Abuse Prevention Orders and Harassment Prevention Orders
Have you been served with an Abuse Prevention Order (commonly known as a Restraining Order) or a Harassment Prevention Order? Did you notice on the order that a hearing was scheduled so that you can contest the extension of the order? Most people will wonder whether it is worth it to contest the extension of the order.
What exactly is an Abuse Prevention Order? Under G.L. c. 209A, if a judge finds that there is a substantial likelihood of immediate danger of abuse, then the judge can issue the Restraining Order ex parte, meaning without notice to the person who is the alleged abuser. The judge will then schedule a hearing 10 days later for both parties to appear. The date and time of the hearing will be on the Abuse Prevention Order which you were served with by the police. At the hearing, the plaintiff can request the order be extended, and you can request the order be terminated. If the judge extends the order, it is usually for a full year and another hearing will be scheduled for a year later to determine whether the order should be extended for another year. The only chance you have to challenge the extension of the order is at the hearing scheduled by the judge. You can represent yourself or hire an attorney. We always recommend you hire an experienced attorney because anything you say at the hearing could be used against you in a later criminal proceeding.
The next question people find themselves asking is what does a judge have to find in order to issue the Abuse Prevention Order? The judge must find the following:
- You and the plaintiff were:
- Married, or
- Residing together in the same household, or
- In a substantive dating relationship or engagement relationship, or
- Related by blood or marriage, or
- Have a child in common
- The plaintiff is suffering from abuse because you:
- Harmed or attempted to harm the plaintiff physically, or
- Put the plaintiff in fear of imminent serious physical harm, or
- Caused the plaintiff to engage in sexual relations involuntarily by using force, threat, or duress
There are many defenses to the extension of an Abuse Prevention Order. One defense is that the plaintiff is making up the allegations. Other defenses center around legal arguments. For example, maybe the plaintiff claims you were in a substantive dating relationship but you claim you were not. If you and the plaintiff only went to the movies a couple times or hung out in a group of friends on a few occasions, then the judge will likely find this does not qualify as a substantive dating relationship and terminate the Restraining Order. At Sweeney & Associates we can assess your case and develop the best strategy to fight the extension of the order.
In other cases, the parties’ relationship does not qualify for an Abuse Prevention Order, but the plaintiff may be able to get a Harassment Prevention Order instead. What is a Harassment Prevention Order? Under G.L. c. 258E, if a judge finds that you are harassing another person then the judge can issue a Harassment Prevention Order butwhat exactly is harassment?
A person is found to be suffering from harassment if:
- Someone has committed 3 or more acts,
-
That were willful and malicious,
- Malicious means the acts were characterized by cruelty, hostility, or revenge
- The acts were aimed at you,
- The acts were intended to cause you fear, intimidation, abuse or damage to property, and
- Did cause you fear, intimidation, abuse or damage to property
A Harassment Prevention Order can also be issued if:
- A person has caused you to engage in sexual relations involuntarily by using force, threat, or duress, or
- Someone has committed an Indecent Assault & Battery, Rape, Statutory Rape, Assault with Intent to Rape, Enticing a Child, Criminal Stalking, Criminal Harassment, or Drugging A Person for Purposes of Sexual Intercourse.
There are multiple defenses to the extension of a Harassment Prevention Order. The first step is to contact us so that we can hear the facts of your case and develop the best possible defense. Often times we will pursue a legal defense that the acts alleged in the affidavit are not sufficient to constitute harassment. Harassment Prevention Orders were meant to protect people from stalking and similar behavior, not to address grievances between neighbors, co-workers, and the like such as a neighbor who shovels their snow onto the other neighbor’s drive way. All too often judges issue Harassment Prevention Orders in an attempt to keep two people away from each other even though the alleged acts do not qualify as harassment. Having an attorney stand up for your rights can make all the difference in whether the order is extended or terminated.
We often get questions from people whether it is worth it to hire an attorney to contest the extension of the Restraining Order or Harassment Prevention Order. The answer is YES! While a Restraining Order and a Harassment Prevention Order are civil in nature, if you violate the order, then you will be charged with a criminal offense. If you are convicted of violating a Restraining Order or Harassment Prevention Order, you face 2 ½ years in the house of correction. There are serious repercussions for violating an Abuse Prevention Order or Harassment Prevention Order.
If you have been served with an Abuse Prevention Order, Harassment Prevention Order, or have been charged with a violation of either order, contact us today at Sweeney & Associates today for a free consultation. We can be reached at mail@rsweeneylaw.com or (617) 328-6900. Don’t delay; we can help you!