Laveen, AZ asked in Criminal Law and Domestic Violence for Massachusetts

Q: Boyfriend is in litigation with an old business partner/girlfriend. She was granted an order of protection against him.

FB still showed him in a relationship with their original anniversary date. Her name did not show as they were no longer friends. He thought he could just update the anniversary date to when we met, which he did. For some reason FB tagged her in it & updated the relationship status as them together with a new anniversary date. He did not tag her intentionally, and had no way of knowing it would tag her, but it did. There is now a bench warrant and he is having to leave Arizona to go back to Mass. in order to address it. His attorneys are making it sound like he has no chance, but he did not intentionally do anything. She is trying to bolster her business litigation claim and force him to settle, which he is now willing to do under duress, but she is not backing down. What are his chances? He has no criminal record and the order of protection is based on one fight they had over a year ago, in which no one was touched, just yelling. I don't even know how she got an OOP?

1 Lawyer Answer
William D. Kickham
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  • Criminal Law Lawyer
  • Westwood, MA
  • Licensed in Massachusetts

A: I'm surprised that your question says that "His attorneys are making it sound like he has no chance". It's not clear to me if those attorneys are licensed in AZ or MA, but my professional opinion - based on the information you've provided above - is that the person has a more than fair chance of defeating an extension order here.

First, some statutory and procedural background of Massachusetts law in this regard: I'm not 100% sure what you mean in reference to "OOP" above, but in MA a "restraining order" as they are commonly referred to, is technically called an "Abuse Prevention Order". These orders are governed by M.G.L. Ch. 209A, and are also, within the courts and police departments, referred to as "209A Orders". Anyone can go to any District Court in MA and apply for such an Order - it merely involves filling out a standard form, along with an accompanying affidavit outlining the reasons the Order is sought. Almost always that same day, the applicant will be heard on the application before a judge "Ex Parte". This means without the opposing (or accused) party being present. Given the politically hot topic of domestic violence, about 95% or more of Ex Parte 209A orders are granted -- but they are almost always Temporary Orders; They are granted Ex Parte are usually for a period of approximately ten (10) days, after which the Temporary Order will expire if it is not made "permanent" (usually a period of one year) at a hearing scheduled near the end of that ten day period, which both parties are summoned to. The accused is served written notice of the Temporary, usually by a police officer, at his/her residence or work address, giving the accused the date, time and court location where a second hearing will be held with both parties present. The purpose of this second hearing, of course, is to give the accused notice and opportunity to be heard before the Temporary Order is acted on through either dismissal or extension.

To legalities: The issue of whether or not these two people were in a "dating relationship" is primary to your question, because if they were in fact NOT in such a relationship at the time of the alleged act(s), then M.G.L. Ch. 209A would not apply, because that statute applies to defined "family members" and to parties in a "dating relationship". If the relationship element is not proven, it precludes issuance of an Abuse Prevention Order. Thus, on an evidentiary level, evidence to counter that claim could be dispositive.

If that element of the claim could be proven false, it would likely prevent an Abuse Prevention Order from issuing. However, if extension of the 209A is denied, the accuser could use another statute, but that would pose a higher bar for the accuser to reach in order to obtain "relief". That legal avenue would be to seek a "Harassment Protection Order", under M.G.L. Ch. 258E. This law was passed in the wake of a victim being murdered by someone who was stalking her, but that person was not in any kind of a dating relationship with the victim. When the victim sought an Abuse Prevention Order under Ch. 209A, the Order was denied, because the accused was neither a "family member" (defined inside Ch. 209A), nor was the accused in a "dating relationship" with the victim. Therefore the Order was denied and tragically the accused killed the victim.

M.G.L. Ch. 258E (commonly referred to as "the HPO statute" in MA), was designed to address that important gap. However, the accuser would have to prove three (3) separate instances/acts of "abuse, which is a higher bar to reach than under Ch. 209A. Importantly, under both of these statutes, while the issuance of an Order is not a criminal event, alleged violation of the Order is. All that a recipient of such Order need do is merely accuse the defendant of violating the Order, and he/she will be criminally charged with violating the Order.

Thus, I would suggest that this person appear to oppose this matter.

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