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Home Summary Index 209A
 

  NISSENBAUM’S STANDARD SET OF

  SUMMARIES OF LAW

209A Soup to Nuts

 

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11.0 Violation of c. 209A order / Jury Instructions

Commonwealth must prove that:

  •  a valid G. L. c. 209A order was entered by a judge;

  •  order was in effect on the date of the alleged violation;

  •  defendant had knowledge of the order; and

  •  the defendant violated the order. Comm. v. Habenstreit, 786 N.E. 2nd  425 (2003)

 

To convict a defendant, Commonwealth must prove beyond a reasonable doubt that .... defendant violated the order. Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997).

Intent is not an element of the crime of violating a c. 209A order. "The statute . . . requires no more knowledge than that the defendant knew of the order. We decline to read any additional mens rea requirements into the statute." Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997).

A conviction does not require proof of actual intent to violate an order. Commonwealth v. Collier, 427 Mass. 385, 388 (1998). (Where son drove defendant, without defendant’s acquiescence, to place within impermissible proximity to the protected person, and "[w]here the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in the violation." Id. at 389-390), cited with approval in Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).

The traditional view is that, in the absence of specific language to the contrary, the Legislature does not intend to make accidents and mistakes crimes. Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982), citing State v. Brown, 38 Kan. 390, 393 (1888).

The "'long-standing' common-law principle is that, absent contrary indication from the Legislature, it is assume the Legislature did not intend to make a crime out of an accident or mistake.

Commonwealth v. Finase, 435 Mass. 310, 315 (2001), quoting from Commonwealth v. Collier, 427 Mass. 385, 388 (1998). Commonwealth v. Raymond, 54 Mass. App. Ct.448, 493 (2002).Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002).

Defendant "cannot be convicted of violating a 'no contact' [or stay away] order issued under c. 209A where the contact occurs in circumstances where [he] did not know, and could not reasonably have been expected to know," of the proximity of the plaintiff or his children. Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 493 (2002);