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Exam > CL Ch. 13 Domestic Violence & Restraining Orders > Flashcards

CL Ch. 13 Domestic Violence & Restraining Orders Flashcards

1
Q

What information may police broadcast and receive pertaining to domestic violence and RO violation suspects?

A

Police may broadcast and receive ALL relevant information pertaining to locations and suspects.

Free to communicate: criminal history of suspect, firearms info, warrant status, existence of orders, and any other info for a legitimate law enforcement purpose.

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2
Q

The police may enter onto private property: (3)

A
  1. To serve a protective order
  2. To quell an ongoing disturbance and restore peace
  3. At the request of someone in lawful control.
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3
Q

Domestic violence: Officers must leave if both parties request that they do so, unless:

A

Exigent circumstances. The officers presence is necessary to prevent physical harm OR carry out the provisions of Ch 209A.

Typically, officers should not accept the word of a person at the door that all is well (battered women “tend to minimize the severity and extent of the abuse.”)

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4
Q

Domestic violence: The right to enter is not without limits- There must be:

A

Exigency.

Ex. Comm V Midi- female had left the home and told police she was safe, no indication boyfriend was aware she reported, he was not a flight risk. Police had time to get warrant .

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5
Q

Domestic disturbance calls: Contact with the parties- Officers should: (3)

A
  1. Explain presence
  2. Limit movement, separate parties
  3. Document all victim statements.
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6
Q

When a victim or witness speaks to police while under the influence of a recent event, the officer may repeat what they said in court if the initial questions were designed to (5):

A
  1. Provide help with an ongoing or recent emergency.
  2. Learn the location of and potential danger from a suspect;
  3. Get proper medical treatment for an injured person.
  4. Document a victim’s injuries and a suspect’s statements.
  5. Learn about prior incidents
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7
Q

True or false:

Often, officers encounter an emotional victim who is willing to relate the abuse she experienced. This type of “spontaneous exclamation” may be admissible at trial through the testimony of the police officer who heard it. This is important because many times in domestic violence crimes the victim later refuses to testify.

A

True.

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8
Q

DV- Even if statements of a victim or witness are not admissible as direct evidence, they may have other uses, such as:

A
  • challenging inconsistent trial testimony
    -advocating for bail or harsher sentence upon conviction.
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9
Q

Information about prior incidents of domestic violence may be:

A

admissible at trial and/or sentencing.

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10
Q

Officer responded to 911 call and saw a woman with severe facial injuries. When asked by officers, she was nervous and said she “fell down the stairs”.Officers questioned husband, who became angry. He stated he arrived home from work at 4pm and found his wife like that. When asked why he waited till 11pm to call, he changed his story and said he came home, found a condom in their bed, became angry and left. He came back hours later and found his wife in that condition.

Officer noticed fresh blood on right hand and blood spatter on shirt and forehead that he could not explain. He was arrested. Officer found blood in bedroom and bathroom, but not the stairs. At trial, the wife refused to testify. Can the husband be convicted?

A

Yes. Based on the officer’s excellent investigation.

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11
Q

Although they do not always show it, kids who witness domestic violence are:

A

Traumatized.

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12
Q

Although they do not always show it, kids who witness domestic violence are traumatized. This is why officers should: (2)

A
  1. Ask if the child is okay and record their name
  2. Explain in neutral terms what is happening

Note: For a more comprehensive intervention, contact a victim advocate in the DA’s office

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13
Q

Are police authorized to take photographs of victims injuries and the scene following domestic violence incidents? May they collect physical evidence?

A

Yes to all. Photographs are critical, and the rationale that supports increased efforts to obtain photographs applies with equal force to other physical evidence.

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14
Q

Will ELMO supply law enforcement with GPS probationers for investigative purposes?

A

Yes.
Requests are usually answered within 48 hours, emergencies receive an immediate response

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15
Q

Chapter 209A defines “family or household members” as people who are or were: (5)

A
  1. married
  2. child in common
  3. substantive dating relationship
  4. related by blood or marriage
  5. living together
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16
Q

209A- Married- Parents may apply for 209A protection on behalf of their minor children, however:

A

There must be some independent reason to include children in a protective order.

Acts of abuse against the children are not required.

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17
Q

209A- Parents of Common Child- Minors may apply for 209A protection. The court should see if it is practical for the child to appear with a parent or guardian; otherwise the court may:

A

appoint its own temporary guardian to issue the order.

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18
Q

Are grandparents of a child born out of wedlock covered by 209A?

A

Yes. “related by blood”

Ex. Paternal grandparents against grandchild’s mother.

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19
Q

To determine if it is a substantive dating relationship, police must consider: (4)

A
  1. length
  2. type
  3. interaction
  4. time elapsed since end of relationship

All 4 factors MUST be assessed

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20
Q

Are past protected relationships, such as ex-stepchildren, still covered by 209A?

A

Yes.

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21
Q

To determine if roommates are covered under 209A, police must consider (4):

A
  1. If roommates chose to live together
  2. configuration of living space
  3. Length of the living arrangement
  4. Type of relationship
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22
Q

Roommates: Examples of no 209A:

1.SJ v TS- College freshmen assigned to a room with the defendant.

2.Silva V Carmel: Intellectually disabled adult assigned to the same room as the defendant:

SJC finding:

A

Neither shared a “socially interdependent relationship” that is at the heart of 209A

For the purposes of roommates and 209A, residing together in the same household means more than simply sharing a living space. In Silva, SJC said that the purpose of 209A is to prevent violence in a family setting.

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23
Q

209A- Roommates: Police must ask 4 questions:

A
  1. Did the housemates or roommates choose to live together or were they assigned?
  2. How is the living space configured? (including how much space is shared)
  3. How long has the relationship existed?
  4. What is the type of relationship? (including what “communal living activities” do the housemates share)
  • no one factor is more important than the others.
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24
Q

If the victim finds out that 209A does not apply after she has started the process, can she use the same application to instead apply for a 258E?

A

No.

She will need to make a new application and have a new hearing under 258E.

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25
Q

209A: The standard of “abuse” is important because it: (2)

A
  1. TriggerS certain police responsibilities
  2. Justifies the courts issuance of a 209A order.
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26
Q

209A Sec 1 states that abuse occurs when a family or household member performs one or more of the following acts:

A
  1. Attempts or actually causes physical harm
  2. Places another in fear of imminent serious physical harm
  3. Causes another to engage involuntarily in sexual relations by force or threat
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27
Q

209A- Act 2: Places another in fear of imminent serious physical harm: This standard closely approximates:

A

The crime of assault (threatened battery, menacing conduct)

Ex. plaintiff demonstrated reasonable fear when she credibly testified about her ex-husbands erratic behavior during a dispute over parenting time; specifically, he told the plaintiff he purchased a gun and was sleeping with it; deliberately showed the gun to the very young children during facetime.

On the otherhand, nervousness or irritation is insufficent (ex. husband was rude about their divorce)

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28
Q

Even if court is in session, who may get a protective order over the phone?

A

Physically disabled.

-victim must be unable to appear “without sever hardship due to a physical condition”.

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29
Q

Officers can contact the Emergency Judicial Response System to get someone an order, provided:

A

They go to court on the next business day.

To confirm order is in place and they want it continued.

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30
Q

DV Arrest Procedure- EOPSS Guidelines:

As in other types of criminal investigations, (blank) by a victim may constitute probable cause to arrest.

A

Uncorroborated statements

Ex. “he punched me in the stomach” there is likely to be little physical evidence of this, so it would be difficult to corroborate.

Victim inherently reliable.

Corroboration of a victim’s account is NOT required for probable cause or even conviction.

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31
Q

DV Arrest Procedure- EOPSS Guidelines:

The arrest decision must be based on whether or not:

A

Probable cause exists.

Must NOT be based on whether the victim wishes to seek complaints or testify at a later date.

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32
Q

DV Arrest Procedure- EOPSS Guidelines:

When assessing a victim’s credibility, remember that a victim who is under the influence of drugs or alcohol, or who suffers from mental illness, is:

A

NOT inherently UNreliable

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33
Q

DV Arrest Procedure- EOPSS Guidelines

“One department’s statement that probable cause to arrest exists shall be honored by:

A

Another department.

The 2nd department shall immediately attempt to effect the arrest as requested by the investigating department.

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34
Q

DV Arrest Procedure- EOPSS Guidelines:

All officers will attempt to make a warrantless arrest within a reasonable amount of time. However, as soon as practical, the investigating department shall:

A

shall seek an arrest warrant from the appropriate court.

(ex. next day, end of shift, etc)

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35
Q

DV Arrest Procedure- EOPSS Guidelines:

It is NOT proper procedure to advise the victim to seek:

A

complaint applications on his or her own.

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36
Q

True or false:

Arrest is mandatory when police have probable cause for violation of a temporary or permanent protective order.

A

True.

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37
Q

True or false:

Arrest is mandatory for an outstanding warrant.

A

True.

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38
Q

Arrest is the “preferred response” for domestic violence incidents absent:

A

An existing order or warrant.

Then, arrest would be mandatory.

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39
Q

Arrest is the “preferred response” for domestic violence incidents absent and existing order or warrant- whenever officers have probable cause that the suspect committed: (3)

A
  1. Felony
  2. Assault or A&B on family/household member
  3. Another misdemeanor directed at a family or household member and involving abuse * (except for “threats”– Assault is the preferred charge, when applicable)
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40
Q

DV Arrest Cautions:

Dual arrests are:

A

Highly disfavored.

Officers shall attempt to identify dominant aggressor.

In the event of a dual arrest, officers must submit a separate report outlining the grounds for this action, in addition to their regular incident report.

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41
Q

Dominant aggressor indicators: Officers must consider: (6)

A
  1. relationship history
  2. size
  3. strength
  4. nature of force used by the parties
  5. existence of offensive/defensive injuries
  6. other evidence
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42
Q

Offensive injuries are typically found on:

A

Victim

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43
Q

Defensive injuries are typically found on:

A

Aggressor

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44
Q

Dispatch must immediately notify (blank) about any domestic violence allegation concerning any law enforcement officer.

A

The OIC.

A supervisor of a higher rank than the accused officer must be summoned to the scene.
NOTE: If that is not possible, contact State Police.

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45
Q

DV: Most important: The dominant aggressor is not automatically:

A

the person who used force first.

Ex. battered women’s syndrome

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46
Q

Massachusetts man travels to NH to violate a Mass restraining order. Charge him with:

A

Criminal Contempt.

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47
Q

A restraining order issued by any state, US territory, Puerto Rico, DC, or tribal court must be treated as if it:

A

As if it originated in Massachusetts. Charge under 209A Sec. 7.

Ex. RO issued by tribal court in Oklahoma- Proper

Ex. RO issued in Poland, Vietnam, etc. = No law to enforce

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48
Q

A restraining order issued by any state, US territory, Puerto Rico, DC, or tribal court must be treated as if it originated in Massachusetts. What else do officers need to enforce this?

A

“a copy of a protection order issued by another jurisdiction which has been provided by…any source.” However officers should require that a physical copy be sent as soon as possible and attach it to report.

Also, victim must confirm the order is still valid. Verbal statement is sufficient, signed statement not necessary.

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49
Q

Officer must make a (blank) to inform the victim about the abuser’s bail status (and whether or not he will be released).

A

A reasonable attempt.

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50
Q

Persons arrested for abuse OR violating a protective order- who are over 18 or older- may not be released on bail for 6 hours after arrest, EXCEPT:

A

By a judge in open court.

  • Only the prosecutor may expedite the process by requesting an arraignment within 3 hours of the suspect’s arrest.
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51
Q

6 hour hold before bail applies to:

A
  1. ALL domestic violence arrests (intimate partner as well as: married; parents; dating;related; or living together) * This is a common misconception among some clerk magistrates!
  2. Violation of a Restraining Order
  3. Strangulation
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52
Q

True or false:

Officers must file a written report concerning any allegation involving abuse.

A

True.

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53
Q

Are 209A reports considered “confidential communications”?

A

Yes. Must be treated similar to reports of rape or sexual assault.

Domestic violence and sexual assault reports and arrests must be kept out of the police log.

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54
Q

True or false.

Domestic Violence: Officers should attempt to locate and seize any guns or weapons that may have been used during the incident.

A

True.

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55
Q

Domestic violence:

If guns or weapons were not used during the crime, officers should : (2)

A
  1. Take custody of any weapons IF in a inhabitant consents (consent search is allowed in all areas except those where suspect has exclusive privacy- so husbands locked safe probably not)
  2. Request temporary custody of any weapons to alleviate threat of violence.
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56
Q

Domestic Violence:

If officers determine a weapon or firearm cannot be seized because it is not evidence of crime, or its removal is not consented to: (2)

A
  1. A judge may grant a Suspension & Surrender order; and/or
  2. The chief may revoke or suspend a gun license. In all domestic violence cases, the investigating department “shall advise the LA that the subject of the license is suspected of abuse”
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57
Q

209A orders:

EOPSS guidelines state that police need (blank) to accompany defendants to the victims (or shared) property for any reason. Insist that defendants arrange with police , in advance, a time that is convenient for the victim. Do not spontaneously respond to a house for this purpose. The victim must have:

A
  1. Judicial authorization
  2. Advance notice.

If the victim has to go into the defendants residence to obtain property, police should accompany her too.

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58
Q

True or false:

A tenant may terminate a lease upon notifying the landlord that the tenant or household member has been the victim of domestic violence (or sexual assault) and is still in danger.

A

True.

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59
Q

A landlord is require to change the locks upon request by a resident who is a victim of domestic violence (or sexual assault). May the landlord charge for the work?

A

Yes.

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60
Q

In public housing (or when using a public rental voucher), Federal law provides: (2)

A
  1. A tenant may be protected from eviction if domestic violence (or sexual assault) is connected with the tenant’s failure to pay or comply with the lease.
  2. A tenant or household member may also demand that the housing authority revise the lease to remove an abuser and/or put the victim on the lease instead.
  • a housing authority should be ready to transfer a victim’s entire household to a safe unit, if available, when a threat exists of further violence.
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61
Q

A tenant may be protected from eviction if domestic violence (or sexual assault) is connected with the tenant’s failure to pay or comply with the lease.

A tenant or household member may also demand that the housing authority revise the lease to remove an abuser and/or put the victim on the lease instead.

May the landlord require that the tenant produce documentary evidence?

A

Yes.

Acceptable records include 209A or or police report, records of victim service providers, attorneys, or medical records.

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62
Q

Should departments adopt EOPSS policy, or draft their own?

A

The best practice is for each agency to adopt the Domestic Violence Law Enforcement Guidelines published by EOPSS as it sole policy.

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63
Q

Victim safety must be considered before police notify a

A

dangerous suspect.

ex. Even though Anthony Lord had a violent record and had raped and threatened to kill Brittany Irish, and even though Irish said Lord would kill her if he found out she had gone to police, a detective left a phone message for lord and did not warn Irish until after Lord had killed her new boyfriend, wounded her mother, and wounded and raped Irish again.

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64
Q

Officers have a duty to investigate (blank)

A

fairly.

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65
Q

In Massachusetts, police are not liable for their negligent failure to protect a particular person against a danger police did not originally cause, unless police made:

A

an explicit and specific assurance of safety to the person.

66
Q

209A orders:

Venue for issuing:

A

The place where the plaintiff lived at the time of abuse.
* or if the victim left her dwelling to avoid abuse, in the place where the victim currently lives.

67
Q

209a orders:

Venue for prosecuting a violation:

A

-The court that issues the order; or
-the court where the violation occurred.

68
Q

209A

Temporary Order: The defendant gets an “opportunity to be heard” no later than (blank) after the temporary order is issued.

A

10 days.

69
Q

Following the 10 day hearing, the temporary order typically becomes a “permanent” one, which lasts up to:

A

1 year.

70
Q

209A

Following the 10 day hearing, the temporary order typically becomes a “permanent” one, which lasts up to one year. At the end of the first year, the court holds a renewal hearing. The judge may: (3)

A
  1. permit the existing order to expire.
  2. issue a permanent order which does not expire
  3. issue an order of shorter duration
  • that fact that no abuse has occurred is NOT, by itself, grounds for denying an extension of the restraining order.
71
Q

A plaintiff who allows a 209A order to expire and later files a complaint for a new one must prove that her (blank-6 words) still exists, justifying the new order.

A

fear of imminent and serious physical harm

72
Q

A plaintiff who allows a 209A order to expire and later files a complaint for a new one must prove that her fear of imminent and serious physical harm still exists, justifying the new order. In contrast, a plaintiff seeking to extend and existing order only need to show her (blank- 9 words)

A

continued need for the order to remain in place.

73
Q

The probation Department keeps records of 209A filings whether active, denied, vacated, or expired. They are available through CJIS. When a court vacate an order it must notify the police department and direct that:

A

it destroy any police copies of the order.

74
Q

209A affidavit is proof of the underlying crime when the victim:

A

recants in court.

Note: an affidavit may be used in this fashion, because it is a written, legal document made under oath and furnished to a judge. Once the victim testifies and is subject to cross examination, the affidavit becomes admissible evidence during the trial.

75
Q

209A Orders

209A Sec. 3, 3B, 3C, 4, and 5 mandate arrest for the following violations under any emergency temporary, modified, or permanent order: (4)

A
  1. Refrain from abuse
  2. Stay away & no contact
  3. Suspension & surrender; or
  4. Vacate

209A orders can be issued by District & Superior courts as well as Probate & Family court

76
Q

Probate Supremacy means:

A

An order issued by the probate court invalidates any conflicting orders issues by a district or superior court.

Note: 209A order may only be modified by a probate judge to allow visitation.

77
Q

An order issued by the probate court invalidates any conflicting orders issues by:

A

A district or superior court.

Probate Supremacy

78
Q

A 209A order may only be modified by a probate judge to:

A

allow visitation.

79
Q

209A

Once modified by a probate judge, the original district or superior court must enter the new order into the:

A

Domestic Violence Record System, and notify police.

80
Q

208 Orders cover:

A

Divorce proceedings:

Issued by Probate court.

Orders may authorize arrest for violations, however officers should ensure that an order indicates on its face that a violation is a criminal offense.

81
Q

209 Orders cover:

(read question carefully)

A

Child support.

82
Q

209 Orders cover Child Support (different order from 209A)

If an order includes language saying that a violation is criminal, then:

A

arrest if mandatory.

83
Q

209C orders cover:

A

Paternity action.

Child born out of wedlock.

84
Q

209C order- Paternity Action:

209C Sec. 15 and 20 authorize an order to protect any party during paternity action concerning a Child born out of wedlock. If an order contains language saying that a violation is criminal, then:

A

arrest is mandatory.

85
Q

Violation of a Restraining Order Ch. 209A sec 7.

ROA:

A

Mandatory arrest- warrantless on probable cause.

86
Q

Violation of a Restraining Order Ch. 209A sec 7.

The suspect, either directly or indirectly, violated the terms of a permanent or temporary restraining order by failing to do one or more of the following: (4)

A
  1. Refrain from abuse
  2. “Stay away” from or have “No Contact” with the plaintiff or her children(when applicable)
  3. Surrender his firearms, weapons, ammunition, and gun licenses.
  4. Vacate

** the defendant must have received notice of the order- by having it served on him or by having actual knowledge of the order trhough some other means.

87
Q

Violation of a Restraining Order Ch. 209A sec 7.

Vacate. A vacate order means the defendant must: (4)

A
  1. Surrender his keys immediately;
  2. Not damage any household property
  3. Not disrupt utility service or mail delivery;
  4. Leave and remain away from the house, a multi-family dwelling, and/or leave the victim’s workplace.
88
Q

Victim approached police 9 months after the defendant violated the order; police should have:

A

applied for a complaint with a hearing; there was no indication that the defendant posed a threat or flight risk.

89
Q

209A

True or false:

A separate violation occurs in relation to each person protected by the order, even in cases where the violations occur during one incident.

A

True.

Ex. defendant properly charged with 4 counts when he violated a restraining order in relation to his ex-girlfriend and her three minor children; this legal rule emphasizes the importance of each individual protected under an order.

90
Q

May police arrest for a violation of the animal protection provision in a 209A order.

A

No

Instead, they must seek an arrest warrant.

91
Q

209A

Police must only arrest for violations involving abuse; failure to stay away or refrain from contact; failure to surrender firearms; or failure to vacate. Other infractions, (ex. failure to pay child support or medical costs) must be pursued by:

A

The prosecutor though a contempt hearing.

92
Q

Violation of a 209A order:

Misdemeanor or Felony?

A

Misdemeanor.

93
Q

209A

Proof of Notice :

Notice occurs either by: (2)

A
  1. Service of the actual order; or
  2. The defendant’s awareness of the order by other means.
94
Q

209A : Service of Order:

Are vehicle stops permitted for the sole purpose of serving a restraining order?

A

No.

95
Q

209A : Service of Order:

May officer enter onto private property to serve an order?

A

Yes.

They may not enter the home, however, unless they have a warrant, consent, or exigent circumstances.

96
Q

209A : Service of Order:

According to EOPSS: (7)

A
  1. in hand unless otherwise ordered by the court
  2. shall be served promptly and not be delayed in order(for service) by a specialized officer or unit.
  3. Department must continue to attempt service until it is completed.
  4. Officers should consider the victim’s safety in the timing of service
  5. Record all service attempts
  6. Send all returns of service to the court
  7. If in hand service fails, police must ask the court to order an alternative means of service.
97
Q

At time of service for a suspension & surrender order, seize: (3)

A

firearms, ammunition, and gun licenses.

98
Q

Is actual physical receipt of an order required?

A

No. officers may announce the subject of the order and leave it in the vicinity of the defendant.

“An individual cannot avoid in hand service by refusing physically to take the tendered papers”

99
Q

209A : Service of Order:

Address on order is presumed correct. If service was made to the address on the order, then it is the (blank) burden to show that he never received a copy.

A

defendant’s burden.

100
Q

209A : Service of Order:

When effecting service a police officer should: (2)

A
  1. Inform the defendant of the contents of the order and potential penalties; and
  2. provide information, including a list of certified batterer, substance abuse, and financial counseling programs located near the court.
101
Q

209A : Service of Order:

Properly complete return of service, which is (blank) to prove notice.

A

admissible.

by itself, as public record. no need to have officer who serves the order testify.

102
Q

209A : Service of Order:

Is alcohol intoxication a defense to valid order service?

A

No.

103
Q

209A : Service of Order:

Is an officer’s failure to translate an order a defense of valid service?

A

No.

A defendant’s inability to speak English is no defense because the look of the order (official address, state seal, etc, ) alerts a reasonable person that it is important and should be translated.

104
Q

209A

Even if not served, a defendant receives notice if he :

A

learns about the order from some other source.

Ex. wife tells him over the phone or he learns police are trying to serve the order

Once he knows the order exists, the law expects the defendant to learn its specific terms.

105
Q

Is intent an element of Violation of a Restraining Order?

A

No.

No need to prove the suspect intended to violate the order. As long as the defendant had notice of the order, he is responsible for any act that constitutes a violation.

  • Also, what the defendant thought an order meant is irrelevant
106
Q

209A orders:

The fact that a defendant engages in contact with a “desire to make amends” is :

A

Irrelevant.

Note: Violation also occurs even if the victim permits the encounter.

107
Q

209A Orders:

Only a court may modify an order. A victim’s consent never suspends or modifies a restraining order.

For a defendant to modify an existing order, he must show- by (blank)- that the provision at issue is no longer necessary.

A

by clear and convincing evidence.

108
Q

209A Orders:

Only a court may modify an order. A victim’s consent never suspends or modifies a restraining order.

For a plaintiff to modify an order in a way that places an additional burden on the defendant, she must show- by(blank)- that the modification is necessary to protect her.

A

by a preponderance of the evidence.

109
Q

“Stay away” and “no contact” orders: Their core purpose is to create and maintain:

Which order provides broader protection?

A
  1. a safe haven from abuse.
  2. No Contact order

Violating either mandates arrest.

110
Q

Four ways to violate a stay away order:

A
  1. Come within a specific distance. (if no distance is specified by the order, the defendant still may not- see next)
  2. Cross over the property line (ex. covered parking lots and other company property, not just building)
  3. Engage in behavior that intrudes into the residence or building (defendant looked in window of victims house and made eye contact with her 15 y.o daughter)
  4. Come near enough to the property line so that he “ would be able to abuse or contact the protected person if they were on the property or entering or leaving it.
  • in any case, the victim does NOT need to be present when the suspect violates the order
111
Q

Does a victim need to be present in order for a defendant to violate a stay away order?

A

No.

112
Q

Stay away and no contact orders:

Victim lived with her mother, who received a Valentines Day card from the defendant. Is this a violation?

A

Yes.

Direct and indirect contact prohibited.

113
Q

Can a Facebook threat violate a 209A order if the victim and defendant blocked each other?

A

Yes

Ex. defendant’s post referred specifically to a recent order, which proved his post was intended for the victim.

114
Q

No contact orders:

Must prove written communication authored by defendant. In example case (Comm Vs Gonsalves) 4 factors proved the texts to the victim were written by the defendant. What were they?

A
  1. They came from a phone number he previously used to communicate with her. The number had never been used by anyone else;
  2. Reference to particular events happening between them (ex. new 209A);
  3. Content consistent with previous communications from defendant (spelling errors, writing style);
  4. Numerous communications making it unlikely anyone else would bother to send so many.
115
Q

The transmission of an electronic message from a social media or email account is not proof, by itself, that the person who controls the account sent the message. It is not even probable cause. Must prove:

A

the written communication was authored by the defendant.

116
Q

Is it necessary to prove the victim was in fear when defendant violates a no contact or stay away order?

A

No.

117
Q

Actions that do NOT violate a stay away order or no contact order: (2)

A
  1. Nonharassing, incidental contact
    (ex. no contact order did allow the defendant to call his children at his ex-wifes homes; the fact that she sometimes answered was not a violation.
  2. Accidental encounters
    - However, a defendant must end an accidental encounter promptly.
118
Q

Actions that do NOT violate a stay away order or no contact order: Nonharassing, incidental contact; and Accidental encounters:

When officers encounter incidental aor accidental contact, they must view it as a:

A

Nonviolation.

Officers should encourage the defendant and/or victim to go to court to modify the order to deal with any ambiguity. Officers should also warn a suspect, in a close case, that future contact will subject him to arrest.

119
Q

Nonpayment of utility bills leading to shutoff (blank) vacate order.

A

Violates.

Commonwealth does not have to prove defendant can afford it.

120
Q

In the rare cases where a third party violates an order, police must prove:

A

that the defendant intended for this to happen.

121
Q

Harassment Prevention Orders under 258E are almost identical to 209A, However, HPO’s may be obtain by (blank), which makes them useful in cases of bullying, sexual assault, or stalking.

A

Anyone.

122
Q

Harassment is: (three categories)

First category:

A
  1. 3 acts of intimidation, abuse, or property damage.

3 or more acts of willful and malicious conduct, aimed at a specific person with the intent to cause fear, abuse, or property damage, and which DOES result in fear, abuse, or property damage.

123
Q

Harassment is: (Three categories)

Second Category:

A

Involuntary sexual relations.

A forceful or threatening act that causes a other to involuntarily engage in sexual relations

124
Q

Harassment is: (Three categories)

Third category:

A

Specific crimes.

  1. Indecent A&B on a child Under 14
  2. Indecent A&B on a person 14 and Over
  3. Indecent A&B on a person with intellectual Disabilities
  4. Rape
  5. Rape of a Child
  6. Statutory Rape
  7. Assault with intent to Rape
  8. Enticement
  9. Stalking or Criminal harassment
  10. Drugging to engage in intercourse
125
Q

Components of HPO (4)

A

-Refrain from abusing or harassing the plaintiff

  • No Contact (unless authorized by the court)
  • Remain away form the plaintiff’s household or workplace
  • Pay compensation for any losses suffered as a direct result of harassment (property damage, replacing locks, medical expenses, unlisted phone number, attorney’s fees)
126
Q

May police order the defendant on an HPO to surrender his guns, ammo, and LTC or FID?

A

NO.

However, 140 Sec 131d directs that the licensing authority revoke any person’s LTC (Not FID) if they are the subject of an HPO.

In other words, department must take the extra step of revoking an LTC upon learning that the holder is the target of an HPO.

127
Q

HPO may NOT order surrender of guns, ammo, and LTC or FID. Instead, direct the licensing authority to revoke and person’s (blank) if they are the subject of an HPO

A

LTC

NOT** FID

128
Q

Aside from a criminal penalty, may a court hold a defendant in “civil contempt” for an HPO violation?

A

Yes.

129
Q

Violation of an HPO

ROA:

A

Arrest MANDATORY upon probable cause.

130
Q

Criminal Harassment

ROA:

A

Arrest is the preferred response for harassment.

If there is no HPO in effect, arrest shall be the preferred response if the officer has probably cause to believe that a person committed a felony or misdemeanor involving harassment, or an A&B.

131
Q

Abuse or Harassment

Is the safety of the victim a relevant factor police can consider in their decision to arrest?

A

The safety of the victim is the PARAMOUNT CONCERN in the decision to arrest.

Use all reasonable means to prevent further abuse or harassment to the victim.

132
Q

Abuse or harassment:

Encourage the victim to seek medical attention and, if necessary, arrange for an ambulance. If a sexual assault has occurred, inform the victim that there are (blank) medical and forensic tests, and arrange for transport to the hospital.

A

Time- sensitive

133
Q

Abuse and harassment:

Police duties: (7)

A
  1. Encourage the victim to seek medical attention and, if necessary, arrange for an ambulance.
  2. Provide referrals to local resources to assist the victim in getting to a safe place.
  3. Provide notice to the victim of her HPO rights. - this is a mandated notice, almost identical to 209A. Officers must read it to the victim and provide them with a copy.
  4. Assist the victim by activating the emergency judical system when court is closed
  5. Inform the victim that the abuser will be eligible for bail.
  6. Immediately file an incident report whenever an officer investigates, and provide a free copy to the victim upon request
  7. Serve a copy of the HPO on the defendant and file a return of service.
134
Q

The “public records” exception to the hearsay rule allows a document to be offered into evidence if it was prepared in the:

A

ordinary course of business by agency personnel for an administrative purpose.

135
Q

Police enforcement of Out- of State HPO:

A

Enforce as if issued in Massachusetts.

This means mandatory arrest.

136
Q

HPO

Venue:

A

A district or superior court where the plaintiff resides may issue an HPO.

137
Q

A district or superior court where the plaintiff resides may issue an HPO. Who has exclusive jurisdiction when the defendant is under 18?

A

the juvenile court where the plaintiff resides.

138
Q

Duration of HPO: Initial HPO last up to:

A

1 year; Extension possible.

If the plaintiff appears in court when the order expires, the court may extend it for a specified period of time or permanently. The fact that harassment did not occur shall not, by itself, be grounds for refusing to extend it.

139
Q

3 grounds for emergency HPO:

A
  1. Substantial likelihood of immediate danger of harassment; or
  2. court closed and danger (ex.officers respond at night)
  3. Plaintiff unable to appear because of severe physical condition and danger of harassment

*Telephone issuance authorized

Plaintiff must appear in court the next business day. If plaintiff is unable to appear because of physical hardship, a representative may appear.

140
Q

Temporary HPO: the defendant must be served and given a hearing to contest the order within:

A

10 court business days.

141
Q

Temporary HPO: the defendant must be served and given a hearing to contest the order within 10 court business days. If he does not appear, the temporary order:

A

remains in effect.

142
Q

If a victim qualifies for both 209A and 258E, how does 209A offer better protection?(2)

A
  1. Allows court to order surrender of his guns and licenses
  2. court may order child support and temporary custody of children
143
Q

For a crime based HPO, how many instances of a designated crime or involuntary sexual relations is sufficient?

A

One.

If the HPO shows, by a preponderance of the evidence, that the defendant committed one of the 12 specific crimes listen in 258E sec 1, or forced the plaintiff to engage involuntarily in sexual relations, that is a sufficient reason for the judge to issue an HPO.

Specific Crimes:
1. Indecent A&B on Child under 14

  1. Indecent A&B person over 14
  2. Indecent A&B on Person with Intellectual Disability
  3. Rape
  4. Rape of a Child
  5. Statutory Rape
  6. Assault w/ intent to rape
  7. Enticement
  8. Stalking
  9. Criminal Harassment
  10. Drugging to engage in intercourse
144
Q

In the crime- based HPO category, a new HPO may be based on the same facts as:

A

a previously expired HPO.

Ex. indecent A&B victim could get a new HPO once her assailant was paroled from prison several years after the initial HPO for the same reason had expired.

145
Q

For harassment based HPO, do the 3 incidents need to have occurred within a certain time period?

A

No.

Also, they do not have to have been previously reported.

*However, the acts must have been directed at a specific person.

146
Q

HPO

Angry words are not enough. (Blank) words or (blank) necessary.

A

Fighting words or true threat necessary.

147
Q

True or false:

Police reports and complaint applications are not harassment.

A

True.

148
Q

Photographing another person’s child may qualify as an:

A

act of harassment.

Ex. defendant photographed his neighbor’s child repeatedly; under the circumstances, this was harassing conduct.

149
Q

Is drone flight over the property of another harassment?

A

Flying drones over another person’s property, although annoying, does not constitute 258E harassment without evidence that the action was intended to cause fear or property damage, *and that it actually did.

150
Q

Landlords cannot use an HPO to get around:

A

the civil eviction process.

151
Q

May juveniles be the subject of a 258E order?

A

Yes.

Ex. 8 year old boy subject to HPO after committing an indecent A&B on his 4 year old neighbor in the yard.

152
Q

Does a mental health condition preclude a 258E order in response to obvious misconduct?

A

No.

Ex. ex girlfriends constant contact and threats of suicide sufficient basis to issue HPO against her.

153
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Intimate partner: Subsequent Offense (offender has prior 13M conviction)

ROA:

A

Felony.

Note: Prior offense must have been charged under 13M. Doesn’t have to be the same victim

154
Q

Being an “intimate partner” under 13M requires (what standard of evidence)?

A

Proof beyond a reasonable doubt.

155
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Intimate partner:

ROA:

A

Arrest on Probable Cause

156
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Officers should use 13M whenever possible because:(3)

A
  1. it triggers the restricted bail period
  2. possibly triggers pre-trial detention for 120 days
  3. triggers a felony charge for any subsequent offense
157
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Family or household member:

ROA:

A

Arrest on Probable Cause.

158
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

In violation of a restraining order:

ROA:

A

Felony.

159
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Pregnant: (A&B only)

ROA:

A

Felony.

Victim does not need to be in any type of relationship with offender. Offender must know of have reason to know that she is pregnant.

160
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Serious Injury (A&B only)

ROA

A

Felony.

Note: Injuries that have qualified as “serious” for this charge have included a broken jaw, a permanent scar because of stitches, facial reconstruction, and double vision.

161
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Suffocation or Strangulation:

ROA:

A

Felony.

Victim does not need to be in any type of relationship with offender.

Minimum 6 hour hold.

162
Q

Assault or A&B Occurring in a Domestic or Harassment Relationship:

Harassment:

Elements:

ROA:

A

-Engage in 3 or more acts of malicius conduct;
-Directed at the victim;
- With intent to cause fear, about, intimidation, or property damage; and
- which actually resulted in fear, abuse, intimidation, or property damage.

ROA: Arrest on probable cause

Victim does not need to be in a specific relationship with the offender.

There is no set time period within which the 3 incidents must occur.

The prior incidents do not need to have been reported to the police. The assault or A&B that is being investigated by the police may constitute the 3rd incident and trigger an officer’s right of arrest.

Exam (68 decks)

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