Domestic Violence, Restraining Orders, Divorce and Family Issues

What is domestic violence?
Abuse is loosely defined as placing another person in fear of imminent serious physical harm or attempting to or causing physical harm to another. Threats are usually considered to be enough to issue a restraining order.

Under Massachusetts law a person suffering from abuse may file a complaint in the court, or if court is closed then you can file a complaint with any police department, requesting protection from such abuse. The protection comes in the form of a “209A Order” of what’s known as a protective order against a person who is abusing you and fits within the guidelines as outlined below. Once a court issues an order the police are required to serve the order and render you as much assistance as necessary to ensure your safety. The order will allow for a ten day period if issued by the court, or the next court day if issued by the police, to allow for the defendant against whom the order was issued to appear before the court and show why the order should be vacated or not extended. Both parties are entitled to an attorney and the “victim” is entitled to the assistance of a victim-witness advocate to assist him or her in the proceedings. The issuance of an order is a “civil” matter but the violation of the order is a criminal matter.

The Restraining order will show up on your record.

DEFINITIONS:
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.

“Court”, the superior, probate and family, district or Boston municipal court departments of the trial court, except when the petitioner is in a dating relationship when “Court” shall mean district, probate, or Boston municipal courts.

“Family or household members”, 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) having 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, which shall be adjudged by district, probate or Boston municipal courts 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.

“Law officer”, any officer authorized to serve criminal process.

“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 or those of any other occupant and shall not shut off or cause to be shut off any utilities or mail delivery to the plaintiff. In the case where the premises designated in the vacate order is a residence, so long as the plaintiff is living at said residence, the defendant shall not interfere in any way with the plaintiff’s right to possess such residence, except by order or judgment of a court of competent jurisdiction pursuant to appropriate civil eviction proceedings, a petition to partition real estate, or a proceeding to divide marital property. A vacate order may include in its scope a household, a multiple family dwelling and the plaintiff’s workplace. When issuing an order to vacate the plaintiff’s workplace, the presiding justice must consider whether the plaintiff and defendant work in the same location or for the same employer.

What is a Restraining Order and can it be dropped or changed?

A restraining order is an order of the court that spells out what you may and may not due. It often involves having no contact with the victim and staying away from his/her home and/or place of business and always involves a “No Abuse” order. The only way to drop or change the conditions is to have the victim appear before the judge and ask to have them changed or for the defendant to appear, usually with an attorney, and argue before the judge as to why the certain conditions do not apply or should be changed. Restraining Orders are taken seriously by the courts and the police and you should have someone familiar with these proceedings representing you at this hearing.

Can I be arrested for violating the restraining order if the victim contacts me?

Yes, AND YOU WILL BE! This law leaves no room for the discretion of police officers. If the order prohibits contact and you contact the victim you will be arrested and charged with a criminal violation of the restraining order. The courts take these very seriously and you may end up in jail for the violation. The victim can go to court at any time and ask that the restraining order be vacated. That must be done by the victim IN COURT or else the terms of the restraining order remain in effect.

I was arrested for Domestic Violence but my wife was upset and says that she made a mistake when she called the police. Can she have the domestic violence charges against me dropped?

No, only the District Attorney can drop the domestic violence charges against you and this is unlikely to occur. The prosecutor, not the victim, makes the decision. A victim of domestic violence or spousal abuse often attempts to recant the statement they made to police in order to have the wife abuse, husband abuse, or partner abuse charges dropped against an abusive partner. In the past, this has led to a cycle of continuous abuse. The District Attorney's Office prefers to file charges and let the courts decide issues of domestic violence.

Can I be prosecuted for Domestic Violence if the victim does not press charges?

YES, Domestic Violence or Spouse Abuse crimes are aggressively prosecuted and even if the victim tells the court and prosecutor they do not wish to "press charges", the case will NOT be dismissed. An experienced attorney knows what is necessary to get the case dismissed and can assist you with this. Please contact us at 617-328-6900 and lets us help.

What are some of the routine penalties for the conviction of a Domestic Violence Law?

It depends upon the circumstances of each case. However, first-time offenders are usually placed on probation and required to complete a batterer's program. As these types of crimes are aggressively prosecuted, jail time is routinely sought even in first offense, non-serious injury cases. Our main goal is to get the charges dropped or reduced to a lesser offense and keep you out of jail! Some others penalties can include probation, significant fines, domestic violence counseling, and anger management classes.

What type of counseling could I be required to attend?

Counseling helps batters learn to examine their lives and understand the reasons for their violent behavior. They learn how to walk away from a potentially explosive situation and resolve problems without using violence. They learn that they cannot control their relationships through violence. Attendance will be monitored by the court. There are numerous locations throughout the state offering different dates and times to make attendance easy. Batterers may pay for counseling on an installment plan. If alcohol or drugs are involved the courts will often order the defendant to attend Alcoholics (AA) / Narcotics Anonymous (NA) meetings. There are no dues or fees associated with AA or NA meetings. Meeting locations and more information can be found at:

What are the factors in determining any court penalties?

The penalties depend on the conditions of your case; however what will be considered in the case are the nature, type and duration of the abuse, any prior convictions, whether you are on probation or parole, the viewpoint of the victim, and any mitigating and aggravating circumstances.
Does the victim have to have a visible physical injury for the defendant to be convicted of Domestic Violence or Spousal Abuse?
No. A criminal battery is defined as the unlawful application of force to the person of another. A hit, punch, or kick is not required, just an offensive touching of another is considered a battery. Verbal abuse or mental abuse if coupled with threats can also result in an arrest.

What are some of the defenses for Domestic Violence or Spousal Abuse?

Depending on the specific facts and circumstances of your case, some defenses potentially include self-defense, insufficient evidence, parties not covered by the statute and factual innocence may apply. In Massachusetts spouses do not have to testify against their spouse and in certain instances a 5th Amendment privilege may also limit any testimony against you. An experienced attorney can assist you with these defenses.

If convicted, what alternatives are there to jail?

Some alternatives can include house arrest, electronic monitoring, probation, community service, anger management classes, etc.
If you have been arrested for a Domestic Violence offense then please call us immediately for a FREE CONSULTATION at (617) 328-6900