Answers to common legal questions and resources for victims of domestic violence
Domestic violence or family violence is the abuse of power or control. It is behavior used by one person to control another through force or threats. A batterer makes a choice to strike, hit, kick, punch or threaten the victim.
Domestic violence
includes physical and sexual attacks and threats. These violent
acts are criminal And batter can be prosecuted for committing them. The
acts
are a means of controlling the victim's thoughts, feelings and behavior.
The
threats and/or beatings generally happen more often with time, last long
and cause
greater physical injuries.
Emotional abuse
and insulting words are almost always part of the abuse pattern, but are
not considered criminal acts. The wounds from these injuries, however,
may be more difficult to heal.
Domestic violence is not caused by or provoked by the actions or in actions
of the victim. Domestic violence is not directly caused by alcohol or
drug abuse, depression, lack of money, lack of a job, mental illness or
abuse as a child. However, existing problems often create additional stress
in a relationship and may increase the risk of violence. Many abusers
blame the victim or other things for their violent acts and do not take
responsibility for the abusive behavior. There is never an excuse for
violence.
Chapter 209A, the Massachusetts Abuse Prevention Act, defines abuse as:
· actual
physical abuse, or
· an attempt to harm another, or
· placing another in fear of serious physical harm, or
· causing another to engage in sexual relations by force, threat
of force or duress
An Abuse Prevention Order, called a "209A Order", or a "protective order", "or restraining order", is a civil court order intended to provide protection from physical or sexual harm caused by force or threat of harm from a family or household member. You can obtain an order against:
· a
spouse or former spouse
· a present or former household member
· a relative by blood or a present or former relative by marriage
· the parent of your minor child
· a person with whom you have or had a substantial dating relationship.
A 209A Order can be obtained in any District Court, Superior Court, or Probate and Family Court in Massachusetts. An emergency 209A Order can be obtained through any police department after court hours, on weekends and holidays. You do not need a lawyer to file for a 209A Order and there is no fee for filing.
Should you decide to go to a District Court for a 209A Order, you may go to the District Court in the area where you live or, if you have fled to another area to avoid abuse, you may go to the District Court in the area where you now live. Go to the Clerk's Office in the court and ask for a "protective order" or a "209A Order". You will receive a packet of forms to complete as an application for a protective order.
In some courts, there may be a Court Advocate from a local battered women's service agency to help you with the form. A Victim/Witness Advocate from the District Attorney's Office is also usually available for assistance and to discuss the option of filing criminal charges against your abuser. Ask someone at the Clerk's Office to direct you to the District Attorney's Victim/ Witness Office for help. You do not have to file criminal charges in order to obtain a 209A Order. However, criminal charges can be helpful in holding a batterer responsible for criminal acts committed against you. If there is a criminal violation, the Court can also require a batterer to obtain counseling or other treatment.
On the application or complaint forms for a 209A order, you need to make a sworn statement (affidavit) describing the facts of any recent or past incidents of abuse. It is important to provide as much information about the abuser as possible. You must also disclose any other existing 209A Orders from any court or any Probate Court action you are involved in, including any divorce or child custody proceedings.
You may request the judge to order that the abuser:
· stop or refrain from abusing you
· have no contact with you or a child in your custody
· vacate or move out of the house or apartment where you live.
You may also request the judge to order that you receive support and temporary
custody of your children, if the abuser has a legal duty to support or
shares custody. You may request payment for medical costs incurred due
to injuries caused by the abuser and related loss of wages. You may ask
that the abuser not contact you at work or at a relative's home, and that
your new address be kept confidential from the abuser for your safety.
A 209A Order from a District Court can provide you with temporary support and custody of your minor children. Only the Probate and Family Court, however, can decide child visitation rights. A 209A Order from that court may be more helpful in dealing with abuse protection that also involves divorce, long term financial support, child custody and visitation issues. You may want to speak with a private attorney for Probate Court or call one of the legal services or victim's services listed on this brochure for an attorney referral list. Pro bono (free) or reduced fee legal services may be available.
After you have completed the 209A complaint or application forms, return
them to the Clerk's Office and ask when the judge will hear the applications
for protective orders. The Clerk's Office will tell you the time and courtroom
location for your hearing.
At your hearing, the judge will ask why you need a protective order and
will review your complaint or application forms and affidavit. The judge
will be deciding whether it appears there is a substantial likelihood
of immediate danger of abuse. He or she will probably ask you some clarifying
questions. In some court's, a "209A Briefing Session " is held
before the hearing and a Court Advocate or a District Attorney's Victim
/ Witness Advocate will explain the hearing process and be with you in
the courtroom.
The judge may grant or deny the 209A Order after speaking with you. If
the judge grants the Order, you will receive a Temporary Order for up
to ten days. A court date will be scheduled within 10 court days for you
to return to court for a Permanent Order, which lasts for a year and can
be renewed. Keep your copy of the Order with you at all times. The judge
will also order the abuser to surrender all guns and gun permits he or
she possesses.
The police will deliver (serve) a copy of the Order to your abuser and
will keep a copy on file at the police station. It is important to provide
the abuser's home, work, or other likely addresses so that the police
can serve the Order as quickly as possible and provide the required notice
of the next court date.
A violation of certain terms of a 209A Order (orders to vacate the premises,
refrain from abuse and have no contact with you) requires that the police
arrest your abuser.
A violation of a 209A Order, once the abuser has notice of the Order,
is a criminal offense.
The ten day hearing requires that you return to the court on the date given on the Order. If you do not return to court, the Order will not be in effect after that date. The hearing offers the chance for both parties, you and the abuser, to come before the judge and offer information (evidence) as to why a permanent 209A Order, which lasts for one year, should or should not be granted. Bring any hospital records, photographs or police reports you may have for the judge to review. You may also bring a support person with you. The abuser may be present at the ten day hearing and may oppose the 209A Order. If the abuser is not present and has been served with the Order, the judge can still grant the Order for one year period.
If a 209A Order is issued by the judge for a year, you must return to the court for an extension of the Order at the end of that year or the Order will expire.
Any changes in the Order before that date must be made with both you and the abuser appearing in the same court where the Order was first given. A request to change or amend the Order can be made at the Clerk's Office, and a hearing will be arranged before a judge.
A minor under 18 years old can obtain a 209A Order with some restrictions. Generally, a parent or guardian needs to be present, but the judge can decide to issue a 209A Order without a parent present if the minor appears to be in danger. In some cases, the Department of Social Services may offer assistance in gaining help for a minor. Many high schools and colleges also offer support groups for students in violent relationships. A parent may also obtain a protective order for his or her child.
Once a 209A Order is issued, violation of certain terms of the Order is
a criminal offense. Violations of orders to refrain from abuse, to have
no contact, and to vacate a household, multiple family dwelling or workplace,
can be prosecuted criminally under chapter 209A. If the abuser violates
the order, call the police immediately. Show the Order to the police and
explain how it was violated (a punch, slap, threat; entering your house
or apartment or refusing to vacate; or, any contact with you at home or
your workplace, either in person, by telephone or mail). The police must
arrest the abuser if they believe or can see that the terms of the Order
were violated. If you do not call the police, you may be able to file
an application for a criminal complaint on your own at the Clerk's Office
in the District Court. A Victim/Witness Advocate can assist you with that
process.
If you put yourself in contact with the abuser, he is vulnerable to arrest.
Therefore, if you want any terms of the order to no longer apply, you
should return to court and ask that the order be modified or vacated.
If the abuser is arrested, seek assistance from the Victim/ Witness Advocate in the District Attorney's Office the next morning after a nighttime arrest, or at any time during the day at the courthouse. A Victim/Witness Advocate will explain what the charges mean and what will happen next. The Advocate will also offer ongoing information, referral for services and cases updates throughout the time the case is in court.
In addition to the crime of violating a 209A Order, an abuser can be charged with a number of other crimes committed at or near the time of the violation, some of which may include:
· Assault
(G.L. c. 265, Section 13A), which is an attempt or offer to do bodily
injury by force or violence or attempt to batter.
· Assault and Battery ( GL c. 265, Section 13A), which is a harmful
or unpermitted touching of another, no matter how slight, without a legal
right to do so.
· Assault and Battery by Means of a Dangerous Weapon (GL c. 265,
Section 15), which is a battery with a dangerous weapon, such as a baseball
bat, a shod foot, a knife or other object either inherently dangerous
or used in a way that may cause serious injury or death to another.
· Threats (GL c. 27, section 4), which are verbal or written threats
to do harm which a victim reasonably believes the abuser can commit.
· Trespassing (GL c. 266, section 120), which is entering or remaining
in a house or on land in violation of a 209A Order.
· Malicious Destruction Of Personal Property (GL c. 266, section
127), which is the destruction of or injury to personal property, a house
or building in a manner that is willful and malicious.
· Stalking (GL c. 265, section, 43 (a)), which is the willful,
malicious and repeated following or harassing of an individual and the
making of threats with the intent to place that person in imminent fear
of death or serious bodily injury. The penalties are greater for a conviction
of a stalking crime committed in violation of a 209A Order.
Once a criminal complaint has been issued or an arrest made, the abuser will be charged with the crime or crimes at an arraignment proceeding in the District Court. A bail hearing will be held to determine whether the defendant/abuser will be released from custody, the court must make a reasonable effort to notify you of the release, even if you are not present in court.
It is important to provide information to the Assistant District Attorney
before the arraignment and bail hearing regarding the history of the abuse
and a description of the most recent abuse, including any pictures or
hospital records of injuries. You should also mention the location of
any guns or other weapons that you believe the abuser has in his or her
possession.
The Assistant District Attorney ill bring this information to the attention
of the judge, along with your safety concerns and fears at this time.
The judge may also consider whether the defendant/ abuser should be jailed
until trial; or, if the defendant/ abuser is to be released, what the
bail and conditions of bail will be.
The Assistant District Attorney represents the Commonwealth of Massachusetts
in prosecuting the case, and works with the Victim/Witness Advocate to
address your interests and assist you during trial.
Interviews will be held with you before the trial, to gather information
and evidence for prosecution. Every effort will be made to consider your
needs and safety in going forward with the case. The safety of your children
will also be priority.
Prosecution may provide the means to gain batterer's intervention services
for the defendant/abuser as part of a sentence recommendation. Very few
batterer's seek or stay with these services on their own, without court
orders and probation supervision. An Assistant District will speak with
you about different sentences that can be imposed if the defendant /abuser
is found guilty by a judge or jury or pleads guilty. The sentence asked
for may include drug or alcohol counseling, required attendance at a batterer's
intervention program, supervised probation and /or jail time.
Certified batterer's intervention programs provide services in very strict
group settings to try to help batterer's learn to accept responsibility
for their violence, as well as understand and change their controlling
and abusive behavior.
The groups are led by certified batterers intervention counselors trained
in dealing with domestic violence offenders. The programs work with the
courts and victim services to help make sure that partners of batterers
remain safe. The programs may involve weekly sessions of 1 to 2 hours
in length. The batterer must participate in the program for a minimum
of 80 hours. Group leaders feel your safety is a priority concern and
will keep ongoing contact with you.
There are no guarantees that the violence will stop because the abuser attends a certified batterer's intervention program. Many abusers drop out of programs or do not comply with the requirements, or only reduce their abuse temporarily. If the judge requires attendance as part of a sentence, dropping out may mean the defendant/ abuser may have to serve jail time. The abuser must want to change the abusive behavior and work hard at making those changes. Promises to change, flowers and apologies are not enough. You deserve to be safe and free from abuse.
Your risk
of harm
Statistically, the most dangerous time for victim is when leaving the
batterer. The abuser may feel he is losing control and become dangerously
angry. Take steps to protect yourself from abuse or punishment from your
abuser. Please trust your instincts. If you are afraid that something
may happen, take your feelings seriously and protect yourself. You know
your situation better than anyone else.
· Develop
a safety plan that includes an escape plan for you and your children should
a violent incident occur. During an incident, try to move away from an
area or room where access to weapons might increase your risk, such as
the kitchen, or where you can be trapped or easily injured.
· Call the police by dialing 9-1-1or leave the house as soon as
possible after an abusive incident. The police will respond and stay with
you until you are safe or in a safe place. The police will also help you
seek medical treatment, if needed. If you feel you may be in danger, dial
the police number and hang up before it rings, so that the redial button
will automatically call the police if you need them quickly.
· Be alert when leaving the courthouse. If you have any reason
to believe your abuser may be waiting for you, please ask someone in the
District Attorney's Office or Court Advocate to help. A police officer
or a court officer may be able to escort you to your car.
· Guns or weapons will be ordered turned over to the police by
the judge, along with any license to carry the guns and firearms identification
card. Inform the police of any guns/weapons the abuser may keep in the
house.
· Consider changing the locks on your home. The judge can order
the abuser to turn over the keys to your home and/or your car. Keep an
extra set of keys in a safe place.
· Inform your neighbors if a 209A order is in place. Encourage
them to call the police if they see or suspect that something is wrong.
· Make copies of important papers and keep them in a safe place.
Make a list of the things you need to take with you (birth/medical records,
marriage license, check/ bank books, credit cards, medications).
· Keep emergency money and extra clothes for yourself and your
children in a safe place or with someone you trust. Include a few toys
and favorite things for the children.
· Keep the victim's service agency number handy for emergency shelter
and for support groups. You do not have to leave the abuser or have a
209A Order to attend the support groups. Information and support in making
decisions are important.
· Get Medical attention as you may be injured much more seriously
than you realize. Go to a hospital emergency room or your private doctor
as soon as possible for treatment. Ask for a copy of the treatment record.
· Have pictures taken of your injuries and bruises at the hospital,
police department, shelter or District Attorney's Office.