Domestic Violence

Written by Chris Uhl
The information contained herein is only to inform the public and does not create an attorney client relationship with the reader. You should always consult an attorney when seeking legal advice.

Violence is all too prevalent in our society. Guns and physical violence permeate the evening news, children's cartoons and just about every movie Hollywood produces. So why are we all surprised by domestic violence? Isn't it an accepted part of American culture? Aren't guns readily available because of the misinterpretation of the second amendment to the United States Constitution? Is domestic violence a sign of the times or is it just being reported more?

Violence in America is accepted, but everyone expects it is stranger versus stranger violence. The statistics show that stranger versus stranger violence only makes up a small portion of the confrontations. So what makes up the rest? The answer is violence among those who know one another and violence among family members. How is domestic violence defined? Domestic violence is determined by the new series of Massachusetts General Laws (MGL) concerning dating relationships. MGL 209A is the restraining order statute. This is the order you read so much about in today's newspapers. It is issued thousands of times everyday in the Commonwealth. The law defines domestic violence as relationship violence, or that violence which occurs between husband and wife, or boyfriend and girlfriend. All other types of violence are just violence and are not addressed by this statute.

A restraining order, MGL 209A, is the order issued by the court to keep the fearful individual protected or more realistically to give them legal muscle in the system. The order can be issued only if there is some relationship between the two parties. In other words, you cannot have one issued against a neighbor or co-worker unless there was a substantial dating relationship. You would need to use an injunction for relief from a neighbor or co-worker. Prior to MGL 209A, you would need to use the same injunction against your relationship partner, but now all you need is 209A.

In order to receive a 209A you must go to the courthouse. They are issued in district court or probate court. If there is not a probate court close to where you live, then I would suggest going to the district court. You need to see the clerk and fill out an affidavit. In the affidavit you must write out and state the the physical harm you have suffered. It must be physical harm not mental anguish. you must state the relationship between you and the other party, and it must be a significant dating relationship, which would include marriage and/or children. After you complete the affidavit, a judge will read the affidavit at a hearing and issue the temporary restraining order for ten (10) days. Why only ten days? The defendant must be served in hand and given a chance to respond to the order. You still need to follow the United States Constitution. A new court hearing date is assigned for that ten-day date. At the ten-day date you may have the order issued for a year. Then at each year anniversary you may have it reissued for another year.

What does a 209A do for you if one is issued? It places you in the computerized system in Massachusetts, recording that you have a restraining order for protection. It also places in the system, if you are a defendant, that you have a restraining order against you, which an arresting police officer may interpret as, this defendant is violent. The restraining order should be very specific for your protection and you should make sure it is specific. The court personnel or judge do not mind you asking for the order to specify the terms in clear language. Please check your order before leaving the courthouse. So many thousands of orders are issued that mistakes do happen. The courthouse can make a mistake and it is up to you to make sure there is no mistake on your order because after all the order is for your protection.

Why worry about the specifics of the order? The real power of the order is in its enforcement. If it is violated and you call the police, the violator will be arrested. This is a far cry from years past when the violator would be told to take a walk to cool off. Not only is the violator arrested but also a judge can only bail the violator. The magistrate or bailiff cannot bail the violator, as designed by the statute. If the arrest happens on a Friday night of a long weekend like so many do, the defendant must wait until Monday morning to be bailed. That is one long weekend in jail if you have never been there before. Additionally the defendant is charged with the crime of a 209A violation, which carries a penalty of 2.5 years in the house of correction. There have been quite a few violators sent to jail because they thought the charge or the situation was a joke. Hey, it was only a telephone call!

This seems like for once the legislature did something that works. you are right except for the misuse of the statute for those who want personal gain. Let's face it, this is America where George Washington and Benjamin Franklin reign on one and one hundred-dollar bills. That is why there is a statue misuse. Most of the misuse occurs in Probate actions where divorce, alimony, child custody, and support are the issues of the day. A restraining order gives one side leverage over the other. Leverage is good in a negotiating situation. A restraining order does immediately what no judge can do for months or even years. It has the losing party vacate the martial home. In other words, the wife can have the husband removed immediately with very little or no lawyer fees. That is the real power of the restraining order. The problem is this is becoming the major use of a restraining order. This improper use of a restraining order is turning the system upside-down. How can a judge tell when someone is lying on an affidavit with a five-minute review of a complete stranger?

Domestic violence, as all violence, is the scourge of the American way and the ruination of the family unit. Domestic violence needs to be eliminated if our children, the nation's future leaders, are to have a chance.

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