Harassment Prevention Orders in Massachusetts

By Heather V. Baer, Partner

Historically, parties who were subject to harassment or abuse could only obtain court protection preventing the abusing party from contacting or abusing them if the applicant/plaintiff and the defendant were in or had formerly been in a familial, household or substantive dating relationship. Plaintiffs who could demonstrate that they were in such a relationship could, on the appropriate showing, obtain a restraining order pursuant to G.L. Chapter 209A. The requirement of such a relationship left many individuals who were subject to harassment or abuse but who were not in a familial, household or dating relationship with no means of obtaining protection from the court.

The Legislature addressed this need when it enacted G.L. Chapter 258E §3, which went into effect in May 2010. The statute, entitled Harassment Prevention Orders, permits a plaintiff to obtain a court order preventing the harassing or abusing party from harassing, abusing, contacting, or coming within a certain distance of the plaintiff or from going to the plaintiff's residence or workplace. The statute also permits the Court to award monetary compensation for losses suffered by the plaintiff as a direct result of the harassment. The District and Boston Municipal Courts, Superior Court and Juvenile Court have the authority to issue Chapter 258E Harassment Prevention Orders.

The plaintiff applying for a Chapter 258E Harassment Prevention Order must show a pattern of abuse or harassment that consists of at least three acts of willful and malicious conduct aimed by the defendant and committed with the intent to cause fear, intimidation, abuse or property damage. The plaintiff must also prove that they were in fact fearful, intimidated or abused or that their property was damaged. In the alternative, the plaintiff may show a single act in which the defendant, by force, duress or threat, caused another to involuntarily engage in sexual relations or violated certain specific statutes, including indecent assault and battery, rape, assault with intent to rape, enticing a child, criminal stalking, criminal harassment or drugging for sexual intercourse.

The procedure for obtaining a Harassment Prevention Order is similar to the procedure for obtaining a Chapter 209A restraining order. The plaintiff must complete and submit to the court a court-issued form, Complaint for Protection from Harassment, along with an affidavit outlining the facts and circumstances that comprise the harassment and/or abuse. In addition, unlike the Chapter 209A plaintiff, the Chapter 258E plaintiff must disclose to the Court any prior or pending actions involving the parties.

The plaintiff may apply for a Harassment Prevention Order on an ex parte basis (i.e., without prior notice to the defendant) if s/he is able to demonstrate to the Court that there is a substantial likelihood of immediate danger of harassment. If the Court issues the order after an ex parte hearing, it will schedule another hearing within ten business days to determine whether the order should be extended for a longer period of time. The defendant will be notified that the order has been issued and that s/he has the right to appear before the Court at the second hearing to argue against the extension of the order. The plaintiff must attend the second hearing for the order to be extended.

Harassment Prevention Orders may be issued for up to one year. At the expiration of the order, the Court may extend the order on the plaintiff's application. The statute specifically provides that the fact that no harassment occurred during the pendency of the order is not sufficient ground for denial of an application to extend the order.

Like Chapter 209A violations, a violation of the terms of a Chapter 258E Harassment Prevention Order is a criminal offense. A defendant who is found guilty of violating such an order can be sentenced to up to two and a half years in the House of Corrections and/or fined up to $5,000.

If you have any questions about Chapter 258E Harassment Prevention Orders, you should contact an experienced attorney.