Client Compass, Divorce Law Monitor

I have written in the past about 209A Abuse Prevention Orders – the mechanism by which victims of family or household violence can obtain court orders of protection.  Burns & Levinson partners Ronald Barriere and Cici Van Tine recently presented on the issue of divorcing an abusive spouse, which included discussion of the protections available. But what about someone who is being harassed or abused by someone who is not a spouse, family, or household member?

Under Chapter 258E of the Massachusetts General Laws, someone who is the victim of harassment can request an Order from the Superior Court, District Court, Boston Municipal Court, or Juvenile Court (for parties under age 17) to prevent harassment or abuse.  Unlike when seeking a Chapter 209A Abuse Prevention Order, a party seeking a Chapter 258E Order is not required to show that the parties are related or have a history of any type of marital or dating relationship.  Anyone can obtain a 258E Harassment Prevention Order upon a showing of harassment.

Harassment for purposes of obtaining a 258E Order is defined as (i) 3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse, or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; or (ii) an act that by force, threat or duress causes another to involuntarily engage in sexual relations or violates certain criminal laws relating to assault and battery / sexual assault/rape. A party seeking a 258E Order can request that the Defendant be ordered not to abuse the victim, that the Defendant not contact the victim, that the Defendant stay away from the victim’s home and place of employment, and that the Defendant compensate the victim for any financial losses resulting from the harassment. The victim is also entitled to seek protection for any pets as part of a 258E Order. Violation of a 258E Harassment Prevention Order is a criminal offense and is punishable by a fine of up to $5,000 or imprisonment up to 2.5 years, or both.

A judge cannot, as part of a 258E Order, include provisions for custody of children, order someone to vacate a residence or order the Defendant to surrender firearms – all of which can be obtained as part of a 209A Restraining Order.  A judge also does not have the authority to prohibit a Defendant from posting images and words about the victim online or in public places, unless the postings are “fighting words” or “true threats.”  In the August 2020 decision of A.G. v. K.O., the Trial Court issued a 258E Order preventing the Defendant from going to the victim’s place of employment after he left an agitated voicemail for the victim (the administrator of a nursing home where Defendant’s mother was a resident), came to her place of employment (the nursing home) and screamed obscenities at her, and then found and went to the neighborhood in which she lived and distributed flyers designed to damage her reputation. The Defendant’s presence in her neighborhood made the victim fearful for her physical safety. The Trial Court also ordered the Defendant not to post pictures or comments about the victim anywhere, including online or in public places, which the Appeals Court held was improper. Because the Defendant’s derogatory postings about the victim were not “fighting words” or “true threats,” they were not designed to cause the victim fear of harm.  Speech intended to cause fear of economic loss or unfavorable publicity cannot be prohibited as harassment. Such speech (including online postings) is considered protected as free speech under the 1^st Amendment to the United States Constitution.

Until next time,

Robin