Today, the courts are called upon often to provide protection for its citizens, more and more in the form of prosecuting those who are accused of committing crimes. In some circumstances a crime has not yet been committed or the victim is not interested in pressing criminal charges but would still like to receive some form of protection from the courts. Or, a crime has been committed and the person is being prosecuted, and the victim wants or needs additional protection. In Massachusetts, this is when certain civil protective court orders such as Harassment Prevention Orders are used.
Massachusetts General Laws, Chapter 258E, concerns the issuance and enforcement of a Harassment Prevention Order. People often refer to this type of order as a 258E order or “HPO.” First enacted in 2010, this law filled the gap left by 209A Restraining Orders concerning those eligible to seek such orders: people who are or were dating, blood relatives, family members or living together. There is no such restriction for Harassment Prevention Orders.
Who Can Seek a 258E Harassment Prevention Order?
Unlike a 209A Restraining Order, anyone can seek a Harassment Prevention Order against anyone else. You do not have to have a special relationship such as dating, married, familial or otherwise. Situations include:
- feuding neighbors,
- those being bullied at school and/or work, and
- victims of sexual assault who had not dated their attacker.
What if I Am in Danger Right Now?
If your personal safety is at risk, go to the police station. Judges are on call to assist you. The judge will determine whether there is enough evidence to issue a temporary order immediately, without notice to the defendant, based on “a substantial likelihood of immediate danger of harassment.”
What Qualifies as Harassment?
Many people who seek harassment prevention orders think that if the person is annoying them with phone calls, texts, unreasonable requests or similar things, that they are being harassed. Harassing is not the same as annoying.
Harassment must either be a “true threat” or “fighting words.”
- A “true threat” is a threat that is intended to cause fear of physical harm or abuse to a person or their property. To qualify as a true threat, it must demonstrate, “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Any other types of threats, such as to damage a person’s reputation or to get them fired, will not qualify.
- “Fighting words” are direct and personal insults to someone and by their very utterance are inherently likely to provoke violence.
It is also harassment if:
- On one occasion a person causes another to engage in involuntary sexual relations through the use of force, threats or duress.
- It can be shown that a person committed sex offenses such as rape, indecent assault and battery, and child enticement. Stalking and criminal harassment are also included.
You need to prove that you are suffering harassment, and the accused does not have to be convicted or even charged with of any of those crimes. The judge will examine the facts and make a decision as to whether there is proof of behavior that constitutes one or more of the crimes.
How Do I Initiate a 258E Harassment Prevention Order?
In order for the court to issue this type of order, you (the “plaintiff”) have to demonstrate to the judge by a “preponderance of the evidence” that you are “suffering harassment,” which requires you to show one of the following circumstances and harassing acts:
- Three or more separate acts;
- Aimed at a specific person;
- That are willful and malicious;
- That are done with the intent to cause fear, intimidation, abuse or property damage; and
- Do in fact cause fear, intimidation, abuse or property damage.
Fill out paperwork to give basic information about yourself and the person against whom you seek the order and include sufficient facts for the court to determine whether you are suffering from harassment by the defendant; specifically:
- Three or more separate acts
- Aimed at a specific person
- That are willful and malicious, and
- That are done with the intent to cause fear, intimidation, abuse or property damage and
- Do in fact cause fear, intimidation, abuse or property damage.
How Do I File My Paperwork?
During court hours (Monday through Friday, 8:30 am – 4:30 pm, excluding holidays), file your papers to be heard by a judge in the court having jurisdiction over your residence. This is usually the local District Court, but you can file in Superior Court as well. However, if the defendant is under age 18, the case will be heard in the juvenile court. Outside of court hours, you can go to the police station, where judges are on call to assist you.
When Does My Case Go to Court?
After your Harassment Prevention Order is issued, police serve the order upon the defendant as soon as possible. The court hearing date is scheduled for not more than 10 court business days after the issuance of the temporary order, at which time the defendant can have a full hearing to challenge whether the Harassment Prevention Order should continue. If you do not appear at this hearing, the temporary order will be terminated at that time. If the defendant does not appear at this hearing the temporary order will likely continue for up to one year.
The court does not provide you with a lawyer, so you should bring a lawyer with you, as can the defendant. Both parties have the right to have witnesses testify and submit other evidence, such as emails, texts, voicemails, photos, medical records, etc. The other party or their lawyer may question your witnesses.
If the court finds you are suffering from harassment the judge can extend the order for up to one year. If not, the Harassment Prevention Order will be terminated.
How Does a Harassment Prevention Order Protect Me?
The judge can make any combination of the following orders:
- Refrain from harassment of the plaintiff;
- Refrain from abuse of the plaintiff;
- Refrain from contacting the plaintiff in any way including in person, by telephone, mail, email or social media, or through a third party, etc.;
- Stay away from plaintiff’s home, work or school; or
- Pay out-of-pocket expenses related to the harassment such as lost wages, medical expenses, moving expenses, reasonable attorney’s fees, replacement cost of broken items, such as door locks, windows, other property damaged, costs of obtaining unlisted phone number, etc.
What Happens if I Violate the Harassment Prevention Order?
Whether the charges are true or not, harassment allegations are taken very seriously by the Massachusetts courts, and the court’s subsequent decision will forever affect the way you live your life.
It is important to understand that while this is considered a civil, not criminal, matter a violation of a 258E Harassment Prevention Order is a crime. Though not criminal, the court maintains a parallel record for anyone who has had a Harassment Prevention Order served, whether it was for only a day or up to a year, and this information will be part of one’s permanent record. If convicted of violating the order, the person can face up to 2 ½ years in the house of correction, fines up to $5,000, be made to complete an appropriate treatment program and pay restitution to the alleged victim.
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