Mass. R. Evid. 1106
In all civil proceedings under G. L. c. 209A (abuse prevention) and G. L. c. 258E (harassment prevention), the law of evidence should be applied flexibly by taking into consideration the personal and emotional nature of the issues involved, whether one or both of the parties are self-represented, and the need for fairness to all parties.
Mass. Guid. Evid. 1106
Introduction. This section is derived from G. L. c. 209A; G. L. c. 258E; Frizado v. Frizado, 420 Mass. 592, 597-598 (1995); O'Brien v. Borowski, 461 Mass. 415 (2012), overruled on another ground by Seney v. Morhy, 467 Mass. 58, 60 (2014); and the Guidelines for Judicial Practice: Abuse Prevention Proceedings (Oct. 2021), at https://perma.cc/UA7V-UWR3.
The Abuse Prevention Act was enacted as G. L. c. 209A in 1978 to address the problem of domestic violence in the Commonwealth. Commonwealth v. Dufresne, 489 Mass. 195, 197-198 (2022). "To this end, c. 209A 'provides a statutory mechanism by which victims of family or household abuse can enlist the aid of the State to prevent further abuse through [civil] orders prohibiting a defendant from abusing or contacting the victim.'" Id. at 198, quoting MacDonald v. Caruso, 467 Mass. 382, 385 (2014). See G. L. c. 209A, § 3A.
An Act Relative to Harassment Prevention Orders was enacted as G. L. c. 258E in 2010 "to allow individuals to obtain civil restraining orders against persons who are not family or household members, and to make the violation of those orders punishable as a crime." O'Brien, 461 Mass. at 419. The law was intended to protect victims of "harassment," as that term is defined by G. L. c. 258E, § 1, who could not legally seek protective orders under Chapter 209A due to the lack of a familial or romantic relationship with the perpetrator. Id. Because of its origin and purpose, much of the language in Chapter 258E is analogous to the language found in Chapter 209A. J.S.H. v. J.S., 91 Mass. App. Ct. 107, 109 (2017).
There are many parallels between proceedings brought under Chapter 209A and those brought under Chapter 258E. See F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015). Essentially the same analysis applies to abuse prevention orders issued pursuant to Chapter 209A and harassment prevention orders issued pursuant to Chapter 258E, except where the statutory language is different. O'Brien, 461 Mass. at 417-418; Tom T. v. Lewis L., 97 Mass. App. Ct. 698, 700 (2020); F.A.P. v. J.E.S., 87 Mass. App. Ct. at 602.
Standard for Abuse Prevention Order. Abuse prevention orders pursuant to Chapter 209A require plaintiffs to show by a preponderance of the evidence that they have been subject to abuse. Frizado v. Frizado, 420 Mass. 592, 597 (1995).
"Abuse" is defined as "the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress." G. L. c. 209A, § 1.
"Family or household members" are defined as "persons who: (a) are or were married to one another; (b) are or were residing together in the same household; (c) are or were related by blood or marriage; (d) having a child in common regardless of whether they have ever married or lived together; or (e) are or have been in a substantive dating or engagement relationship." G. L. c. 209A, § 1. The phrase "residing together in the same household" contemplates a family-like "socially interdependent relationship." Silva v. Carmel, 468 Mass. 18, 22 (2014) (two individuals assigned by Department of Developmental Services to same residential program did not fall under protections of G. L. c. 209A). Relevant factors in determining whether individuals share a household include "(1) whether the living arrangement was voluntary, (2) the nature of the physical living space, including how much of it was shared, (3) the length of the parties' relationship, and (4) the nature of their relationship and interactions, including whether they engaged in communal living activities. No factor is dispositive." S.J. v. T.S., 103 Mass. App. Ct. 166, 169 (2023) (roommates assigned by college to share dormitory room not "family or household members").
To determine if a substantive dating or engagement relationship exists, courts must consider the following factors: "(1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship." G. L. c. 209A, § 1. The existence of a substantive dating relationship is an element of a Chapter 209A claim, not a prerequisite for subject matter jurisdiction. V.M. v. R.B., 94 Mass. App. Ct. 522, 524 (2018).
Standard for Harassment Prevention Order. Harassment prevention orders pursuant to Chapter 258E require plaintiffs to show by a preponderance of the evidence either that the defendant (1) committed "[three] or more acts of willful and malicious conduct aimed at a specific person . . . with the intent to cause fear, intimidation, abuse or damage to property and that [did] in fact cause fear, intimidation, abuse or damage to property," or (2) committed an act "by force, threat or duress [that] cause[d] another to involuntarily engage in sexual relations," or an act that constitutes any of twelve enumerated crimes, including rape, indecent assault and battery, assault with intent to commit rape, enticement, stalking, criminal harassment, and drugging persons for sexual intercourse. G. L. c. 258E, § 1. See A.R. v. L.C., 93 Mass. App. Ct. 758, 759 (2018); J.C. v. J.H., 92 Mass. App. Ct. 224, 227 (2017); A.T. v. C.R., 88 Mass. App. Ct. 532, 535 (2015).
To obtain a Chapter 258E order based on three acts of harassment, "[t]he plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, defined by G. L. c. 258E, § 1, as being 'characterized by cruelty, hostility or revenge,' and that each act was intended by the defendant to place the plaintiff in 'fear of physical harm or fear of physical damage to property.'" A.T. v. C.R., 88 Mass. App. Ct. at 535, quoting O'Brien v. Borowski, 461 Mass. 415, 427 (2012). See G. L. c. 258E, § 1; Van Liew v. Stansfield, 474 Mass. 31, 36-38 (2016); Seney v. Morhy, 467 Mass. 58, 60 (2014); V.J. v. N.J., 91 Mass. App. Ct. 22, 25 (2017). If the conduct is speech alone, each of the acts aimed at a specific person must be either a "true threat" or "fighting words." A.R. v. L.C., 93 Mass. App. Ct. at 760.
Alternatively, the plaintiff can prove harassment by a single act if the allegations are a forced sexual act or one of the twelve specifically enumerated sex crimes. Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 256 (2022). "Where a harassment prevention order is based on this showing, '[p]roof that the defendant intended to instill fear, and if fact did so, would be wholly unnecessary.'" Id., quoting F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 599 (2015).
Jurisdiction. Abuse prevention orders can be obtained in the Superior Court, the Boston Municipal Court, the District Court, or the Probate and Family Court. G. L. c. 209A, § 2. They can be obtained in the Probate and Family Court as part of divorce proceedings, G. L. c. 208, §§ 18, 34B, 34C; adjudication between spouses, G. L. c. 209, § 32; or paternity actions, G. L. c. 209A, §§ 15, 20. See Commonwealth v. Dufresne, 489 Mass. 195, 198 (2022).
Harassment prevention orders can be obtained in the Superior Court, the Boston Municipal Court, the District Court, and the Juvenile Court. G. L. c. 258E, § 2. The Juvenile Court has exclusive jurisdiction over harassment prevention orders in which the defendant is a juvenile. Id.
Evidentiary Principles Applicable in G. L. c. 209A and G. L. c. 258E Proceedings. Strict evidentiary standards need not be followed in abuse prevention and harassment prevention proceedings, provided that the court ensures fairness in considering the nature of the evidence admitted and relied upon. See Frizado v. Frizado, 420 Mass. 592, 597-598 (1995). "The Legislature devised a procedure in G. L. c. 209A that is intended to be expeditious and as comfortable as it reasonably can be for a lay person to pursue." Id. at 598. "Proceedings held pursuant to G. L. c. 209A are no different than any other adversarial hearings in that each party has a right to present evidence, and the moving party must satisfy the burden of proof and subject its witnesses to cross-examination." C.O. v. M.M., 442 Mass. 648, 657 (2004). See S.T. v. E.M., 80 Mass. App. Ct. 423, 429-431 (2011).
Procedure. Obtaining and maintaining an abuse prevention order or a harassment prevention order generally involves three separate hearings: (1) an initial ex parte hearing, (2) an initial notice hearing (sometimes called a ten-day hearing), and (3) a renewal hearing. See Commonwealth v. Dufresne, 489 Mass. 195, 199 (2022). The renewal hearing, also called an extension hearing, occurs some period of time, usually one year, after the order is issued at the initial notice hearing. Id., citing G. L. c. 209A, § 3.
Application and Ex Parte Hearing. Civil proceedings under G. L. c. 209A or G. L. c. 258E are commenced by filing a complaint. See M.G. v. G.A., 94 Mass. App. Ct. 139, 145 n.7 (2018), citing G. L. c. 209A, § 3A; G. L. c. 258E, § 3. Upon the filing of the complaint, the court holds an ex parte hearing. G. L. c. 209A, § 4; G. L. c. 258E, § 5.
A plaintiff may obtain a temporary protective order in an ex parte proceeding, provided that the defendant is given an opportunity for an evidentiary hearing within ten court business days after the ex parte order is entered. Smith v. Jones, 67 Mass. App. Ct. 129, 133 (2006), citing G. L. c. 209A, § 4; G. L. c. 258E, § 5. "[First, a] temporary abuse prevention order may issue ex parte for up to ten court business days where a plaintiff shows a 'substantial likelihood of immediate danger of abuse.'" Dufresne, 489 Mass. at 199, quoting G. L. c. 209A, § 4. A temporary harassment prevention order may enter "[i]f the plaintiff demonstrates a substantial likelihood of immediate danger of harassment." G. L. c. 258E, § 5. The plaintiff's burden of proof is preponderance of the evidence. Frizado v. Fri-zado, 420 Mass. 592, 597 (1995); M.G. v. G.A., 94 Mass. App. Ct. at 148.
Under certain circumstances, a plaintiff may obtain an initial ex parte abuse prevention order or an emergency harassment prevention order without first filing a complaint. See F.K. v. S.C., 481 Mass. 325, 331 (2019), citing G. L. c. 258E, § 6; G. L. c. 209A, § 5. If the court is closed for business, the plaintiff may obtain a temporary emergency order if the plaintiff "demonstrates a substantial likelihood of immediate danger" of abuse or harassment. G. L. c. 209A, § 5; G. L. c. 258E, § 6. If physically able, the plaintiff "shall appear in court on the next available business day to file [a] complaint." G. L. c. 209A, § 5; G. L. c. 258E, § 6.
Notice Hearing. At the initial hearing after notice, the plaintiff must show by a preponderance of the evidence that extension of the ex parte order is necessary to protect the plaintiff from "abuse" as defined in G. L. c. 209A, § 1, or "harassment" as defined in G. L. c. 258E, § 1. See Iamele v. Asselin, 444 Mass. 734, 739 (2005); Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 664 (2020). The procedure is as follows:
"The burden is on the complainant to establish facts justifying the issuance and continuance of [the] order. The court must on request grant a 'defendant an opportunity to be heard on the question of continuing the temporary order and of granting other relief.' That opportunity, however, places no burden on a defendant to testify or to present evidence."
Frizado, 420 Mass. at 596, quoting G. L. c. 209A, § 4. See M.G. v. G.A., 94 Mass. App. Ct. at 148 (judges may not "dismiss a complaint at the close of the plaintiff's case simply because they do not believe some or all of the plaintiff's testimony. Instead, the resolution of questions of credibility, ambiguity, and contradiction must await the close of the evidence").
"No presumption arises from the initial orders; 'it is the plaintiff's burden to establish that the facts that exist at the time extension of the order is sought justify relief.'" MacDonald v. Caruso, 467 Mass. 382, 386 (2014), quoting Smith v. Jones, 67 Mass. App. Ct. 129, 133-134 (2006). Accord 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."). However, when a defendant has notice of the two-party hearing but fails to appear, the temporary order shall continue in effect. G. L. c. 209A, § 4; G. L. c. 258E, § 5.
Renewal Hearing. "At a renewal hearing, a judge's discretion is broad: she may permit the existing order to expire without renewal; she may issue a permanent order; or she may issue an order of shorter duration of 'any time reasonably necessary' to protect the abused person." Crenshaw v. Macklin, 430 Mass. 633, 635 (2000), quoting G. L. c. 209A, § 3.
- Standard for Renewal of Order Based on Fear of Abuse. Where a prior Chapter 209A order was based on a reasonable fear of imminent serious physical harm, the plaintiff must prove reasonable fear anew at each extension hearing. Iamele, 444 Mass. at 740-741; Yasmin Y., 101 Mass. App. Ct. at 258. "This does not mean that the restrained party may challenge the evidence underlying the initial order." Iamele, 444 Mass. at 740. "[T]he plaintiff is not required to re-establish facts sufficient to support that initial grant of an abuse prevention order." Vittone v. Clairmont, 64 Mass. App. Ct. 479, 485 (2005), quoting Rauseo v. Rauseo, 50 Mass. App. Ct. 911, 913 (2001).
- Standard for Renewal of Order Based on Sex Crime or Actual Sexual or Physical Abuse. Extension of an order based on past sexual or physical abuse should be granted if the order is necessary to protect the plaintiff from the impact of the past abuse; such an extension need not be based on a threat of future harm. Vera V. v. Seymour S., 98 Mass. App. Ct. 315, 318 (2020); Yahna Y. v. Sylvester S., 97 Mass. App. Ct. 184, 186-187 (2020); Callahan v. Callahan, 85 Mass. App. Ct. 369, 374 (2014). See Yasmin Y., 101 Mass. App. Ct. at 257 (court erred in denying requested extension of order because judge considered anew whether prior acts of indecent assault and battery had occurred, rather than simply determining whether there was a continued need for order). "[A]n extension is warranted if 'there is a continued need for the order because the damage resulting from that physical harm [or sexual assault] affects the victim even when further physical attack [or sexual assault] is not reasonably imminent.'" Vera V., 98 Mass. App. Ct. at 317, quoting Callahan, 85 Mass. App. Ct. at 374."Rather than reconsider whether the underlying acts of [sexual of physical abuse] occurred, a judge should simply determine whether the plaintiff has shown that 'an order [i]s necessary to protect [the plaintiff] from the impact of that' prior [act]." Yasmin Y., 101 Mass. App. Ct. at 259, quoting Yahna Y., 97 Mass. App. Ct. at 187.
Termination and Expiration of Orders. "At any point, either party may petition the court to terminate or otherwise modify an existing order." Commonwealth v. Dufresne, 489 Mass. 195, 199 (2022), citing G. L. c. 209A, § 3. A defendant who seeks to terminate a Chapter 209A order must prove by clear and convincing evidence that there has been a significant change in circumstances such that the protected party no longer has a reasonable fear of imminent serious physical harm from the defendant, and that continuation of the order would therefore not be equitable. The mere passage of time, during which the defendant has complied with the order, is not alone sufficient to justify termination. MacDonald v. Caruso, 467 Mass. 382, 388-389 (2014); Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 394, n.9 (2022); L.L. v. M.M., 95 Mass. App. Ct. 18, 22-23 (2019). See MacDonald, 467 Mass. at 393 ("To prove that he had truly 'moved on with his life,' the defendant . . . needed to demonstrate not only that he has moved on to another relationship but also that he has 'moved on' from his history of domestic abuse and retaliation."). A judge must not, over objection, vacate an abuse or harassment prevention order without holding an evidentiary hearing. See Singh v. Capuano, 468 Mass. 328, 331 (2014).
"In the context of c. 209A and c. 258E orders, trial courts have used 'vacated' and 'terminated' interchangeably." J.S.H. v. J.S., 91 Mass. App. Ct. 107, 108 n.2 (2017). "Expiration" of an order, however, is different from "termination." Allen v. Allen, 89 Mass. App. Ct. 403, 405 (2016). See Ia-mele v. Asselin, 444 Mass. 734, 741-742 (2005) (judge's sua sponte decision to vacate original order, set to expire at 4 p.m., was error as only issue before judge was whether order should be extended). If the plaintiff fails to appear at the hearing after notice, and the defendant does appear, or if neither party appears, the order expires by its terms at 4:00 p.m. See Guidelines for Judicial Practice: Abuse Prevention Proceedings § 5:06 (Oct. 2021), at https://perma.cc/UA7V-UWR3. Termination of a Chapter 209A or Chapter 258E order, in contrast, requires the issuing court to notify the relevant law enforcement agency and to "direct the agency to destroy all record" of such terminated orders. Tom T. v. Lewis L., 97 Mass. App. Ct. 698, 699 n.5 (2020), quoting citing G. L. c. 258E, § 9, par. 3, See citing G. L. c. 209A, § 7, par. 3.
Meaningful Opportunity to Challenge. Because Chapter 209A and Chapter 258E proceedings are civil in nature, the constitutional right to confront witnesses does not apply. Frizado v. Frizado, 420 Mass. 592, 596 n.3 (1995). The defendant, however, has a "general right to cross-examine witnesses against him" under a "due process, fairness standard." Id. at 597-598 & n.5.
"There may be circumstances in which the judge properly may deny [the right to cross-examine witnesses] in a G. L. c. 209A hearing, and certainly a judge may limit cross-examination for good cause in an exercise of discretion." Frizado, 420 Mass. at 597. See A.P. v. M.T., 92 Mass. App. Ct. 156, 167-168 (2017) (judge did not abuse discretion in limiting cross-examination of minor plaintiff's mother, as minor defendants' attorneys were given meaningful opportunity to cross-examine). The Supreme Judicial Court has cautioned against "the use of cross examination for harassment or discovery purposes. However, each side must be given a meaningful opportunity to challenge the other's evidence" (quotation omitted). Frizado, 420 Mass. at 598 n.5. See C.O. v. M.M., 442 Mass. 648, 656-658 (2004) (defendant's due process rights were violated when court refused to permit him to cross-examine witnesses or to present evidence); Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 790 (2022); S.T. v. E.M., 80 Mass. App. Ct. 423, 431 (2011).
A meaningful opportunity to challenge includes access to the plaintiff's evidence against the defendant. See Idris I., 100 Mass. App. Ct. at 789-790 (judge improperly considered evidence that defendant had never seen and thus was unable to challenge). The meaningful opportunity to challenge also relates to the plaintiff:
"Because the majority of these cases involve self-represented parties, inviting the defendant to present evidence, which in turn gives the plaintiff the opportunity to cross-examine the defendant or any witnesses the defendant may call, may produce relevant and probative evidence that otherwise would not be presented. If the defendant does not wish to present any evidence, the judge may, at that point, make credibility determinations and adjudicate the case in the ordinary course."
M.G. v. G.A., 94 Mass. App. Ct. 139, 147 (2018).
Defendant's Right to Be Heard. "A defendant must be provided a meaningful opportunity to be heard in a G. L. c. 209A proceeding." Idris I. v. Hazel H., 100 Mass. App. Ct. 784, 790 (2022). This includes the defendant's right to testify and to present evidence. Frizado v. Frizado, 420 Mass. 592, 597 (1995). It is not sufficient to hear from the defendant's attorney and to deny the defendant the opportunity to present evidence. C.O. v. M.M., 442 Mass. 648, 657 (2004). Arguments of counsel are not a substitute for evidence or the defendant's right to testify. Idris I., 100 Mass. App. Ct. at 789. The plaintiff has a corresponding right to present evidence prior to the judge vacating any part of an abuse prevention order. Singh v. Capuano, 468 Mass. 328, 331 (2014); S.T. v. E.M., 80 Mass. App. Ct. 423, 429-430 (2011).
Adverse Inference from Invocation of Privilege Against Self-Incrimination. A judge may draw an adverse inference against a defendant, including a juvenile, who invokes the privilege against self-incrimination and declines to testify at a Chapter 209A or Chapter 258E hearing. See A.P. v. M.T., 92 Mass. App. Ct. 156, 166 (2017). The adverse inference alone, however, is not sufficient to justify the issuance of an order. Frizado v. Frizado, 420 Mass. 592, 596 (1995). See also Smith v. Joyce, 421 Mass. 520, 523 n.1 (1995) (judge may not issue order "simply because it seems to be a good idea or because it will not cause the defendant any real inconvenience"). The plaintiff is still permitted to call the defendant as a witness even though the defendant is able to assert the privilege against self-incrimination. S.T. v. E.M., 80 Mass. App. Ct. 423, 429 (2011).
Totality of the Circumstances. "In evaluating whether a plaintiff has met her burden, a judge must consider the totality of the circumstances of the parties' relationship." Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 394 (2022), quoting Iamele v. Asselin, 444 Mass. 734, 739 (2005). "[I]n evaluating whether an initial [G. L. c.] 209A order or its extension should issue, the judge must examine the words and conduct in the context of the entire history of the parties' hostile relationship." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 665 (2020).
Child Custody Disputes. In evaluating whether the burden has been met,
"[t]he judge may consider such factors as . . . 'ongoing child custody or other litigation that engenders or is likely to engender hostility, the parties' demeanor in court, the likelihood that the parties will encounter one another in the course of their usual activities (e.g., residential or workplace proximity, attendance at the same place of worship), and significant changes in the circumstances of the parties.'"
Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 258 (2022), quoting Iamele, 444 Mass. at 740.
Past Protective Orders. "The judge may consider . . . 'the defendant's violations of protective orders.'" Yasmin Y., 101 Mass. App. Ct. at 258, quoting Iamele, 444 Mass. at 740.
Threat of Suicide. See Constance C. v. Raymond R., 101 Mass. App. Ct. 390, 396 (2022) (defendant's suicide threat proper factor to consider in determining whether plaintiff's fear of imminent physical violence was objectively reasonable).
Voluminous Communications. See A.S.R. v. A.K.A., 92 Mass. App. Ct. 270, 279 (2017) (in context of Chapter 258E order based on acts amounting to crime of criminal harassment, G. L. c. 265, § 43A, see G. L. c. 258E, § 1[ii][B] [definition of "harassment"], "a reasonable person would have been warranted in fearing for his physical safety" based on defendant's hundreds of e-mails, texts, and voice messages threatening to kill herself combined with unexpected in person appearances).
Hearsay, Authentication, and Best Evidence. "The common law rules of evidence, e.g., those regarding hearsay, authentication, and best evidence, should be applied with flexibility, subject to considerations of fundamental fairness." Noelle N. v. Frasier F., 97 Mass. App. Ct. 660, 662 (2020). "[D]ue process requires that [hearsay] statements be considered for their truth only if the judge determines that they carry sufficient indicia of reliability." F.A.P. v. J.E.S., 87 Mass. App. Ct. 595, 602 (2015).
In-Court Identification. See A.P. v. M.T., 92 Mass. App. Ct. 156, 168 (2017) (court properly allowed mother's in-court identification of defendant and other boy where mother testified that she knew both boys because defendant lived next door and they had both visited her home in the past).
Digital Evidence. Circumstantial proof may be sufficient to prove that someone sent harassing messages, but authentication of authorship must be proven in Chapter 258E and Chapter 209A proceedings. See R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376-377 (2019) (fake account messages are akin to anonymous letters-to determine whether there is sufficient evidence that fake accounts were created by defendant, court looks to appearance, content, substance, internal patterns, or other distinctive characteristics of messages). Cross-Reference: Section 901, Authenticating or Identifying Evidence; Section 1119, Digital Evidence.
Mutual Orders. "A court may issue a mutual restraining order or mutual no-contact order pursuant to any abuse prevention action only if the court has made specific written findings of fact. The court shall then provide a detailed order, sufficiently specific to apprise any law officer as to which party has violated the order, if the parties are in or appear to be in violation of the order." Nelson N. v. Patsy P., 98 Mass. App. Ct. 78, 81 (2020), quoting G. L. c. 209A, § 3.
No Right to Counsel. Defendants in Chapter 209A and Chapter 258E civil proceedings to do not have a constitutional right to counsel. Commonwealth v. Dufresne, 489 Mass. 195, 205 (2022).