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The First Steps


By: Michael P. O’Neil
CPF The Fatherhood Coalition
April 26, 2005


In Massachusetts, a person in a relationship can walk into the nearest court, complain to the justice that she is the victim of abuse, and immediately gain possession of the children, property and income which heretofore belonged to her accused. No proof or evidence is required in this civil procedure, there are no penalties for false allegations, and the defendant has no way to prove his innocence. The statute which authorizes this obvious abuse of civil liberties is ironically entitled: Chapter 209A: Abuse Prevention

Despite the widespread availability, use and abuse of this “restraining order” law, very few Bay State residents and legislators understand how it works, the numerous ways it violates the concept of the presumption of innocence and due process of law, why it is so harmful to children and fathers, or how it may be reformed or abolished. This report is an analysis of the law whose detrimental effects on civil liberties, human rights, and the integrity of American jurisprudence deserve to be ranked alongside the Salem witch trials and Jim Crow proceedings.

This year, CPF The Fatherhood Coalition has drafted and filed legislation to begin the process of reforming Chapter 209A: Senate No. 965 and House No. 833, An Act Relative to Abuse Prevention. While the correct remedy may be rewriting abuse prevention law from the ground up, this is not considered feasible in the present political climate. In this report, the CPF reform bill will be shown to be a workable starting point. First, the current statute is reviewed, section by section, in the context of contemporary civil and criminal law. While the emphasis of this overview and the manner of presentation may be debated, there should be no arguing with the facts provided. Then the provisions of Senate No. 965 and House No. 833, and their relevance, are explained. The process of ending the modern day witch trials in Massachusetts is now under way.

The Provisions of the Current Law

Chapter 209A Abuse Prevention consists of ten sections, with four subsections, filling about thirteen typed pages[i]. Section 1 lists the definitions of key words used in the statute. The first definition listed is perhaps the most important one: “’abuse’, the occurrence of one or more of the following 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 or duress.”

The crime of “abuse” is central to Chapter 209A. For centuries there have been laws against assault, assault and battery, rape, and improper sexual activity. These crimes against the person and their punishments are clearly defined in the Massachusetts General Laws. Obviously, without this chapter, a warrant or a summons may be issued at any time for any person who causes or threatens “physical harm”. As defined here, however, “abuse” is nebulous. Theoretically, by this definition, a wife who wields a rolling pin at her husband is guilty of abuse, and subject to the punishments contained in this chapter. While there is little chance of this happening, there can be no doubt that these punishments are more onerous by an order of magnitude than those for assault and battery.[ii]

Likewise, accused of “placing another in fear”, the defendant is placed in the impossible position of being held responsible for the accuser’s emotional state. Persons in relationships may be expected to prove or disprove that any past sexual activity (with no time limit established) was performed due to duress, with the burden of proof subjected to the virtually unlimited discretion of a life tenured state employee.

 “Family or household members” are defined as persons who are married, residing together, related by blood or marriage, have a child together, have been dating or in an “engagement relationship” which is broadly defined and determined by the court. The effect of this definition is to include an ever broadening sphere of the population under the restrictions of this chapter, in contrast to unrelated common criminals who benefit from due process of law.[iii] 

Section 1 defines "Court'' as “the superior, probate and family, district or Boston municipal court departments of the trial court”, apparently only excepting the Land, Housing and Juvenile courts. It also defines “law officer”; “protection order issued by another jurisdiction”; and "’Vacate order’: court order to leave and remain away from a premises and surrendering forthwith any keys to said premises to the plaintiff. The defendant shall not damage any of the plaintiff's belongings . . .” It is worth noting here the complete lack of reciprocity of this “civil” law. While a defendant who is denied access to his own house is threatened with criminal penalties, the plaintiff who is now in possession of all the defendant’s belongings is unencumbered.

Section 2 lists the venue, giving the plaintiff the option of choosing her[iv] current residence or former residence which she left “to avoid abuse”.

Section 3 is longer and details the remedies and the period of relief. “A person suffering from abuse from an adult or minor family or household member may file a complaint in the court requesting protection from such abuse, including, but not limited to, the following orders:  
(a) ordering the defendant to refrain from abusing the plaintiff . . .  
(b) ordering the defendant to refrain from contacting the plaintiff . . .  
(c) ordering the defendant to vacate forthwith and remain away from the household, multiple family dwelling, and workplace . . . for a fixed period of time, not to exceed one year, at the expiration of which time the court may extend any such order upon motion of the plaintiff, with notice to the defendant, for such additional time as it deems necessary to protect the plaintiff from abuse . .  . 
(d) awarding the plaintiff temporary custody of a minor child”.

Note that the inclusion of home, children and even workplace here demonstrates the ability of this law, with the lowest or even nonexistent standards of evidence, and unlike any other civil or criminal statute, to deprive a defendant of everything that may have meaning and value in his life.

Section 3 then details how these orders may be used to deny the defendant custody of his children, either temporarily or permanently, if a judge finds him an “abusive parent”. Next, the options of “visitation” for the “abusive parent” are listed: “ordering an exchange of the child to occur in a protected setting . . . ordering visitation supervised by an appropriate third party, visitation center or agency; ordering the abusive parent to attend and complete, to the satisfaction of the court, a certified batterer's treatment program as a condition of visitation; ordering the abusive parent to abstain from possession or consumption of alcohol or controlled substances during the visitation and for 24 hours preceding visitation; ordering the abusive parent to pay the costs of supervised visitation;  prohibiting overnight visitation;  requiring a bond from the abusive parent for the return and safety of the child;  ordering an investigation or appointment of a guardian ad litem or attorney for the child . . .”  Then, in case some further method of ‘protection’ has been overlooked (and making the above list redundant), Section 3 (i) adds: “imposing any other condition that is deemed necessary to provide for the safety and well-being of the child and the safety of the abused parent.”

Also in Section 3 are the requirements for child support and monetary compensation “to the person abused”. The court may order “the defendant to refrain from abusing or contacting the plaintiff's child, or child in plaintiff's care or custody . . .” Presumably any children involved belong exclusively to the plaintiff, while her spouse has no parental rights. Also, there are no fees for the plaintiff, or time limits on filing. The order may not exceed one year, but may be renewed or made permanent. The court may issue mutual restraining orders only with “specific findings of fact”. “No court shall compel parties to mediate any aspect of their case”. Actions under this chapter don’t preclude any other civil or criminal remedies.

Perhaps the most extraordinary feature of Chapter 209A is a provision found in Section 3A, which reads in its entirety:

“Upon the filing of a complaint under this chapter, a complainant shall be informed that the proceedings hereunder are civil in nature and that violations of orders issued hereunder are criminal in nature. Further, a complainant shall be given information prepared by the appropriate district attorney's office that other criminal proceedings may be available and such complainant shall be instructed by such district attorney's office relative to the procedures required to initiate criminal proceedings including, but not limited to, a complaint for a violation of section forty-three of chapter two hundred and sixty-five.[v] Whenever possible, a complainant shall be provided with such information in the complainant's native language.”

This intermixing of civil and criminal charges is not unique in Massachusetts law. When the probate court issues an order to vacate the marital home, or an order prohibiting a person from imposing any restraint on the personal liberty of another person or an order for custody pursuant to any abuse prevention action, violations of such orders are criminal offenses.[vi] While these orders are normally generated during the course of civil actions, “if the moving party demonstrates a substantial likelihood of immediate danger to his or her health, safety or welfare or to that of such minor children from the opposing party, the court may enter a temporary order without notice.”[vii]

The implications of this section are ominous. While the true actions that constitute the “abuse” may be criminal in nature, with this provision of the law the government is under no obligation to adhere to the due process which is normally granted to anyone accused of a crime. The complainant is given the option of initiating authentic criminal proceedings, but at this point this option must seem a considerable annoyance when the defendant can instantly be punished and virtually placed on probation from an ex-parte hearing or even with a phone call. The defendant then becomes a true criminal when he performs an action that is not in itself a crime – like sending his child a birthday card.

This section also highlights the entitlement nature of this supposed civil procedure, as the plaintiff is provided this pertinent information in her native language, while the defendant doesn’t even get the English version. In a real criminal proceeding, a defendant is read his rights. In a 209A action, the complainant is read her rights, while the defendant has few if any.

Section 3B covers the confiscation of the defendant’s firearms. At the judges discretion any firearm license may be suspended or surrendered, along with any type of firearm the defendant possesses, under penalty of fines and/or imprisonment. “Any defendant aggrieved by an order of surrender or suspension as described in the first sentence of this section may petition the court which issued such suspension or surrender order for a review of such action and such petition shall be heard no later than ten court business days after the receipt of the notice of the petition by the court.” The ten days may be reduced to two days if the firearms are required for the defendant’s employment. The defendant is granted a hearing where the court basically reviews its own prior decision. Section 3C continues this confiscation of firearms when the original order is continued or modified.

Section 4 describes temporary orders, notice and hearing requirements. The court may enter any temporary orders it deems necessary without notice to the defendant. The defendant is given the opportunity for a hearing “no later than ten court business days after such orders are entered”. If the defendant doesn’t appear, the temporary orders continue in effect.

Section 5 allows orders to be issued, by telephone if so desired, when the courts are closed and/or the plaintiff is unable to appear in person due to her physical condition. Section 5A gives full faith and credit in Massachusetts to any protection order issued by another jurisdiction. These orders “shall be entered into the statewide domestic violence record keeping system . . . maintained by the office of the commissioner of probation”. Law enforcement officers may presume copies of orders, provided by any source, from other jurisdictions are valid. There are no provisions here, or in the rest of the statute, for preventing or punishing false allegations.

The powers of the police are delineated in Section 6. Police may remain on the scene as long as necessary, to “assist the abused person in obtaining medical treatment . . . “assist the abused person in locating and getting to a safe place . . .”, activate “the emergency judicial system when the court is closed for business . . . inform the victim that the abuser[viii] will be eligible for bail and may be promptly released”.

            “When there are no vacate, restraining, or no-contact orders or judgments in effect, arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a person . . .” has committed a felony or assault and battery. While this should go without saying, Section 6 also prefers that the police arrest any person who they believe “has committed a misdemeanor involving abuse as defined in section one of this chapter”. After the defendant “. . . charged with or arrested for a crime involving abuse under this chapter is released from custody, the court or the emergency response judge shall issue, upon the request of the victim, a written no-contact order prohibiting the person charged or arrested from having any contact with the victim and shall use all reasonable means to notify the victim immediately of release from custody.”

Massachusetts law defines “felony” as “a crime punishable by death or imprisonment in the state prison.”[ix] Any other crime is a misdemeanor. To further indirectly define misdemeanor, no man (“male convict”) may be sentenced “to imprisonment or confinement for more than two and one half years . . . in any jail or house of correction.[x] “State prison” is distinct from “jail” and “house of correction”, which are equivalent terms.[xi] Felons may serve time in jails or houses of correction, but those convicted of a misdemeanor may not serve in the state prison, and the sentence shall not exceed two and a half years. 209A therefore authorizes a misdemeanor action to be conducted in a civil court.

Misdemeanors may be tried as civil infractions in other circumstances under Massachusetts law. When this happens, no legal counsel may be assigned, no imprisonment may be imposed, and fines may not exceed those listed for the infraction or $5,000 if not specified. Many other chapters are excluded from this provision, including those for assault and battery and Chapter 209A.[xii]

When the police are involved with this wildcard law the defendant may be labeled an “abuser”, charged with a crime, convicted of the crime in a civil proceeding ex parte, have his liberty severely restricted, granted a civil hearing in about ten days lacking most constitutional protections required for criminal proceedings, and be liable for criminal sanctions if he violates a civil order based on unproven charges.

Also in Section 6, the police must read the alleged victim the rights created by this statute, and provide her with a written copy in her native language where possible:       

 "You have the right to appear at the Superior, Probate and Family, District or Boston Municipal Court, if you reside within the appropriate jurisdiction, and file a complaint requesting any of the following applicable orders: (a) an order restraining your attacker from abusing you; (b) an order directing your attacker to leave your household, building or workplace; (c) an order awarding you custody of a minor child; (d) an order directing your attacker to pay support for you or any minor child in your custody, if the attacker has a legal obligation of support; and (e) an order directing your attacker to pay you for losses suffered as a result of abuse, including medical and moving expenses, loss of earnings or support, costs for restoring utilities and replacing locks, reasonable attorney's fees and other out-of-pocket losses for injuries and property damage sustained. . .”


Section 7 describes abuse prevention orders, domestic violence record search, service of orders, enforcement and violations. When considering a complaint, the judge must have a search made of the domestic violence records to see if outstanding warrants exist, or if the defendant has “a civil or criminal record involving domestic or other violence”. If the judge finds that an “an imminent threat of bodily injury exists to the petitioner”, he must notify the appropriate law enforcement officials. This section details how the orders are to be served and enforced by the courts and law enforcement agencies. “Each abuse prevention order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.”

Fines and punishments for violations of orders are listed, including the maximum penalty allowable for a misdemeanor – “a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction” - and ordering treatment at a certified batterer’s intervention program which has the authority to determine the defendant’s compliance. Additional punishments, including ineligibility for parole, are defined for defendants who are shown to act in retaliation for “being reported by the plaintiff to the department of revenue for failure to pay child support payments or for the establishment of paternity . . .” [xiii]   The defendant may be required to pay the plaintiff for all sorts of damages. In addition to the penalties listed, the courts may enforce their orders with civil contempt procedures.

Section 8 lists the persons and agencies who may gain access to records of cases arising from Chapter 209A. Where the plaintiff or defendant is a minor, the records shall be withheld from public inspection. The plaintiff’s residential information may be kept confidential. Section 9 instructs the courts to jointly promulgate a complaint form for pro se usage by the plaintiff. Section 10 imposes an assessment of three hundred and fifty dollars to any person who has been referred to a certified batterers’ treatment program, in addition to the cost of the treatment.

The foregoing summarizes the provisions that are contained in Chapter 209A. It is worth noting several features that are conspicuous by their absence. Already mentioned is the lack of reciprocity in key sections. The plaintiff cannot violate any of the orders mentioned. She may telephone, follow or stalk the defendant with impunity, forcing him into violating the no-contact provisions of the order. There are no provisions for unintentional violations of the orders. There are no provisions for false allegations. The plaintiff may make the most outrageous charges with complete immunity. There is no mention of the evidentiary standard to be applied at the hearings, except for a “preponderance of the evidence” in probate and family court for temporary custody awards.[xiv] The law contains neither avenue for appellate review nor any mention of the defendant’s access or right to counsel. Completely lacking is any presumption of innocence.

One feature of 209A that must be considered highly unusual should also be summarized here: its entitlement nature.  The law contains a litany of rights and enticements for the plaintiff. She may choose the most propitious venue, may file at any time in almost any court, even by phone or by proxy, may use a special pro se form, and is provided written and verbal exposition of her “rights”, even in her native language. She may use the police for her personal protection and transportation, keep her information confidential and unavailable for public review, pay no fees, utilize various state funded shelters and programs, and gain possession of the wealth and possessions of her accused. Any children from a relationship with the defendant are considered to belong exclusively to the plaintiff.


Reform Legislation        


            Some supporters of Chapter 209A in its current form may concede that at times it has been abused. The forgoing analyses of the law demonstrates quite clearly, however, that the problem is not that Chapter 209A is being abused, but that it is being used. Nonetheless, as a first step in reforming this law, CPF The Fatherhood Coalition has drafted legislation which, when enacted, will eliminate many of the blatant abuses which occur on a daily basis in courtrooms across the state.[xv]

            Among its features, An Act Relative to Abuse Prevention modifies the definition of abuse in Section 1 of Chapter 209A: “placing another in fear of imminent serious physical harm” is replaced by “threatening another with imminent serious physical harm”. The alleged victim’s alleged emotional state can no longer be grounds to obtain a protection order.[xvi] [xvii]

            Sections 3 and 7 of Chapter 209A are amended to remove incentives to obtain a protection order to gain custody of minor children and to deny all contact between the child and other parent.[xviii]

The conditions for extending a protection order are restricted. Section 3 of Chapter 209A is modified so that permanent no-contact orders are no longer permitted. The criteria by which a restraining order can be extended are modified. The fact that there has been no contact between the defendant and the plaintiff can now be used as an argument to not extend the order.[xix]

Disincentives are added for fraudulent protection orders. Section 4 of Chapter 209A is amended with the addition of directions for judges when a plaintiff has lied to obtain a temporary abuse protection order. The court may vacate the order, make a finding of fraud, and hold the plaintiff liable for costs and damages incurred by the wrongfully accused defendant.[xx]

Defendants will be allowed to present evidence in their defense when accused of domestic abuse, and complaints for protection orders must be signed under the pains and penalties of perjury in changes made to Sections 4 and 7 of Chapter 209A.[xxi]

Section 6 of Chapter 209A is changed to permit the police to not make an arrest when making a call for a domestic violence disturbance: “arrest shall be the preferred response . . .” is changed to “an officer may arrest . . .”[xxii]

Violations of no-contact provisions of protection orders must be intentional in language added to Section 7 of Chapter 209A. The word “violation” is replaced by the phrase “intentional violation of the no-contact provisions or any violation of any other provisions”.[xxiii]

Section 7 of Chapter 209A is also amended by removing the gender specific language that selectively mandates punishments for violations resulting directly from a child support or paternity issue.[xxiv]

In addition, An Act Relative to Abuse Prevention also provides a basis for gathering data on the prevalence of restraining orders in divorce and custody litigation.[xxv]

Anyone familiar with the Constitution of the United States, or the Massachusetts Constitution - the oldest in existence - will understand the need for reforming Chapter 209A: Abuse Prevention. Those familiar with the current social crisis caused by fathers being removed from their families by the state courts will comprehend the urgency for change in restraining order law. Everyone concerned with civil rights, equality, justice and due process of law will recognize the glaring deficiencies of this statute. CPF The Fatherhood Coalition has drafted legislation that takes the first step in addressing these most important concerns. The bill has been filed and resides in the Judiciary Committee. An Act Relative to Abuse Prevention must receive a public hearing, be released to both houses of the legislature, approved and signed into law this year. Justice demands it.

Appendix A
SENATE, No. 965

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1.   Section 6B of chapter 208 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by inserting after the word "any", in line 10, the following:—

a listing of any abuse protection orders issued on either party, including date, court of jurisdiction, nature of abuse claimed, and relief granted by the court for the plaintiff.

SECTION 2    Section 46 of said chapter 208, as so appearing, is hereby amended by inserting after the word "granted", in line 4, the following:—

a listing of any abuse protection orders issued on either party, including date, court of jurisdiction, nature of abuse claimed, and relief granted by the court for the plaintiff, an accounting of any attorneys fees awarded,

SECTION 3.   Section 1 of chapter 209A of the General Laws, as so appearing, is hereby amended by striking out paragraph (b), in line 6, in the definition of "abuse" and inserting in place thereof the following paragraph:—

(b) threatening another with imminent serious physical harm.

SECTION 4.   Section 3 of said chapter 209A, as so appearing, is hereby amended by striking paragraph (h), beginning in line 88, and inserting in place thereof the following paragraph:¾

(h) ordering the defendant to refrain from abusing the plaintiff's child, or child in plaintiff's care or custody;

SECTION 5.   Said section 3 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "or to enter a permanent order", in line 105.

SECTION 6.   Said section 3 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, of allowing an order to expire or be vacated, or for refusing to issue a new order", in lines 113 to 116, inclusive.

SECTION 7. Section 4 of said chapter 209A, as so appearing, is hereby amended by adding at the end the following two paragraphs:—

If, at the ten-day hearing after the issuance of a temporary order, the defendant demonstrates by sufficient facts to the court that the plaintiff made misrepresentations about material facts either at the hearing or in the affidavit supporting the complaint in order to obtain the emergency order, the court shall vacate the temporary order, shall make a finding of fraud upon the court, shall sanction the plaintiff an amount deemed just and fair by the court and the statutory costs of this action, and within ten days of the court so finding, shall hold a hearing on the damages, if any, caused to the defendant.  Under this section, the defendant may be awarded actual and punitive damages, reasonable attorney's fees, and costs, including the costs of licensed private investigators.

Upon timely written request of the court by the plaintiff or defendant, at hearing within ten court business days, or at any hearing to extend a restraining order issued under this chapter or Chapter two hundred and eight, such hearing shall be evidentiary and conducted in comportment with the Civil Rules of Evidence.

SECTION 8.   Section 6 of said chapter 209A, as so appearing, is hereby amended by striking out the words "arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a person", in lines 71 and 72, and inserting in place thereof the following:—

an officer may arrest any person that they witness or have probable cause to believe

SECTION 9.   Section 7 of said chapter 209A, as so appearing, is hereby amended by striking out the words "or the plaintiff's minor child", in line 23.

SECTION 10. Said section 7 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "Any violation", in line 42, and inserting in place thereof the following:—

Any intentional violation of the no-contact provisions or any violation of any other provisions

SECTION 11. The fifth paragraph of said section 7 of said chapter 209A, as so appearing, is hereby amended by striking out the last sentence, beginning in line 56 and ending in line 65.

SECTION 12. Said section 7 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "a violation", in line 83, and inserting in place thereof the following:—

an intentional violation of the no-contact provisions or any violation of any other provisions

SECTION 13. Section 9 of said chapter 209A, as so appearing, is hereby amended by adding the following sentence:—

The complaint shall be signed by the plaintiff under the pains and penalties of perjury.

[i] Obvious references to sections of this statute are not cited in end notes.

[ii] C. 265 § 13a covers the crime of assault and battery. Note that actions that are normally misdemeanors become felonies under 209A.

[iii] For the Supreme Judicial Court’s opinion on “family or household members” see C.O.  vs. M.M. SJC-09271

[iv]Inclusive language – male and female pronouns are used where applicable in this essay to reflect the reality of the vast majority of 209A actions. 209A is gender neutral in language, if not intent, except for mention of “establishment of paternity” and “local battered women’s programs” in Section 7.

[v] C. 265 § 43 covers the crime of stalking.

[vi] C. 208 § 34c

[vii] C. 208 § 34b

[viii] The adjective “alleged” appears twice in 209A, in Sections 3 and 7. Depending on your level of concern for civil liberties, it may seem appropriate to insert “alleged” here before “victim” and “abuser”, or this word may be inappropriate for the entire chapter.

[ix] C. 273, § 1

[x] C. 279, § 23

[xi] C. 279, § 6

[xii] C. 277, § 70c

[xiii] Mandating ineligibility for parole is curious here, virtually guaranteeing the intended child support will cease.

[xiv] C. 209A, § 3d

[xv] Senate No. 965 and House No. 833, An Act Relative to Abuse Prevention is included in Appendix A

[xvi] Many of the descriptions in this section are taken verbatim from For the Record, February, 2005, Mark Charalambous, editor.

[xvii] An Act Relative to Abuse Prevention, Section 3

[xviii] Ibid Sections 4 and 9

[xix] Ibid Sections 5 and 6

Ibid Section 7

[xxi] Ibid Sections 7 and 13

[xxii] Ibid Section 8

[xxiii] Ibid Sections 10 and 12

[xxiv] Ibid Section 11

[xxv] Ibid Sections 1 and 2


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