A.R. v. L.C.

108 N.E.3d 490, 93 Mass. App. Ct. 758
Massachusetts Appeals Court·Decided August 17, 2018·No. No. 16-P-1013·Published·Cited by 13 cases

Opinion

RUBIN, J.

*492*758In this appeal from the issuance of two "harassment prevention orders" under G. L. c. 258E, we are faced once again with the consequences of the variance between the plain language of the statute and the narrowing construction given the statute in O'Brien v. Borowski, 461 Mass. 415, 961 N.E.2d 547 (2012) ( O'Brien ).

Chapter 258E and its limiting construction. As it reads in the statute books, G. L. c. 258E provides that a protective order shall issue based upon a finding of "harassment." The statute defines *759harassment to mean "[three] or more acts of willful and malicious conduct aimed at a specific person," each of which must be "characterized by cruelty, hostility or revenge" and "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." G. L. c. 258E, § 1, inserted by St. 2010, c. 23. (The statute also provides independently for issuance of an order based on acts that "by force, threat or duress cause[ ] another to involuntarily engage in sexual relations," or that constitute violations of statutes prohibiting indecent assault and battery, rape, rape and abuse, assault with intent to commit rape, enticement, stalking, criminal harassment, and drugging persons for sexual intercourse. G. L. c. 258E, § 1. That provision is not at issue in this case.)

The statute was passed to fill a gap left by G. L. c. 209A, which allows individuals to seek abuse prevention orders against family or household members. Violation of such an order is punishable as a crime. However,

"[a] person who is abused by someone other than a 'family or household member' does not qualify for a protective order under c. 209A and could obtain a restraining order only by seeking relief in the Superior Court under Mass. R. Civ. P. 65 .... Violation of such a restraining order may constitute a contempt of court, but is not a crime.... Chapter 258E was enacted in 2010 to allow individuals to obtain civil restraining orders against persons who are not family or household members, and to make the violation of those orders punishable as a crime."

O'Brien, supra at 419, 961 N.E.2d 547.

The seriousness of an order under c. 258E is reflected not only in the fact that violation is a criminal offense, but in the fact that records of all such orders are entered in the Statewide domestic violence registry from which they may never be removed even if there was an insufficient legal or factual basis for their issuance. See G. L. c. 258E, § 9 ; J.S.H. v. J.S. 91 Mass. App. Ct. 107, 109-110, 71 N.E.3d 910 (2017) ( J.S.H. ).2 Such an order thus has significant and essentially indelible consequences for the person against whom it issues.

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A.R. v. L.C., 108 N.E.3d 490, 93 Mass. App. Ct. 758 (Mass. Ct. App. 2018).

108 N.E.3d 490 (A.R. v. L.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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