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Any liar can get an order by merely asserting fear: Why Chapter 209A Must Be Revamped to Protect Against the Issuance of Unnecessary Abuse Prevention Orders

BRITTANY PIERCE1 ABSTRACT


Chapter 209A of the Massachusetts General Laws defines abuse broadly, giving judges wide discretion in determining whether to grant an abuse prevention order. As a result, judges have issued such orders generously, and many individuals are able to obtain abuse prevention orders when they do not need them. False allegations of abuse can result in a variety of negative consequences for defendants, while plaintiffs who use false allegations to obtain the unnecessary orders may receive multiple benefits. This often provides plaintiffs with an incentive to obtain unnecessary abuse prevention orders. To combat abuse of this process, the state legislature should rewrite Chapter 209As definition of abuse with an eye toward specificity. In particular, Massachusetts should require that the defendants actions meet the definitions of specific crimes set out in the Massachusetts General Laws before a court issues an abuse prevention order. Additionally, the state legislature should empower courts to impose a penalty on individuals who falsely allege abuse. These changes will avert the issuance of unnecessary abuse prevention orders and the resultant destruction to defendants lives.
Candidate for Juris Doctor, New England Law| Boston (2013). B.A., Psychology, magna cum laude, Elon University (2010). I would like to thank my family, friends, and the New England Law Review staff for their support throughout the writing process. Gregory Hession, Fighting False Restraining Orders, MASSOUTRAGE, http://www.massoutrage.com/ma/restraining-order-resources/fighting-false-restrainingorders/ (last updated Jan. 2, 2012).
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INTRODUCTION
omestic violence is a serious problem in the United States.2 Recent studies estimate that domestic violence affects more than twelve million people each year.3 Women tend to experience abuse at a higher rate than men; however abuse impacts both sexes.4 In response to the growing concern about domestic violence, many states, including Massachusetts, have enacted abuse prevention-order laws.5 Legislatures intend these laws to provide a remedy for those experiencing abuse.6 A plaintiff suffering abuse may obtain an abuse prevention order against the abusive family or household member.7 This abuse prevention order may require the defendant to leave the household and avoid all contact with the plaintiff.8 The order aims to prevent future abuse by keeping the defendant away from the plaintiff.9 While abuse prevention orders can protect an individual who is suffering abuse, the procedure for issuing abuse prevention orders is itself subject to abuse.10 In Massachusetts, Chapter 209A defines abuse very broadly,11 giving judges ample discretion in deciding whether to issue an abuse prevention order.12 Unfortunately, this discretion has engendered lenity, and judges often grant abuse prevention orders unnecessarily.13 Individuals who wish to gain an advantage in a divorce proceeding, or want to punish a family member or former significant other, can easily obtain an abuse prevention order by vaguely alleging fear.14 Accordingly,

2 See NATL CTR. FOR INJURY PREVENTION & CONTROL, NATIONAL INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY 1 (2010), available at http://www.cdc.gov/ViolencePrevention/pdf/NISVS_ FactSheet-a.pdf.

Id. at 2. Id. at 1-2. 5 See, e.g., MASS. GEN. LAWS ch. 209A (2010); N.H. REV. STAT. ANN. 173-B (LexisNexis 2010); N.J. STAT. ANN. 2C:25-17 (West 2005); N.Y. FAM. CT. ACT 812, 821 (McKinney 2010). 6 See Turner v. Lewis, 749 N.E.2d 122, 123-24 (Mass. 2001); Parrett v. Parrett, 260 N.Y.S.2d 382, 383 (N.Y. Fam. Ct. 1965).
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See, e.g., MASS. GEN. LAWS ch. 209A, 1, 4; N.H. REV. STAT. ANN. 173-B:1, 5. See MASS. GEN. LAWS ch. 209A, 3. 9 See Dollan v. Dollan, 771 N.E.2d 825, 826-27 (Mass. App. Ct. 2002). 10 See infra Part A. 11 See MASS. GEN. LAWS ch. 209A, 1. 12 Smith v. Jones, 915 N.E.2d 260, 264 (Mass. App. Ct. 2009). 13 See 209A Restraining Orders Defense, LAW OFFICES OF D. LEV, P.C., http://www.bostoncriminallaw.net/209a-lawyer/ (last updated Dec. 1, 2012) (noting that judges often grant restraining orders based on false allegations) [hereinafter LEV]. 14 Cathy Young, Hitting Below the Belt, SALON.COM (Oct. 25, 1999, 12:00 PM), http://www.salon.com/1999/10/25/restraining_orders/.
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defendants who have not committed abuse may suffer the negative consequences of having an abuse prevention order entered against them based on false or insufficient allegations.15 This Note argues that the laws governing the issuance of abuse prevention orders in Massachusetts must be revamped. Specifically, Chapter 209As definition of abuse should be revised to include the occurrence of specific crimes defined in detail by the Massachusetts General Laws.16 A more precise definition of abuse will reduce judicial discretion to issue abuse prevention orders and help to reduce misuse of the process.17 Additionally, courts should impose penalties on individuals who use false allegations of abuse to obtain an abuse prevention order.18 This will deter individuals from seeking abuse prevention orders frivolously, and thus reduce the number of false allegations of abuse in Massachusetts.19 Part I of this Note surveys Chapter 209A, the current Massachusetts abuse-prevention-order law, and briefly discusses the abuse-preventionorder laws in New Hampshire, New York, and New Jersey. Part II identifies judges broad discretion in granting abuse prevention orders under Chapter 209A. Part III of this Note argues that Massachusetts should follow the examples set by New Hampshire, New York, and New Jersey, and redefine abuse by including the definitions of specific crimes such as assault. Additionally, this Note argues that Massachusetts should penalize individuals who falsely allege abuse to deter them from doing so and to reduce the number of false claims. Finally, Part IV emphasizes that it is the legislatures duty to change the law, and until this is done, judges will continue to grant unnecessary abuse prevention orders. I. Restraining Order Laws in the Northeast A. Restraining Order Law in Massachusetts In 1978 the General Court of the Commonwealth of Massachusetts enacted Massachusetts General Laws Chapter 209A to provide a judicial remedy for those experiencing abuse at the hands of a family or household member.20 The statute provides that an individual may file a complaint for

See, e.g., Smith v. Joyce, 658 N.E.2d 677, 677, 680 (Mass. 1995); Jones v. Gallagher, 768 N.E.2d 1088, 1091 (Mass. App. Ct. 2002). . 16 See infra Part A. 17 See infra Part A. 18 See infra Part B. 19 See infra Part B. 20 Turner v. Lewis, 749 N.E.2d 122, 123-24 (Mass. 2001); Commonwealth v. Gordon, 553 N.E.2d 915, 917 (Mass. 1990).

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protection against the abuser to obtain an abuse prevention order.21 Under Section 1 of the statute, abuse is defined as: the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; [or] (c) causing another to engage involuntarily in sexual relations by force, threat or duress.22 This definition of abuse closely resembles the common law definition of assault.23 Massachusetts common law defines assault as an attempted battery or putting another in fear of an immediately threatened battery.24 Courts have recognized that placing another in reasonable apprehension that force may be used may satisfy the common law definition of criminal assault in Massachusetts.25 Therefore, to satisfy the definition of abuse, an individuals fear or apprehension resulting from the words or conduct of the defendant must be objectively reasonable.26 Section 1 defines [f]amily or household members as those who are or were (a) married to one another; (b) residing together; (c) related by blood or marriage; (d) have a child in common, regardless of whether they have been married or lived together; or those who (e) are or were dating or engaged.27 To determine whether a dating relationship or engagement satisfies the definition of family or household member, the legislature directs the court to examine the following factors: the length of the relationship; whether the relationship has been terminated and how much time has passed since its termination; how frequently the parties interacted with one another; and the type of relationship the parties had.28 Chapter 209A provides protection against domestic violence through the issuance of abuse prevention orders.29 The court usually issues a temporary abuse prevention order, which, after ten days, may be extended for up to one year.30 A plaintiff may apply for a temporary abuse

MASS. GEN. LAWS ch. 209A, 3 (2010). Id. 1. 23 Ginsberg v. Blacker, 852 N.E.2d 679, 683 (Mass. App. Ct. 2006). 24 Commonwealth v. Gorassi, 733 N.E.2d 106, 109 (Mass. 2000). 25 Commonwealth v. Delgado, 326 N.E.2d 716, 719 (Mass. 1975). 26 Ginsberg, 852 N.E.2d at 683. 27 MASS. GEN. LAWS ch. 209A, 1 (2010). 28 Id. 29 Turner v. Lewis, 749 N.E.2d 122, 123-24 (Mass. 2001). 30 Abuse Prevention / Restraining Orders, CRIMEVICTIMLAW.COM, http://www.crimevictim law.com/restrain/restrain.html (last visited Mar. 12, 2013); Restraining Order Process (209A), READBAG BETA, http://www.readbag.com/danverspolice-209a (last visited Mar. 12, 2013) [hereinafter Restraining Order Process (209A)]; see also Jacqueline Syrnick, Note, Shifting the Burden: An Argument for a Rebuttable Presumption Against Visitation During a 209A Restraining
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prevention order by filling out a form and filing an affidavit in the clerks office of a district, probate, or superior court with jurisdiction over the plaintiff.31 Such an order is referred to as an ex parte restraining order because the plaintiff may obtain the order without the defendant present.32 A court may later extend the temporary abuse prevention order for a specified amount of time or issue a permanent order.33 The Massachusetts 209A Complaint for Protection from Abuse provides four possible boxes for the plaintiff to check indicating the way (or ways) in which a household or family member abused the plaintiff.34 A plaintiff may allege that the defendant: (1) attempted to cause physical harm; (2) actually caused physical harm; (3) induced in the plaintiff fear of serious physical harm; or (4) forced the plaintiff to engage in sexual relations.35 The plaintiff must also submit, with the complaint, a supplemental affidavit describing recent instances of abuse.36 In addition to checking off the box (or boxes) describing the type of abuse the plaintiff has endured, an individual seeking an abuse prevention order must indicate the type of relief requested.37 If the individual filing the complaint has children and wishes to request a form of relief involving the children, the individual must complete the second page of the Complaint for Protection from Abuse.38 The plaintiff must indicate whether there are related proceedings currently pending that involve paternity or the care or custody of the children.39 Additionally, the plaintiff must indicate whether he or she is requesting custody of the children, or that the defendant has no contact with the

Order Proceeding, 43 NEW ENG. L. REV. 645, 653 (2009). Restraining Order Process (209A), supra note 30. See Mary Schouvieller, Note, Leaping Without Looking: Chapter 142s Impact on Ex Parte Protection Orders and the Movement Against Domestic Violence in Minnesota, 14 LAW & INEQ. 593, 598-99 (1996); Restraining Order Process (209A), supra note 30. 33 Crenshaw v. Macklin, 722 N.E.2d 458, 460 (Mass. 2000) (holding that the judge had the authority to turn a temporary restraining order into a permanent order under Chapter 209A, Section 3).
32 34 Complaint for Protection from Abuse, G.L. c. 209A at 1, available at http://www.mass. gov/courts/courtsandjudges/courts/districtcourt/fa-1.pdf [hereinafter Complaint for Protection from Abuse]. 31

Id. Restraining Order Process (209A), supra note 30. 37 Complaint for Protection from Abuse, supra note 34, at 1. The types of relief available include, for example, ordering the defendant not to contact the plaintiff, ordering the defendant to leave and remain away from the plaintiffs residence, and ordering the payment of compensation. Id.
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children, or both.40 If the plaintiff is not comfortable with visitation between the defendant and children, he or she must also indicate the type of visitation requested, and whether he or she desires a temporary order of support for the children.41 Once the paperwork is complete, a judge will review the form and affidavit, and may ask the plaintiff questions.42 If the judge determines that the plaintiff has demonstrated a substantial likelihood of immediate danger of abuse, the judge will grant a temporary abuse prevention order.43 This order focuses on preventing future abuse rather than merely responding to past abuse.44 Once the judge grants a temporary abuse prevention order, the court must notify the defendant of the orders existence.45 Generally a temporary order only lasts for ten days,46 and therefore the court must hold a hearing within this ten-day period to evaluate the orders continued necessity.47 At this hearing, the defendant may contest the order.48 The plaintiff has the burden to produce sufficient evidence establishing the need for the abuse prevention orders continuity.49 A plaintiff must establish, by a preponderance of the evidence, that his or her fear of harm is objectively reasonable and that this fear justifies extension of the order.50 The statute does not require the defendant to testify, but he or she must attend the hearing to prevent automatic continuation of the order.51 As long as the plaintiff still fears the defendants abuse, the judge may extend the order regardless of whether the defendant abused the plaintiff after the temporary order was granted.52 At the hearing, the judge may grant a

Id. Id. 42 Abuse Prevention / Restraining Orders, supra note 30; Restraining Order Process (209A), supra note 30.
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MASS. GEN. LAWS ch. 209A, 4 (2010). Dollan v. Dollan, 771 N.E.2d 825, 826-27 (Mass. App. Ct. 2002). 45 MASS. GEN. LAWS ch. 209A, 4. 46 Abuse Prevention / Restraining Orders, supra note 30. An initial order may be granted for a fixed period that does not exceed one year. MASS. GEN. LAWS ch. 209A, 3 (2010). The order must contain the date upon which it will expire and the date at which the matter may be heard again to determine whether the order should be extended. Id.
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MASS. GEN. LAWS ch. 209A, 4. Id. 49 Frizado v. Frizado, 651 N.E.2d 1206, 1210 (Mass. 1995). 50 Id. (Although it is not expressly stated in G.L. c. 209A, it follows from custom and practice in civil cases that a G.L. c. 209A plaintiff must make a case for relief by a preponderance of the evidence.); see also Syrnick, supra note 30, at 653-54.
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permanent order, extend the current order for a period of time deemed necessary to protect the plaintiff, or permit the order to lapse.53 Additionally, an individual may obtain an emergency abuse prevention order after court hours or on weekends by filing paperwork with the police.54 The police may contact a judge, and if the plaintiff is able to demonstrate a substantial likelihood of immediate danger of abuse, the judge may grant an emergency abuse prevention order.55 If the plaintiff does not file a complaint before the emergency order issues, he or she must appear in court on the next business day to file the appropriate forms.56 After the plaintiff appears in court, an emergency order is then subject to the same proceedings applicable to a temporary order.57 B. Restraining Order Laws in New Hampshire, New York, and New Jersey 1. New HampshireChapter 173-B

Chapter 173-B of the New Hampshire Revised Statutes Annotated provides protection for victims of domestic violence.58 Chapter 173-B defines abuse as the commission of one or more of seven specific crimesfurther defined within various sections of the Revised Statutes by a family or household member.59 The specific crimes include: (1) assault or reckless conduct; (2) criminal threatening; (3) sexual assault; (4) interference with freedom; (5) destruction of property; (6) unauthorized entry; and (7) harassment.60 To obtain an abuse prevention order, a plaintiff must file a petition alleging that he or she has suffered abuse.61 The Court must hold a hearing within thirty days of the petitions filing.62 At this hearing, the plaintiff must demonstrate, by a preponderance of the evidence, that abuse has occurred.63 If the plaintiff meets this burden, the court will conclude that the defendant represents a credible threat to the safety of the plaintiff, and may issue an abuse prevention order and other

53 54 55 56 57 58 59 60 61 62 63

Crenshaw v. Macklin, 722 N.E.2d 458, 460 (Mass. 2000). 5; see also Restraining Order Process (209A), supra note 30. 5; Restraining Order Process (209A), supra note 30. 5; Restraining Order Process (209A), supra note 30. See 5. N.H. REV. STAT. ANN. 173-B (West 2010). 173-B:1 (West 2010 & Supp. 2011). Id. 173-B:3(I) (West 2010). 173-B:3(VII)(a). 173-B:5.

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relief.64 Notably, the plaintiffs petition for an abuse prevention order must state: I swear that the foregoing information is true and correct to the best of my knowledge. I understand that making a false statement on this petition will subject me to criminal penalties.65 Such a statement implies that New Hampshire courts may impose criminal penalties on individuals who falsely allege abuse in a petition for an abuse prevention order.66 2. New YorkThe Family Court Act

In New York, under the Family Court Act, Section 821, an individual may obtain an order of protection against a family or household member through a family offense proceeding.67 As Sections 812 and 821 establish, a petition for an abuse prevention order must allege specific enumerated acts of family offenses including: (1) assault or attempted assault; (2) disorderly conduct; (3) harassment; (4) sexual misconduct; (5) forcible touching; (6) sexual abuse in the third degree; (7) sexual abuse in the second degree; (8) stalking; (9) criminal mischief; (10) reckless endangerment; (11) criminal obstruction of breathing or blood circulation; and (12) strangulation.68 Thus, allegations of abuse must meet the criteria for one or more of these crimes as defined under the New York Penal Law.69 Crimes not listed in the statute are not evidence of abuse in support an abuse prevention order in a family offense proceeding.70 Upon filing a Family Offense Petition, a plaintiff must indicate the relationship to the offender and the specific form(s) of abuse suffered, both by checking the appropriate boxes and describing the abuse.71 Based on the information contained in the petition, a judge may grant a temporary abuse prevention order if he or she determines that there is good cause.72 The

Id. STATE OF N.H., OFFICE OF THE ATTORNEY GEN., DOMESTIC VIOLENCE PROTOCOL 37 (3d ed. 2009), available at http://doj.nh.gov/criminal/victim-assistance/documents/dcyf-protocol.pdf.
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N.H. REV. STAT. ANN. 173-B:3 (LexisNexis 2010). N.Y. FAM. CT. ACT 821 (McKinney 2011). Members of the same family or household include: (a) individuals related by blood or affinity; (b) individuals who are or were married; (c) those who have a child together; and (d) individuals who are or were in an intimate relationship. Id. 812.
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Id. 812, 821. See id. 812; Know the Laws: New York, Orders of Protection, WOMENSLAW.ORG (Feb. 13, 2011), http://www.womenslaw.org/laws_state_ type.php?id=561& state_code=NY. 70 Hamm-Jones v. Jones, 702 N.Y.S.2d 130, 130-32 (N.Y. App. Div. 2002). 71 NEW YORK STATE UNIFIED COURT SYS., FORM 8-2: FAMILY OFFENSE PETITION (2010), available at http://www.nycourts.gov/forms/familycourt/pdfs/8-2.pdf.
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N.Y. FAM. CT. ACT 828.

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plaintiff must establish, by a preponderance of the evidence, that a form of abuse appearing in Sections 812 and 821 occurred.73 If the petitioner meets this burden, the court may grant an abuse prevention order.74 3. New JerseyThe Prevention of Domestic Violence Act

The Prevention of Domestic Violence Act of 1991 appears in Chapter 25 of the New Jersey Code of Criminal Justice.75 The Act defines domestic violence as the occurrence of one or more of a list of acts when committed by an adult or emancipated minor.76 These acts include: (1) homicide; (2) assault; (3) terroristic threats; (4) kidnapping; (5) criminal restraint; (6) false imprisonment; (7) sexual assault; (8) criminal sexual contact; (9) lewdness; (10) criminal mischief; (11) burglary; (12) criminal trespass; (13) harassment; and (14) stalking.77 The New Jersey Statutes further define each of these acts.78 If an individual suffers abuse at the hands of an adult or emancipated minor, he or she may file a complaint with the Family Part of the Chancery Division of the Superior Court to obtain a temporary abuse prevention order.79 A judge may grant an emergency or ex parte temporary abuse prevention order if the judge deems it necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought.80 If the judge determines that an individual is in danger of domestic violence based upon the complaint, the judge may issue a temporary abuse prevention order that will remain in effect pending a further order.81 Within ten days of an ex parte temporary abuse prevention orders issuance, the court must hold a hearing to determine whether the temporary order should be converted to a final order.82 A final order requires the plaintiff to establish, by a preponderance of the evidence, that the defendant committed the acts of domestic violence alleged in the complaint.83

73 74 75 76 77 78 79 80 81 82 83

Id. 832; Hunt v. Hunt, 858 N.Y.S.2d 724, 726 (N.Y. App. Div. 2008). N.Y. FAM. CT. ACT 841. N.J. STAT. ANN. 2C:25-17 (West 2005). Id. 2C:25-19. Id. See id. Id. 2C:25-28. Id. N.J. STAT. ANN. 2C:25-28. Id. 2C:25-29. Id.

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II. The Legislature Provided Massachusetts Judges Broad Discretion in Evaluating Allegations of Abuse. Under Massachusetts General Laws Chapter 209A, judges possess ample discretion in determining whether abuse has occurred within the meaning of the statute.84 Since domestic violence is such a serious problem,85 many judges do not want to leave an individual unprotected.86 Consequently, if a judge can interpret a plaintiffs allegations to satisfy the definition of abuse, the judge will likely grant an abuse prevention order.87 Since the Chapter 209A definition of abuse is similar to that of assault,88 an individual may obtain an abuse prevention order by alleging that the defendant placed him or her in fear of imminent serious physical harm.89 Thus, the defendant need not actually harm, or threaten to harm, the plaintiff prior to the judges grant of an abuse prevention order.90 A plaintiffs statement of fear regarding what the defendant might do next is often sufficient for a judge to grant a temporary abuse prevention order.91 While the defendant will have a chance to appear and argue his or her case at the ten-day hearing,92 the judge decides whether the plaintiff or the defendant is more credible.93 Therefore, while judges should not issue abuse prevention orders simply because it seems to be a good idea or

Smith v. Jones, 915 N.E.2d 260, 264 (Mass. App. Ct. 2009). See Cherry Henault, The Reissuance of Domestic Violence Orders Under Kentucky Law: A Due Process Analysis, 40 BRANDEIS L.J. 575, 575 (2001) (Without question, domestic violence is one of the most pressing concerns in modern society.); cf. Syrnick, supra note 30, at 649 (noting that domestic violence occurs frequently and often results from a batterers need for control); see generally NATL CTR. FOR INJURY PREVENTION & CONTROL, supra note 2, at 2 (Overall, lifetime and one year estimates for sexual violence, stalking and intimate partner violence were alarmingly high for adult Americans; with IPV alone affecting more than 12 million people each year.).
85 86 See David H. Taylor et al., Ex Parte Domestic Violence Orders of Protection: How Easing Access to Judicial Process Has Eased the Possibility for Abuse of the Process, 18 KAN. J.L. & PUB. POLY 83, 87, 92-93 (2008) (noting that most judges do not want to be the one who fails to issue a protective order when it is actually needed, resulting in these orders being granted on a more lenient basis). 87 See id. 88 Ginsberg v. Blacker, 852 N.E.2d 679, 683 (Mass. App. Ct. 2006). 89 MASS. GEN. LAWS ch. 209A, 1 (2010). 90 See id; Young, supra note 14. 91 See Young, supra note 14. 92 4; see also id. 93 Young, supra note 14 (The hearing, however, is usually limited to a he said/she said exchange in which, many lawyers say, the defendant is given little credit.).

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because [it seems] it will not cause the defendant any real inconvenience,94 judges may extend abuse prevention orders because they believe that the individual requesting the order is genuinely fearful.95 As a result, many individuals who obtain temporary abuse prevention orders through allegations of fear and abuse can extend those orders at the hearing.96 A. Plaintiffs in Massachusetts May Attempt to Obtain Abuse Prevention Orders When They Are Not Needed. A variety of motives exist for obtaining a Chapter 209A abuse prevention order when no actual danger to the plaintiff exists.97 These include gaining an advantage in a divorce proceeding, obtaining custody of a child, obtaining possession of a residence by requiring the defendant to leave, and obtaining money.98 Chapter 209A, section 3 lists various remedies available to individuals who obtain abuse prevention orders.99 These remedies include awarding temporary custody of minor children to the plaintiff and ordering the defendant to vacate and stay away from the household.100 Additionally, the complaint form for an abuse prevention order permits the plaintiff to request temporary support from the defendant for children in the plaintiffs custody, and monetary compensation for any losses or injuries sustained.101 Because many temporary abuse prevention orders are later extended or made permanent,102 an individual who obtains an ex parte order of protection may easily obtain these remedies and gain an advantage over the defendant in future domestic relations proceedings.103

94 Szymkowski v. Szymkowski, 782 N.E.2d 1085, 1087 (Mass. App. Ct. 2003) (alteration in original) (quoting Smith v. Joyce, 658 N.E.2d 677, 680 n.1 (Mass. 1995)).

Young, supra note 14. See Mark Charalambous, New Research Shows Bias in Restraining Orders, THE FATHERHOOD COALITION (July 10, 2005), http://www.fatherhoodcoalition.org/cpf /newreadings/2005/MC_Gardner_Study-2_050710.htm (noting that women were denied the extension of their abuse prevention order in only one percent of cases).
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95

See Young, supra note 14. See LEV, supra note 13; Young, supra note 14 (noting that restraining orders are often used for tactical advantage during divorce proceedings). 99 MASS. GEN. LAWS ch. 209A, 3 (2010). 100 Id. 101 Complaint for Protection from Abuse, supra note 34, at 1-2. 102 See Charalambous, supra note 96 (noting that women were rarely denied the extension of their abuse prevention orders).
98 103 Young, supra note 14 (The advantages of a restraining order to the complainant exclusive possession of the home (with the alleged abuser often required to continue paying the rent or mortgage), temporary and probably permanent sole custody of the childrencan be tempting.); see also Scott A. Lerner, Sword or Shield: Combating Orders-of-Protection Abuse in

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B. Chapter 209A Does Not Impose Penalties on Plaintiffs Who Bring False Allegations of Abuse. When filing an application for a Chapter 209A abuse prevention order, a plaintiff must also submit a written affidavit describing any instances of abuse.104 This plaintiff must sign the affidavit under the pains and penalties of perjury,105 thus asserting that the information contained in the affidavit is true.106 In theory, if the alleged instances of abuse are false, the plaintiff subjects himself or herself to prosecution for perjury.107 Ordinarily, a finding that an individual has committed perjury would subject him or her to a fine, imprisonment, or both.108 However, prosecutors ordinarily do not pursue perjury cases arising from domestic-violence claims.109 Chapter 209A does not impose any penalties, other than the impotent threat of prosecution for perjury, on plaintiffs who make false allegations.110 The decision not to prosecute, coupled with the lack of other penalties imposed, results in a failure to punish those who bring false claims.111

Divorce, 95 ILL. B.J. 590, 591 (2007). Restraining Order Process (209A), supra note 30. Commonwealth v. Belmer, 935 N.E.2d 327, 330 (Mass. App. Ct. 2010). 106 Cf. MASS. GEN. LAWS ch. 268, 1A (2010) (No written statement required by law shall be required to be verified by oath or affirmation before a magistrate if it contains or is verified by a written declaration that it is made under the penalties of perjury. Whoever signs and issues such a written statement containing or verified by such a written declaration shall be guilty of perjury and subject to the penalties thereof if such statement is wilfully false in a material matter.).
105 104

Id. Id. 1. 109 Peter Slocum, Comment, Biting the D.V. Bullet: Are Domestic-Violence Restraining Orders Trampling on Second Amendment Rights?, 40 SETON HALL L. REV. 639, 685 (2010) (noting that the prosecution of perjury in domestic-violence cases is rare); see also Valerie, Perjury: A Very Serious Crime?, TRUTH AND JUSTICE: FAMILY COURT REFORM (Oct. 3, 2006), http://truthinscotsthistle.blogspot.com/2006/10/perjury-very-serious-crime.html (noting the lack of aggression used by district attorneys in prosecuting perjury in domestic-relations cases).
108 110 See MASS. GEN. LAWS ch. 209A, 3 (2010) (pertaining to the remedies available under the abuse prevention statute).

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See Slocum, supra note 109, at 685-86 (noting that while perjury is rarely prosecuted in domestic-violence cases, the imposition of penalties may reduce the number of plaintiffs who abuse the system).

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C. Massachusetts Cases Exemplifying Judicial Discretion 1. Jones v. Gallagher112

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In Jones, defendant Gallagher challenged the extension of an abuse prevention order.113 Plaintiff Jones originally sought an abuse prevention order against Gallagher following their breakup based on fear she experienced from a poem Gallagher wrote.114 A friend brought the poem to Joness attention.115 Gallagher wrote the poem, just after his breakup with Jones, to express his grief and frustration.116 Jones alleged that she feared for her safety and requested an ex parte abuse prevention order.117 This order was entered and effective for one year following a hearing.118 At the expiration of this order, Jones sought a permanent abuse prevention order.119 When asked why she was in need of protection, Jones stated that she felt as though she was in imminent fear of physical and psychological harm.120 Additionally, Jones stated that she needed the order to protect her because she was involved in future litigation proceedings with Gallagher and would be in contact with him.121 The judge entered a permanent order.122 On appeal, the court emphasized the requirement that a plaintiff establish the need for a permanent order by a preponderance of the evidence.123 The appeals court held that an abuse prevention orders prior existence is alone insufficient to justify a permanent order.124 It concluded that the judge who issued the permanent order improperly relied solely on a prior 209A orders existence in determining that orders permanence.125
768 N.E.2d 1088 (Mass. App. Ct. 2002). Id. at 1089. 114 Id. 115 Id. at 1089 n.1. 116 Id. at 1089, 1093-94 app. For example, Gallagher wrote: You wonder why you just dont die. What tenuous connection keeps you still breathing. Everything you loved and believed lies torn and twisted. All thorns without the rose, bleeding and broken another causal victim, no bandage can resuscitate. Id. at 1093 app.
113 112

Id. at 1089. Jones, 768 N.E.2d at 1089. 119 Id. 120 Id. at 1090. 121 Id. 122 Id. 123 Id. at 1093. 124 Jones, 768 N.E.2d at 1093. 125 Id. (It appears that in making the order permanent the judge inappropriately used the mere existence of the earlier order, issued by a different judge, at a different time, as the sole basis for making the order permanent.).
118

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On that basis, the appeals court vacated the abuse prevention order.126 The improperly granted permanent order, in effect from 1999 to 2002,127 unnecessarily limited defendant Gallaghers constitutional rights and subjected him to the risk of criminal prosecution if he contacted Jones.128 2. Smith v. Joyce129

Smith v. Joyce concerned defendant Joyces appeal of a Chapter 209A abuse prevention order preventing Joyce from contacting his children.130 Plaintiff Smith obtained an ex parte abuse prevention order based upon allegations that Joyce placed her in fear of imminent, serious, physical harm resulting from an abusive marriage, aggressive attempts to contact her, and the possibility that Joyces anger may reignite.131 This order required Joyce to stay away from Smith and their two children, and limited Joyces contact with his children to two fifteen-minute, tape-recorded calls per week.132 The court extended the order for one year at a hearing held one week later.133 On appeal, Joyce challenged the limited contact with his children, arguing that Smith had neither raised nor proven any allegations of child abuse.134 The Supreme Judicial Court of Massachusetts held that there must be independent support for a Chapter 209A order of protection preventing a defendant from having contact with his children.135 As there was no evidence to support the portion of the order that prevented Joyce from contacting his children, the court vacated the order.136 Because the court granted the initial order in June 1993, and did not vacate it until December 1995, the order prevented Joyce from contacting his children, apart from two fifteen-minute phone calls a week, for two-and-one-half years.137

126 127 128

Id. Id. at 1089, 1093. Brief and Record Appendix for the Defendant at 14-15, Jones, 768 N.E.2d 1088 (No. 99-P-

2052). 658 N.E.2d 677 (Mass. 1995). Defendants Application for Direct Appellate Review at 1-2, Smith, 658 N.E.2d 677 (No. SJC-06756).
130 129

Smith, 658 N.E.2d at 680. Defendants Application for Direct Appellate Review, supra note 130, at 3, 9. 133 See Smith, 658 N.E.2d at 680. 134 Defendants Application for Direct Appellate Review, supra note 130, at 9, 16. 135 Smith, 658 N.E.2d at 680 (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.).
132 136 137

131

Id. See id.

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In Larkin, petitioner Larkin challenged the extension of a Chapter 209A abuse prevention order issued against him.139 Larkin had filed a civil suit against his sister and sent her notices of that lawsuit through the mail.140 Larkins sister sought a Chapter 209A abuse prevention order against Larkin, alleging that she feared imminent, serious physical harm because Larkin had mailed her notices of the lawsuit.141 At the ten-day hearing, Larkins sister testified that she suffered emotional distress as a result of Larkins lawsuit142 and suffered an aggravation of her ulcers.143 The district court extended the abuse prevention order for one year.144 Larkin was charged with violating the order, and after a single justice denied his motion for relief, Larkin appealed.145 The Supreme Judicial Court of Massachusetts held that the conduct Larkins sister alleged was insufficient to constitute imminent, serious physical harm.146 Thus, this conduct did not satisfy Chapter 209As definition of abuse.147 As a result, the court concluded that the abuse prevention order never should have been issued.148 Larkins sister obtained the initial order in 1995, and the court did not vacate that order until 1997.149 ANALYSIS III. The Legislature Must Rewrite Chapter 209A to Prevent the Issuance of Unnecessary Abuse Prevention Orders. A. A More Specific Definition of Abuse Will Reduce Judicial Discretion. Chapter 209As broad definition of abuse makes it easier for individuals to obtain abuse prevention orders unnecessarily and through

138 139 140 141 142 143 144 145 146 147 148 149

681 N.E.2d 817 (Mass. 1997). Id. at 818. Brief of Appellant at 2, Larkin, 681 N.E.2d 817 (No. SJC-07203). Larkin, 681 N.E.2d at 818. Brief of Appellant, supra note 140, at 2-3. Larkin, 681 N.E.2d at 818. Brief of Appellant, supra note 140, at 3. Larkin, 681 N.E.2d at 818. Id. Id. Id. Id. at 817-18.

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false allegations.150 Not only does the issuance of an unnecessary order benefit the plaintiff,151 but it also results in a variety of negative consequences for the defendant.152 For example, as illustrated above, the order may prevent a defendant from seeing or having a relationship with his or her children;153 cause the defendant to suffer negative consequences in future domestic-relations proceedings; and subject the defendant to warrantless arrest.154 To prevent these unnecessary negative consequences, Massachusetts should redefine abuse in Chapter 209A to reduce the judicial discretion in the interpretation of abuse allegations.155 In making this change, Massachusetts should follow the examples of other Northeastern states and require the defendants actions to meet the definition of a specific crime (or crimes) before the court issues an abuse prevention order.156 New Hampshire, New York, and New Jersey all require that the defendants actions meet the definitions of various criminal acts before a court issues an abuse prevention order.157 In New York, one enumerated crime that constitutes abuse is assault.158 Assault, a New York Penal Law misdemeanor, occurs when a person: (1) with intent to cause physical injury to another causes such physical injury; (2) recklessly causes physical injury to another; or (3) with criminal negligence causes physical injury to

See id. at 818 (holding that the plaintiffs allegations of abuse were not sufficient to constitute imminent, serious physical harm, and that the abuse prevention order should not have been granted); Smith v. Joyce, 658 N.E.2d 677, 680 (Mass. 1995) (reversing the portion of an abuse prevention order preventing the defendant from contacting his children as there was no independent support for it); Jones v. Gallagher, 768 N.E.2d 1088, 1091 n.4, 1093 (Mass. App. Ct. 2002) (reversing the extension of an abuse prevention order because the sole reason for the extension was that a temporary order had been granted).
151 See Young, supra note 14 (noting that abuse prevention orders are often used strategically to gain an advantage in divorce proceedings). 152 See, e.g., Smith, 658 N.E.2d at 677, 680 (discussing how defendant Joyce was prevented from seeing his children for two and a half years as a result of the abuse prevention order taken out against him); Jones, 768 N.E.2d at 1091 (noting that defendant Gallagher experienced limitations on his constitutional rights and the risk of criminal prosecution as a result of the abuse prevention order taken out against him).

150

See, e.g., Smith, 658 N.E.2d at 680. Jones, 768 N.E.2d at 1091. 155 See Young, supra note 14 (arguing that abuse prevention orders are granted to almost all who apply).
154

153

See, e.g., N.H. REV. STAT. ANN. 173-B:1 (McKinney 2010); N.J. STAT. ANN. 2C:25-19 (West 2005); N.Y. FAM. CT. ACT 812, 821 (2010). 157 See N.H. REV. STAT. ANN. 173-B:1; N.J. STAT. ANN. 2C:25-19; N.Y. FAM. CT. ACT 812, 821.
158

156

N.Y. FAM. CT. ACT 821.

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another with a deadly weapon or dangerous instrument.159 Notably, this definition of assault does not include placing another in fear as an element of the crime.160 Under Chapter 209As definition of abuse, placing another in fear is the element that accords the most judicial discretion to determine whether the definition of abuse has been met.161 Judges do not want to fail to protect a bona fide plaintiff, nor fail to issue an abuse prevention order when legitimately necessary, and often treat vague allegations of fear more seriously than is warranted under the statute.162 As Jones,163 Smith,164 and Larkin165 demonstrate, plaintiffs often adopt Chapter 209As fear of imminent serious physical harm language when requesting an abuse prevention order.166 This language accords judges broad discretion and, as a result, plaintiffs obtain abuse prevention orders by merely stating their fear of harmas opposed to demonstrating this fear of harm.167 While Chapter 209As current abuse definition requires an imminent fear of serious physical harm,168 judges often grant abuse prevention orders based on emotional harm or non-imminent harm.169 New

159 N.Y. PENAL LAW 120.00 (McKinney 2011). Assault is divided into three separate sections under the New York Penal Law: Assault in the first degree, second degree, and third degree. Id. 120.00, 120.05, 120.07. The focus of this section is assault in the third degree. Id. 120.00.

120.00. Cf. Young, supra note 14 (noting that a simple allegation of fear is sufficient to justify the issuance of an abuse prevention order in Massachusetts). 162 See Taylor et al., supra note 86, at 87, 92-93 (noting that judges often grant abuse prevention orders on a lenient basis due to their fear of failing to issue an order when it is actually needed).
161

160

Jones v. Gallagher, 768 N.E.2d 1088 (Mass. App. Ct. 2002). Smith v. Joyce, 658 N.E.2d 677 (Mass. 1995). 165 Larkin v. Ayer Div. of Dist. Court Dept, 681 N.E.2d 817 (Mass. 1997). 166 See, e.g., id. at 818 (discussing how the plaintiff alleged that she was placed in fear of imminent serious physical harm by being mailed notices of a lawsuit against her); Smith, 658 N.E.2d at 680 (noting that the plaintiff alleged that she was placed in fear of imminent serious physical harm as a result of the defendants aggressive attempts to contact her and abuse she suffered during the marriage); Jones, 768 N.E.2d at 1090 (noting that the plaintiff alleged that she was in imminent fear of physical and psychological harm as a result of a poem written by the defendant).
164 167 See Jones, 768 N.E.2d at 1090, 1093 (noting that the abuse prevention order was made permanent based on the plaintiffs statement that she was in fear of harm and the presence of the prior order); Brief of Appellant, supra note 140, at 3 (noting that the district court extended the abuse prevention order based on the plaintiffs allegations that she was placed in fear of imminent serious physical harm). 168 MASS. GEN. LAWS ch. 209A, 1 (2010). 169 See, e.g., Larkin, 681 N.E.2d at 818 (describing the extension of an abuse prevention order based upon the plaintiffs allegations of fear resulting from being notified of the civil

163

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York laws omission of the fear element from the definition of assault in the third degree reduces judicial discretion and, as a result, the unwarranted issuance of abuse prevention orders.170 If the legislature required a defendants actions meet the definitions of specific, legislatively defined crimes to constitute abuse, it would afford judges the means to approach determinations of abuse in a more elemental, objective manner.171 That the precise elements of one or more specific crimes must be met further reduces judicial discretion by minimizing the degree to which judges may insert their own views into the definition of abuse.172 Since fear is a standard subject to a range of interpretation, a rule that requires the occurrence of physical harm or specific conduct will leave judges less room for error.173 If the alleged conduct does not satisfy the elemental definitions of these enumerated crimes, then no abuse occurred.174 Massachusetts should follow the examples set by New Hampshire, New York, and New Jersey and require the plaintiff to allege specific crimes, currently laid out in the Massachusetts General Laws, to support a
lawsuit that had been filed against her by the defendant); Jones, 768 N.E.2d at 1089-90 (discussing the judges issuance of a permanent abuse prevention order based upon the plaintiffs allegations of fear resulting from a poem written by the defendant about his own grief). 170 Contra Larkin, 681 N.E.2d at 818 (noting that the plaintiff was granted an abuse prevention order as a result of an allegation that she was in fear from notices of a lawsuit being mailed to her).
171 Compare MASS. GEN. LAWS ch. 209A, 1 (2011) (defining abuse as a family or household member: (1) causing or attempting to cause physical harm; (2) putting another in fear of immediate serious physical harm; or (3) inducing another to involuntarily engage in sexual relations through force, duress, or threats), with N.Y. FAM. CT. ACT 812, 821 (McKinney 2011) (defining abuse as: (1) assault or attempted assault; (2) disorderly conduct; (3) harassment; (4) sexual misconduct; (5) forcible touching; (6) sexual abuse in the third degree; (7) sexual abuse in the second degree; (8) stalking; (9) criminal mischief; (10) reckless endangerment; (11) criminal obstruction of breathing or blood circulation; and (12) strangulation). 172 Compare MASS. GEN. LAWS ch. 209A, 1 (providing the current definition of abuse in Massachusetts, including the element of placing an individual in fear), with N.Y. PENAL LAW 120.00 (McKinney 2011) (defining third degree assault as occurring when a person: (1) with intent to cause physical injury to another causes such physical injury; (2) recklessly causes physical injury to another; or (3) with criminal negligence causes physical injury to another with a deadly weapon or dangerous instrument). 173 Contra Larkin, 681 N.E.2d at 818 (discussing the ease with which an abuse prevention order was granted due to a plaintiffs vague allegation of fear). 174 See, e.g., N.H. REV. STAT. ANN. 173-B:1 (2010); N.J. STAT. ANN. 2C:25-19 (2010); N.Y. FAM. CT. ACT 821 (McKinney 2005); see also Slocum, supra note 109, at 649-50 (noting that the court must find that the defendant has committed a crime punishable by law in order for a final abuse prevention order to be granted).

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finding of abuse.175 Following the lead of other Northeastern states, Massachusetts should include assault, rape, stalking, and criminal harassment in its definition of abuse.176 Under Chapter 265, section 43 of the Massachusetts General Laws, stalking occurs when an individual:
(1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury . . . .177

This definition of stalking, which would constitute just one of the crimes sufficient to justify granting an abuse prevention order, is already more detailed than the current definition of abuse under Chapter 209A.178 Thus, by incorporating stalking and other defined, relevant crimes, the requirements for abuse will be more precise.179 A more precise definition of abuse will in turn diminish judges discretion in determining whether a plaintiffs allegations sufficiently constitute abuse.180 Thus, judges will be barred from issuing abuse prevention orders if plaintiffs allegations are only peripherally related to abuse.181 With the imposition of new, more specific, elemental definitions, allegations that do not satisfy the requirements of one or more enumerated

See generally MASS. GEN. LAWS ch. 265 (2010). See N.H. REV. STAT. ANN. 173-B:1 (2010); N.J. STAT. ANN. 2C:25-19 (2010); N.Y. FAM. CT. ACT 821 (2005). All three states currently include assault, a form of sexual abuse/assault, and harassment in their definitions. N.H. REV. STAT. ANN. 173-B:1; N.J. STAT. ANN. 2C:2519; N.Y. FAM. CT. ACT 821. New York and New Jersey both include stalking. N.J. STAT. ANN. 2C:25-19; N.Y. FAM. CT. ACT 821.
176

175

MASS. GEN. LAWS ch. 265, 43 (2010). Compare id. (providing the current requirements to establish the crime of stalking), with MASS. GEN. LAWS ch. 209A, 1 (2010) (providing the current requirements to satisfy abuse sufficient to grant an abuse prevention order).
178 179 Compare MASS. GEN. LAWS ch. 209A, 1 (providing the current definition of abuse in Massachusetts), with N.J. STAT. ANN. 2C:25-19 (providing the current definition of domestic violence in New Jersey, including specific enumerated crimes). 180 Cf. Slocum, supra note 109, at 649 (noting that the specific crimes listed in the New Jersey definition of domestic violence are intended to assist the court in determining whether abusive and controlling behavior occurred). Contra Smith v. Jones, 915 N.E.2d 260, 264 (Mass. App. Ct. 2009) (In acting on an original G.L. c. 209A application or an application for an extension, a judge has wide discretion . . . .). 181 Contra Taylor et al., supra note 86, at 87, 92-93 (discussing how judges tend to grant restraining orders more leniently because they do not want to fail to grant an order when it is needed); Young, supra note 14 (arguing that judges routinely issue orders of protection even where they are unnecessary, simply because an individual complains of fear).

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crimes will not justify the issuance of an abuse prevention order.182 As a result, judges will grant fewer unnecessary abuse prevention orders by following these elemental definitions of crimes.183 The requirement that allegations of abuse meet the definition of one or more specific, enumerated crimes will not make it more difficult for an individual to obtain an abuse prevention order when one is necessary.184 While the requirements for obtaining an abuse prevention order will be listed differently (through the definitions of specific crimes as opposed to a broad, general definition), the underlying reasoning for making abuse prevention orders available is the same.185 Thus, the specific crimes that constitute abuseassault, rape, criminal harassment, and stalkingwill be those that cover the abusive acts the legislature designed Chapter 209A to protect against.186 An individual who has experienced one of those forms of abuse will meet the requirements and obtain an order of protection.187 Although individuals may continue to bring false or insufficient allegations of abuse, to do so will become more difficult, and judges will be

See Slocum, supra note 109, at 649-50 (noting that the defendant must have committed a crime that is punishable by law in order for a final abuse prevention order to be granted).
183 See supra notes 179-182 and accompanying text; cf. Young, supra note 14. By introducing more specific, elemental definitions of crimes into the abuse requirement, there will be less of an opportunity for judges to issue an order of protection just because they feel that it should be issued, contrary to the requirements of the law. See supra notes 179-182 and accompanying text; cf. Young, supra note 14. 184 See, e.g., Walker v. Walker, 972 A.2d 1083, 1089-90 (N.H. 2009) (demonstrating that individuals with true allegations of abuse are able to obtain abuse prevention orders in states such as New Hampshire that require the definitions of specific crimes be met); see generally infra notes 185-187 and accompanying text.

182

Compare Slocum, supra note 109, at 648-49 (noting that the Prevention of Domestic Violence Act in New Jersey was enacted to protect individuals from acts of domestic violence), with Syrnick, supra note 30, at 651-53 (noting that Chapter 209A was enacted to provide judicial remedies for those experiencing domestic violence).
186 See MASS. GEN. LAWS ch. 209A, 1 (2010) (defining abuse as a family or household member: (1) causing or attempting to cause physical harm; (2) putting another in fear of immediate serious physical harm; or (3) inducing another to involuntarily engage in sexual relations through force, duress, or threats). Assault, rape, and criminal harassment already appear to be protected by the current definition of abuse because it references attempting to cause or causing physical harm and forcing another to engage in sexual relations. See id.

185

See Walker, 972 A.2d at 1089-90 (holding that the defendants threats on the plaintiffs life, including a threat in which he had a firearm, were sufficient to constitute abuse and justify the issuance of a restraining order, despite the fact that the plaintiff testified that things were okay during the week leading up to the hearing). The fact that plaintiffs alleging true acts of abuse are able to obtain restraining orders in states like New Hampshire, which require the definitions of specific crimes to be met, suggests that the same would hold true in Massachusetts. Cf. id.

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able to more easily identify insufficient allegations.188 An individual determined to obtain an unnecessary abuse prevention order will still present false allegations of abuse to the judge.189 However, to satisfy the precise definition of one or more enumerated crimes, these false allegations will need to be much more detailed than what current requirements permit.190 Therefore, individuals conjuring false scenarios will find it much more difficult to satisfy the requirements.191 Because allegations of abuse will require more detail, judges will be able to more easily identify inconsistencies in a plaintiffs allegations and false claims.192 Thus, rewriting Chapter 209A by removing the fear standard and incorporating an elemental approach based on defined crimes will reduce the unnecessary issuance of abuse prevention orders without hindering those who need them.193 B. The Imposition of Penalties Will Reduce the Number of False Allegations. Under Chapter 209A, the only penalty for raising false allegations of abuse to obtain an abuse prevention order is prosecution for perjury;194

188 See infra notes 189-192 and accompanying text. Contra Larkin v. Ayer Div. of Dist. Court Dept, 681 N.E.2d 817, 818 (Mass. 1997) (noting the ability of a plaintiff to obtain an abuse prevention order due to fear she felt as a result of being mailed notices of a lawsuit). 189 See Lerner, supra note 103, at 591-95 (discussing the frequency with which orders of protection are obtained in order to gain an advantage in divorce proceedings). 190 Compare MASS. GEN. LAWS ch. 209A, 1 (requiring, at a minimum, that a plaintiff be placed in fear of imminent serious physical harm), with N.J. STAT. ANN. 2C:25-19 (West 2005) (requiring that a plaintiffs allegations meet the definition of a specific crime, such as assault or kidnapping, in order to support a finding of domestic violence). 191 Compare Fillmore v. Fillmore, 786 A.2d 849, 851 (N.H. 2001) (holding that a plaintiffs testimony that she and the defendant yelled at each other, that the defendant hit her twice in the past, and once threatened to make [her] life a living hell were insufficient to satisfy the requirements of criminal threatening or harassment), with Ginsberg v. Blacker, 852 N.E.2d 679, 685 (Mass. App. Ct. 2006) (holding that the defendants conduct of pacing back and forth and waving his hands in the plaintiffs face while screaming at her, as well as following her upstairs and downstairs when she tried to avoid him, were sufficient to establish that the plaintiff was placed in fear of imminent serious physical harm).

See L.D. v. W.D., 742 A.2d 588, 589-90 (N.J. Super. Ct. App. Div. 1999) (holding that a judge may not base a finding of abuse on allegations not set forth in the complaint, and that the defendants communications with the plaintiff about moving a desk did not constitute domestic violence); see also State v. Hoffman, 695 A.2d 236, 247 (N.J. 1997) (noting that there is potential for abuse in domestic-violence cases and that it is important for the judge to play the role of gatekeeper). 193 See supra notes 157-94 and accompanying text. 194 See MASS. GEN. LAWS ANN. ch. 268, 1A (West 2012). See generally MASS. GEN. LAWS ANN. ch. 209A (West 2012) (setting forth the laws on abuse prevention and lacking a penalty

192

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however, prosecutions for perjury in domestic abuse cases do not occur very often.195 Because district attorneys prosecute individuals who commit perjury in domestic-relations cases so infrequently, individuals who falsely allege abuse face no retributive penalty for their actions.196 Thus, there is nothing in place to deter individuals from bringing false claims.197 Because there are incentives for plaintiffs to obtain a Chapter 209A abuse prevention order by presenting the court with false allegations of abuse,198 the failure to impose penalties for making false claims increases the temptation to do so.199 To reduce the number of false allegations of abuse, Massachusetts should implement a system of penalties to punish those who falsely allege that abuse.200 Under New Hampshire law, a plaintiff who applies for an abuse prevention order based upon false allegations may be subject to criminal penalties.201 If Massachusetts followed New Hampshires lead and subjected individuals who falsely allege abuse to penaltiescriminal, pecuniary, or otherwiseit would deter individuals from bringing false
set for falsely alleging abuse).
195 Slocum, supra note 109, at 685 (noting that prosecutions for perjury occur very infrequently in domestic-violence cases); Valerie, supra note 109 (discussing how district attorneys rarely prosecute perjury in domestic-relations cases). 196 See Slocum, supra note 109, at 685 (discussing the lack of perjury prosecutions in domestic-relations cases); Valerie, supra note 109 (noting the willful blindness often exhibited by judges and attorneys in domestic-relations cases). 197 Cf. Slocum, supra note 109, at 685-86 (arguing that although prosecutions for perjury are rare, imposing other penalties for false claims may reduce the abuse of the system). In Commissioner of Probation v. Adams, a Massachusetts Appeals Court found that an individual had committed fraud on the court by using false allegations of abuse in order to obtain an order of protection. 843 N.E.2d 1101, 1106 (Mass. App. Ct. 2006). The court concluded that not only could it enter default judgments or dismiss fraudulent claims, but it could expunge the record of an abuse-prevention order. Id. at 1107, 1111. While such a result may remedy harm suffered by the defendant, it merely places the claimant in the position he or she would have been in had they not falsely alleged abuse; there are no negative consequences. See id. at 110910.

See LEV, supra note 13. See Slocum, supra note 109, at 685-86 (arguing that the lack of penalties for false allegations increases the temptation for abuse of the system). 200 See FRANKLIN E. ZIMRING & GORDON J. HAWKINS, DETERRENCE: THE LEGAL THREAT IN CRIME CONTROL 3-4 (Sanford H. Kadish et al. eds., 1973) (noting that according to deterrence theory the imposition of punishments for actions can prevent the commission of those acts).
199 201 N.H. REV. STAT. ANN. 173-B:3 (West 2010). While it is unclear exactly what is meant by criminal penalties, one individual was sent to jail for seven to fourteen years for falsely accusing her ex-husband of criminal threatening, lying to police officers, and lying in court. Robert Franklin, Kristin Ruggiero Sentenced to 7-14 Years Behind Bars, FATHERS AND FAMILIES (Aug. 25, 2010), http://www.fathersandfamilies.org/2010/08/25/kristin-ruggiero-sentenced-to7-14-years-behind-bars/.

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claims.202 One way to deter individuals who falsely allege abuse is to impose fines on those who advance mendacious claims.203 Imposing a fine on plaintiffs who falsely allege abuse will deter current claimants from presenting false allegations to the court for fear of monetary penalties, closer scrutiny of their claims, or both.204 Additionally, the imposition of a fine will deter future claimants who might otherwise present false abuse allegations from doing so.205 Since the benefits currently available to plaintiffs who obtain abuse prevention orderse.g., obtaining money and gaining advantages in divorce proceedingsoften considerably outweigh the risks of perjury,206 imposing more detrimental penalties, like fines, will reduce the number of false claims by increasing the risk of getting caught.207 Similar to the process in New Hampshire, when submitting an application for an order of protection, courts should require individuals in Massachusetts to sign a statement acknowledging that the submission of a false claim is a crime that will result in a specific fine or punishment.208 This kind of scheme will deter plaintiffs from using false allegations of abuse to obtain abuse prevention orders by imposing a penalty and raising awareness about the penalty.209 Admittedly, some plaintiffs simply will not be deterred from bringing false allegations;210 however, imposing a harsher and more definite penalty

202 See ZIMRING & HAWKINS, supra note 200, at 3-4 (discussing deterrence theory and how providing negative consequences for the actions of individuals can reduce the frequency with which people engage in that behavior). 203 See JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 34, 35 (5th ed. 2009). 204 See id. (noting that an individual who is punished for his or her actions may be prevented from repeating that behavior in the future). This approach would subject the plaintiff to specific deterrence. Id. Specific deterrence theorizes that an individual who is punished for his actions will fear the imposition of punishment if he or she repeats those actions in the future. Id. 205 See ZIMRING & HAWKINS, supra note 200, at 75 (discussing how individuals may decide not to commit a crime because the benefit that they would derive from doing so is significantly reduced by the negative punishment that may result). Putting the public on notice of the penalties that will result from alleging a false claim will subject the plaintiff to general deterrence. DRESSLER, supra note 203, at 35. General deterrence focuses on preventing the public at large from committing a crime by making the public aware that a punishment will result. Id.; see also JOHANNES ANDENAES, PUNISHMENT AND DETERRENCE 34-36 (1974). 206 See LEV, supra note 13; Young, supra note 14 (discussing how allegations of abuse and abuse prevention orders are often used to gain tactical advantages in divorce proceedings and to secure financial benefits). 207 See DRESSLER, supra note 203, at 35 (noting that a punishment for committing a crime that outweighs its benefit can reduce the likelihood that an individual will commit the crime). 208 209 210

See id. See ZIMRING & HAWKINS, supra note 200, at 75. See id. at 98-101 (discussing how differences between personality types can influence

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than the current law provides will reduce the number of instances in which plaintiffs assert false allegations to obtain protective orders.211 Even though imposing fines or criminal penalties will not entirely eliminate false claims, these mechanisms will reduce false claims and preserve the integrity of the abuse-prevention-order process by instituting measures that promote honesty.212 Ultimately, this will make it easier for individuals who genuinely need an abuse prevention order to obtain it, because the mechanism in place will better gauge a plaintiffs honesty and more effectively eliminate false claims before a court even assesses the plaintiffs allegations of abuse.213 It is possible that penalties for perjury will deter bona fide domesticabuse victims from seeking an abuse prevention order for fear that they will be penalized if the defendant can somehow make their allegations appear false.214 However, given the nature of restraining-order proceedings, judges typically place more weight on the plaintiffs allegations and testimony than on the defendants allegations.215 As gatekeepers, judges must weigh the evidence to ensure that a decision is not based on improper evidence and ensure that proceedings culminate in a truthful verdict.216 Therefore, defendants will generally find it difficult to convince a judge that a genuine victims allegations are false.217

and reduce the deterrent effect of a punishment). 211 See DRESSLER, supra note 203, at 35 (discussing how the likely consequences of an action have an effect upon whether that act is committed). Currently, while individuals bringing false claims of abuse may be prosecuted for perjury, they typically are not. Slocum, supra note 1009, at 685 (noting that the prosecution of perjury in domestic-violence cases is rare). A more likely consequence of bringing a false claim is that an order of protection obtained will be reversed. See, e.g., Commr of Prob. v. Adams, 843 N.E.2d 1101, 1107, 1111 (Mass. App. Ct. 2006). However, since this just places the plaintiff back in the same position that he or she was in prior to making the false allegation, there is not much of a deterrent effect. Contra DRESSLER, supra note 203, at 35 (discussing how knowledge of and fear of punishment can prevent the commission of crimes). 212 Cf. Commonwealth v. Mayfield, 500 N.E.2d 774, 778 (Mass. 1986) (discussing how the integrity of a grand jury proceeding may be impaired by knowingly providing false or deceptive evidence that is significant to obtaining an indictment).
213 See, e.g., supra notes 190-94 and accompanying text; cf. DRESSLER, supra note 203, at 35 (noting that individuals will be deterred from committing an act if they are aware that a punishment will follow). 214 Cf. Taylor et al., supra note 86, at 112-13 (identifying the possibility that an abuser will manipulate the restraining order process).

See Young, supra note 14 (noting that judges often grant restraining orders based on the plaintiffs allegations with little credit given to the defendants account). 216 See GEORGE FISHER, EVIDENCE 1-2 (2d ed. 2008). 217 See Young, supra note 14. Since so much weight is given to the plaintiffs allegations, it would be extremely difficult for a defendant not only to convince the judge that a true

215

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Plaintiffs concerns that they will be subject to penalties will be further curtailed if courts impose penalties only when the plaintiffs allegations of abuse are clearly false.218 Penalties should not be imposed if a plaintiffs claims are merely insufficient to constitute abuse or if the issuance of a restraining order is later reversed.219 This limitation will deter individuals from falsely alleging abuse without discouraging those who are actually suffering abuse from seeking a protection order.220 If the legislature and courts inform prospective plaintiffs that they will only be punished for clearly false allegations, the imposition of penalties will not prevent true victims of abuse from attempting to obtain an abuse prevention order.221 Therefore, subjecting individuals to a fine or other penalty for bringing false allegations of abuse, and making them aware of the existence of this penalty, will deter individuals from bringing false claims, while preserving the integrity of the abuse-prevention-order process and enabling those who need abuse prevention orders to obtain them.222 IV. The General Court of the Commonwealth of Massachusetts Must Correct the Vague Standards in Chapter 209A. It is the General Court of the Commonwealth of Massachusetts duty to make state laws.223 Judges interpret those laws.224 Judges in Massachusetts properly perform their respective roles by interpreting Chapter 209A when

victims allegations are insufficient, but to demonstrate that they are false as well. See id. (noting that the plaintiff is often given more credit than a defendant at an abuse prevention order hearing).
218 Cf. Commr of Prob. v. Adams, 843 N.E.2d 1101, 1107, 1111 (Mass. App. Ct. 2006) (holding that the record of an abuse prevention order taken out against a defendant could be expunged where the order was obtained, by clear and convincing evidence, through fraud on the court). Allegations of abuse would be considered clearly false if made through fraud on the court, which occurs when an intentionally false statement is made in order to deceive the court. Id. at 1106.

Cf. DRESSLER, supra note 203, at 35 (noting that individuals can be prevented from committing a crime where the negative effect of a punishment outweighs the benefits derived from the commission of the crime). By not penalizing insufficient claims or those that are later reversed, individuals will not be deterred from seeking abuse prevention orders when they feel that they truly need them. Cf. id. See id. (noting that the imposition of a punishment for actions can prevent that act from being committed). 221 See id. (discussing how individuals will be prevented from acting a certain way only when they are aware that negative consequences will result).
222 223 224 220

219

See supra notes 203-221 and accompanying text. MASS. CONST. pt. 2, ch. 1, 1, art. IV. See MASS. CONST. pt. 2, ch. 1, 1, art. III.

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deciding whether or not to issue an abuse prevention order.225 The time has come for the legislature to rewrite Chapter 209As abuse definition to provide judges with more guidance.226 Since the current definition of abuse is vague and contains the fear element, judges may subjectively determine whether an abuse prevention order should be granted.227 To reduce judicial subjectivity and discretion, the Massachusetts legislature must correct this vague standard.228 It is not up to the judges to reinterpret the meaning of abuse to prevent the issuance of unnecessary abuse prevention orders.229 As Massachusetts abuse-prevention-order cases demonstrate, judges are not willing to limit their own discretion.230 The apprehension of leaving an individual unprotected prevents judges from objectively evaluating vague claims of fear.231 Therefore, judges will continue to use this broad discretion until the legislature establishes a more specific abuse definition.232 Only then will judges have a more precise standard to follow when interpreting the statute.233 Nothing will change unless the legislature acts.234 As a result, until the legislature redefines abuse, undeserving defendants will suffer the negative consequences precipitated by unnecessary abuse prevention orders.235 CONCLUSION Although the intent underlying Chapter 209A is commendable, its current features do not protect against abuse of the process. The ability of individuals to obtain abuse prevention orders against defendants who have not committed abuse can cause unnecessary and undeserved consequences for those defendants. This is a significant problem in

225 See id. (granting courts power to try cases and execute decisions); see supra notes 84-96 and accompanying text (documenting the necessity and high regularity in which judges interpret the laws handed down by the legislatures). 226 See MASS. CONST. pt. 2, ch. 1, 1, art. IV (granting power to the legislature to enact laws); supra Part A.

See supra notes 161-71 and accompanying text. See MASS. CONST. pt. 2, ch. 1, 1, art. IV; supra Part A. 229 See MASS. CONST. pt. 2, ch. 1, 1, art. III. 230 See supra note 171 and accompanying text. 231 See supra note 164 and accompanying text. 232 See Taylor et al., supra note 86, at 87, 92-93 (noting that judges are often lenient when granting restraining orders); Young, supra note 14 (arguing that judges often issue orders of protection where they are unnecessary, simply because an individual complains of fear).
228 233 234 235

227

See MASS. CONST. pt. 2, ch. 1, 1, art. IV. Cf. id. (noting that the legislative branch of government is responsible for making laws). See supra notes 152-154 and accompanying text.

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Massachusetts, and the legislature must revamp Chapter 209A to reduce the number of unnecessary abuse prevention orders that judges issue. By requiring a defendants conduct to satisfy the definitions of specific crimes to constitute abuse, the discretion afforded to judges under the current law will be reduced. Additionally, by penalizing those who falsely allege abuse, individuals will be deterred from doing so. This will reduce the number of needless abuse prevention orders courts issue, thus preventing the unnecessary destruction of lives.