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Domestic Violence
Important
Questions and Answers about Domestic Violence
- WHAT IS 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 the batterer
can be prosecuted for committing them. The acts are a means of
controlling the victim's thoughts, feelings and behavior. The violence
does not lessen over time. The threats and or beatings generally happen
more often with time, last longer 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 inaction's 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.
WHAT IS THE
LEGAL DEFINITION OF ABUSE?
- top of page
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.
- WHAT IS A 209A ORDER?
- top of page
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.
- WHERE CAN I GET A 209A
ORDER?
- top of page
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 charge for filing.
HOW CAN I GET AN ORDER IN DISTRICT COURT?
- top of page
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.
WHAT QUESTIONS ARE ASKED ON THE FORM?
- top of page
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.
WHAT RELIEF CAN I ASK FOR ON THE APPLICATION?
- top of page
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.
WHAT ABOUT CHILD CUSTODY AND VISITATION?
- top of page
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.
WHAT HAPPENS NEXT? - top of page
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.
WHAT WILL THE JUDGE DO AFTER SPEAKING WITH YOU?
- top of page
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.
WHAT IS A TEN-DAY HEARING? - top of page
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.
WHAT HAPPENS AT THE END OF A YEAR OR THE END OF THE
EFFECTIVE DATE? - top of page
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.
WHAT SHOULD YOU DO IF YOU WANT TO CHANGE THE TERMS OF
THE ORDER? - top of page
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.
CAN A MINOR OBTAIN A 209A ORDER? - top of page
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.
WHAT HAPPENS IF THE ORDER IS VIOLATED?
- top of page
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.
WHAT HAPPENS IF AN ARREST IS MADE? - top of page
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.
WHAT CRIMES CAN BE CHARGED? - top of page
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 ( G.L. 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 ( G.L. 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 (G.L. c. 27, section 4), which
are verbal or written threats to do harm which a victim reasonably
believes the abuser can commit.
- Trespassing ( G.L. 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 (G.L. 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 (G.L. 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.
- WHAT HAPPENS AFTER AN
ARREST?
- top of page
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.
WHAT HAPPENS AT THE ARRAIGNMENT? - to top of page
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 will 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.
WHAT HAPPENS AFTER THE ARRAIGNMENT?
- top of page
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 batterers 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.
WHAT IS A CERTIFIED BATTERER'S INTERVENTION PROGRAM?
- top of page
Certified batterer's intervention programs provide services in very
strict group settings to try to help batterers learn to accept
responsibility for their violence, as well as understand and change
their controlling and abusive behavior. The groups are led by certified
batterer's 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.
WILL THE INTERVENTION STOP THE ABUSE?
- top of page
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 - top of page
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.
SUGGESTIONS FOR PROTECTION - top of page
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 or 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.
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