There are three areas of Massachusetts law that provide answers to the following questions:
“How do I prevent someone from harming me (or my family)?” or “What do I do if someone has made threats or been physically abusive to me?”
“How do I keep someone off my property?”
“What do I do if someone is stalking me?”
The law that I will cover in this article is extensive and dealing with every possible situation that one could face is beyond its scope, however, I will attempt to provide answers to these common questions as they relate to Massachusetts law.
“How do I prevent someone from harming me (or my family)?” or “What do I do if someone has made threats or been physically abusive to me?”
The first thing to determine in a situation where someone is attempting to, or threatening to cause harm to another person, is to determine the immediacy of the problem. Sometimes a threat is simply an off the cuff statement for which interpretation is left open to the receiver of the threat. If the threat stands alone, that is, without previous similar statements there may be little in the way of legal channels that can be pursued. However, even if you are the receiver of a single threat, it is important to take it seriously and report the occurrence to the police. Try to be as clear and unemotionally expressive as possible in your conversation with the police and do your best to convey the seriousness of the event so that the actual words spoken to you can be placed in a record with your local police.
If the threat is at the other end of the spectrum, that is, the words stated pose a clear danger to you, you may have other legal options. Contact the Law Offices of Richard Alan Gaudet to learn more about available options under such circumstances. At a minimum, if you believe a threat poses immediate risk of harm your first and obvious solution is to get yourself out of harms way….leave immediately. Once safe, you must contact the police to report the details of the incident.
What Happens When Someone Has Made Repeated Threats?
There are multiple options that may be available depending upon the circumstances to a person who finds themselves. Here are some of those options:
Restraining Order under 209A –
The 209A restraining order prevents or orders, if allowed by a judge, a person from abusing you, stop contacting you or your children, give up their firearms and possible attend treatment to assist them with abusive behavior. The 209A restraining order is available to a spouse or ex-spouse, a household member, roommate, parent of a child, relative, or boyfriend/girlfriend, that is, this type of restraining order is specifically for people in some sort of familial or romantic relationship.
These restraining orders can be received on an emergency basis from a police station on an emergency 24-hour basis. Extending such an order to a longer time period will require you to go to either a district or probate and family court in your area. The 209A restraining order can also be obtained by filing for the order through a court directly. A number of free resources exist to assist people in these situations, however, if you believe that this matter may be a precursor to a more permanent solution, e.g. divorce, please contact our offices.
Because this Massachusetts statute allows a court to restrain the liberty of an individual you will need to present the matter before the court in which you file. Bring any evidence or witnesses to the event to help bolter your case. If you are the defendant in such a matter and believe that you are being wrongly accused, you will need to bring any evidence or witnesses in the same manner, if possible.
Harassment Prevention Order under 258E –
If you have been harassed, defined as three or more acts of willful and malicious conduct aimed at you or a person with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property; OR
If one act has occurred that:
(a) was by force, threat or duress that caused another person to involuntarily engage in sexual relations, or
(b) constitutes a violation of certain other statutes (indecent assault, batter, rape, or drugging a person for sexual intercourse)
Then, you can file under 258E for a harassment prevention order that if ordered will prevent the defendant from abusing or harassing you or someone else, avoiding contact with you, your home or workplace, and possibly paying money for any losses suffered.
No Trespass Order under MGL Chapter 266, Section 120 –
If you lawfully possess real property, for example a home, you may prevent trespass upon that property under this law. For this remedy to work, you will need to provide proper notice to the person involved, file that notice with the local police department or file a complaint directly with the local police department, or file a complaint directly with the district court in your jurisdiction.
A ‘No Trespass Order’ may result in fines for the person violating the order, or imprisonment. Keep in mind that if you are a landlord, this statute will not be useful in providing a remedy.
NOTE: I recommend contacting our offices if you find yourself in need of any of these remedies as there may be other options available to you depending upon your individual circumstances. It is entirely possible that stalking statutes (described below) may also be applicable to your situation.
“How do I keep someone off my property?”
If you are in the unfortunate position of having someone enter your property without your permission, please contact my office so that we can discuss the circumstances that you find yourself in. However, in general, if you are not a landlord and the matter that concerns you does not involve a landlord-tenant situation, then you may be able to get a ‘No Trespass Order’ under MGL Chapter 266, Section 120 (see the explanation above). Another option, depending on the circumstances, might be other criminal trespass statutes:
Trespass of garden/orchard –
If the trespass involves the entering of a garden, nursery or orchard and that activity destroys flora as a result, there is a statute that is applicable which carries a fine of up to $500, and/or six months imprisonment.
Public property trespass –
Where the trespass is upon property owned by a public institution or upon state land, a fine of up to $50 and up to three months imprisonment may be ordered.
MGL Chapter 265, Section 43 – The Stalking Statute
What is Stalking?
The Massachusetts law defines stalking as willful or malicious conduct that seriously alarms or annoys a person and would cause a reasonable person to suffer substantial emotional distress; and
Making threats, either verbal or written, in nearly any form.
What Happens to the Stalker?
Penalties for the crime of stalking are variable but include a state prison sentence of up to five years, a fine up to $1,000, house of correction sentence for up to 2 ½ years, or both a fine and a sentence.
The Challenges of the Massachusetts Stalking Statute
Some would argue, and I am one who would, that the stalking statute is too lenient on offenders. In my opinion, anyone who has seriously caused suffering to another person by their behavior should receive stiff sentences. However, on the other hand, there are arguments to be made for the opposing view. There are additional concerns held by many people and supported by anecdotal evidence that someone with the behavior of a stalker is unlikely to stop by legal intervention. While this view about stalkers may be accurate, in my opinion it is better to have a legal trail established that can be relied upon if later incidents occur. These decisions are difficult and, in the end, up to each individual to make.
NOTE: It is imperative that you contact 911 immediately if you believe you are in immediate danger.
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