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Harassment Prevention Orders

 

The new (2010) Harassment Prevention Order law (General Laws Chapter 258E) makes it so that victims of criminal harassment, stalking, and sexual assault, regardless of their relationship with the defendant, can get harassment prevention orders (258E orders) to protect them from further harassment by the perpetrator. 

Under Chapter 209A , victims can only get an Abuse Prevention Order to protect themselves from current or former family or household members, or from someone with whom they had a “substantial dating relationship.” The new law does not have relationship requirements. 

What is a Harassment Prevention  Order?

A Harassment Prevention Order is a court order to protect you from harassment and abuse by someone who has harassed you.

In order to get a Harassment Prevention Order, you have to show that the defendant has harassed you.

    What is "harassment"?

Harassment is:

1.         3 or more acts of willful and malicious conduct aimed at you and committed with the intent to cause fear, intimidation, abuse or damage to property that do in fact cause fear, intimidation, abuse or damage to property

  • “Willful” means on purpose.
  • “Malicious” means cruel, hostile, or in revenge

Or           

2.         an act that: (A) by force, threat or duress causes you to involuntarily engage in sexual relations; or (B) violates certain specific criminal laws.

     Those criminal laws deal with

  • Indecent assault and battery on a child under 14
  • Indecent assault and battery on a mentally retarded person
  • Indecent assault and battery in a person 14 years old or older
  • Rape
  • Rape of a child using force
  • Rape and abuse of a child
  • Assault with intent to commit rape
  • Assault of a child with the intent to commit rape
  • Enticement of a child
  • Criminal stalking
  • Criminal harassment 
  • Drugging for sexual intercourse

What is “abuse”?

A Harassment Prevention Order can order the defendant not to abuse you.

“Abuse” is attempting to cause or causing physical harm or placing you in fear of imminent serious physical harm.  This mean that the defendant has

  • hurt you physically;
  • tried to hurt you physically; or
  • made you scared of getting badly physically hurt.

How do I get a Harassment Prevention Order?           

To get a Harassment Prevention Order you file a Complaint for Protection from Harassment in any District Court, Boston Municipal Court, Juvenile Court, or Superior Court that covers the area where you live.  Click here to see the Complaint form, Affidavit form, and Instructions.

You also file a Plaintiff Confidential Information Form and a Defendant Information Form.

If you and the defendant are both under the age of 17, you must go to the Juvenile Court that covers the area where you live.   

Note: Probate and Family Courts cannot issue Harassment Prevention Orders.

Is there a filing fee?

No.

Is violating a Harassment Prevention Order a crime, like with 209A orders?

Yes.

What about confidentiality?

Your residential and workplace address may be kept confidential (unless you choose to request an order for the defendant to stay away from those addresses). 

You can ask the judge to order that any part of the court file be "impounded" or kept secret from the public and others who might otherwise have access.  To ask the judge for an impoundment order, you file a Motion for Impoundment.

How can I get an emergency order?

You can get an emergency order by going to court, filing your Complaint and other papers, and asking for an order without having first having to notify the defendant that you are going.

If the courts are closed (like after business hours or on weekends) or if you cannot get to court because of severe hardship due to your physical condition, you can contact the police first to start the process.

If you need an emergency order, you have to show that there is a “substantial likelihood of immediate danger of harassment.”  The court may issue whatever emergency temporary orders are necessary to protect you from harassment.

What do I do next if I got an emergency order by contacting the police?

If you got the emergency order by contacting the police, without actually going to court, you need to go to the court the next court business day to file your Complaint.

What happens after I get an emergency temporary Harassment Prevention Order?

The emergency temporary harassment prevention order can be in effect for up to ten (10) court business days.  Then the court needs to have a hearing (a “10 day hearing”) after notifying the defendant.  At the 10 day hearing, the court will listen to what the defendant has to say about continuing the temporary order and to your request for other harassment prevention orders.

If the defendant does not come to the 10 day hearing, the temporary emergency order continues in effect.

How long can a Harassment Prevention Order last?

A Harassment Prevention Order issued at a 10 day hearing can be in effect for up to one year.

If you go to court on the date when the extended order is set to end, you can ask the court to extend the order for whatever additional time is reasonably necessary to protect you or to make a permanent order.

What can the court put in a Harassment Prevention Order?

The court can order the defendant:

  1. not to abuse or harass you;
  2. not to contact you, unless authorized by the court;
  3. to stay away from your household or workplace;
  4. to pay you for the losses suffered as a result of the harassment, including but not limited to loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement locks, medical expenses, cost for obtaining an unlisted number and reasonable attorney’s fees.

 

Differences from 209A: 258E orders cannot (1) order the defendant to vacate the home; (2) include orders about custody, visitation or temporary support; (3) order the defendant to pay you for moving expenses; (4) order the defendant to surrender firearms and firearms licenses and identification cards. 

What is the punishment for a violation of a 258E order?

A violation of 258E is a criminal offense punishable by a fine of not more than $5,000, or by imprisonment for not more than 2 ½ years, or both.  Someone convicted under 258E must also pay a fine of $25.  Also, the court may order that the defendant complete an appropriate treatment program based on the offense and may also order the defendant to pay you for all damages, including, but not limited to, loss of earnings, out-of-pocket losses for injuries or proprty damage, cost of replacement locks, medical expenses, cost of getting an unlisted telephone number, and reasonable attorney fees. 

Also, the judge must require any person who has been referred to a treatment program as a condition of probation to pay $350.

And, for any Harassment Prevention Order violation, the judge may order the defendant to complete an appropriate treatment program.

What are the police supposed to do under 258E?

Whenever a law enforcement officer has a reason to believe that a person has been abused or harassed or is in danger of being abused or harassed, the officer must use all reasonable means to prevent more abuse or harassment.  They are supposed to make every effort to do the following:

  1. Assess the immediate physical danger to the victim and provide assistance reasonable to reduce the safety risk.
  2. If they see an injury to the victim or if the victim is complaining of injury, encourage the victim to seek medical attention and arrange for medical assistance or request an ambulance for transport to a hospital.
  3. If a sexual assault has occurred, notify the victim that there are time sensitive medical or forensic options that may be available and encourage the victim to seek medical attention and arrange for medical assistance or request an ambulance for transport to a hospital.
  4. Provide the victim with referrals to local resources that may assist the victim in locating and getting to a safe place.
  5. Provide adequate notice to the victim of his/her rights including, but not limited to, obtaining a harassment prevention order.
  6. Help the victim contact a judge when the courts are closed for business.
  7. Inform the victim that the abuser will be eligible for bail and may be released right away.
  8. Arrest any person that the law officer has seen to violate or has probable cause to believe has violated a stay-away or no-contact Harassment Prevention Order.
  9. Arrest any person that the law officer has seen to commit or has probable cause to believe has committed a felony; a misdemeanor involving harassment or abuse; or an assault and battery.

    What if I might qualify to get either a 209A or a 258E restraining order?

    If you might qualify for either a 209A or a 258E restraining order, here are some things to think about:

    1. Under 209A, the judge can order the defendant to surrender firearms and firearms licenses and identification cards.  Under 258E, the judge cannot make firearms orders.
    2. What the defendant did might not qualify you for a 209A order.  For example if the defendant “harassed” you by damaging your property,  you might not be able to get a 209A order if what the defendant did does not also qualify as “abuse” (causing or attempting to cause physical harm or placing you in fear of imminent serious physical harm)
    3. If what the defendant did qualifies as both “abuse” under 209A and “harassment” under 258E, then you can use either law.
    4. 258E cases cannot go to the Probate and Family Court.  They must be handled completely in the District Court, Boston Municipal Court, Juvenile Court, or Superior Court that covers the area where you live.  A 209A case that starts in a District Court, Boston Municipal Court, Juvenile Court, or Superior Court can end up in the Probate and Family Court.
    5. The courts that handle 258E cases also handle criminal cases.  The Probate and Family Courts, which also handle 209As, do not handle criminal cases.  Much of what 258E defines as “harassment” are crimes.  Judges that handle criminal cases may be better able to decide whether the defendant in a 258E case has committed a crime.

     


    Produced by Massachusetts Law Reform Institute
    Created December, 2010


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