Pursuant to General Laws Chapter 258E, a court in Massachusetts can issue a “Harassment Prevention Order,” which is a type of restraining order that, unlike a General Laws Chapter 209A Abuse Protection Order, does not require that the applicant have any specific type of personal relationship with the person against whom they are seeking the order. Whereas a 209A Abuse Protection Order can only be obtained by a (1) spouse or former spouse; (2) present or former household member; (3) relative by blood or marriage; (4) parent of your minor child; or (5) present or former dating partner, anyone can obtain a 258 Harassment Prevention Order, provided that they can satisfy its requirements.

The requirements for obtaining the two types of restraining orders differ in accordance with their purposes. To obtain a 209A, an applicant must demonstrate that the other individual (with whom they have or had a certain relationship) harmed or attempted to harm them, or put them in fear of imminent serious physical harm, or caused them to engage in sexual relations involuntarily.
In comparison, to obtain a 258E, an applicant must demonstrate that someone has committed three (3) or more acts that were “willful and malicious,” were aimed at the applicant, were intended to cause fear, intimidation, abuse or damage to property of the applicant’s, and did in fact result in such fear, intimidation, abuse or damage to property. Alternatively, a 258E will issue upon proof of one of the following, namely: involuntary sexual relations, certain sex crimes, or criminal stalking. Maliciousness refers to a motive of cruelty, hostility or revenge.

There is one other grounds for the issuance of a 258E harassment prevention order, and that is “criminal harassment.” This is odd, because the statute generally requires three or more incidents, yet it allows that a single incident of “criminal harassment” will also justify an order. The reason that I find this odd is that “criminal harassment” itself requires three or more instances of harassing conduct or speech. And pursuant to Commonwealth v. O’Neil, 67 Mass. App. Ct. 284 (2006), the conduct that is deemed criminal by the criminal harassment statute (G.L. c. 265, § 43A), need not be motivated by the same type of malice that is required in order to justify the issuance of a 258E Harassment Prevention Order, namely, a motivation of cruelty, hostility or revenge. In fact, all that the government is required to prove in a criminal harassment prosecution, as far as motive, is that there was no justification or mitigation, and that the harm to the victim was reasonably foreseeable.

So, to get a Harassment Prevention Order, one must typically demonstrate that they need protection from someone who has done three things motivated by cruelty, hostility or revenge, but alternatively, they can show that the person has done one thing (criminal harassment) that is actually made of three things, which themselves do not need to have been motivated by cruelty, hostility or revenge.

In any event, in practice, both types of orders are frequently granted on slim evidence, and they can be hard to defend against successfully. At the very least, they require the assistance of an attorney who is familiar with the process and has a sense of what the judge wants to hear and does not want to hear. 209A Abuse Protection Orders require the surrender of all firearms and related licenses, and often result in a de facto eviction from a home, even one’s own home. 258E Harassment Prevention Orders also typically cause significant burdens. Both orders are usually issued for one year, and may be renewed annually, or made indefinite. It is a crime to violate either type of order.

As I said, these orders are often issued on the barest of evidence. There are limits, however, to the paucity of evidence that will support the issuance of the orders. The remedy when a court issues an order improperly is an appeal to the Massachusetts Appeals Court (not the Appellate Division of the District Court, as was recently clarified). A motion to reconsider may also be available, but absent compelling new evidence, such a motion may not be availing in most circumstances.

The recent case of M.H. v. E.R.M. provides a good example of a court improperly issuing a 258E Harassment Prevention Order absent the requisite elements. That case involved a 258E order that was issued based on three alleged electronic communications to the plaintiff, one saying simply “Goodbye,” one saying “I’m really sorry for being so negative that day. Okay okay okay. I won’t ever be like that again. I’m sorry,” and one saying “God knows I’m sorry. Don’t hate me please. lol.” There were also alleged statements to the plaintiff’s friends alluding to rape charges having been filed.

The appeals court vacated the Harassment Prevention Order, finding that it offended the First Amendment, and holding that “the definition of harassment applies to speech only if it falls outside the protections of the First Amendment to the United States Constitution, either by consisting of ‘fighting words’ or ‘true threats.’”

The Appeals Court found that none of the statements were “fighting words” because they were not communicated face-to-face, and none of them were “true threats.” The Court concluded thusly:

“Here, there is simply no evidence that the defendant intended to cause any harm at all to the plaintiff, much less that she wilfully committed three or more acts, aimed at the plaintiff, each with the intent to cause fear, intimidation, abuse, or damage to property. Accordingly, the harassment prevention order should not have been granted. Harassment prevention order vacated.”

Although I am sure that the appellant felt vindicated by the Appeals Court’s ruling, it is unfortunate that she had to spend (presumably) considerable sums of money, and wait a considerable amount of time, in order to get the outcome that she should have gotten in the first instance in the district court.

Attorney Kevin D. Quinlan
The Law Offices of Kevin D. Quinlan
2 South Main Street, Suite 201
P.O. Box 248
Uxbridge, MA 01569
(508) 723-6384