Articles Posted in Domestic Violence

This is a question I’m asked very often.  And there’s a reason that the question is on so many people’s minds.  The answer has to do with the extremely severe legal and, yes, political, environment that surrounds the availability of and issuance of restraining orders in Massachusetts.  These Orders fall under the category of Massachusetts Domestic Violence laws.

For starters, while everyone calls these orders “restraining orders” (and there is no problem doing that,) legally speaking, they’re known as “Abuse Prevention Orders”.  They are authorized by statute through M.G.L. Ch. 209A, and as a result are referred to informally by attorneys, police Departments and court personnel as “209A Orders”.  Anyone falling within certain statutory definitions can apply to a court for one of these orders, so long as the following conditions are met.

  • The applicant must be in fear of imminent, actual harm from:
  • Another person who is a member of the applicant’s immediate family; OR
  • Another person who residing in the same household as the applicant; OR
  • Another non-related person who is not married to the applicant, but who is in an ongoing dating relationship who the applicant.

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Over the past few years, the number of calls that I receive as a Massachusetts domestic restraining order attorney, on the subject of Massachusetts domestic violence arrest and charges, has increased substantially.  A great reason for this spike has to do with new legislation that was passed a few years ago, which expanded the scope and legal severity of these crimes.  That reform legislation was passed in large part due to tragedies involving allegedly light treatment that judges and prosecutors had given to a few cases involving domestic violence, in which persons arrested for domestic violence were released from custody, only to inflict even more injuries, and even death, upon the victims.  Those cases, one of which involved the son of Red Sox announcer Jerry Remy, hit the media, and once that happened, new, tougher legislation on this subject was bound to follow.

However, the governor of our neighboring state of Rhode Island just signed legislation that would include household pets in domestic violence protection orders (in Massachusetts, such orders are alternatively called “Abuse Prevention Orders”, “Restraining Orders”, or “209A Orders”.)  Before you scratch your head and think that such legislation might be a little extreme, the Rhode Island legislature had their reasons.  That legislative rationale says that – statistically speaking – a person who abuses others physically is very likely to also abuse pets and small animals, also.  Thus, the new legislation in Rhode Island will allow judges to order that any person against whom a domestic violence protection order is issued, is also ordered to not abuse any family or domestic pets.  The legislative and judicial reasoning is sound, because there is a strong mathematical and social correlation between domestic abuse and animal abuse.  The legislation is not so much intended to carve out a new class of protected victims (pets), as to provide one more vector of behavior to provide protection against.  Imagine a situation where an abuse prevention order did not cover household pets, and someone against whom such an order was issued, intentionally and severely kicked and injured or killed the family dog or cat – and then claimed that he/she “did not violate any order”.  Would you not think that such a person is likely to also inflict violence against the person(s) that the order was issued to protect?  It makes sense.  And by the way, Rhode Island is following in the legal footsteps of  Massachusetts and Connecticut, whose domestic violence laws also include household pets.

If you have any questions concerning Massachusetts Abuse Prevention Orders, Massachusetts Restraining Orders or Massachusetts 209A Orders, we’d be happy to speak with you.  You can call us or email us here, and we’ll get right back to you.

Yesterday, the Boston Globe reported on a murder that almost certainly could have been prevented, involving a domestic violence call that Boston Police Department officers had responded to a year ago, in November 2014.  This story has cause a lot of concerns among the public about the effectiveness of restraining orders, that I’d like to address today.

The BPD officers who responded to the call, reportedly did not check to see whether the victim had previously been previously granted an Abuse Prevention Order (restraining order) against her boyfriend.  Doing so is the first order of business when police officers respond to calls of domestic abuse.  Instead, the officers removed the boyfriend from the apartment, and dropped him off at a detox center.  A day later, that person murdered the victim, who previously had, in fact, taken out a restraining order against him.  If the officers had checked this out as protocol requires, they would have arrested that person, immediately.  To be fair, both the victim and the accused were reportedly extremely intoxicated at the scene, and in no condition to convey accurate information to the officers.   Regardless, the officers could have checked for this information, with a simple call to their dispatcher. Continue reading

Well, tomorrow is Super Bowl Sunday, that annual excuse to spend 10 hours in front of a TV screen, stuffing your face, imbibing probably more than your share of alcohol, and screaming like a banshee every time “your” team scores a touchdown. (Can you tell I’m not a big sports fan? Unusual for a guy, I know, but that’s part of who I am.)

As everyone knows, the TV ads that run during the Super Bowl are among the most expensive – if not the most expensive – that the networks sell throughout the year. The half time shows involve performances that cost tens of millions of dollars for perhaps 20-25 minutes time, and evoke memories of past performers like Michael Jackson and Madonna. But it’s the commercial ads that really rake in the money. How much money? NBC is reportedly charging $4.5 million for a 30 second spot during the Super Bowl.

So it didn’t pass without notice when the NFL announced that it will run a Public Service Announcement (PSA) spot during the Super Bowl that will emphasize the importance of preventing domestic violence. The PSA was the result of a partnership between the NFL and No More, an organization formed last year to combat domestic violence and sexual assaults. The ad depicts a scene of a house where items have been knocked to the floor, and a woman is calling 911. The woman pretends to be ordering pizza, so that her abuser doesn’t become aware she is calling the police. The spot ends with the tagline: “When it’s hard to talk, it’s up to us to listen” and displays the website for No More. No NFL branding appears in the spot.

The subject of Massachusetts domestic violence charges has been elevated to a fever pitch over the last few months. This has been fueled by the case of Jared Remy, who was sentenced in June to life in prison without the possibility of parole for murdering his girlfriend, Jennifer Martel.

The reason why this case has fueled debate over reforming Massachusetts domestic violence laws, is that Remy was a multiple offender with a long history of abusing Ms. Martel and previous girlfriends, and the court system never reined him in. It was claimed that Ms. Martel did not report previous instances of abuse, because she did not want her name to be made public in local police logs, which news reporters regularly plumb for publication. Currently, when a call is made to local police for any reason, the name and address of that caller and any parties involved in the call become public information in the city or town’s police logs. In domestic violence calls, the name of both the victim and the alleged abuser are entered into the police log. Advocates for the abused, including Jane Doe, Inc., a statewide organization that advocates for domestic abuse and rape victims, say that this fact discourages potential victims from calling the police. They say that if a domestic violence victim knew that her (or his) name would not be made public in the police log, they would be “more likely” to summon help.

That claim is somewhat anecdotal, but perhaps that’s true. It’s difficult to know precisely. To deal with this issue, the legislature has passed, and now sent to Governor Deval Patrick‘s desk, a domestic violence reform bill that would shield the names of both the alleged victims of Massachusetts domestic violence, as well as the names of alleged abusers. The relevant names will not appear in police department logs – unless and until the case is prosecuted in court. At that point – once an accused person is arraigned – the names of both the alleged victim and alleged abuser, would become public information (as is the procedure currently.) Supporters of the bill say the confidentiality provisions will encourage more reporting of domestic violence. Weston Police Chief Steven Shaw, supporting the bill, has commented that “My concern is that the way it is now … people that are being abused .. can end up in the paper. People are worried about their image.”

In my previous post on this subject, I wrote about how, for a variety of reasons that are both wise, and also some unwise, police departments these days are extremely aggressive when it comes to responding to reports of domestic violence. It is almost standard procedures these days that, when patrol officers respond to a “domestic,” one of the parties on the scene is going to be arrested – regardless of what the parties say or how minor the conflict or argument might have been. As I said, most of the reasons for this aggressive policy are sound and wise – but some are not. The reasons that are not so wise are grounded in an unstated policy with many Massachusetts police departments of “CYA,” in my professional opinion as a Dedham domestic violence lawyer.

That’s my professional opinion, based on years of experience in the courtroom, and I suppose it can be debated. What’s not subject to debate is a fact that, ironically enough (and worse, hypocritically enough,) a great many police departments do just the opposite when it comes to their own officers: Many look the other way when it comes to reports of domestic violence in police households. In fact, while most cops can be fired or severely punished for something so minor as testing positive for marijuana use, they can remain on the job and in uniform for battering a spouse or girlfriend/boyfriend.

Yes, you heard that right. You can get up off the floor now.

As my website page on Massachusetts Domestic Violence Charges makes clear, this is one type of crime that police departments across Massachusetts issue pretty clear department policies on: When patrol officers respond to a call for a “domestic,” (as these dispatch calls are known in law enforcement circles,) someone’s going to get arrested. This is nearly a foregone conclusion even before the officers arrive at the location; even before they’ve had a chance to assess the situation, on scene.

Why? The reason is part historical – much of which justifies this hard-line approach, and part of the reason is political – much of which doesn’t justify the hard-line approach. Very briefly: Historically, 25+ years ago, “domestic violence” charges were often viewed by police officers and their departments as being merely fights between a couple, which almost every couple can sometimes have. Unless responding officers found someone that was clearly physically harmed or terrified for his (usually her) safety, they would commonly separate the couple, calm both parties down, and urge them to resolve their argument so that no one got in trouble. In the instances when someone was arrested, unless there were serious injuries involved, prosecutors and judges also treated the matter lightly, letting the defendant pretty much off the hook with a relatively quick and easy judicial disposition.

The problem with this soft-line approach was obvious: Eventually, a victim that might have been shoved or hit today, was tragically going to be harmed much worse by the abusive spouse or partner that was “let off the hook,” later on. Perhaps even killed. And that’s exactly what happened – on a much wider scale than some people might have guessed.

In my last post I wrote about the Jennifer Martel murder, and that something appeared to have gone wrong with Jared Remy being released from custody at his Massachusetts domestic violence charges arraignment, even though Remy had a long criminal record of assaulting women. Actually, Remy was both released without bail the night of the assault and again at his arraignment the next morning. There is a law in Massachusetts that would have allowed a judge to hold Remy behind bars for up to 90 days, following prosecutors’ motion for such a hearing. That law is commonly known among lawyers as the “Massachusetts Dangerousness Statute,” embodied in M.G.L. Chapter 276, Sec. 58A.

Dangerousness hearings are held to determine whether or not a defendant poses a threat to either a specific person (almost always the victim,) or to others in general. Under the law, a judge can hold a suspect for up to 90 days if he or she believes that no conditions of release “will reasonably assure the safety of any other person or the community.” According to court records, Remy was in fact held for 81 days in 2005, following charges that he punched, kicked, and dragged a former girlfriend.

But prosecutors didn’t move to have Remy held this time – with tragic consequences. Let’s take a closer look at this:

It’s happened again: A horrific murder accompanied by a celebrity/media angle. This time – Jared Remy, son of the broadcaster for the Boston Red Sox, Jerry Remy. Jared Remy, who has an arrest record involving violence against women, has been charged with stabbing to death his girlfriend, Jennifer Martel, 27, on Thursday August 15 2013 at the Waltham residence they both lived in.

Aside from the defendant’s-related-to-a-celebrity angle, the key reason that this case has generated so much media coverage revolves around the fact that Remy was released on bail after being arrested and arraigned on assault & battery charges against Ms. Martel, which are sub-elements of Massachusetts domestic violence charges. It was while Remy was on bail that he allegedly murdered Ms. Martel – by allegedly stabbing her to death. The controversy is hot because there is a Massachusetts statute that exists, which can hold domestic violence defendants in jail for up to 90 days if a judge feels that releasing the defendant on bail would pose a dangerous physical threat to the victim or others. That law, called the “Dangerousness statute,” was passed by the Massachusetts legislature in the 1990s, following the murders of several women by their male partners that had been released on bail in domestic abuse cases. The statute was intended to be a tough law that would prevent this type of tragedy.

But there’s a key requirement in the statute: The victim must be willing to help police and prosecutors make an effective, convincing argument to hold the defendant behind bars. If the victim is unwilling to do so, prosecutors rarely go forward with such a motion. The odds of persuading a judge to hold a domestic violence defendant in custody, without the cooperation or assistance of the alleged victim, is so low that DA’s offices very rarely bother trying when the victim is not willing to cooperate by testifying against the defendant. When a judge asks the prosecutor, “Is the alleged victim here to testify, or is she/he in favor of this motion?,” and the answer is “No” to either or both questions, a judge is going to be very hesitant to lock someone up.

Massachusetts domestic violence charges are one of those types of criminal offenses that can be very vague. When people first hear “domestic violence,” most immediately conjur up images of women being brutally beaten or abused by a spouse or boyfriend. While that can be tragically true, it’s not always necessarily so. “Domestic violence” is an amorphous term. Could you say right now what that term really means? The truth is, that while it can mean violent or harmful physical abuse – in which case it should be prosecuted – sometimes these charges reflect anything but a violent, abusive physical confrontation. Sometimes, the event that occurs is little more than an argument. Yet, people can very easily end up in court facing this kind of charge. As a Boston domestic violence lawyer, I see it all the time.

Why and how does this happen, if what occurred in a given situation really wasn’t violent or “abusive,” (as most reasonable people would interpret that term)? Two answers: 1) Hyper-caution, and 2) Liability issues. You see, in days gone by (the “bad old days,”) when a couple got in an argument and police were called, officers used their discretion in deciding whether or not to arrest someone accused at the scene of domestic violence or Massachusetts assault and battery charges. If police sensed that what occurred between the couple was very minor and did not present a safety issue for either person, they would typically de-escalate the situation, urge the couple to resolve their conflict, and, if they felt neither partner’s safety was threatened, they’d leave, file a report, and no one would be arrested.

Or, when an arrest was made, the case would be dealt with very lightly by prosecutors and judges. Then, some time later (perhaps months, perhaps a couple of years,) that same couple would have another fight, and one of them (usually the woman, but not always,) would end up being severely beaten or killed. For those of you unfamiliar with public relations, that results in front-page news and political outcry. Whose picture ends up on the front page and in news broadcasts? A) The judge who let the defendant off easily; B) The District Attorney who didn’t prosecute the case aggressively enough and C) The city or town Police Chief, whose officers didn’t make an arrest when called to the scene. Result? Big trouble, for a lot of people. Worse, on a financial level municipalities began being sued by victims of domestic violence, who claimed negligence on the part of the city or town police department, for not arresting the accused abuser.