8:00 Commentary
Guidelines for Judicial Practice
Abuse Prevention Proceedings

8:00 COMMENTARY

Violation of an order under G.L. c. 209A (1) to refrain from abuse, (2) to vacate the household, (3) to surrender guns, ammunition, licenses to carry firearms and firearms identification cards, or (4) forbidding contact with the plaintiff, is a statutory crime. See Commonwealth v. Gordon, 407 Mass. 340, 344-345 (1990). Such offenses may be prosecuted in the court within whose territorial jurisdiction the alleged offense occurred, G.L. c. 218, § 26, or in the court that issued the c. 209A order. G.L. c. 277, § 62A. See Guideline 6:05 and commentary thereto, pertaining to gun licenses and FID cards.

G.L. c. 209A, § 5A provides that "any protection order issued by another jurisdiction, as defined in section one, shall be given full faith and credit throughout the Commonwealth and enforced as if it were issued in the Commonwealth for as long as the order is in effect in the issuing jurisdiction." G.L. c. 209A, § 7 includes foreign orders in the list of orders the violation of which are subject to criminal prosecution. See Appendix A and Guideline 14:00.

Consequently, orders issued by other states may be prosecuted in Massachusetts. Since such orders were issued by other states, venue for prosecution for violations of such orders would lie in the jurisdiction where the violation occurred. [Back]

8:01 COMMENTARY

Violation of a vacate, refrain from abuse, or no-contact order issued under G.L. c. 209A, §§ 3, 4 or 5, G.L. c. 209, § 32, c. 209C, §§ 15 or 20, and G.L. c. 208, §§ 18, 34B or 34C is a criminal offense punishable under c. 209A, § 7 by a fine of not more than $5,000 or by imprisonment for not more than 2-1/2 years in a House of Correction, or both fine and imprisonment. Similarly, violation of a protection order issued by another jurisdiction is subject to criminal punishment. See Appendix A, G.L. c. 209A, §§ 5A and 7, and Guideline 14:00. Violation of an order to surrender firearms, rifles, shotguns, machine guns, ammunition, licenses to carry firearms and firearms identification cards is a criminal offense, punishable under G.L. c. 209A, § 3B, by a fine of not more than $5,000, or by imprisonment for not more than 2-1/2 years in the House of Correction, or both fine and imprisonment. Also, violation of a c. 209A vacate order is included under the specific crime of trespass (see G.L. c. 266, § 120) and under the specific crime of stalking (see G.L. c. 265, § 43, as amended by St. 1996, c. 298, § 12; see also Guidelines 8:07 and 14:00). A plaintiff who comes to court complaining of a violation of an order should be informed of the right to file a criminal complaint application for these crimes and any other crime that may have been committed.

It is important to note that the act that constituted the violation of the order may also itself be a separate crime (e.g., assault and battery). Charging both is not duplicative. In the alternative, all violations of the orders described above may be punished as contempt of court in the court which issued the order. Contempt is the only avenue for punishing violations other than vacate, refrain from abuse, no-contact and gun surrender orders (e.g., failure to pay support or restitution, to turn over keys, etc.). See Guidelines 8:02 and 9:00.

Criminal violations of c. 209A orders issued by the Probate and Family Court must be prosecuted in the appropriate District Court, Boston Municipal Court, or Superior Court because, under G.L. c. 209A, § 7, the Probate and Family Court does not have criminal enforcement authority except in cases of contempt. SeeGuidelines 8:02 and 9:00.

The law provides that when the police are provided with probable cause to believe that a c. 209A refrain from abuse, no-contact or vacate order (or any such protective order issued under G.L. c. 209, § 32; c. 209C, §§ 15 or 20; c. 208, §§ 18, 34B or 34C) or protection order issued by another jurisdiction has been violated, an immediate warrantless arrest is required. G.L. c. 209A, § 6(7), as amended. Such mandatory arrests are made possible without a warrant by G.L. c. 276, § 28. The failure to surrender guns, ammunition, licenses to carry firearms and firearms identification cards under G.L. c. 209A, § 3B and C also gives rise to mandatory, warrantless arrest, pursuant to c. 209A as amended by St. 1996, c. 298, §§ 6, 13 and 14.

Despite the law (or when police feel they do not have probable cause), victims of abuse are occasionally referred to court to file a complaint application and to seek a warrant. Rather than refer a victim back to the police, this Guideline urges that the court should respond promptly to the complaint application. Clerk-Magistrates office personnel should fully explain to the victim the purpose and effect of the criminal procedure. A hearing on the application can and should proceed immediately, without notice to the accused, if one or more of the statutory grounds for eliminating notice are present, namely, imminent threat of bodily injury, of the commission of a crime, or of flight from Massachusetts. G.L. c. 218, § 35A. The matter can also proceed without notice if a felony is alleged. See Guideline 2:11.

The court (usually the Clerk-Magistrate or an Assistant Clerk-Magistrate at this stage of proceedings) has discretion to issue a warrant rather than a summons, Mass. R. Crim. P. 6(a)(2), and this Guideline recommends prompt issuance of a warrant if probable cause for the alleged crime is found.

Because delay can create danger to an abuse victim, any apparent confusion on the part of the police regarding their obligation for immediate, warrantless arrest should be the subject of discussion between court and police personnel. In particular, arrest as the "preferred" response by the police should be distinguished from mandatory arrest. When the police confront a situation of alleged "abuse" as defined in G.L. c. 218, § 1, with no c. 209A order then existing, they are instructed that, if they have probable cause to believe a crime has been committed, arrest is the preferred response. G.L. c. 209A, § 6(7). Under this law, they are free to make a warrantless arrest, even though they did not observe the offense and it is a misdemeanor, if it involves abuse as defined in § 1 of c. 209A.

However, police may not make a warrantless arrest for the crime of threatening to commit a crime, G.L. c. 275, § 2, even though the threat involves abuse, because G.L. c. 275, § 3 contains specific requirements for issuing a warrant for "threats." Commonwealth v. Jacobsen, 419 Mass. 269, 273-274 (1995). When a defendant's words place the victim "in fear of imminent serious physical harm," the defendant may be charged instead with the crime of assault. G.L. c. 265, § 13A. In such a case, a warrantless arrest is permitted and, in fact, is the "preferred response" under G.L. c. 209A, § 6(7).

Where the police are provided with probable cause to believe that an existing refrain from abuse, no-contact or vacate c. 209A order or protection order issued by another jurisdiction has been violated, they are required to make a warrantless arrest. G.L. c. 209A, § 6(7), as amended. See G.L. c. 276, § 28. The authority to make such arrests is provided in G.L. c. 276, § 28, and the use of that authority is mandated by G.L. c. 209A, § 6(7).

A defendant accused of violating a c. 209A order is entitled to a hearing pursuant to G.L. c. 218, § 35 before the issuance of a misdemeanor complaint against him or her. Commonwealth v. Tripolone, 44 Mass. App. Ct. 23, 27-28 (1997)(dismissal of complaint affirmed). In Tripolone, the Trial Court Judge found that the request for a hearing was denied on the basis of a policy issued by a First Justice, "directing the automatic issuance of a complaint without a prior hearing where there has been alleged a violation of a 209A order." Id. at 25. The Appeals Court found that this policy "conflicts directly with the statutory requirement that there be a hearing unless there is a showing sufficient to satisfy the judge that one of the statutory exceptions is available." Id. at 27. The statutory exemptions to the hearing requirement are imminent threat of bodily injury, the commission of a crime or flight from the Commonwealth by the person who is the subject of the complaint. Id.

See Guideline 14:00, generally, regarding orders issued by other jurisdictions. [Back]

8:02 COMMENTARY

By statute, only violations of orders to refrain from abuse, to surrender guns, ammunition, and gun licenses, for no-contact, or to vacate a household, multiple family dwelling or workplace, can be prosecuted as statutory crimes. However, these violations can, as an alternative, be prosecuted as criminal contempt of court or be the subject of civil contempt proceedings. Violations of any other types of c. 209A orders (e.g., compensation, support or custody) are not statutory crimes and can be prosecuted only as criminal or civil contempt.

In a case where the violation of an order also gives rise to serious felony charges (e.g., assault with intent to murder, mayhem, rape, or kidnaping) or to an assault and battery with serious injuries, the court should proceed cautiously. Punishing the defendant for criminal contempt would likely preclude criminal prosecution on the underlying felonies or the assault and battery. See Mahoney v. Commonwealth, 415 Mass. 278, 283-287 (1993), and cases cited therein.

Suggested charging language to be set forth on a complaint charging criminal contempt is as follows:

Did commit an act of criminal contempt, to wit, [describe the act constituting the contempt], in violation of an order issued by this court pursuant to G.L. c. 209A on [date of issuance of order].

Prosecution of the criminal contempt case should proceed as any other criminal case. See Mass. R. Crim. P. 44.

Under certain circumstances, it may be preferable to initiate civil rather than criminal contempt proceedings, the key distinction being that criminal contempt must be used to punish the alleged contemnor, whereas civil contempt proceedings must be used where the object is to compel compliance to benefit the party in whose favor the order was issued. See Guideline 9:00.

G.L. c. 209A, § 5A provides that "any protection order issued by another jurisdiction as defined in section one, shall be given full faith and credit throughout the Commonwealth and enforced as if it were issued in the Commonwealth for as long as the order is in effect in the issuing jurisdiction." See Appendix A and Guideline 14:00. This may include enforcement through contempt proceedings. See Guideline 9:00. [Back]

8:03 COMMENTARY

Protective orders under c. 209A can be vacated or dismissed only by action of the court. Parties who appear before the court seeking such orders should be informed that the order remains in full force and effect until the order expires or is modified by the court on motion of either party. See Guidelines 4:06, 6:02 and 6:04.

The issues of whether or why plaintiffs sometimes "acquiesce" in violations of c. 209A orders are complicated. They involve a variety of factual considerations, including a plaintiff's need for financial support or desire to reconcile with the defendant, possible intimidation or manipulation by either party, family pressures, children's issues, and others. For purposes of issuing a criminal complaint, however, these factors are not relevant to the question of whether the order was violated, although they may be relevant to disposition of the criminal charge. [Back]

8:04 COMMENTARY

Under current law there are three types of bail/detention hearings and decisions. The first, pursuant to G.L. c. 276, § 58, involves only considerations of whether the defendant is likely to appear for trial. This has been the bail guideline for non-capital cases since 1970. In such a hearing the court shall admit the defendant to bail on his personal recognizance unless the judge decides, "in the exercise of his discretion, that such a release will not reasonably assure the appearance of the prisoner before the court." Id. If the judge decides that releasing the defendant on personal recognizance will not secure his presence, the court sets a bond amount reasonably calculated to assure the defendant's presence.

In the second type of hearing, pursuant to G.L. c. 276, § 58A, the question is whether the release of a defendant charged with certain specifically designated offenses, "will endanger the safety of any other person or the community." Id. This statute provides procedures by which a defendant may be held without bail, or released only on certain conditions, if he is found to pose such a danger. The statute has withstood constitutional challenge. Mendonza v Commonwealth; Commonwealth v. Callender, 423 Mass. 771 (1996); See Guideline 8:07.

In the third type of hearing, pursuant to G.L. c. 276, § 58, the Commonwealth seeks to revoke the bail of a defendant who was earlier released pursuant to § 58 (the first type of hearing), but who has now been arrested for a new offense and who can be shown to be a danger to any person or the community.

This Guideline and Guidelines 8:05 and 8:06 apply to bail hearings pursuant to G.L. c. 276, § 58. Guideline 8:07 applies to detention or dangerousness hearings pursuant to § 58A. Guidelines 8:08 and 8:09 apply to hearings held pursuant to both statutes.

The law requires that for offenses punishable by more than one year imprisonment (which include assault and battery and violation of c. 209A orders), the probation department must present the defendant's criminal record to the court before such person is admitted to bail. G.L. c. 276, § 85. This includes violations of protection orders issued by other jurisdictions. See Appendix A, G.L. c. 209A, § 7, as amended by St. 1996, c. 298, § 8; see also Guideline 14:00. The bail law should be read to require the judge to review the defendant's probation record before any § 58 pretrial release decision is made in cases involving abuse or a c. 209A violation, irrespective of the prosecution's recommendations on the question of bail. It is the court's responsibility to determine whether the defendant is in default or already on recognizance on a previous charge and to review all available information relevant to the issue of the defendant's likelihood of appearing for trial. The court should also review the court case file on any c. 209A order that the defendant is accused of violating, at least where that order was issued by the same court in which the defendant is appearing.

Where the prosecutor is not familiar with the circumstances of the arrest or the nature of the alleged violation, and where neither the complaint application nor the police report nor the c. 209A file provides adequate information, the court should defer action on the case until adequate information is obtained from the police or some other source. [Back]

8:05 COMMENTARY

In a G.L. c. 276, § 58 bail hearing, terms of pretrial release that will offer possible protection to the alleged victim should be considered, consistent with the legal rationale for bail under that statute, namely, to ensure defendant's future court appearances. General Laws c. 276, § 42A provides an independent basis for the imposition of protective terms during the period of release. The issuance of a no-contact order under c. 209A is required by law, if requested by the victim. G.L. c. 209A, § 6, last par. Since a protection order issued by other jurisdictions is to be given "full faith and credit throughout the Commonwealth and enforced as if it were issued in the Commonwealth for as long as the order is in effect in the issuing jurisdiction," the issuance of a no-contact order is also required if requested by the victim. See G.L. c. 209A, § 5A amending G.L. c. 209A, § 5A; and Guideline 14:00, regarding orders issued by other jurisdictions generally. [Back]

8:06 COMMENTARY

G.L. c. 276, § 58 provides that when any person is released on bail, the person authorized to admit the person to bail, "shall provide as an explicit condition of release ... that, should said prisoner be charged with a crime during the period of his release, his bail may be revoked ... and the court shall enter in writing on the court docket that the prisoner was so informed and the docket shall constitute prima facie evidence that the prisoner was so informed." Bail warnings are required when a prisoner is released after being charged for any offense, not merely for violations of c. 209A orders or crimes constituting abuse. However, it is extremely important that the warnings be given in abuse cases. In general, those cases carry a significant risk that defendants will be arrested again, frequently for a crime involving the same victim. Failure to give the warning may prevent a defendant who is arrested for a subsequent misdemeanor (e.g., assault and battery or threats) from being held without bail in a situation where no restraining order is outstanding, even if the defendant is arrested while another abuse case is pending.

A defendant who is arrested while on release pending the adjudication of a prior charge may be held for a period not to exceed sixty days upon a showing of probable cause for the new arrest and a finding, in the judge's discretion, that "the release of said prisoner will seriously endanger any person or the community." G.L. c. 276, § 58. This is the third type of bail hearing described in the Commentary to Guideline 8:04. [Back]

8:07 COMMENTARY

St. 1995, c. 39, § 13 amended G.L. c. 276, § 58A to add cases in which it is alleged that a misdemeanor or felony involving abuse has occurred to the types of cases in which the prosecution may file a § 58A motion. Prior to this statutory change, a § 58A motion was apparently available in abuse cases only if there was a restraining order against the defendant.

As noted above, if the prosecution moves for a detention hearing pursuant to § 58A, the court must hold such a hearing, "immediately upon the prisoner's first appearance before the court," unless the court allows a continuance of no more than three business days for the Commonwealth or seven days for the defendant. A continuance of three business days may be granted to the Commonwealth only upon a showing of good cause. Mendonza v. Commonwealth; Commonwealth v. Callender, 423 Mass. 771, 773 (1996). A judge granting a three day continuance to the Commonwealth "should then make a specific finding that such cause has been shown and what such cause is." 423 Mass. at 792. Both the Mendonza and Callender cases involve violation of a restraining order (Mendonza included other criminal charges as well). In Mendonza, the Court rejected the defendant's numerous arguments to find that the challenged provisions of the preventive detention statute (c. 276, § 58A) pass constitutional muster on their face and as applied to the defendant. The statute has also been held to apply to juveniles. See Victor V. v. Commonwealth, 423 Mass. 793 (1996). The statute requires that the defendant be detained during a continuance, "upon a showing that there existed probable cause to arrest the prisoner." G.L. 276, § 58A(4).

At the hearing, the defendant has the right to counsel, to testify, to present witnesses, to cross-examine witnesses who appear, and to present information. When the defendant seeks to call a particular witness, however, the court may request an offer of proof as to the relevance of the proposed testimony. If the testimony, even if accepted in its entirety, would be irrelevant to the issue of dangerousness, it may be possible for the court to exclude the witness' testimony or to accept a stipulation between the Commonwealth and the defendant for purposes of the detention hearing only. The rules of evidence do not apply.

In some cases, the information before the court at arraignment may be such that it appears that the defendant would be held pending trial under the bail provisions of G.L. 276, §§ 57 and 58. If the prosecutor agrees, the court may proceed under § 58 and set an appropriate bond amount. If such an amount is sufficient to hold the defendant pending trial, the prosecutor may elect to waive the § 58A motion. If the amount set by the court under § 58 is not sufficient to hold the defendant pending trial, the prosecutor may then proceed with the § 58A motion. Proceeding first with a hearing under § 58 is recommended because it will frequently obviate the necessity of meeting the more burdensome requirements of § 58A. The statute appears to contemplate this procedure: "Nothing in this section shall be interpreted as limiting the imposition of a financial condition upon the prisoner reasonably to assure his appearance before the court." § 58A(3).

If the defendant is charged with violating a protection order issued by another jurisdiction, the Commonwealth moves for a pretrial detention hearing and the defendant is before the court, the court should conduct the hearing as it would if the defendant were charged with violating an order issued by the Commonwealth. See G.L. c. 209A, § 5A, which provides that a protection order issued by other jurisdictions shall be given "full faith and credit" and "enforced as if it were issued in the Commonwealth ...." See also Guideline 14:00, regarding protection orders issued by other jurisdictions, generally.

For an analysis of proceedings under G.L. c. 276, § 58A to determine dangerousness, see Memorandum from the Chief Justice of the District Court Department, at Appendix K. [Back]

8:08 COMMENTARY

The current law requires that:

[w]hen a judge or other person authorized to take bail bails any person arrested under the provisions of this chapter, he shall make reasonable efforts to inform the victim of such release prior to or at the time of said release.

G.L. c. 209A, § 6.

This law, by its terms, is not restricted to out-of-court bail settings and it refers to "bail" rather than release without recognizance. However, the following paragraph provides that:

When any person charged with or arrested for a crime involving abuse . . . is released from custody, the court or the emergency response judge . . . shall use all reasonable means to notify the victim immediately of release from custody.

G.L. c. 209A, § 6.

Read together, these two provisions suggest that, at least as a matter of policy, when a defendant charged either with violation of a c. 209A order or a crime involving abuse is to be released from custody at court, whether on bail or on personal recognizance, or upon conditions, after a detention or dangerousness hearing, the judge should see that a reasonable effort is made to inform the victim of that release, whether the victim is in court or not. It is appropriate for the judge to instruct a probation officer or a staff member of the Clerk-Magistrate's office to attempt to contact the victim. Such attempt and contact, if any, should be recorded on the case docket. In the alternative, the judge can request the police, prosecutor, or victim-witness advocate to make such contact. If they refuse, the judge should instruct appropriate court personnel as noted above. Assuring such contact with the victim, where possible, can be extremely important in providing the victim with an opportunity to avoid danger. This also applies to cases in which a defendant who is released is charged with violation of a protection order issued by another jurisdiction, which orders are to be enforced as if they were issued by the Commonwealth. See G.L. c. 209A, §§ 5A and 7, in particular and Guideline 14:00 generally.

A sample written notice to the plaintiff warning of the defendant's release on personal recognizance is included at Appendix L. [Back]

8:09 COMMENTARY

If both parties are present in court, and the victim in the criminal case involving abuse also seeks civil relief as a plaintiff in a c. 209A action, there is no reason to require either the plaintiff or the defendant to return in ten days for another hearing. Nothing in the law requires two hearings, or a "cooling off period," between the ex parte hearing and the hearing after notice. If both parties are present, the court should have a hearing after notice and issue any appropriate order for a full year or such lesser time as the court decides. This obviates the need for another hearing on another day. [Back]

8:10 COMMENTARY

If a defendant fails to appear or otherwise violates the terms of pretrial release on a charge of violation of a protective order or any other crime involving abuse, the court should respond promptly. While default is not an uncommon occurrence in criminal cases, default in abuse cases can expose the victim to further danger. Accordingly, default warrants should be issued promptly and their priority communicated to police so that there is no confusion that such warrants are to be executed as soon as possible.

The same actions are to be taken in cases involving violation of a protection order issued by another jurisdiction. See G.L. c. 209A, § 5A and Guideline 14:00. [Back]

8:11 COMMENTARY

All pretrial motions in criminal cases in the District Court, Boston Municipal Court and Superior Court are required to be in writing, setting forth the reasons therefor. Mass. R. Crim. P. 13. Enforcement of this rule is particularly important when the case that the prosecution is asking the court to dismiss is one involving an alleged violation of a c. 209A order, a protection order issued by another jurisdiction (pursuant to G.L. c. 209A, § 5A at Appendix A; SeeGuideline 14:00) or a crime of domestic abuse, and the reason given is the reluctance or the refusal of the alleged victim to testify.

In some cases, both the prosecution and the court may wish to have the victim's statement regarding dismissal on the record, and it is appropriate to do this. However, the court is responsible for the decision to dismiss a case. If the court believes that dismissal may not be appropriate, it may question the alleged victim directly and may deny the motion for dismissal. In such a case, the prosecution can terminate the case by filing a nolle prosequi under Mass. R. Crim. P. 16. If the prosecution will neither file a nolle prosequi nor proceed with the trial, the court should enter a dismissal on the record "for refusal to prosecute." The court should not attempt to compel the prosecution to try the case. Note that there are restrictions on reinstating a case after a nolle prosequi. SeeCommonwealth v. Miranda, 415 Mass. 1 (1993).

Where the prosecution's reason for requesting the dismissal is that the alleged victim has failed to appear, the court should be sure that the efforts of the prosecution to obtain the attendance of the victim are noted on the record.

Where the prosecution intends to proceed notwithstanding the victim's reluctance or refusal to testify, the court should not attempt to terminate the case over the prosecution's objection. See Guideline 8:12. [Back]

8:12 COMMENTARY

There is no question that the court has the authority to dismiss a complaint over the objection of the prosecution based on a violation of the defendant's rights, such as a defective complaint or a violation of the right to speedy trial. Such dismissals must be requested by motion. Mass. R. Crim. P. 13.

However, "pretrial dismissal, over the Commonwealth's objection, of a valid complaint or indictment before a verdict, finding, or plea, and without an evidentiary hearing basically quashes or enters a nolle prosequi of the complaint or indictment." Commonwealth v. Pellegrini, 414 Mass. 402, 404 (1993). "A decision to nolle prosequi a criminal case rests with the executive branch of government and, absent a legal basis, cannot be entered over the Commonwealth's objection." Id. at 405; see also Shepard v. Attorney General, 409 Mass. 398, 401-402,(1991); Pineo v. Executive Counsel, 412 Mass. 31, 37 n.9 (1992);Commonwealth v. Henderson, 411 Mass. 309, 310(1991); Manning v. Municipal Court of Roxbury District, 372 Mass. 315, 318 (1977); Commonwealth v. Dascalakis, 246 Mass. 12, 18 (1923); Commonwealth v. Hart, 149 Mass. 7, 8 (1889); Commonwealth v. Wheeler, 12 Mass. 172, 173 (1806).

Justice Morton stated in Commonwealth v. Tuck, 20 Pick 356, 364-365 (1838), "the authority of the Attorney General [or District Attorney] to conduct and manage all prosecutions is unquestionable. It is his exclusive duty to do so." Commonwealth v. Gordon, 410 Mass. 498, 500 (1991). "The District Attorney is the people's elected advocate for a broad spectrum of societal interests - from ensuring that criminals are punished for wrongdoings to allocating limited resources to maximize public protection." Id.

Thus, the law is clear, and the Guideline emphasizes that it is inappropriate for a judge, over the Commonwealth's objection, to dismiss a criminal case because the judge has made a discretionary determination that the case should not be tried due to the alleged victim's reluctance or otherwise. This is a decision which the law leaves to the prosecutor. Moreover, the prosecutor usually has facts which are often not known to the judge, including the defendant's criminal record, past history of unprosecuted violence, mental status, indications that the defendant may be contemplating suicide or homicide, an opportunity to observe the victim's behavior over time, and knowledge about the presence of children in the home and any danger to them.

While in an unusual circumstance the court may dismiss a case "in the interests of public justice," provided the procedure described in Commonwealth v. Brandano, 359 Mass. 332, 337 (1971) is followed, subsequent case law makes clear that such a dismissal may not be based upon one witness's refusal to testify, unless the Commonwealth is willing to stipulate that it has no other evidence. Rosenberg v. Commonwealth, 372 Mass. 59, 63 (1977).

While the phrase "the victim wants to drop the charges" is sometimes used in these cases, it is important to remember that the victim is not a party in a criminal case. A criminal prosecution is not intended to vindicate the interests of the victim, but rather, the interests of the public as a whole, as represented by the prosecutor. "In American jurisprudence . . . a private citizen lacks a judicially cognizable interest in the prosecution or non-prosecution of another." Whitley v. Commonwealth, 369 Mass. 961, 962 (1975), quoting Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).

General Laws c. 276, § 55, appears to authorize the court, in effect, to dismiss a misdemeanor charge of assault and battery or other misdemeanor for which the defendant "is liable in a civil action" (with certain restrictions), if the injured person appears before the court and acknowledges in writing that he or she "has received satisfaction for the injury." This "accord and satisfaction" provision, however, makes no reference to whether the court can order such dismissal over the objection of the prosecution, and, generally, a case involving family violence should not be dismissed over the prosecution's objection on an accord and satisfaction, for the reasons stated above. [Back]

8:13 COMMENTARY

It is important that the court obtain information from the victim upon sentencing of a defendant for a violation of a c. 209A order, a protection order issued by another jurisdiction (pursuant to G.L. c. 209A, § 5A, at Appendix A; See Guideline 14:00) or in any case involving abuse.

The duty to attempt to warn the victim when a defendant is released from custody at sentencing is the same as when a defendant is released from custody at any other time. See Guideline 8:05. This requirement appears to apply when the charge is a violation of a c. 209A order, a protection order issued by another jurisdiction or any other crime involving abuse. However, it does not appear to be intended to apply to release following completion of a custody sentence. The court generally will not be aware of the time of such release. [Back]

8:14 COMMENTARY

Probation and batterers' treatment experts tend to agree that, for batterers, probation terms must be extremely clear and strictly enforced to be effective. They also believe that substance abuse frequently contributes to the violence in relationships, although the exact nature of the connection remains unclear. However, substance abuse treatment alone is usually insufficient to address a situation in which a batterer has been violent in a relationship for a long period of time. Moreover, because of the dynamic of the relationship between batterer and victim, the court cannot rely on the victim to report violations which may occur. He or she may be afraid, or ambivalent about the offender going to jail, or otherwise unwilling affirmatively to report a violation which the probation officer may discover by talking to him or her. In selecting among various certified batterers' treatment programs, the court or the probation officer should consider such factors as quality, cost and the likelihood of beneficial effect.

When a defendant is assigned to a batterers' treatment program, the court must impose an assessment of $350 under G.L. c. 209A, § 10, as amended by St. 1996, c. 151, § 466. District Court Transmittal No. 617, October 9, 1996, at Appendix D, describes the appropriate application of batterers' treatment programs.

For a current list of Certified Batterers' Intervention Programs see Appendix D-1. See Commentary to Guideline 6:01 regarding batterers who are also substance abusers. [Back]