Violations of Domestic Restraining Orders and Harassment Prevention Orders.
A restraining order or harassment prevention order is not is not a criminal charge. However, a violation of such an order is a crime.
A restraining order violation in Massachusetts is considered a domestic violence charge by most prosecutors’ offices and will be handled in many cases by a domestic abuse prosecutor.
Restraining order violations are misdemeanors and are handled in the district court. The penalty is up to 2 ½ years in jail and/or a fine of up to $5000.00. In addition, you will likely be required to enter and complete the Batterers’ Intervention Program, which meets two hours per week for forty weeks.
Provisions of restraining orders.
Because they are civil orders and not criminal, the person who requests a restraining order is called the Plaintiff. The person who the order is against is called the Defendant. Restraining and harassment prevention orders can include any of the following provisions:
- Refrain from abusing the Plaintiff;
- No contact with the Plaintiff;
- Vacate your residence if the Plaintiff lives there;
- Stay away from home/work of the plaintiff;
- Custody of children granted to the Plaintiff;
- Stay away/no contact with children;
- Surrender all firearms to the police;
- Other provisions depending on the unique circumstances of your situation.
What is considered a restraining order violation?
A violation of any of the conditions set by the order is a criminal offense. A restraining order violation could arise out of an allegation that you made contact with an individual protected by a restraining order, by appearing either at their home, or their work or within an unacceptable close proximity as defined in the order. It could involve contacting the Plaintiff, or it could be an action construed as “abuse” of the Plaintiff.
Contact can include:
- Pone contact;
- Sending or leaving notes or mail;
- Causing a third party to contact the person on your behalf.
Other violations include a new allegation of abuse of the Plaintiff. This could occur in a situation where you were charged with a domestic assault and battery or assault and battery and at the time of the alleged assault and battery there was an outstanding restraining order. It could also occur if the only provision of the restraining order is “no abuse” of the person, and you get in a verbal argument or make threats to them.
Abuse can include threats, intimidation, or even causing utilities to be shut off at the home where the Plaintiff is living, even if you own the home.
Proving a violation of a restraining order.
In order to convict you of a restraining order violation, the prosecution must prove beyond a reasonable doubt:
- First, that a valid restraining order was issued against you by a court;
- Second, that you received notice that the order was in effect or learned of the terms of the order;
- Third, that you violated a term of the order; and
- Fourth, that the order was in effect on the date and at the time of the violation.
Defenses to a charge of violating a restraining order.
If you were charged with violating a restraining order, you may have viable defenses, including but not limited to:
- You were not served with the order;
- That the contact did not violate the terms of the order;
- That it was unintentional and simply accidental contact;
- Even if there is a technical violation of the order that was not intended to abuse, threaten or intimidate the plaintiff, the penalty may be greatly mitigated.