Massachusetts Restraining Order Problems

October 24, 2017

 

 

 

Domestic violence has always been an issue. As part of protecting domestic abuse victims, restraining orders is a common way for law enforcement to try to combat the problem. If the police respond to a domestic incident they will advise the victim that he or she can get a temporary restraining order until they can get to the court in the morning and try to extend the restraining order.

 

First off restraining orders are not available for everyone to get. To qualify for a restraining order the plaintiff or the victim must have some type of relationship with the defendant. Now, a relationship doesn’t mean that the victim needs to be married to the defendant. One can get a restraining order against a spouse, a family member that is a blood relative, a parent of his or her child, or someone that he or she was in a serious dating relationship. If you are not related to the defendant in such a way you can’t get a restraining order, but you may qualify for a harassment prevention order.

 

The standard for a restraining order is if the defendant has harmed or attempted to harm the victim physically in any way, caused or likely to cause fear at any moment, or forced the victim to have sex or threatened to have sex. The court will generally allow for a temporary order for a short period of time until the defendant can be notified to come to court to have a full hearing.

 

At the full hearing, the court will listen to both sides and then make a determination if the restraining order needs to be extended. The problem with restraining orders is that a lot of judges are reluctant to not issue them. At many hearings the plaintiff doesn’t have any evidence other than their word that they are being threatened. It is not necessary for them to bring in witnesses, texts, emails, or really any evidence and the court will generally still allow a restraining order. The typical length of a restraining order is for 1 year.

 

Another big issue is that many plaintiffs try go to different courts to get the restraining order. So if one court doesn’t issue the order because of weak evidence, the plaintiff may try to go to a different criminal district court to get one. Also if a plaintiff is denied a restraining order in divorce court, that person can just go to a criminal court to try to get one. It seems that criminal court gives restraining orders much more often than in divorce court. There is nothing that stops a plaintiff from forum shopping.   

 

Having a restraining order causes many issues. First it goes on a person’s board of probation record. If a person doesn’t have a criminal history, a restraining order will be the first entry on their board of probation record. A restraining order in Massachusetts is a civil offense, but the violation is criminal. If a defendant violates a restraining order they can be sentenced to up to two and a half years in jail.

 

Also, restraining orders don’t go both ways, so if the restraining order includes a no contact order that only applies to a defendant. If the victim calls the defendant, the victim isn’t violating the restraining order, but the defendant would be violating the order if he or she answered the phone. The defendant would lose his right to own or have any firearms. And finally, it would restrict what a defendant could do in everyday life. A person may be required to stay away from a certain area where the victim usually goes. This could be a huge issue if the victim and defendant work or go to school at the same place. Restraining orders an important tool to keep abused victims safe. However, there has been no safeguards created to prevent defendants from having restraining orders wrongfully issued against them time and time again.

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