258E Guideline 5:04: Standard and Burden of Proof

Part of the Guidelines of Judicial Practice: Harassment Prevention Proceedings.

Guideline 5:04

At the hearing after notice, the plaintiff must prove by a preponderance of the evidence that they are suffering from harassment.

The plaintiff may meet this burden by demonstrating that the defendant committed one or more acts of sexual misconduct. The plaintiff may either show that:

• the defendant “by force, threat or duress cause[d the plaintiff] to involuntarily engage in sexual relations” or,
• that the defendant engaged in conduct that would meet the definition of any of ten specifically enumerated sex crimes:
  • G.L. c. 265 § 13B: Indecent Assault and Battery on Child under fourteen
  • G.L. c. 265 § 13F: Indecent Assault and Battery on Person with Intellectual Disability
  • G.L. c. 265 § 13H: Indecent Assault and Battery on Person over Fourteen
  • G.L. c. 265 § 22: Rape
  • G.L. c. 265 § 22A: Rape of a Child by Force
  • G.L. c. 265 § 23: Rape and Abuse of a Child (“Statutory” Rape)
  • G.L. c. 265 § 24: Assault with Intent to Rape
  • G.L. c. 265 § 24B: Assault of a Child with Intent to Rape
  • G.L. c. 265 § 26C: Enticement of a Child
  • G.L. c. 265, § 43A(b): Distribution of Nude or Sexual Images
  • G.L. c. 272 § 3: Drugging for Sexual Intercourse

Alternatively, the plaintiff may demonstrate that the defendant committed the crimes of stalking in violation of G.L. c. 265, § 43 or criminal harassment in violation of G.L. c. 265, § 43A(a).

Finally, the plaintiff may meet their burden by proof by a preponderance that the defendant committed “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property:” G. L. c. 258E, § 1. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 598-599 (2015).

Commentary

Chapter 258E hearings are not criminal. The usual civil standard of preponderance of the credible evidence should be applied when considering issuing orders under c. 258E, § 3, Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016), and the plaintiff bears the burden of proof. A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015).

Where credible facts relevant to this inquiry are elicited during the hearing but not included in the affidavit, the judge should add those additional facts on the affidavit in such a way to denote they were added, and credited, by the judge. This will allow future judges hearing the case to be better informed about the full information relied upon by the judge who issued the order. Additionally, if the judge relies on other evidence, including video recordings, text messaging or other physical items, including their observations of any injuries to the victim, the judge should include a detailed summary of these observations on the record, in order for them to be considered by an appellate court upon review.

The court may not issue an initial order after notice because of a subjective concern that, because an ex parte order has issued, allowing further contact between the parties would lead to violence where the plaintiff is unable to establish by a preponderance of the evidence at the hearing after notice that “harassment” within the definition of the statute occurred. See Corrado v. Hedrick, 65 Mass. App. Ct. 477, 483-85 (2006). See Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 258, n. 11 (2022) (“An ex parte order is entitled to no weight and the issues must be relitigated anew at the hearing after notice if the defendant appears”).

Note: There is a distinction between the inquiry for issuing an initial order after notice and the inquiry for issuing an extension order after notice. The inquiry for issuing an initial order after notice is whether the plaintiff has shown by a preponderance of the evidence that they are suffering from harassment as defined in G.L. c. 258E, § 1; the inquiry for issuing an extension order after notice is “whether the plaintiff has shown by a preponderance of the evidence that an extension of the order is necessary to protect [the plaintiff] from the likelihood of ‘[harassment] … .” Iamele v. Asselin, 444 Mass. 734, 739 (2005). See Guideline 6:07 Further Extending an Initial Order After Notice on Its Expiration Date.

Last updated:	October 20, 2025