§ 42A — Bail or personal recognizance; terms and conditions to protect persons suffering physical abuse

Section 42A. Whenever a court issues a criminal complaint and the crime involves assault and battery, trespass, threat to commit a crime, nonsupport, or any other complaint which involves the infliction, or the imminent threat of infliction, of physical harm upon a person by such person's family or household member as defined in section one of chapter two hundred and nine A, the court may, in lieu of or in addition to any terms of bail or personal recognizance, and after a hearing and finding, impose such terms as will insure the safety of the person allegedly suffering the physical abuse or threat thereof, and will prevent its recurrence.Except where prohibited by section 57, for any violation of an order issued pursuant to section 18 or 34B of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of 209A or section 15 or 20 of chapter 209C or any act that would constitute abuse, as defined in section 1 of said chapter 209A, or a violation of sections 13M or 15D of chapter 265, a person arrested, who has attained the age of 18 years, shall not be admitted to bail sooner than 6 hours after arrest, except by a judge in open court. Any person authorized to take bail for such violation under this section may impose conditions on a person's release in order to ensure the appearance of the person before the court and the safety of the alleged victim, any other individual or the community; provided, however, that the person authorized to take bail shall prior to admitting the person to bail, modifying an existing order of bail or imposing such conditions, have immediate access to all pending and prior criminal offender record information, board of probation records and police and incident reports related to the person detained, upon oral, telephonic, facsimile or electronic mail request, to the extent practicable, and shall take into consideration the following: the nature and circumstances of the offense charged, the potential penalty the person faces, the person's family ties, employment record and history of mental illness, the person's reputation, the risk that the person will obstruct or attempt to obstruct justice or threaten, injure or intimidate or attempt to threaten, injure or intimidate a prospective witness or juror, the person's record of convictions, if any, any illegal drug distribution or present drug dependency, whether the person is on bail pending adjudication of a prior charge, whether the acts alleged involve abuse, as defined in said section 1 of said chapter 209A, a violation of a temporary or permanent order issued pursuant to said sections 18 or 34B of said chapter 208, said section 32 of said chapter 209, said sections 3, 4 or 5 of said chapter 209A or said sections 15 or 20 of said chapter 209C, whether the person has any history of issuance of such orders pursuant to the aforesaid sections, whether the person is on probation, parole or other release pending completion of sentence for any conviction and whether the person is on release pending sentence or appeal for any conviction.The person shall, prior to admittance to bail, with or without conditions, be provided with informational resources related to domestic violence by the person admitting the arrestee to bail, which shall include, but not be limited to, a list of certified batterer intervention programs located within or near the court's jurisdiction. If the defendant is released on bail from the place of detention, a reasonable attempt shall be made to notify the victim of the defendant's release by the arresting police department. If the defendant is released on bail by order of a court, a reasonable attempt shall be made to notify the victim of the defendant's release by the district attorney.The commonwealth shall be the only party permitted to move for arraignment, within 3 hours of a complaint being signed by a magistrate or a magistrate's designee, for a person charged with violation of said sections 18 or 34B of said chapter 208, said section 32 of chapter 209, said sections 3, 4 or 5 of said chapter 209A or said sections 15 or 20 of said chapter 209C or was a violation of said sections 13M or 15D of said chapter 265.Such terms and conditions shall include reasonable restrictions on the travel, association or place of abode of the defendant as will prevent such person from contact with the person abused.As part of the disposition of any criminal complaint, the court may establish such terms and conditions of probation as will insure the safety of the person who has suffered such abuse or threat thereof, and will prevent the recurrence of such abuse or threat thereof.Such terms and conditions shall include reasonable restrictions on the travel, association or place of abode of the defendant as will prevent such person from all contact with the person abused; or the payment by the defendant to the person abused of monetary compensation for losses suffered as a direct result of the crime. Compensatory loss shall include, but not be limited to, loss of earnings or support, out-of-pocket losses for injuries sustained, moving expenses and reasonable attorneys fees.In addition, the terms and conditions of either the probation or the disposition of the complaint may include, but not be limited to, referral of the defendant to a clinic, facility or professional for one or more examinations, diagnoses, counseling or treatment; requiring the defendant to report periodically to a probation officer; or release of the defendant to the custody of a residential treatment facility.