Guidelines for Judicial Practice - Abuse Prevention Proceedings - Enforcement of Orders; Criminal Proceedings

8:00 Venue; Territorial Jurisdiction for Criminal Prosecution of Violations of c. 209A Orders. A violation of a c. 209A no-contact, refrain from abuse, vacate or gun surrender order is a statutory criminal offense and may be prosecuted in the court within whose territorial jurisdiction the act allegedly occurred, or in the court that issued the order. A violation of such an order may also be prosecuted as criminal or civil contempt in the court that issued the order. SeeGuidelines 8:02, commentary to Guideline 8:02 and to 9:00, respectively. Protection orders issued by other states are to be enforced as though they were issued in the Commonwealth. See Appendix A, G.L. c. 209A, งง 5A and 7 and Guideline 14:00.

The violation of any other type of protective order (e.g., support, custody or compensation) may be addressed only as a criminal or civil contempt in the court that issued the order.

If the no-contact, refrain from abuse, vacate or gun surrender order was issued by the Probate and Family Court, the criminal complaint must be sought in the appropriate District Court, or in the Boston Municipal Court, depending on the location of the alleged violation. The Probate and Family Court or Superior Court that issued such an order or any other protective order may itself proceed on an alleged violation as a criminal or civil contempt. [Commentary] [Top]

8:01 Issuance of Criminal Complaint and Warrant.⁽¹⁾ When a criminal complaint for violation of a vacate, refrain from abuse, no-contact or gun surrender order under c. 209A or for violation of a protection order issued by another jurisdiction is sought, an application should be received and a hearing promptly held, regardless of whether the police may have declined to make an immediate warrantless arrest.

If a felony is also alleged or if there is an imminent threat of bodily injury or of the commission of a crime or flight by the accused from the commonwealth, the hearing should be conducted immediately, with no notice to the accused. See G.L. c. 218, ง 35A. The magistrate should record the statutory exception to the notice requirement on the application for the complaint.

If probable cause is found, a warrant rather than a summons should be issued promptly to the appropriate police department. See Mass. R. Crim. P. 6.

Any confusion on the part of the local police regarding their obligation for immediate warrantless arrest, rather than referring victims to court, should be addressed by the Clerk-Magistrate and, if necessary, the First Justice, Regional Administrative Justice or Chief Justice. [Commentary] [Top]

8:02 Criminal Contempt. Criminal contempt can be charged for any violation of a c. 209A order. Criminal contempt, rather than a statutory violation, must be charged where the defendant allegedly violated an order other than a refrain from abuse, no-contact, vacate or gun surrender order.

Criminal contempt must be charged in the court that issued the order, regardless of where the alleged violation occurred. Criminal contempt can be alleged and prosecuted even when it allegedly occurred in another state.

Under certain circumstances it may be preferable to initiate civil rather than criminal contempt proceedings. [Commentary] [Top]

8:03 Acquiescence by the Complainant to an Act Which May Violate the Terms of an Order. The court should instruct the parties that once a c. 209A order is issued, violation of its terms constitutes a criminal offense by the defendant, regardless of any alleged acquiescence by the plaintiff. The court should further instruct the parties that the terms of the order remain in effect until the order expires or until it is modified by the court. [Commentary] [Top]

8:04 Bail Procedures in Criminal Cases Involving Alleged Violation of a Protective Order or Abuse: Review of Criminal Record and Alleged Facts.⁽²⁾ When determining bail pursuant to G.L. c. 276, ง 58, at arraignment on a charge of violation of a c. 209A order, or a protection order issued by another jurisdiction, or a crime involving "abuse" as defined by G.L. c. 209A, ง 1, and at the time of any subsequent bail decision, the judge should review the defendant's probation record for prior criminal violations and for the existence of any previous or pending c. 209A orders or protection orders issued by another jurisdiction and filed with a Massachusetts court (pursuant to G.L c. 209A, ง 5A. See Appendix A and Guideline 14:00). The judge should also consult the Warrant Management System for information about warrants outstanding for the defendant's arrest. Finally, the judge should review the facts that are alleged to be the substance of the violation. [Commentary] [Top]

8:05 Bail Procedures in Criminal Cases Involving Alleged Violation of a Protective Order or Abuse: Release on Pretrial Probation or Personal Recognizance.⁽³⁾When releasing a defendant before trial, even during a bail hearing pursuant to G.L. c. 276, ง 58, the court should consider specific terms of the recognizance that may relate to the defendant's likelihood of future appearance to reduce potential danger to the victim. General laws c. 276, ง 42A permits the imposition of "such terms as will insure the safety of the person allegedly suffering the physical abuse or threat thereof and will prevent its recurrence. 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."

"When any person charged with or arrested for a crime involving abuse . . . is released from custody," whether on personal recognizance or bail pursuant to G.L. c. 276, ง 58 or on conditions after a detention or dangerousness hearing pursuant to G.L. c. 276, ง 58A, the court must issue a no-contact order if the victim requests it. G.l. c. 209A, ง 6, last par. When the victim is present at the arraignment or can be contacted, the victim should be asked about such an order. [Commentary] [Top]

8:06 Bail Procedures in Criminal Cases Involving Alleged Violation of a Protective Order or Abuse: Bail Warnings.⁽⁴⁾ If the defendant is released pursuant to the provisions of G.L. c. 276, ง 58, the judge must tell the defendant that, should the defendant be charged with a crime during the period of release, the defendant's bail may be revoked, and the clerk must record on the court docket that this bail warning was given. [Commentary] [Top]

8:07 G.L. c. 276, ง 58A Detention Hearing Procedures in Criminal Cases Involving Alleged Violation of a Protective Order or Abuse.⁽⁵⁾ When the commonwealth moves for a pretrial detention hearing, and the defendant is before the court charged with an offense enumerated in G.L. c. 276, ง 58A, the court must hold a hearing pursuant to G.L. c. 276, ง 58A (5). Among the offenses designated by the statute are felony offenses that have "as an element of the offense the use, attempted use, or threatened use of physical force against the person of another," violations of restraining orders, misdemeanor or felony offenses involving abuse, or misdemeanor or felony offenses alleged to have been committed while a c. 209A restraining order was in effect. G.L. c. 276, ง 58A(1).

If the court determines that personal recognizance "will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community," the court may order the defendant released upon conditions. Id. At (2). Such conditions must include the requirement that the person not commit a federal, state, or local crime during the period of release and may include other conditions which the court finds necessary to assure the defendant's appearance at trial or the safety of a particular person or of the community. In abuse cases such conditions should always include an order to have no-contact with the victim, if the victim requests such an order.

If a defendant is ordered released on terms after a hearing on dangerousness under ง 58A that order may be revoked if any of the terms are violated. The procedure for such revocation and for custody during any continuance of the revocation hearing is provided in G.L. c. 276, ง 58B.

If after the hearing the judge finds by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community, the judge must order the defendant detained until the trial. G.L c. 276, ง 58A(3). [Commentary] [Top]

8:08 Bail and Detention Hearing Procedures in Criminal Cases Involving Alleged Violation of a Protective Order or Abuse: Notifying the Victim.⁽⁶⁾ When a defendant is to be released from custody at court, whether on bail or on personal recognizance pursuant to G.L. c. 276, ง 58, or on certain conditions after a detention or dangerousness hearing pursuant to G.L. c. 276, ง 58A, the judge should make a reasonable effort to inform the victim of that release regardless of whether the victim is in court. This requirement appears to apply to all cases charging a violation of a c. 209A order, a protection order issued by another jurisdiction or any other crime involving "abuse," as defined by G.L. c. 209A, ง 1. [Commentary] [Top]

8:09 Arraignment Procedures in Criminal Cases Involving Alleged Violation of a Protective Order or Abuse.⁽⁷⁾ At the time of the arraignment, the defendant's next appearance for trial or pretrial conference should be considered for priority scheduling, even if the defendant is not held in custody.

If a defendant is arraigned for a crime involving alleged "abuse," as that term is defined in G.L. c. 209A, ง 1, and the victim is present in court seeking a restraining order, the court should hold a hearing, before or after the arraignment, on whether to issue a restraining order for no more than one year.

If such order is issued, it should be served immediately on the defendant. If the defendant is arrested for a crime involving abuse and brought before the court for arraignment in the victim's absence, any protective order previously issued by the court and still in effect should be served on the defendant at that time. In either case, the service should be noted on the order (Form FA-2A [9/95], Par. B.3.) and the police notified that service has been accomplished. Any court personnel may serve the order. [Commentary] [Top]

8:10 Default Warrants in Criminal Cases Involving Alleged Violation of a Protective Order or Abuse.⁽⁸⁾ When a defendant charged with a violation of a c. 209A order, a protection order issued by another jurisdiction or any other crime involving "abuse," as defined in G.L. c. 209A, ง 1, defaults on the terms of recognizance by failing to appear or otherwise, the court should promptly order a default warrant. When the default warrant is ordered, the Clerk-Magistrate should promptly enter the warrant on the warrant management system for immediate execution by the police. Such instructions to prepare and issue the warrant should appear on the record. Any doubt as to whether arrest on the warrant is inappropriate because the parties may have reconciled should be resolved in favor of issuance and execution of the warrant. [Commentary] [Top]

8:11 Dismissal of a Criminal Case on Motion of the Prosecution.⁽⁹⁾ If the prosecution moves for dismissal of a criminal case charging a violation of a c. 209A order, a protection order issued by another jurisdiction or a crime involving abuse, the court should require that the motion be in writing, setting forth the reasons therefor, in accordance with the requirements of Mass. R. Crim. P. 13.

The court may question the alleged victim directly on the record if the reason given for the requested dismissal is that the victim will not testify or has decided to "drop the charges."

If the court has any question about the propriety of a dismissal, it should deny the motion. The prosecution can terminate the proceeding without court approval by means of a nolle prosequi under Mass. R. Crim. P. 16. [Commentary] [Top]

8:12 Dismissal of a Criminal Case Over the Prosecution's Objection.⁽¹⁰⁾ The court should not dismiss a complaint over the objection of the Commonwealth without a basis grounded in a violation of the defendant's constitutional rights. Such violation must prejudice the defendant and dismissal must be the only method to cure that prejudice. The court must record findings of fact and rulings of law on each dismissal. It is inappropriate for the court to dismiss the complaint because the court believes, as a matter of policy, that the case should not be prosecuted. [Commentary] [Top]

8:13 Sentencing for Violation of a c. 209A Order or a Crime Involving Abuse.⁽¹¹⁾ If the victim is present at sentencing on a charge of violation of a c. 209A order, a protection order issued by another jurisdiction or a crime involving "abuse," as that term is defined in G.L. c. 209A, ง 1, the court, on the record, should specifically invite the victim's comments concerning the terms of the sentence and how the offense has affected her or him. G.L. c. 258B, ง 3(p). If the victim is not present at sentencing, the court should ask the prosecutor whether the victim has been consulted about the commonwealth's recommendation on sentencing, if any, and, if so, what comments the victim made. In most cases, if the victim has not been consulted, sentencing should be postponed to give the victim an opportunity to be heard. If the sentence involves immediate release of the defendant from custody, and the victim is not present, the judge must make a reasonable effort to see that the victim is notified about the release. G.L. c. 209A, ง 6, last par. As provided in the commentary to guideline 8:05, the judge may direct the police, prosecutor, or victim-witness advocate to make the contact. If one of these parties does not agree to do so, the judge should assign the task to a probation officer or member of the Clerk-Magistrate's staff. [Commentary] [Top]

8:14 Probation in Cases Involving Violation of a c. 209A Order, a Protection Order Issued by Another Jurisdiction or a Crime Involving Abuse.⁽¹²⁾ If a defendant is placed on probation for a crime involving abuse, for a violation of a protection order issued by another jurisdiction or for a violation of a c. 209A order, the court should consider imposing the following conditions of probation:

(A) Compliance with any c. 209A order or protection order issued by another jurisdiction;

(B) Batterers' treatment in a program certified by the Department of Public Health (not individual psychotherapy);

(D) Regular, proactive contact by the probation department with the victim to monitor the defendant's compliance with the restraining order and other terms of probation.

For a list of Batterers' Intervention Programs certified as of August 20, 1999, see Appendix D-1. [Commentary] [Top]

Endnotes:

1. This Guideline is applicable only to the District Court and Boston Municipal Court.

2. This Guideline is applicable to the District Court, the Boston Municipal Court and to some extent, the Superior Court.

3. The Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

4. The Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

5. This Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

6. This Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

7. This Guideline applies only to the District Court, the Boston Municipal Court and, to some extent, the Superior Court.

8. This Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

9. This Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

10. This Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

11. This Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

12. This Guideline applies only to the District Court, the Boston Municipal Court and the Superior Court.

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