Restraining Order Law and Case Opinions
How Is ‘Abuse' Defined In the Law? What is the actual legal basis for getting an abuse restraining order? Many courts issue restraining orders without ollowing the requirements of the law.
If a person comes in to court (called the ‘complainant' or ‘plaintiff') and whines about feeling ‘fear', a court will often issue an order, even though many times it is improper and illegal to do it. So, what does a person actually have to prove to get an order legitimately?
The law states that the court can issue an order to protect a complainant from "abuse". Abuse is defined in Massachusetts General Laws, (M.G.L.) Chapter 209A Section 1. Here is the relevant part, defining abuse:
The occurrence of one or more of the following acts between family or household members:
...the harm has to be ‘imminent', that is immediate, right there, right now.The clause which is most misused is (b) above, "placing another in fear of imminent serious physical harm." Often a mere allegation of fear, without showing a factual basis for that fear, is enough for a court to issue an order.
So, what does the law require to properly issue an order? First the harm has to be ‘imminent', that is immediate, right there, right now. Not a vague threat to do something some day. Not a phone call from a far location. Next, it has to be ‘serious'. The attorney general, on a ballot referendum to overturn some recent changes to the domestic violence laws, defined ‘serious bodily injury' as follows:
"Injury that results in a permanent disfigurement; long-term loss or impairment of a bodily function, arm, leg, or organ; or substantial risk of death."
Lastly, the fear has to be of ‘physical' harm, not emotional harm, psychic harm, hurt feelings, or any number of other non-physical issues that people commonly get orders for.
If courts went by this definition strictly, very few frivolous orders would be issued. However, as you likely know, judges often issue an order if they feel it should be issued, regardless of the law's requirements
If a person comes in to court (called the ‘complainant' or ‘plaintiff') and whines about feeling ‘fear', a court will often issue an order, even though many times it is improper and illegal to do it. So, what does a person actually have to prove to get an order legitimately?
The law states that the court can issue an order to protect a complainant from "abuse". Abuse is defined in Massachusetts General Laws, (M.G.L.) Chapter 209A Section 1. Here is the relevant part, defining abuse:
The occurrence of one or more of the following acts between family or household members:
- attempting to cause or causing physical harm;
- placing another in fear of imminent serious physical harm;
- causing another to engage involuntarily in sexual relations by force, threat or duress.
...the harm has to be ‘imminent', that is immediate, right there, right now.The clause which is most misused is (b) above, "placing another in fear of imminent serious physical harm." Often a mere allegation of fear, without showing a factual basis for that fear, is enough for a court to issue an order.
So, what does the law require to properly issue an order? First the harm has to be ‘imminent', that is immediate, right there, right now. Not a vague threat to do something some day. Not a phone call from a far location. Next, it has to be ‘serious'. The attorney general, on a ballot referendum to overturn some recent changes to the domestic violence laws, defined ‘serious bodily injury' as follows:
"Injury that results in a permanent disfigurement; long-term loss or impairment of a bodily function, arm, leg, or organ; or substantial risk of death."
Lastly, the fear has to be of ‘physical' harm, not emotional harm, psychic harm, hurt feelings, or any number of other non-physical issues that people commonly get orders for.
If courts went by this definition strictly, very few frivolous orders would be issued. However, as you likely know, judges often issue an order if they feel it should be issued, regardless of the law's requirements