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Introduction
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. |
