DOMESTIC VIOLENCE Flashcards
“Abuse”
under C. 209A S.1
the occurrence of one or more of the following acts between family or household members: (APCC)
- Attempting to cause or causing physical harm;
- Placing another in fear of imminent serious physical harm;
- Causing another to engage involuntarily in sexual relations by force, threat or
duress. - Coercive Control
Family or Household Members under C. 209A S.1
- Are/were relate by blood/marriage –> Non-intimate
- Are/were residing together/household –> Non-intimate
- Are/were marriage –> Intimate
- Are/were engaged –> Intimate
- Are/were in a substantive dating relationship –> Intimate
- Have a child in common –> Intimate
Are or have been in a substantive dating or engagement relationship based on
- Length of time
- Type of Relationship
- Frequency of interaction
- If relationship is terminated, the length of time elapsed since the termination of
the relationship
Protection Order issued by another jurisdiction:
- Shall be given full faith and credit throughout Commonwealth - will enforce as
long as it is active/valid and issued by another state or US territory/possession - We will take the victim at their word and then contact the issuing dept.
- If order is not verified, RELEASE FORTHWITH
Vacate Order:
court order to leave & remain away from premise & surrender keys
- Basic Protection shall include:
- Defendant shall not damage any of the plaintiff’s belongings
- Defendant shall not shut off any utilities or mail delivery
- Defendant shall not interfere in any way with the plaintiff’s right to possess such
residence - Extended Scope:
- Multiple family dwelling; and/or
- Plaintiff’s workplace
Civil vs. Criminal Infractions
Criminal/Arrestable * Civil/Non-Arrestable*
- Refrain from abuse - Awarding plaintiff temporary custody
- Refrain from contacting - Order to pay child support
- Vacate & remain away - Order to pay monetary compensation for losses
suffered
- Plaintiff’s address to be impounded - Betterer’s Intervention Program (BIP)
- Refrain from abusing/contacting child - **violations to be taken up with courts
- Complainant shall be informed that the proceedings hereunder (protection
order) are civil in nature and that violations are criminal in nature. - When the expiration date falls on a weekend, holiday, or date the court is closed,
the order shall not expire until the NEXT COURT BUSINESS DAY.
Surrender of Firearms (c. 209A s. 3B)
Upon issuance of temporary or emergency order, the court shall order the immediate suspension and surrender of:
- LTC - Shotguns
- FID - Machine Guns
- Firearms - Ammunition
- Rifles
Petition for Review:
ANY defendant may petition such action and will be heard no later than 10 COURT BUSINESS days
-Employment: court shall order a hearing no later than 2 COURT BUSINESS days
Temporary Order (C. 209A s. 4)
- 10 court business days
The court shall give the defendant an opportunity to be heard on the question of continuing the temporary order no later than 10 court business days after such orders are entered
Emergency Order (C. 209A s. 5)
- Courts are closed
- Good until NEXT court business day
Powers, Duties, and Responsibilities (C. 209A s. 6)
- Remain on scene
- Assist in obtaining medical treatment
- Assist in locating and getting to a safe place
- Give immediate and adequate notice of his/her rights
- Activating the emergency judicial system when court is closed
- Inform the victim that the abuser will be eligible for bail and be promptly (after 6
hours) released - Shall arrest as required by law.
Service of Order (C. 209A s. 7)
- Clerk magistrate shall transmit two certified copies of each such order and one
copy of the complaint and summons forthwith to the appropriate law enforcement agency, and then the LE agency will service a copy of the order and complaint to the defendant, the plaintiff will get a copy, and the LE agency will keep a copy - Police are NOT required to serve defendant in hand
- Want to note who it was served to
Violation of Protection Order/Restraining Order (C. 209A s. 6&7)
- In order to CONVICT defendant of violation:
- Order issued by court
- Order in effect on date of violation
- Defendant knew of order by having been served in hand or some other way (or by having actual knowledge of the order through other means – “Notice of Order”)
Proof of Notice
so long as prosecutor can prove that the defendant had actual knowledge of the term of the order, burden of proof will be satisfied.
- Defendant violated the order by failing to vacate or by “abusing” plaintiff
* Direct or Indirect violation by failing to:
* Refrain from abuse or contacting, or
* Follow vacate order protections, or
* Follow surrender/suspension order
- Direct: no need to prove that the defendant intended to violate order
- Indirect: must prove that the defendant intended the 3rd party to violate order
- State DV Law Enforcement Guidelines – Section 10:
- Vacate Orders and Court Orders to Retrieve Belongings: once a vacate, no contact, stay away, or refrain from abuse order is issued, officers should not accompany a defendant to the property without SPECIFIC JUDICIAL AUTHORIZATION
- The victim must have prior notice by the police department, and the victim must agree to the timing of the retrievals
- Victim’s safety is primary concern
- Threats alone are not arrestable 209A – victim must be put “in fear”, which would make the crime assault, which would be a warrantless arrest on PC under 209A
- Victim may never change the terms of the order without a court ruling – consent of the victim DOES NOT suspend or modify order in any way.
- Under Chapter 209A, the legal obligations fall into two categories:
- Offenses that require Mandatory Arrest
- PC established or violation witnessed – violation of any temporary or permanent vacate, restraining, no-contact order, or suspension/surrender
- Offenses for which Arrest is the Preferred Response
- PC established or witnesses commission of Felony, A&B, Misdemeanors involving abuse as defined in c. 209A s. 1
- Arrests for misdemeanors not committed in the officer’s presence are a statutory exception – officers may arrest as long as they have established PC to believe that the misdemeanor involved ABUSE
The safety of the victim and any involved child SHALL be the paramount consideration in an officer’s decision whether to arrest.
Victim’s preference for an arrest is IRRELEVANT
* Dual arrest and mutual protective orders are highly discouraged.
* Whenever it is necessary, officer must submit a detailed written report outlining the grounds for the dual arrest in addition to the mandated incident report
MGL C. 265 s.13M: Domestic Assault or Domestic A&B
- Family or household members who are involved in “INTIMATE RELATIONSHIPS”
- EXCLUDES persons residing in the same house or related by blood
- DOES NOT change the definitions of family or household members under c.209A
s.1
Family or Household Members under C. 265 s.13M:
- Are or were married to one another
- Have a child in common
- Are or have been in a substantive dating relationship based on:
- Length of time
- Type of Relationship
- Frequency of interaction
- If relationship is terminated, the length of time elapsed since the termination of the relationship
- Engagement relationship
how long a temporary restraining order valid for?
10 court business days
employment purposes what does that defendant need to if they need they firearm back?
a petition to the court for a review
and the hearing will be held in 2 court business days
