New Domestic Violence Legislation

New Domestic Violence Legislation (Signed August 8, 2014 by Deval Patrick)

The new domestic violence statute has made monumental changes in response to the Jared Remy case (Remy Details), which was a tragic occurrence for all in Boston. Largely in response to the issue of marriage or a substantial dating relationship being the only conditions that fell within M.G.L. Ch. 209A; the new statute allows for protection in all domains, even if the parties are not involved in a substantial dating relationship. The span of this new law does not only cover relationships, but it also reaches out to roommates. In conjunction with the changes of who is protected under the new legislation, changes have also been made in the responsibly of employers and law enforcement.

In accordance with the new changes in domestic violence legislation, employers with a staff of fifty or more must notify their employees of their rights granted under the new provisions. Employers are to notify their employees of their new rights under the law and are to uphold the law under the supervision of the Attorney General. Employees who are victims in a domestic dispute are granted fifteen days of leave in a calendar year, which may be paid or unpaid and left to the discretion of the employer. The leave may only be used in response to the domestic dispute and the employee will be subject to present proper documentation of the incident to their employer and a notice of time prior to the date. All documentation and information between the employee and employer must be kept confidential. The documentation can include any court paperwork or copy of a police report. The fifteen days of leave may be used for medical attention, court dates, seeking counsel, therapy, or victim services. Under this new rule perpetrators are not covered or able to take advantage of the benefits offered.

Employers Against Domestic Violence

 

 

Under the new domestic violence law an arrest must be made and now the perpetrator must be held for a minimum of six hours, unless a court deems earlier bail necessary. All police reports are to be held confidential.  Police will now be required to partake in domestic violence training, which was a serious issue in the past. Added training and funding will now allow all responders to be properly trained in assessing Domestic Abuse. Police will now be able to participate in a state wide and local domestic violence team that will specialize in assessing, preventing, and keeping statistical data on domestic abuse. In response to these changes, the police will be held accountable by means of tracking statistical data. These changes will ensure safety and be used as building blocks going forward.

Steps of 209A

1.      Event of domestic abuse.

 

2. File at Police Station or Court for Emergency 209A order.
3.      Next business day appear in court for ex parte- One-sided restraining order.

4.      10-Day Court Hearing- Both parties able to attend. Reasonable apprehension of imminent physical harm. The perpetrator is able to dispute the terms and get the restraining order waived if the court deems it necessary.

5.      Must renew restraining order yearly. But in specific circumstances the Restraining Order can be extended permanently.

 Domestic Violence Programs

 

Written by: Patrick Gilbride

Interplay Between Restraining Orders and Fifth Amendment Privilege Against Self Incrimination

What the heck does that mean?

In a recent Supreme Court Case, SINGH v. CAPUANO , the Supreme Court held that an evidentiary hearing must be held in a restraining order case and that the statute 209A must be closely followed and that one’s right against self-incrimination is weighed in the context of the hearing and so should not be used as a reason to not have said hearing.

The facts of the case are as follows:

Singh, the victim, on February 14, 2013, filed a restraining order against Capuano. Temporary orders were issued granting custody of the parties’ minor child to Singh and directing Capuano to have no contact with, to stay at least fifty yards away from, and not to abuse Singh or the child.

Before the 10 day hearing, which is the proceeding where both parties can state their case as to why the restraining order should or should not be in place, a criminal complaint was issued against Capuano. The judge, at the 10 day hearing, refused to hear evidence over Singh’s objection and extended the order until April 11, 2013.

On April 11, 2013, the parties appeared with counsel before the same judge, and Singh again requested a hearing and a one-year extension of the order. Once again, the judge declined to hold an evidentiary hearing, referencing concerns similar to those he had raised previously. Over Singh's objection and without hearing the evidence, the judge declined to extend the no-contact and stay-away provisions of the extant order; extended the no-abuse provision for three months, until July 11, 2013; stated that the order would be subject to any orders of the Probate and Family Court; and continued the matter until July 11.

The judge who originally heard the ex parte hearing (e.g., when a person who is in need of a restraining order appears without the perpetrator of the domestic violence being present) heard the parties on July 11 and vacated all parts of the order except for the no-abuse provision and “summarily refused to draw an adverse inference.”

On its own motion, the court consolidated both appeals and reviewed the lower court judges’ decision holding that “without first hearing the evidence, a judge should not, over objection, vacate any provision of a c. 209A order once issued, as the judge in this case did with the no-contact and stay-away provisions.”

The court also went on to comment on one’s right to self-incrimination in the context of restraining order hearings, stating that “the assertion of the privilege against self-incrimination ought to have been considered and weighed as part of the evidence in the case”. The court further went on to comment on whether it was proper to comment on visitation, custody or any other issues in the context of a restraining order. They held that it is not. The purpose of a restraining order is to protect the aggrieved party and the judges must follow the statute and protect the plaintiff. Judges must not grant continuances lightly and do their best to accommodate victims of domestic violence.

Practically, what does this case mean? For a victim, that you are entitled to an evidentiary hearing, even if your abuser is facing possible criminal charges and thus could potentially incriminate himself in said hearing. You are entitled to an evidentiary hearing whether you are in a Probate and Family court or any other court in the commonwealth. A judge must take into account need for protection and the length of that protection and not any other impermissible factors. A person’s right against self-incrimination is considered and weighed as part of the evidence in the case.

SJC holds that abuse prevention orders do not apply in group home settings

In Silva v. Carmel, the SJC held that an abuse prevention order, more commonly known as a restraining order, does not apply in a group home setting. Looking at the strict elements of the statute, because they were not family members or in an intimate relationship, the protection of the restraining order would not apply. Furthermore a group home does not constitute a household. While I agree with the SJC's legal analysis, I disagree with the decision on policy grounds.

First, the purpose of a 209A restraining order is to protect people and the underlying purpose of the statute is to protect those in need. Second, a group home can form a family unit as many people who live in group homes have resided together for many years. And further the people with disabilities are a vulnerable population and susceptible to abuse. Of note, the individual could have filed an anti-harassment order under Massachusetts Law.

New Restraining Order Guidance Issued by the SJC

        

         In a recent SJC position, in Moreno v. Naranjo, the Massachusetts Supreme Judicial Court held that it was improper for a district court judge to makes inquires related to family visitation in considering a 209A Abuse Prevention Order. The purpose of a prevention order is to protect the plaintiff. I often will advise clients that this is a protection statute for their safety. The probate and family court is the appropriate arena to consider visitation. The court went on to say, “As the Appeals Court recognized, nothing in the statute authorizes the judge to limit the duration of an abuse prevention order out of concern for the defendant's visitation rights. The well-established purpose of the statute is to protect victims of domestic violence.”

            For more information on abuse prevention orders, more commonly known as restraining orders, you may visit www.bmjrlaw.com.

What a 209A Means for the Kids

209A Abuse Prevention orders are valuable tools to protect families from domestic violence. A judge can issue a 209A that requires an abuser to stay away from his or her partner, or extend the order to include any children in the household. Because of the power of a 209A (they often are in effect for a full year), a judge must carefully weigh the facts of the case when deciding the provisions of the order. 

The 1995 case Jodi Smith v. Robert Joyce out of the Supreme Judicial Court of Massachusetts found that while the plaintiff, Ms. Smith, had demonstrated that she was "in fear of imminent serious physical harm”, thus meeting the statutory requirement for a 209A protective order, there was no evidence of abuse or harm between the defendant, Mr. Joyce, and his sons. Originally, the 209A in this case only allowed Mr. Joyce bi-weekly phone calls with his children. However on appeal, the judge ruled that, “If there is to be a G.L. c. 209A order that a defendant stay away from and have no contact with his or her minor children, there must be independent support for the order.” Because the only evidence of abuse was between the plaintiff and the defendant, the court struck the provision from the 209A order that directed him to stay away from his sons.