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NISSENBAUM’S STANDARD SET OF
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209A Soup to Nuts
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6.0 Annotated Discussion of Sections of Chapter 209A
Section 1 of G. L. c. 209A defines "family or household members," as persons who:
(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) hav[e] a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship,
(f) which shall be adjudged by district, probate or Boston municipal courts [upon] consideration of the following factors:
(1) the length of time of the relationship;
(2) the type of relationship;
(3) the frequency of interaction between the parties; and
(4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship."
G. L. c. 209A, � 3 is available to a person "suffering from abuse" by a "family or household member."
"Abuse" defined are acts:
(a) attempting to cause or causing physical harm;
(b) placing another in fear of imminent serious physical harm; or
(c) causing another to engage involuntarily in sexual relations by force, threat or duress."
This language closely approximates the common-law description of assault, see Commonwealth v. Gordon, 407 Mass. 340, 349 (1990), and requires proof of some act that places the complainant in reasonable apprehension that force may be used. Commonwealth v. Delgado, 367 Mass. 432, 436-437 (1975).
Abuse that warrants a protective order in the c. 209A sense implicates physical harm or anticipation of imminent serious physical harm. See Commonwealth v. Gordon, 407 Mass. 340, 349 (1990). Szymkowski, ppa v. Szymkowski, 57 Mass. App. Ct. 284 ( 2003).
Section 3 (b) focuses on both preventing imminent serious physical harm and responding to past abuse. Dollan v. Dollan, 55 Mass. App. Ct. 905 (2002).7
Standard for determining whether a defendant's acts rise to the level of abuse, however, is not subjective. Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002).
Court must look to whether plaintiff's apprehension that force may be used is reasonable. See Commonwealth v. Robicheau, 421 Mass. 176, 181-182. See also Commonwealth v. Gordon, 407 Mass. 340, 349 (in determining whether an apprehension of anticipated physical force is reasonable, a court examines "the actions and words of the defendant in light of the attendant circumstances") both cited with approval in Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002).
"The judge must focus on whether serious physical harm is imminent and should not issue a c. 209A order on the theory that it will do no harm, i.e., 'seems to be a good idea or because it will not cause the defendant any real inconvenience.'" Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 639 (1998) quoting Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995), cited with approval in Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002)
"Generalized apprehension, nervousness, feeling aggravated or hassled, i.e., psychological distress from vexing but nonphysical intercourse, when there is no threat of imminent serious physical harm, does not rise to the level of fear of imminent serious physical harm." Wooldridge v. Hickey, 45 Mass. App. Ct. 637, 638-639 (1998) cited with approval in Carroll v. Kartell, 56 Mass. App. Ct. 83 (2002). See Larkin v. Ayer Div. of the Dist. Court Dept., 425 Mass. 1020 (1997).
Determination of the distance sufficient to provide an appropriate zone of protection for an abused person or family depends upon the facts of each case and the judge's assessment of the threat posed by the abuser. Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002) (500 yard away from plaintiff and one mile from her home deemed proper, given defendant’s prior criminal conviction of having a machine gun and silencer and abuse on plaintiff).
Mutual Restraining Orders.
Section 3, provides, in part:
"A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order."
"Applications for retaliatory abuse prevention orders should be allowed only if the predicate conditions are shown and not as a prophylactic agent to prevent putative violations." Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
There is no authority in c. 209A or case law containing any authority allowing the fear of arrest, even upon innocent contact, as a basis for a reciprocal restraining order. Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
Caution must be used in entering mutual restraining orders as they potentially create confusion for law enforcement authorities, who must interpret conflicting terms contained in the protective orders, and for the parties and courts because each party has been directed not to contact one another. Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
Allowance of mutual restraining orders "chills the abuse prevention system established by G. L. c. 209A, placing the victim in fear of the consequences of strict (or lax) enforcement of prior orders, cf. Sommi v. Ayer, 51 Mass. App. Ct. 207, 210-211 (2001), particularly where ‘contact’ has been broadly interpreted. Commonwealth v. Finase, 435 Mass. 310, 314 (2001). Commonwealth v. Mendonca, 740 NE 2nd 134 Mass App. Ct. (2000)." Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002).
"The stringent requirements in G. L. c. 209A, ' 3, appear not without purpose and reflect a legislative policy against the issuance of mutual restraining orders except in rare instances. See Gender Bias Study of the Supreme Judicial Court 93-94 (1989). See also Note, Why Civil Protection Orders are Effective Remedies for Domestic Violence but Mutual Protective Orders Are Not, 67 Ind. L.J. 1039, 1061-1062 (1992)." Uttaro v. Uttaro, 54 Mass. App. Ct. 871 (2002). (Emphasis added).