Many individuals accused of violating a restraining order issued pursuant to G.L. c. 209A were unaware at the time they violated the order that it would be so broadly interpreted, aggressively enforced, and severely punished. While no doubt some individuals need restraining orders to protect themselves from violent ex-spouses, boyfriends, girlfriends, and family members, the vast majority of those who seek restraining orders do so to punish the intended recipient for some disagreement or for breaking off the relationship. The “defendant” then telephones his ex in an attempt to reconcile and quickly finds himself under arrest. That the defendant did not intend to violate the order or that his intentions were benign or even well meaning, is technically no defense to a charge of violating the order. So aggressively are these restraining orders enforced that the person who obtained the protective order need only contact the police to say she saw the defendant drive by her home to affect his arrest.
A conviction for violating a restraining order is punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction, or by both such fine and imprisonment.
Although a restraining order is a civil order, it appears on an individual’s criminal record permanently. It is very difficult to persuade a district court judge to expunge the restraining order from the defendant’s record.
Attorney Mahoney has tenaciously and successfully defended clients accused of violating restraining orders. In fact, not one of his clients have ever been convicted of violating a restraining order or pled guilty to violating a restraining order. Moreover, Attorney Mahoney is one of the few lawyers to convince a district court to expunge such an order from a client’s record.
Stalking (G.L. c. 265, § 43)
The stalking statute is vague, defining stalking as, “A knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress.” However, to convict a defendant for violating the stalking statute, the Commonwealth must prove beyond a reasonable doubt: 1) the defendant purposefully with malevolent intent followed and or harassed the alleged victim; and, 2) the defendant issued threats to the alleged victim that were designed to put the victim in fear of physical harm or death. A stalking conviction is punishable by imprisonment in the state prison for not more than five years or by a fine of not more than one thousand dollars, or imprisonment in the house of correction for not more than two and one-half years or both.
If the accused stalked the alleged victim while a restraining order or other protective order was in effect, the offense is considered aggravated stalking and punishable by imprisonment in a jail or the state prison for not less than one year and not more than five years. No sentence imposed under the provisions of this subsection shall be less than a mandatory minimum term of imprisonment of one year. A second or subsequent conviction is punishable by imprisonment in a jail or the state prison for not less than two years and not more than ten years. No sentence imposed under the provisions of this subsection shall be less than a mandatory minimum term of imprisonment of two years.
