Guideline 8:01[1]
The law provides that when the police are provided with probable cause to believe that a no-abuse, no-harassment, no-contact, or stay-away order has been violated, an immediate warrantless arrest is required. G.L. c. 258E, § 8. The failure to surrender all firearms, ammunition, licenses to carry firearms, and firearms identification cards is also an arrestable offense under G.L. c. 258E, § 4B.
When no order is in effect, but the police have probable cause to believe that a person either committed a felony or committed a misdemeanor involving harassment or abuse as defined G.L. c. 258E, § 1, arrest is the preferred response. G.L. c. 258E, § 8(8). Under c. 258E, § 8, police are authorized to make a warrantless arrest, even though the officer did not observe the misdemeanor, if it involves abuse or harassment. But see G.L. c. 275, § 3, containing specific requirements for issuing a warrant for “threats.”
In circumstances where no arrest has been made and the police or a citizen seek a criminal complaint, G.L. c. 218, § 35A requires a show cause hearing before a complaint may issue on a misdemeanor offense, such as violation of a c. 258E order against a defendant, unless 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.
Further, a show cause hearing is not required if 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 Registry of Civil Restraining Orders 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 is sent by the clerk’s office. 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. See generally District Court Standards of Judicial Practice: The Complaint Procedure (2008).
Commentary
Violation of an order to refrain from abuse or harassment, no-contact, or stay-away issued under G.L. c. 258E, §§ 3, 5, or 6 is a criminal offense punishable under G.L. c. 258E, § 9 by a fine of not more than $5,000 or by imprisonment for not more than 2 ½ years in a House of Correction, or both fine and imprisonment. G.L. c. 258E, § 9. Violation of an order to surrender firearms, ammunition, licenses to carry, and firearm identification cards is a criminal offense, punishable under G.L. c. 258E, §§ 4A and 4B, 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. See Commonwealth v. Lovering, 89 Mass. App. Ct. 76, 79 (2016). Violations of an order to pay compensation appears to be punishable only by contempt. See Guideline 8:02A Criminal Contempt, and Guideline 8:02B, 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.
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)).
Harassment prevention orders issued by other jurisdictions are to be enforced as though they were issued in the Commonwealth. See G.L. c. 258E, §§ 7 and 9; and Guideline 10:00 Filing and Enforcement of 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 harassment prevention orders. See Commonwealth v. Shea, 467 Mass. 788, 789 (2014).
To obtain a conviction pursuant to G.L. c. 258E, § 9, the Commonwealth must prove beyond a reasonable doubt that a valid harassment prevention order was in effect on the date of the alleged violation, the defendant violated the order, and the defendant had knowledge of the terms of the order. See Commonwealth v. Kurko, 95 Mass. App. Ct. 719, 721 (2019); Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 492 (2002). 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. See 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, 410-411 (2003). In Delaney, the defendant was initially served with a 10-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 harassment 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. See Commonwealth v. Reddy, 85 Mass. App. Ct. 104, 108-109 (2014). For example, the ex parte standard language of “a substantial likelihood of immediate danger of harassment” would be considered unnecessary and unfairly prejudicial and should be redacted, as a finding under Rahimi that the defendant poses a credible threat to the safety of the plaintiff. See United States v. Rahimi, 144 S. Ct. 1889. 1901 (2024).
Despite the “preferred response” for police to arrest, victims of harassment are sometimes referred to court to file a complaint application. See G.L. c. 258E, § 8. Rather than refer a complainant back to the police for further action, the court should promptly process the complaint application and make a determination whether to issue a warrant, send a summons, or schedule a hearing.
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| Last updated: | October 20, 2025 |
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