Guideline 8:01
The law provides that when the police are provided with probable cause to believe that a no abuse, no contact, stay away, vacate order or firearm surrender order has been violated, an immediate, warrantless arrest is required. G.L. c. 209A, § 6(7); G.L. c. 209A, §§ 3B and 3C also gives rise to mandatory, warrantless arrest, pursuant to G.L. c. 209A, § 6(7).
When the police confront a situation of alleged domestic abuse with no active c. 209A order, they are instructed that, if they have probable cause to believe that a person either committed a felony, committed a misdemeanor involving abuse as defined G.L. c. 209A, § 1, or has committed an assault and battery in violation of G.L. c. 265, § 13A, arrest is the preferred response. G.L. c. 209A, § 6(7). Under this law, they are authorized to make a warrantless arrest, even though they did not observe the misdemeanor, if it involves domestic abuse. (Note, however, that this does not appear to apply to the crime of threatening to commit a crime, G.L. c. 275, § 2, even though the threat involves domestic abuse unless it would amount to an assault, because G.L. c. 275, § 3 contains specific requirements for issuing a warrant for “threats.”)
In circumstances where no arrest has been made and the issuance of a criminal complaint is sought, G.L. c. 218, § 35A requires a show cause hearing before a complaint may issue on a misdemeanor offense (e.g., violating a c. 209A order) against a defendant, unless there is a sufficient showing that any of the three statutory exceptions to the show cause hearing requirement applies (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), or unless a felony is also alleged and the police do not request a hearing. “The decision to issue a warrant may be based upon the representation of a prosecutor made to the court that the defendant may not appear unless arrested.” Mass. R. Crim. P. 6(a)(2). In determining whether an imminent threat of bodily injury exists, the named defendant’s criminal record and the records contained within the statewide domestic violence record keeping system should be considered. G.L. c. 218, § 35A. If one of the three exceptions apply, the magistrate should make the probable cause determination without notice to the accused, and the magistrate should note on the application form the statutory exception to the show cause hearing requirement.
If a statutory exception does not apply and a felony is not also alleged, the show cause hearing should be scheduled with reasonable promptness. Notice to the accused should be sent by regular mail on the standard form issued by the Trial Court. The accused should generally be given at least seven days’ notice. In exceptional cases, when a show cause hearing is scheduled on short notice, the magistrate may request that the police serve the notice. A show-cause hearing, however, should never be used to refer the parties to mediation in cases involving alleged violations of abuse prevention orders or incidents of domestic abuse. See G.L. c. 209A, § 3 (“No court shall compel parties to mediate any aspect of their case”).
Commentary
Violation of a vacate, refrain from no abuse, no contact, or stay away order issued under G.L. c. 209A, § 3, 4, or 5, G.L. c. 209, § 32, G.L. c. 209C, §§ 15 or 20, and G.L. c. 208, §§ 18, 34B, or 34C is a criminal offense punishable under G.L. c. 209A, § 7 by a fine of not more than $5,000.00 or by imprisonment for not more than 2 ½ years in a House of Correction, or both fine and imprisonment. G.L. c. 209A, §§ 5A and 7. Commonwealth v. Finase, 435 Mass. 310, 313-315 (2001). 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 and 3C, by a fine of not more than $5,000.00, or by imprisonment for not more than 2 ½ years in the House of Correction, or both fine and imprisonment. Failure to surrender a firearm owned by the defendant, even if the defendant no longer exercises dominion and control over the firearm, is sufficient to support a conviction for violating a firearm surrender order. Commonwealth v. Lovering, 89 Mass. App. Ct. 76, 79 (2016).
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. See, e.g., Commonwealth v. Kulesa, 455 Mass. 447, 452 (2009) (violation of a c. 209A order is not a lesser included offense of criminal harassment, G.L. c. 265, § 43A); and, Commonwealth v. Torres, 468 Mass. 286, 287 (2014) (violation of an abuse prevention order that contains a mandate to refrain from abuse is not a lesser included offense of assault and battery on a person protected by an abuse prevention order, G.L. c. 265, § 13A(b)(iii)). Violation of an abuse prevention order is, however, a lesser included offense of G.L. c. 265, § 43(b), which punishes stalking in violation of an abuse prevention order as violating the abuse prevention order is an element of that offense. Edge v. Commonwealth, 451 Mass. 74, 76-77 (2008).
Violations of provisions of the order other than the vacate, refrain from abuse, no contact, stay away, and firearm surrender provisions, (e.g., failure to pay support or restitution, etc.), can only be punished by contempt. See Guideline 8:02 Criminal Contempt and Guideline 8:02A Civil Contempt. Where the behavior constituting the violation also gives rise to a separate criminal offense (e.g., kidnapping, rape, etc.), punishing the defendant for criminal contempt may preclude criminal prosecution. See Mahoney v. Commonwealth, 415 Mass. 278, 283-287 (1993), and cases cited therein.
Abuse prevention orders issued by other jurisdictions are to be enforced as though they were issued in the Commonwealth. See G.L. c. 209A, §§ 5A and 7; and, Guideline 14:00 Filing and Enforcement of Abuse Prevention and Other Protective Orders Issued by Other Jurisdictions. Consequently, violations of orders issued by other states may be prosecuted in Massachusetts, and Massachusetts law governs the violation of such abuse prevention orders. Commonwealth v. Shea, 467 Mass. 788, 789 (2014).
Violating a stay away order that results in contact with more than one individual protected by the order justifies multiple counts of violating the order. Commonwealth v. Housen, 83 Mass. App. Ct. 174, 177 (2013) (noting that the “so-called zone of protection is a mechanism created for the protection of one or more individuals, not for the protection of a residence or job site”). In Housen, the defendant was ordered to stay away from the residence and to have no contact with the plaintiff or the three minor children. The defendant entered the residence in violation of the order. While there, each child arrived home separately. Id. at 175-76. Because the defendant had an affirmative duty to leave the residence on each occasion that one of the three minor children arrived home, the defendant committed additional and distinct violations of the order. Id. at 177. This duty was not diminished or eliminated because he was already in the house or because other individuals whom the order sought to protect were already present. Id.
To obtain a conviction pursuant to G.L. c. 209A, § 7, the Commonwealth must prove, beyond a reasonable doubt, that a valid abuse prevention order was in effect on the date of the alleged violation, that the defendant violated the order, and that the defendant had knowledge of the order. Commonwealth v. Griffen, 444 Mass. 1004, 1005 (2005).
In-hand service is often the best proof of the defendant’s knowledge. The return of service indicating in-hand service on the defendant is admissible even without the testimony of the officer who completed it. Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 828 (2011) (holding that a completed return of service is admissible under the public records exception to the hearsay rule and is nontestimonial for purposes of the confrontation clause).
Proof of service of the order is unnecessary if the Commonwealth can prove beyond a reasonable doubt that the defendant had actual knowledge of the terms of the order. Commonwealth v. Delaney, 425 Mass. 587. 589-93 (1997), cert denied, Delaney v. Commonwealth, 522 U.S. 1048 (1998). Contrast Commonwealth v. Welch, 58 Mass. App. Ct. 408 (2003). In Delaney, the defendant was initially served with a ten-day abuse prevention order issued ex parte under c. 209A, which was left at his last and usual address and which warned him, in pertinent part, that if he failed to appear on the hearing date” an extended or expanded [o]rder may remain in effect for up to one year.” Delaney, 425 Mass. at 588. The defendant failed to appear at the hearing, a one- year order was issued, but was not served, although there was evidence that the defendant had verbally acknowledged its existence. Delaney, 425 Mass. at 589. The court stated that ”[i]n these circumstances the service of the extended order on the defendant was not a prerequisite to his prosecution for violating the terms of the order” since ”the jury could have found that the defendant had actual and constructive notice of the order and that it continued in effect after the hearing date.” Delaney, 425 Mass. at 591. See also Commonwealth v. Munafo, 45 Mass. App. Ct. 597, 601- 602 (1998), rev. denied, Commonwealth v. Munafo, 428 Mass. 428 Mass. 1110 (1998) (concurring with Delaney that failure to serve an extended order was not fatal error).
Failure to serve the order is, however, “relevant to a determination as to whether the defendant possessed the knowledge required” for a conviction. Delaney, 425 Mass. at 593. Thus, where the victim testified that “once or twice maybe” she had spoken to the defendant about the existence of the abuse prevention order, there was insufficient evidence that the defendant knew of the order, and he could not be found guilty of violating the order. Commonwealth v. Welch, 58 Mass. App. Ct. 408, 410-411 (2003). Compare Commonwealth v. Henderson, 434 Mass. 155, 161-164 (2001) (although the defendant was unaware that the protective order had been extended, he was given constructive notice thereof due to the inclusion of the scheduled hearing date on the ex parte order.); Commonwealth v. Melton, 77 Mass. App. Ct. 552, 555-556 (2010), rev. denied, Commonwealth v. Melton, 458 Mass. 1109 (2010) (court found that defendant was on notice of an order prohibiting telephone contact where plaintiff, in response to a previous phone call initiated by the defendant, asked him why he was calling her and said “there’s a restraining order”). Contrast Commonwealth v. Molloy, 44 Mass. App. Ct. 306, 309 (1998) (Commonwealth failed to prove defendant on notice that the annual order had been extended).
While admission of the abuse prevention order itself is often required to establish the terms of the order that were in effect at the time of the alleged violation, unnecessary and unfairly prejudicial language must be redacted from the order prior to its admission into evidence. Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 108-109 (2014). For example, the “likelihood of abuse” language relative to an order to surrender firearms, as well as the ex parte standard language of “a substantial likelihood of immediate danger of abuse” would be considered unnecessary and unfairly prejudicial and should be redacted.
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| Last updated: | October 20, 2025 |
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