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.