258E Harassment Prevention Order FAQ
Q. What is a 258E Harassment Prevention Order?
A. The Act to Prevent Harassment, codified as Massachusetts General Laws Chapter 258E, was signed into law by Governor Deval Patrick on February 9, 2010, and became effective on May 10, 2010. A 258E harassment prevention order is a civil order intended to provide protection from violent or threatening acts, abuse, communication, contact and harassment. It unquestionably broadened who could qualify to petition for a protective order and also implemented a standard higher than that required for the issuance of a 209A abuse prevention order. Despite their differences, both 258E and 209A orders are commonly referred to as “restraining” orders. Please also visit the 209A Restraining Order FAQ page.
A 258E harassment prevention order is specifically designed to protect alleged victims of stalking, sexual assault or harassment. Apart from the eligibility criteria, a 258E harassment prevention order is much like a 209A abuse prevention order. The most important difference between them is that there is no family, dating or cohabitation relationship requirement in order to qualify for a 258E harassment prevention order. In other words, the plaintiff does not necessarily need to personally know the defendant and 258E orders can be issued against neighbors, acquaintances, co-workers, employers, employees, colleagues, contractors, vendors or even complete strangers. Another key difference lies in the form of relief that is available and further discussed below.
Q. What courts can issue a 258E Harassment Prevention Order?
A. The proper venue for a 258E harassment prevention order is in the District Court, the Boston Municipal Court, the Superior Court or, if the plaintiff and defendant are both under the age of 17, the Juvenile Court. Unlike a 209A restraining order, a 258E harassment prevention order cannot be issued by the Probate and Family Court. The courts that hear 258E cases also handle criminal cases. The Probate and Family Court, which also hears 209A cases, does not handle criminal cases. Because much of what Chapter 258E defines as harassment are crimes, judges that handle criminal cases are typically better suited to adjudicate alleged criminal violations of a 258E harassment prevention order.
Q. How does it affect me and can I fight it and win?
A. While the actual 258E harassment prevention order itself is civil in nature, it can easily transform into a criminal nightmare if it is alleged that you have violated any of the conditions of the order, whether or not you actually have done so. In an age in which crimes of violence are a tremendously growing public concern, the police, prosecutors and courts now take 258E harassment prevention order violations extremely seriously and criminal punishment can be swift and severe. Additionally, a criminal record of alleged violence can be devastating to one’s general reputation, not to mention current jobs and future employment prospects, current schooling and future school applications, private and public housing eligibility, gun licensing, eligibility for public benefits, divorce proceedings, adoption proceedings, bail hearings, and even things such as the ability to chaperone children to and from a school event or to coach youth sports, amongst many other things. It is therefore critical to do everything possible to avoid the issuance or extension of a 258E harassment prevention order so that you do not become subject to either potential future criminal prosecution or miserable life-changing effects.
Fighting the issuance of a 258E harassment prevention order is oftentimes very difficult, but it can be done with proper legal representation and case preparation. Different strategies and tactics can be employed to show that the allegations against you are false or greatly exaggerated. If you are the victim of false allegations of harassment or abuse, you should strongly consider consulting a highly competent attorney familiar with all aspects of 258E harassment prevention orders. This would include not only contesting the issuance or extension of the civil order itself, but also defending against any potential future alleged criminal violations and, finally, expunging the damaging lifetime civil record of the 258E harassment prevention order from the Statewide Domestic Violence Registry Index. For a more detailed discussion on expunging records, please visit the Expunge A Restraining Order Record page.
The Statewide Domestic Violence Registry Index is part of the Court Activity Record Index, commonly referred to as the “CARI” system. The Criminal Offender Record Information (“CORI”), which is your criminal record, also falls under the auspices of CARI. The Office of the Commissioner of Probation is the state agency responsible for CARI data entry. The Department of Criminal Justice Information Services (“DCJIS”) is the state agency responsible for dissemination of CORI information as part of a criminal background check.
Q. What is the legal definition of harassment?
A. To obtain a harassment prevention order under Chapter 258E, an individual must demonstrate that he or she has suffered from “harassment.” There are three alternate definitions of harassment noted in the statute.
The first is defined as “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.” In other words, there are five required elements: (1) There must have been three or more acts of harassment; (2) each act committed must have been aimed at a specific person; (3) each act must have been both willful and malicious; (4) each act must have been done with the intent to cause fear, intimidation, abuse or damage to property; and (5) each act must have caused fear, intimidation, abuse or damage to property. While “willful” is not specifically defined in the statute, it is generally held that willful and malicious property damage requires that the defendant intend both the act and the resulting harm, whereas willful and malicious criminal harassment requires only that the defendant intend the act and does not require evil intent or ill will. “Malicious” is defined in the statute as conduct characterized by “cruelty, hostility or revenge.”
The second is defined as an act that “by force, threat or duress causes another to involuntarily engage in sexual relations.”
The third is defined as an act that “constitutes a violation of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or 43A of chapter 265 or section 3 of chapter 272.” The enumerated statutes are Chapter 265, Subsections 13B (indecent assault and battery on a child under the age of 14); 13F (indecent assault and battery on a mentally retarded person); 13H (indecent assault and battery on persons 14 years or older); 22 (rape); 22A (rape of a child/use of force); 23 (rape and abuse of a child/statutory rape); 24 (assault with intent to commit rape); 24B (assault of a child with intent to commit rape); 26C (enticement of a child); 43 (criminal stalking); or 43A (criminal harassment). Section 3 of Chapter 272 is drugging persons for sexual intercourse.
Q. What constitutes abuse?
A. The Act to Prevent Harassment, Chapter 258E, defines abuse as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm.” In contrast to a 209A restraining order, there is a significantly greater burden on the plaintiff to obtain a 258E harassment prevention order because it requires the plaintiff to first prove that the defendant’s conduct satisfies the statutory definition of harassment.
Q. How is “harassment” or “abuse” interpreted by the courts?
A. This is certainly a loaded question. Despite the presumably objective intent of the legal system, the interpretation of it is arguably subjective. This is precisely why case law is continually being created to interpret legal statutes. Courts will typically rule on a case-by-case basis while attempting to balance various factors such as the alleged facts, prior history between the parties, prior criminal records and propensity toward violence, and credibility of the witnesses. One should bear in mind that, like everything else in life, laws and legal definitions are also subject to interpretation, and there are both reasonable and unreasonable judges. That caveat aside, it is not necessary for a plaintiff to allege and satisfy all three of the aforementioned legal definitions of “harassment” in order to obtain a 258E harassment prevention order but only one, or more, of the three.
Q. Who can obtain a 258E harassment prevention order?
A. Any person who alleges that they are being harassed can file as a plaintiff for a 258E harassment prevention order. It also does not matter who the accused individual is. In contrast to a 209A abuse prevention order, a dating relationship is not necessary and it is not required that the defendant is a present or former domestic partner, a family or household member, or that the parties have a child in common. The defendant in a 258E action can be either a known individual or a complete stranger to the plaintiff. Some examples include, but are not limited to, a neighbor, friend, acquaintance, teammate, contractor, vendor, teacher, student, employer, employee, co-worker, colleague, clergy, stalker, random motorist or passerby.
It is also possible that the defendant in a 258E case can also be any person who could potentially be a defendant in a 209A case; that is, an individual who was formerly or is currently in a domestic relationship with the plaintiff as defined under Chapter 209A, and it is sometimes a strategic consideration whether a plaintiff should seek a 258E or a 209A restraining order. The wrong decision could possibly provide a legal basis to later have the record of the restraining order expunged. A knowingly false statement in the application to an order, in the affidavit, or in the testimony, could trigger the necessary “fraud” to expunge the civil record of the order from the Statewide Domestic Violence Registry Index. For a more detailed discussion on expunging records, please visit the Expunge A Restraining Order Record page.
Q. What can and can’t be ordered under a 258E harassment prevention order?
A. In a nutshell, the judge can order the defendant to do one or more of the following things: (1) refrain from abusing or harassing the plaintiff; (2) stop contacting the plaintiff, unless authorized by the court; (3) stay away from the plaintiff’s household or workplace; and, (4) pay restitution in certain circumstances; that is, pay the plaintiff monetary compensation to reimburse for losses that resulted from the harassment, such as loss of earnings from work, medical expenses, damage to property, cost of replacement locks, cost for obtaining an unlisted phone number, reasonable attorney fees, etc. A judge cannot order other forms of relief that may be available under a 209A abuse prevention order, such as orders to vacate the home, suspension and surrender of firearms, firearms licenses or firearms identification, compensatory losses for moving expenses, and orders involving temporary child custody, support and visitation.
The potential penalty and punishment for violating a 258E harassment prevention order is up to 2-1/2 years in the House of Correction or a $5,000 fine, or both.
Q. What is an ex parte order?
A. The initial 258E harassment prevention order can be issued ex parte. This is a Latin legal term meaning “by or for one party” or “by one side” and refers to situations in which only one party (and not the adversary) appears before a judge. An ex parte decision is one decided by a judge without requiring all of the parties to the controversy to be present.
Under the Fifth Amendment to the U.S. Constitution, “No person shall … be deprived of life, liberty, or property, without due process of law.” A bedrock feature of due process is fair notice to parties who may be affected by legal proceedings. An ex parte judicial proceeding, conducted without notice to, and outside the presence of, affected parties, would appear to violate the Constitution. However, adequate notice of judicial proceedings to concerned parties may at times work irreparable harm to one or more of those parties. In such a case, the threatened party or parties may receive an ex parte court hearing to request temporary judicial relief without notice to, and outside the presence of, other persons affected by the hearing.
Ex parte judicial proceedings are usually reserved for urgent matters where requiring notice would subject one party to irreparable harm. For example, a person suffering abuse at the hands of a spouse or significant other may seek ex parte a temporary restraining order from a court, directing the alleged abuser to stay away from him or her. A court order from an ex parte hearing is swiftly followed by a full hearing between the interested parties to the dispute. In the case of a 258E harassment prevention order, this full hearing is known as the 10-day hearing (usually no later than 10 court business days). State and federal legislatures maintain laws allowing ex parte proceedings because such hearings balance the right to notice against the right to use the legal system to avert imminent and irreparable harm. Far from violating the Constitution, the ex parte proceeding is a lasting illustration of the elasticity of due process.
Q. When will I know that a 258E harassment prevention order has issued against me?
A. You will not initially know that an ex parte 258E harassment prevention order has issued against you. You will only be officially notified of the 258E harassment prevention order when you are served. The court will not hold a 10-day hearing until it receives a return of service indicating that you have been noticed of the full hearing, and the ex parte order is valid only until this hearing date. You cannot violate a restraining order if you have not been properly served because you arguably have no legal notice of it.
Q. What is the 10-day hearing?
A. The 10-day hearing is a full two-party evidentiary hearing that is, if possible, usually held 10 court business days after the ex parte hearing. The 10 days is not always a hard and fast rule since weekends and holidays oftentimes come into play. If you have not been served, the court will postpone the hearing until service is made. The parties can also mutually stipulate to continue the hearing for strategic purposes, or a defendant can otherwise request that the court continue the hearing in order to buy more time to obtain necessary evidence or procure essential witnesses.
Assuming that service is properly made, you must appear at the 10-day hearing. Failure to appear at this hearing can be catastrophic as the restraining order can extend by default if the plaintiff simply appears, and without your voice being heard in opposition. At this hearing, you will have the opportunity to defend yourself and to prevent the 258E harassment prevention order from extending, meaning you will seek to have it vacated. You can cross-examine the plaintiff and other adverse witnesses, and present both testimonial and documentary evidence. You can elicit the testimony of favorable witnesses, and you can summons police officers or even hostile witnesses who might be able to provide exculpatory evidence on your behalf.
However, you must exercise extreme caution not to incriminate yourself by testifying at this hearing and, generally speaking, should probably refrain from testifying if there is a collateral criminal proceeding pending against you. It is therefore critical that you retain competent legal counsel since this hearing will probably be your one and only bite at the apple for perhaps another year. It is also crucial that your rights to later expunge the record of the ex parte 258E harassment prevention order are properly preserved for the record. For a more detailed discussion on expunging records, please visit the Expunge A Restraining Order Record page.
Q. How long does a 258E harassment prevention order last?
A. A 258E harassment prevention order will last for as long as the judge orders it. Generally speaking, once a judge extends the restraining order beyond the 10-day hearing, it is customarily for a period of one year. However, a judge can also term a restraining order for a shorter period of time before the next scheduled full evidentiary hearing to determine whether or not it should again be extended or otherwise be vacated. A judge also has the statutory power to issue a “permanent” restraining order, usually exercised only after the first or second year elapses. Needless to say, you should do everything in your power to prevent this tragic outcome.
Q. Does the 258E harassment prevention order go on my criminal record?
A. No. Contrary to what many uninformed court employees, attorneys or even judges might otherwise tell you, a 258E (or 209A) restraining order does not appear on your criminal record. The restraining order itself is civil in nature and only becomes criminal if it is alleged that you have violated it and have been charged with that crime. In that instance, the actual crime of violating the restraining order will appear on your criminal record. However, be careful not to confuse the initial civil record created by the issuance of the restraining order with the resulting criminal violation, as they are two entirely separate and distinct matters.
CARI is the abbreviation for Court Activity Record Index and is the umbrella that covers several databases. These include CORI (criminal offenses), CHINS (“children in need of services,” i.e., truants, runaways, disobedient children), care and protection proceedings (neglected or abused children; foster care; family reunification; parental termination; adoption), sexually abused children, and the Statewide Domestic Violence Registry Index (258E and 209A civil restraining orders). CORI is the abbreviation for Criminal Offender Record Information, which is your actual criminal record. Your CORI shows only crimes that you were charged with, even if you were not convicted. It does not display records of civil proceedings or civil orders. Neither does it show adjudications of civil motor vehicle infractions, which is strictly the function of the Registry of Motor Vehicles, an agency that maintains its own unrelated records database. Civil records of restraining orders are maintained in the Statewide Domestic Violence Registry Index, and not in CORI. The existence of a civil restraining order record is not disclosed as part of a routine criminal background check and is obtained by other means by agencies, cities, towns, employers, schools, public housing authorities, private landlords, licensing authorities, etc. The exception to this rule is that the police or the probation department can obtain a criminal defendant’s record of civil restraining orders when it obtains the criminal record, and can cite it for bail purposes, dangerousness hearings and other reasons relevant to criminal proceedings.