Violation of a 209A Order
Every restraining order that is issued in Massachusetts has on it in capital and bold letters the following admonition:Violation of This Order is a Criminal Offense
Massachusetts General Laws Chapter 209A Section 7 (G.L. c. 209A §7) makes it a crime to violate the terms and conditions of restraining orders in Massachusetts. A conviction of this offense permits a judge to sentence an individual to up to two and one half years in the county house of correction and or a fine of up to five thousand dollars. Anyone convicted of this offense is usually ordered to complete a batterer’s program unless the judge makes “specific written findings describing the reasons that batterer’s intervention should not be ordered”. Judges are not to order any type of alternative or substitute for the batterer’s program. Even though this crime is a misdemeanor it is taken very seriously by district attorneys and judges in Massachusetts. Failing to abide by the terms of the Restraining Order can be devastating if not properly defended.
Elements of the Offense of a 209A Violation
In order to convict someone of Violating a Restraining Order in Massachusetts the district attorney must prove four elements beyond a reasonable doubt:
- That a Court had issued an Order pursuant to Massachusetts General Laws Chapter 209A and that the order commanded the accused to refrain from contacting or abusing the complainant or from going near the victim or to leave the home;
- The Order must have been in effect at the time of the alleged violation of the 209A Order; in other words, it could not have expired or the act of violation the order did not precede this issuance of the order;
- That the defendant knew that the Order was in effect; and
- That the defendant violated the order by either contacting, abusing, failing to vacate the home or by failing to remain away from the victim.
The defendant must have actual knowledge of the Order and its terms. If he or she did not then there is no violation of the order. Service of the order on the defendant’s last and usual address usually constitutes valid service and imputes knowledge to the defendant that a 209A Order has been issued and that he is aware of its contents. While there is no requirement that the prosecution show that the defendant intended to violate the order the district attorney must show that the defendant intended the act that caused the violation. Incidental contact with a victim does not constitute a 209A Violation. Thus, in cases where the defendant is accused of violating the restraining order a legitimate defense can be made that the accused had no idea that the victim was present and that contact occurred during the course of permitted activity.If I Violate a Restraining (209A) Order in Massachusetts Will I go to Jail?
The answer to this question depends on several factors. First, at what stage is the case? If you have just been accused of a 209A violation you will be arraigned and bail might be argued. Jail pending trial or a resolution of the case is a possibility depending on the nature of the allegations underlying the violation, your criminal record and an assessment of your danger to the complainant.
Second, if you have been convicted of violating the restraining order then sentencing options are to be considered by the judge. Issues impacting the punishment can contemplate the following: What specific portion of the order was violated? If the order required you to stay 100 yards away from the complainant and you violated that condition by just a few yards then perhaps not. However, if it can be determined that your purpose in “crossing the line” was to intimidate the protected party then you may have some problems. Who is the judge hearing the case? Some judges have zero tolerance for so much as an accusation that someone violated a 209A order. Other judges are more level headed and take the time to hear the parties’ positions and impose a sanction more appropriate than jail. What your history in terms of compliance with the 209A order? If you have a history of disobeying the order the consequences might be more significant than if you have substantially complied for a significant period of time.
There is no substitute for an Experienced Criminal Lawyer. Attorney Stephen Neyman has the experience you need to defend any criminal accusation. Call our office at 617-263-6800 or email us with any questions about your criminal case.