Violation of a restraining order is illegal in Massachusetts, New Hampshire, and Maine. Legally, this is known as violation of an abuse prevention order. Intentionally disobeying such an order is a crime and has criminal consequences.
These types of orders can prescribe that the defendant do or refrain from doing a variety of things. The most common orders are:
In Massachusetts, for a restraining order violation to be criminal, the court must have first issued an order under chapter 209A. Upon receiving or being notified of a 209A order the recipient has a duty to obey it.
The crime hinges on the intentional conduct of the defendant to violate the order. Even if a defendant uses a third party to make contact with the other party he/she can be prosecuted as if in-person contact was made. The government need only show that the offender intended the contact, not that he/she intended to violate the order.
For in-person contact, the government must show that the offender had knowledge of the order and violated, not necessarily that he/she intended to violate the order.
Depending on the type of order that was issued, it can be offended in different ways.
Abuse –An order is violated when there is an attempt to cause or actually causing physical harm, fear of immediate harm, or forcing through duress to participate in unwanted sexual acts. Courts construe this statute very strictly, which means, if a victim is placed in a situation where he/she fears physical harm, there likely will have been a violation of the order.
Vacate a Household – If the offender returns to the home after being notified of the requirement to leave, the offender can be held criminally liable for disobeying the order.
No Contact – If the offender attempts to contact the victim through any means at all, he/she can be charged with violating the order. Even a nicety, like sending flowers, can be considered breaking an order. The court will not look at the type or intent of the contact, the focus is on whether the order was obeyed. If a distance is imposed, knowingly placing him/herself closer than the prescribed distance is considered breaking the mandate.
Violation can result in a jail sentence up to two and one half years..
Sometimes defendants will cross paths with the holder of the abuse prevention order without realizing he/she will be in the same place at the same time. If it can be shown that the encounter was an accident, there are no criminal consequences. Accident means that the contact was unexpected and unintentional. If such contact occurs, the defendant has a duty to end the contact. Incidental contact will be treated in the same manner. That means if the person who holds the order happens to be in the same place as the offender, like a bank, courthouse, school, or business, no criminal penalty will be imposed.
If you have been charged with violation of a restraining order you deserve to have experienced legal counsel who will make sure you are justly represented. Please call my office to schedule a free, no-obligation consultation to learn about how I can help protect your rights. I have been practicing law in since 2002, and would look forward to putting this experience to work on your behalf.