Episode 3: Taking Action in Court to Protect Yourself

In this episode, attorney Mike Contant explains the laws in Massachusetts designed to protect people who are suffering from abuse or harassment. He will explain the legal process to protect yourself if you are a victim of domestic abuse or harassment.

Transcript

Welcome to In Your Court. Today’s episode is: Taking Action in Court to Protect Yourself. In our podcast today Mike Contant shares statistics and explains how you can take action to protect yourself if you’re a victim of domestic abuse or harassment. This is Jordan Rich and I’m pleased to be back with Mike Contant, an attorney whose firm content law specializes in criminal defense and Title IX defense.

JR: Well Mike, let’s start with this question why are we focusing on this on “Taking Action in Court to Protect Oneself” today?

MC: October is Domestic Violence Awareness Month and that’s why I thought it would be a good time to talk about this particular topic. It does happen all year round but this is a month focused on making people more aware of the importance of defending yourself in domestic violence situations.

JR: And just to set the table here you are involved as an attorney representing people obviously defending those who are accused falsely or whatever and you’re also helping the victims in this case.

MC: Yes. So this is where our roles get a little bit blurred because I have represented people who have both been accused of abuse as well as people who are seeking orders to protect themselves from domestic abuse typically referred to as restraining orders by most people.

JR: We should start with some numbers some basic statistics as to the incidents of domestic violence. Do you have some of those numbers us?

MC: So, approximately one in four women will be the victim of domestic violence in their lives. Nearly 20 people per minute are physically abused the United States.

JR: That’s an incredible figure. We have to pay attention to this not just one month but throughout the year. So, let’s talk a little bit with you about legal issues and one of course that comes to mind is the restraining order. What is the restraining order all about here in the Bay State?

MC: Sure, there’s essentially two laws that deal with these types of orders. One is what they call a 209A restraining order. And that’s typically for domestic partners or people who are related either by blood or through family through marriage I should say or are roommates they’re the limited group of people that can be protected by this type of order.

And then there’s a second type of order known as harassment prevention order and they brought that into place back in 2005 I believe and that was to sort of fill the gap as to who could get protection orders because there’s a wide segment of the population particularly neighbors who might have been feuding or people being bullied either in school or in social media who are unable to seek any sort of protection from the courts from this type of abuse. What often actually happens I’ve seen happen a lot is exes. So, the ex-wife and the new wife may get into it and have some sort of an issue and neither one could seek a domestic restraining order against the other because I don’t fit that very narrow group of people that could seek one.

JR: You referenced the need to show evidence of suffering from abuse and physical abuse is very evident but how is that defined in the law because this is where it’s very critical

MC: In order to be suffering from abuse there’s a few different situations that can arise. One is you can be physically abused physically assaulted by the person. Another is that they could be forcing you into sexual relationships. A third in the most common where people are seeking these restraining orders is they are in fear of imminent serious harm being done to them. Those are the three ways that are considered abuse under the statute in order to be able to get a 209A restraining order.

JR: And then to secure the harassment prevention order which as we defined as is for those non-domestic partners and so forth. But what does someone have to bring to a judge’s attention?

MC: So that’s a little bit different there. There harassment is defined very differently. So, it does involve if someone’s forcing a sexual relationship on you or is or committing certain crimes that are specifically stated in the statute which are mostly sex crimes such as rape or indecent assault and battery things like that. But the most common way that we see are people who are in fear of being harassed are they have to show the judge essentially three separate occasions during which that person had acted in a harassing manner. And a harassing manner isn’t what you normally think it’s not annoying.  It’s not someone who’s just being rude or yelling or screaming. It has to rise to a certain level. And the laws define that as what they call a true threat. The action or speech is literally a threat to cause you or cause a reasonable person to believe they’re in fear of serious in bodily harm or harm to their property. So an example might be the person the neighbor who takes a sledgehammer and says I’m going to hit you with this or I can hit your car with this or your home or try and destroy something that way.

That might be one instance of harassment, but you have to show three of those on separate occasions in order to obtain that type of order or one of the others I mentioned such as again forced sexual contact of some kind. Or they violate a certain type of law such as in rape or stalking. That would also qualify.

JR: That all makes a lot of sense. But what if it’s one person’s word against another. That fellow with the sledgehammer if I accused him of doing it and I can’t prove it except that I heard it. Where do we go from there?

MC: Well that’s what the courts are for. If it’s only one instance you wouldn’t be entitled to get that harassment prevention order anyway. You need at least three separate ones. But that’s what the judge is there for. So, this the courts are there for, Someone has to go and seek the order in the first place. And then there’s a hearing before a judge and the judge makes a determination whether or not the person has satisfied the actual requirements in order to issue the order in the first place so the judge will hear testimony will look at exhibits if there’s photographs or videos or anything else that might be out there.

Oftentimes it is just one person’s word and it’s up to the judge to decide who he is believing in that situation.

JR: Here in the In Your Court podcast it’s all about helping people with information so let’s do this. What’s the first step someone needs to do in order to secure the other a domestic restraining order or the harassment prevention order? Give us a quick walk through.

MC: The process is very similar for both. Essentially if you feel you’re either suffering from abuse at the hands of a domestic partner or blood or family member under a domestic restraining order or harassment or if you’re being feel you’re being imminently harassed by somebody your first step is to go to the court or to your local police station of the courts are closed. Let them know what’s going on. They’ll give you some paperwork to fill out in order to get the process rolling. And that’s typically referred to as a complaint and they’ll give you an affidavit so you can sort of tell your story in written form saying why I believe I’m entitled to this particular type of order.

JR: That’s one type of situation what if you’re in the heat of an emergency you’re in a crisis and you’re literally being threatened or being attacked what are your options?

MC: Get out of there if you can. Get to a phone call 911 get the police involved. If you are in serious harm of being physically assaulted or something of that nature that’s number one. Call the cops. Get them involved get some help. Get out of there. These orders are civil in nature. They’re meant to prevent it from occurring again in the future. So, what you’re doing after that after you call the cops and get them involved is to say, “Hey I need some help to keep this person away from me in the future.” It doesn’t do any good in that in the heat of that particular moment. The idea is to keep that person from abusing you harassing you in the future.

JR: Thanks for answering that question Mike. Let’s back up a little again to a non-emergency situation. What happens after that paperwork is filed initially?

MC: Once you file the paperwork either again, you should just go to your local court usually the district court in your area to file the particular paperwork, the court will review that if it’s during court hours and the judge will make a determination whether or not you need something immediately. The judge will say again with a domestic order he’s looking to see is there substantial threat of serious immediate bodily harm; with harassment prevention order is there a serious threat of immediate harassment. And if that standard is met the judge may issue a temporary order just on the person’s word who brought it to the court’s attention and if it’s after hours so it’s not during court hours or on the weekends, you go to your local police station and there’s judges on call who can deal with just those questions and potentially issue temporary orders in the situation where the judge either decides that it doesn’t rise the level of a true emergency it’s not necessarily needed at this immediate moment what they’ll do is they’ll set it down for a hearing at which time both parties, being the person who’s being accused of doing the abuse of the harassment as well as yourself as the plaintiff, can go in there and have a full hearing before the judge.

JR: And if the defendant does not show for that hearing what happens?

MC: In most cases the if the plaintiff the person asking for the order appears there will be still a hearing but a brief hearing before the judge and in most cases the judge will extend that order and they can extend the orders for up to a year.

JR: OK. And let’s talk about the role of an attorney here. Either party has the right of course to bring an attorney to that hearing. You’re not assigned one if you don’t have an attorney, correct?

MC: Correct. It’s unlike a criminal proceeding in a criminal proceeding if you can’t afford to bring your own lawyer they will give you a court appointed lawyer to help you through that proceeding. This is civil in nature. So, while you’re entitled to bring one you don’t have to and nor is the court required to give you one.

JR: You’ve been involved in these situations as a professional. Tell me what it feels like to the client and what your role really is along the way?

MC: I mean our role is to act as their advocate to guide them through the process. So, depending on when we get involved, we may be with them in the initial appearance when we go fill help them fill the paperwork out and go to court to hopefully get a temporary order. Even with a temporary order being issued the defendant still gets an opportunity to have their day in court so to speak within about ten business days after the initial order. So, there is a full hearing at which that person and any of their witnesses get to show up and we have a full hearing. My role as an attorney is to help my client by making sure number one, do we have the right information to bring to court whether it be photos or video or just their testimony making sure they’re prepared to tell their story in court.

My role on the flip side of that, is when the other person the defendant in this case is again putting up putting their witnesses on the witness stand telling their story providing their evidence to act as the attorney and to show inconsistencies in the story to show to basically try and discredit them as best I can through cross-examination and to basically make sure that my client’s side is much more convincing and more believable to the judges making the decision.

JR: Now you did a great job telling us about the process getting involved. Can we talk a little bit about what happens when one of these orders is put into place the terms of both the 209A and the 258E. If you don’t mind.

MC: They’re similar in nature essentially, for 209A in particular, there will be no abuse. Almost every case says you know you cannot abuse the other person, You cannot contact the other person in some cases or you have to stay a certain distance away from the other person. And that includes their home and their work and their school. Sometimes it includes a child’s daycare or child’s school as well. If the person has firearms or a firearms license they need to surrender those while the order is pending that’s another common provision. You can’t contact that person in any way shape or form.

That means in-person, on the telephone, by email, social media. You can’t even do nice things so if you were to send your you say your ex-wife who got this order against you flowers on her birthday that’s a violation of the order and you could be arrested for violating the order.

JR: I guess the question always comes up when we hear a terrible tragedies that that orders have been ignored or neglected. How effective are they overall. I mean we don’t hear about the good ones we hear about the bad ones.

MC: I’d say overall the vast majority of people do follow the orders because the penalties if they don’t can be severe. You know the order is civil in nature it doesn’t appear on a criminal record although there is a domestic violence record that is akin to a criminal record that it does appear on. But if you violate this order in any way you will have separate criminal charges which can have very severe penalties. So, the vast majority of people they follow that they understand that. Many violations of these orders are minor though. So we have we had a recent example of someone who clicked like on their wife’s Facebook page and that turned into a violation and a criminal charge because they could be just that simple to be violation, not a very serious violation. But, truth be told if the person is really a violent person or a psychotic person the order can only have so much effect at the end of the day is still just a threat a piece of paper as some people say.

But I’d say I still believe the vast majority of people – in my experience – do follow the orders.

JR: Well there’s something known as the exclusion zone which makes a lot of sense. That’s the victim’s residence, work, where the kids go to school, etc. and they even use GPS I’m told GPS bracelets to monitor location of people.

MC: They’ll do that in the criminal matters. So, if a person is charged with violating an order they one of the conditions of their release while their case is pending might be that they wear a GPS monitoring bracelet and they stay away from certain areas. If they’re on probation, if say they’ve violated the order and then been subsequently found guilty of that that can be a term of their probation is to wear a monitoring bracelet and stay away from certain areas if they walk into that particular area, an alarm goes off and the police are alerted and a warrant is issued and that person can be arrested for a separate violation

JR: Let’s just say someone is served one of these orders and follows the rules and does what he or she has to do to get through this process. What’s the long term ramification on someone’s record?

MC: So, it’s not a criminal offense but there’s a domestic violence record out there. So, there’s a criminal record that most people understand generally just from watching TV and whatnot you know you talk about your record all the time. And it doesn’t appear there it’s because it’s not a criminal offense but there’s a separate domestic violence record that gets run pretty much every time if you were to go into court for something it gets run and it shows up on there. So that it could with certain you may be denied certain jobs if the job has access to that particular database and that record showing that you had that order against you in sometime in the past and that records there forever.

JR: The bottom line, domestic violence and harassment is a problem and one that we have to address. What advice do you have for people who are victimized by this?

MC: If you’re the victim of domestic abuse or any abuse quite frankly, you need to report it immediately. Report it often, even if you know you feel like you weren’t taken seriously the first time. If it happens again you need to report it and keep reporting. Develop that record in order so you can protect yourself and hopefully keep it from happening again in the future.

JR: Thank you, Mike. The stats are staggering but the hope for taking action by getting the right order in place is encouraging. If you’d like more information about Contant Law, restraining orders and harassment prevention orders visit w w w dot Contant dash law dot com you can follow Contant Law on Facebook, Twitter, and connect with them via LinkedIn. For specific questions email info at Contant dash law dot com. We hope you found this episode informative Please rate and review this episode and subscribe for additional want to stay informed and protect your rights and your record.

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