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Domestic Violence or family violence is the abuse of power or control.
It is behavior used by one person to control another through force or threats.
A batterer makes a choice to strike, hit, kick, punch or threaten the victim.
Domestic violence includes physical and sexual attacks and threats. These
violent acts are criminal and the batterer can be prosecuted for committing
them. The acts are a means of controlling the victim’s thoughts, feelings and
behavior. The violence does not lessen over time. The threats and or beatings
generally happen more often with time, last longer and cause greater physical
injuries. Emotional abuse and insulting words are almost always part of
the abuse pattern, but are not considered criminal acts. The wounds from these injuries, however ,
may be more difficult to heal.
Domestic violence is not caused by or provoked by the actions or inaction’s of
the victim. Domestic violence is not directly caused by alcohol or drug abuse,
depression, lack of money, lack of a job, mental illness or abuse as a child.
However, existing problems often create additional stress in a relationship and
may increase the risk of violence. Many abusers blame the victim or other things
for their violent acts and do not take responsibility for the abusive behavior.
There is never an excuse for violence.
WHAT IS THE LEGAL DEFINITION OF ABUSE?
Chapter 209A, the Massachusetts Abuse Prevention Act, defines abuse as :
· actual physical abuse, or
· an attempt to harm another, or
· placing another in fear of serious physical harm, or
· causing another to engage in sexual relations by force, threat of force or
duress
WHAT IS A 209A ORDER?
An Abuse Prevention Order, called a "209A Order," or a "protective order," or
"restraining order," is a civil court order intended to provide protection from
physical or sexual harm caused by force or threat of harm from a family or
household member. You can obtain an order against:
· a spouse or former spouse
· A present or former household member
· a relative by blood or a present or former relative by marriage
· the parent of your minor child
· a person with whom you have or had a substantial dating relationship.
WHERE CAN I GET A 209A ORDER?
A 209A Order can be obtained in any District Court, Superior Court , or Probate
and Family Court in Massachusetts. An emergency 209A Order can be obtained
through any police department after court hours, on weekends and holidays. You
do not need a lawyer to file for a 209A Order4 and there is no charge for
filing.
HOW CAN I GET AN ORDER IN DISTRICT COURT?
Should you decide to go to a District Court for a 209A Order, you may go to the
District Court in the area where you live or, if you have fled to another area
to avoid abuse, you may go to the District Court in the area where you now live
(see list of resources, p.14). Go to the Clerk’s Office in the court and ask for
a "protective order" or a "209A Order," You will receive a packet of forms to
complete as an application for a protective order.
In some courts, there may be a Court Advocate from a local battered women’s
service agency to help you with the form. A Victim/Witness Advocate from the
District Attorney’s Office is also usually available for assistance and to
discuss the option of filing criminal charges against your abuser. Ask someone
at the Clerk’s Office to direct you to the District Attorney’s Victim/ Witness
Office for help. You do not have to file criminal charges in order to obtain a
209A Order. However, criminal charges can be helpful in holding a batterer
responsible for criminal acts committed against you . If there is a criminal
violation, the Court can also require a batterer to obtain counseling or other
treatment.
WHAT QUESTIONS ARE ASKED ON THE FORM?
On the application or complaint forms for a 209A order, you need to make a sworn
statement (affidavit) describing the facts of any recent or past incidents of
abuse. It is important to provide as much information about the abuser as
possible. You must also disclose any other existing 209A Orders from any court
or any Probate Court action you are involved in, including any divorce or child
custody proceedings.
WHAT RELIEF CAN I ASK FOR ON THE APPLICATION?
You may request the judge to order that the abuser:
· stop or refrain from abusing you
· have no contact with you or a child in your custody
· vacate or move out of the house or apartment where you live.
You may also request the judge to order that you receive support and temporary
custody of your children, if the abuser has a legal duty to support or shares
custody. You may request payment for medical costs incurred due to injuries
caused by the abuser and related loss of wages. You may ask that the abuser not
contact you at work or at a relative’s home, and that your new address be kept
confidential from the abuser for your safety.
WHAT ABOUT CHILD CUSTODY AND VISITATION?
A 209A Order from a District Court can provide you with temporary support and
custody of your minor children. Only the Probate and Family Court , however, can
decide child visitation rights. A 209A Order from that court may be more helpful
in dealing with abuse protection that also involves divorce, long term financial
support, child custody and visitation issues. You may want to speak with a private
attorney for Probate Court or call one of the legal services or victim’s
services listed on this brochure for an attorney referral list. Pro bono (free)
or reduced fee legal services may be available.
WHAT HAPPENS NEXT?
After you have completed the 209A complaint or application forms, return them to
the Clerk’s Office and ask when the judge will hear the applications for
protective orders. The Clerk’s Office will tell you the time and courtroom
location for your hearing.
At your hearing, the judge will ask why you need a protective order and will
review yourr complaint or application forms and affidavit. The judge will be
deciding whether it appears there is a substantial likelihood of immediate
danger of abuse. He or she will probably ask you some clarifying questions. In
some court’s, a "209A Briefing Session " is held before the hearing and a Court
Advocate or a District Attorney’s Victim / Witness Advocate will explain the
hearing process and be with you in the courtroom.
WHAT WILL THE JUDGE DO AFTER SPEAKING WITH YOU?
The judge may grant or deny the 209A Order after speaking with you. If the judge
grants the Order, you will receive a Temporary Order for up to ten days. A court
date will be scheduled within 10 court days for you to return to court for a
Permanent Order, which lasts for a year and can be renewed. Keep your copy of
the Order with you at all times. The judge will also order the abuser to
surrender all guns and gun permits he or she possesses.
The police will deliver (serve) a copy of the Order to your abuser and will keep
a copy on file at the police station. It is important to provide the abuser’s
home, work, or other likely addresses so that the police can serve the Order as
quickly as possible and provide the required notice of the next court date.
A violation of certain terms of a 209A Order (orders to vacate the premises,
refrain from abuse and have no contact with you) requires that the police arrest
your abuser.
A violation of a 209A Order, once the abuser has notice of the Order, is a
criminal offense.
WHAT IS A TEN DAY HEARING?
The Ten Day Hearing requires that you return to the court on the date given on
the Order. If you do not return to court, the Order will not be in effect after
that date. The hearing offers the chance for both parties, you and the abuser,
to come before the judge and offer information (evidence) as to why a permanent
209A Order, which lasts for one year, should or should not be granted. Bring any
hospital records, photographs or police reports you may have for the judge to
review. You may also bring a support person with you. The abuser may be present
at the ten day hearing and may oppose the 209A Order . If the abuser is not
present and has been served with the Order, the judge can still grant the Order
for one year period.
WHAT HAPPENS AT THE END OF A YEAR OR THE END OF THE EFFECTIVE DATE?
If a 209A Order is issued by the judge for a year, you must return to the court
for an extension of the Order at the end of that year or the Order will expire.
WHAT SHOULD YOU DO IF YOU WANT TO CHANGE THE TERMS OF THE ORDER?
Any changes in the Order before that date must be made with both you and the
abuser appearing in the same court where the Order was first given. A request to
change or amend the Order can be made at the Clerk’s Office, and a hearing will
be arranged before a judge.
CAN A MINOR OBTAIN A 209A ORDER?
A minor under 18 years old can obtain a 209A Order with some restrictions.
Generally, a parent or guardian needs to be present, but the judge can decide to
issue a 209A Order without a parent present if the minor appears to be in danger.
In some cases, the Department of Social Services may offer assistance in gaining
help for a minor. Many high schools and colleges also offer support groups for
students in violent relationships. A parent may also obtain a protective order
for his or her child.
WHAT HAPPENS IF THE ORDER IS VIOLATED?
Once a 209A Order is issued, violation of certain terms of the Order is a
criminal offense. Violations of orders to refrain from abuse , to have no
contact, and to vacate a household, multiple family dwelling or workplace, can
be prosecuted criminally under chapter 209A. If the abuser violates the order,
call the police immediately. Show the Order to the police and explain how it was
violated ( a punch, slap, threat; entering your house or apartment or refusing
to vacate; or, any contact with you at home or your workplace, either in person,
by telephone or mail). The police must arrest the abuser if they believe or can
see that the terms of the Order were violated. If you do not call the police,
you may be able to file an application for a criminal complaint on your own at
the Clerk’s Office in the District Court. A Victim/Witness Advocate can assist
you with that process.
If you put yourself in contact with the abuser, he is vulnerable to arrest.
Therefore, if you want any terms of the order to no longer apply, you should
return to court and ask that the order be modified or vacated.
WHAT HAPPENS IF AN ARREST IS MADE?
If the abuser is arrested, seek assistance from the Victim/ Witness Advocate in
the District Attorney’s Office the next morning after a nighttime arrest, or at
any time during the day at the courthouse. A Victim/Witness Advocate will
explain what the charges mean and what will happen next. The Advocate will also
offer ongoing information, referral for services and cases updates throughout
the time the case is in court.
WHAT CRIMES CAN BE CHARGED?
In addition to the crime of violating a 209A Order, an abuser can be charged
with a number of other crimes committed at or near the time of the violation,
some of which may include:
· Assault (G.L. c. 265, Section 13A), which is an attempt or offer to do bodily
injury by force or violence or attempt to batter.
· Assault and Battery ( G.L. c. 265, Section 13A), which is a harmful or
unpermitted touching of another, no matter how slight, without a legal right to
do so.
· Assault and Battery by Means of a Dangerous Weapon ( G.L. c. 265, Section 15),
which is a battery with a dangerous weapon, such as a baseball bat, a shod foot,
a knife or other object either inherently dangerous or used in a way that may
cause serious injury or death to another.
· Threats (G.L. c. 27, section 4), which are verbal or written threats to do
harm which a victim reasonably believes the abuser can commit.
· Trespassing ( G.L. c. 266, section 120), which is entering or remaining in a
house or on land in violation of a 209A Order.
· Malicious Destruction Of Personal Property (G.L. c. 266, section 127), which
is the destruction of or injury to personal property, a house or building in a
manner that is willful and malicious.
· Stalking (G.L. c. 265, section, 43 (a)), which is the willful, malicious and
repeated following or harassing of an individual and the making of threats with
the intent to place that person in imminent fear of death or serious bodily
injury. The penalties are greater for a conviction of a stalking crime committed
in violation of a 209A Order.
WHAT HAPPENS AFTER AN ARREST?
Once a criminal complaint has been issued or an arrest made, the abuser will be
charged with the crime or crimes at an arraignment proceeding in the District
Court. A bail hearing will be held to determine whether the defendant/abuser
will be released from custody, the court must make a reasonable effort to notify
you of the release, even if you are not present in court.
WHAT HAPPENS AT THE ARRAIGNMENT?
It is important to provide information to the Assistant District Attorney before
the arraignment and bail hearing regarding the history of the abuse and a
description of the most recent abuse, including any pictures or hospital records
of injuries. You should also mention the location of any guns or other weapons
that you believe the abuser has in his or her possession.
The Assistant District Attorney ill bring this information to the attention of
the judge, along with your safety concerns and fears at this time. The judge may
also consider whether the defendant/ abuser should be jailed until trial; or, if
the defendant/ abuser is to be released, what the bail and conditions of bail
will be.
The Assistant District Attorney represents the Commonwealth of Massachusetts in
prosecuting the case , and works with the Victim/Witness Advocate to address
your interests and assist you during trial.
WHAT HAPPENS AFTER THE ARRAIGNMENT?
Interviews will be held with you before the trial, to gather information and
evidence for prosecution. Every effort will be made to consider your needs and
safety in going forward with the case. The safety of your children will also be
priority .
Prosecution may provide the means to gain batterer’s intervention services for
the defendant/abuser as part of a sentence recommendation. Very few batterer’s
seek or stay with these services on their own, without court orders and
probation supervision. An Assistant District will speak with you about different
sentences that can be imposed if the defendant /abuser is found guilty by a
judge or jury or pleads guilty. The sentence asked for may include drug or
alcohol counseling, required attendance at a batterer’s intervention program,
supervised probation and /or jail time.
WHAT IS A CERTIFIED BATTERER'S INTERVENTION PROGRAM?
Certified batterer’s intervention programs provide services in very strict group
settings to try to help batterer’s learn to accept responsibility for their
violence, as well as understand and change their controlling and abusive
behavior.
The groups are led by certified batterer’s intervention counselor’s trained in
dealing with domestic violence offenders. The programs work with the courts and
victim services to help make sure that partners of batterer’s remain safe. The
programs may involve weekly sessions of 1 to 2 hours in length. The batterer
must participate in the program for a minimum of 80 hours. Group leaders feel
your safety is a priority concern and will keep ongoing contact with you.
WILL THE INTERVENTION STOP THE ABUSE?
There are no guarantees that the violence will stop because the abuser attends a
certified batterer’s intervention program. Many abusers drop out of programs or
do not comply with the requirements, or only reduce their abuse temporarily. If
the judge requires attendance as part of a sentence, dropping out may mean the
defendant/ abuser may have to serve jail time. The abuser must want to change
the abusive behavior and work hard at making those changes. Promises to change,
flowers and apologies are not enough. You deserve to be safe and free from
abuse.
YOUR RISK OF HARM
Statistically, the most dangerous time for victim is when leaving the batterer.
The abuser may feel he is losing control and become dangerously angry. Take
steps to protect yourself from abuse or punishment from your abuser. Please
trust your instincts. If you are afraid that something may happen, take your
feelings seriously and protect yourself. You know your situation better than
anyone else.
SUGGESTIONS FOR PROTECTION
Develop a safety plan that includes an escape plan for you and your children
should a violent incident occur. During an incident, try to move away from an
area or room where access to weapons might increase your risk, such as the
kitchen, or where you can be trapped or easily injured.
Call the police or leave the house as soon as possible after an abusive
incident. The police will respond and stay with you until you are safe or in a
safe place. The police will also help you seek medical treatment, if needed. If
you feel you may be in danger, dial the police number and hang up before it
rings, so that the redial button will automatically call the police if you need
them quickly.
Be alert when leaving the courthouse. If you have any reason to believe your
abuser may be waiting for you, please ask someone in the District Attorney’s
Office or Court Advocate to help. A police officer or a court officer may be
able to escort you to your car.
Guns or weapons will be ordered turned over to the police by the judge, along
with any license to carry the guns and firearms identification card. Inform the
police of any guns/weapons the abuser may keep in the house.
Consider changing the locks on your home. The judge can order the abuser to turn
over the keys to your home and/or your car. Keep an extra set of keys in a safe
place.
Inform your neighbors if a 209A order is in place. Encourage them to call the
police if they see or suspect that something is wrong.
Make copies of important papers and keep them in a safe place. Make a list of
the things you need to take with you (birth/medical records, marriage license,
check/ bank books, credit cards, medications).
Keep emergency money and extra clothes for yourself and your children in a safe
place or with someone you trust. Include a few toys and favorite things for the
children.
Keep the victim’s service agency number handy for emergency shelter and for
support groups.; You do not have to leave the abuser or have a 209A Order to
attend the support groups. Information and support in making decisions are
important.
Get Medical attention as you may be injured much more seriously than you
realize. Go to a hospital emergency room or your private doctor as soon as
possible for treatment. Ask for a copy of the treatment record.
Have pictures taken of your injuries and bruises at the hospital, police
department, shelter or District Attorney’s Office.
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