prevention orders are a new device in Massachusetts. The state legislature passed a law creating them in February 2010. These orders are meant to protect people from violent and threatening acts, communications, abuse and contact. Unlike 209A orders, a person does not have to have a specific relationship with the aggressor to qualify for the order. Harassment prevention orders can be taken out against anyone - even strangers.
The types of behaviors that can trigger a harassment prevention order also are broader than those required to obtain a 209A order. To be eligible for a harassment prevention order, the alleged aggressor must have committed one of the following acts:
- Three or more willful and malicious acts against the victim that were intended to cause fear, intimidation, abuse or damage to property and did in fact cause fear, intimidation, abuse or damage to property
- Involuntary sexual relations with the victim through the use of force, threats or duress
- Committed one of the following crimes against the victim: indecent assault and battery, rape, statutory rape, assault with intent to rape, enticing a child, criminal stalking, criminal harassment or drugging for sexual intercourse
To receive a harassment prevention order, the victim must be able to prove that there is a substantial likelihood of imminent danger of harassment against him or her. Like 209A orders, harassment prevention orders can last up to one year and are eligible for renewal. Violating these orders also carries the same penalties as violating a domestic violence prevention order - up to 2.5 years imprisonment and up to a $5,000 fine.
Protective Orders Can Be Misused
Protective orders should be used as a shield and not as a sword to provide protection to those who have a reasonable belief that they are in imminent danger of physical harm. The purpose of protective orders and how they are ultimately used, however, can be two very different things.
Protective orders never should be used as a means to make someone else's life difficult or as an offensive move in another legal proceeding, such as a divorce or child custody dispute. They also should not be used to enact personal vendettas, such as a former partner or family member trying to get revenge for a perceived wrong.
Unfortunately, not everyone who applies for a protective order does so because they have a sincere belief that their safety and well-being are at risk. The abuse of protective orders happens much more frequently than any of us would like to believe, and causes great harm to those who wrongly have one issued against them.
If you believe that a protective order has been issued against you in error, contact an experienced attorney as soon as possible. Massachusetts recently passed a law that allows some people to have protective orders removed from their records. An attorney experienced in handling these types of issues can discuss your options for defending against a protective order or seeking to have a protective order expunged from your record.
