First enacted in 1978, G.L. c. 209A sought to "provide[] a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse." Commonwealth v. Gordon, 407 Mass. 340, 344 (1990). The statute defines "abuse" as "the occurance of one or more of the follwing acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat of force or duress." G.L. c. 209A, § 1. See Id. A judge hearing a complaint under Chapter 209A may order the defendant to refrain from such abuse, to refrain from contacting the plaintiff, or to vacate and stay away from the premises. Among other remedies, a judge may award temporary custody of a minor child, temporary support, or compensation for any losses caused by the abuse.
Most Remedies Civil In Nature
Most of the remedies set forth in Chapter 209A are civil in nature. Under civil standards, a protective order may issue if the court finds by a preponderance of the evidence that the defendant placed the plaintiff in fear of imminent serious physical harm. Smith v. Joyce, 421 Mass. 520, 522 (1995).
Because "[j]udges often must deal with large numbers of these emotional matters in busy court sessions[,]" the Legislature and the courts have relaxed many of the procedural requirements inherent in a typical civil or criminal action. For example, Chapter 209A permits and in fact encourages the entry of ex parte temporary orders. Although the defendant may contest the entry of a permanent order, he or she has no right to a jury trial or to discovery, and has only a limited right to cross-examine adverse witnesses. The rules of evidence do not apply, and in fact, hearsay evidence is readily admitted. As long as the proceeding is fundamentally fair, the lack of such procedural safeguards does not violate a defendant's constitutional rights. Frizado v. Frizado, 420 Mass. 592, 594-598 (1995).
Criminal Remedies
In addition to the civil remedies set forth in Chapter 209A, Section 7 permits a criminal complaint to issue upon a violation of a no contact order, an order to vacate, or an order to refrain from abuse. That section provides for a fine of up to $5,000 and a jail term of up to two and one-half years for each violation.
A violation of a Chapter 209A "vacate" order also constitutes a trespass under G.L. c. 266, § 120.
Moreover, other violations not specifically covered by Section 7-such as a violation of a support order-can be punished as criminal contempt in the court that issues the original order. District Court's Draft Standards of Judicial Practice, Abuse Prevention Proceedings, §§ 8:01 and 8:02 (December 1994).
In contrast to the limited rights available on the civil side, a defendant has considerable procedural protections in a criminal prosecution under Chapter 209A. The Commonwealth must meet the same level of proof and adhere to the same procedural standards as in any criminal prosecution.
To prove a criminal violation under 209A, the Commonwealth must demonstrate beyond a reasonable doubt that a protective order issued, that it was in effect at the time of the alleged offense, and that the defendant received notice of that order. In fact, Section 7 specifically provides that the appropriate law enforcement agency "shall serve one copy of each order upon the defendant[.]"
The Commonwealth must further prove that the defendant knowingly violated the protective order.
Even with the enhanced procedural rights enjoyed by criminal defendants, there are a number of pitfalls of which they should be advised.
Minimal or indirect contact with the plaintiff may violate the terms of a protective order. Commonwealth v. Butler, 40 Mass. App. Ct. 906, 907 (1996)(defendant violated protective order by sending flowers anonymously).
Moreover, once a Chapter 209A order issues, that order remains in effect until it is modified by the court or until it expires. A violation of that order constitutes a crime even if the plaintiff acquiesces in the violation. District Court's Draft Standards of Judicial Practice, Abuse Prevention Proceedings, § 8:03 (December 1994).