Can I challenge a restraining order falsely based on assault?
On behalf of Brian D. Roman, Attorney at Law on Tuesday, March 24, 2015.
Massachusetts, like many other states, has implemented special laws aimed at preventing some serious domestic violence incidents from occurring. The state accomplishes this goal by allowing residents to obtain abuse prevention orders by providing a relatively low threshold of evidence to substantiate their claims against their alleged abusers. The overall idea is to encourage domestic abuse victims to come forward and seek help rather than remain in violently escalating relationships. This strategy, of course, makes it easier for victims to get the protection they require, but the downside is that some people can abuse its authority.
For example, any individual can ask a judge to provide an Abuse Prevention Order, 209A order, as long as there has been a specific type of relationship with you. In this case, an intimate, familial or residential relationship. The examples of these arrangements can range anywhere between marriage and simply someone with whom you share an apartment. In some cases, a person with whom you once had a serious relationship can also seek a 209A against you.
A further complication regarding the threshold to obtain a 209A is that a judge can issue one against you even if you never physically touched your alleged victim. Amazingly, your accuser only needs to inform the court that she or he is afraid of being hurt by you or that you will threaten this person into having sex with you.
This low standard of proof marks a significant departure from what it takes for prosecutors to prove assault in trial situations. For example, the touching of another person is one of the elements prosecutors are required to prove beyond a reasonable doubt for assault.
The good news is that you have a right to due process even if it may seem that the odds are stacked against you with regard to an order of protection. You will eventually have an opportunity to refute the allegations against you at a subsequent hearing. Your Massachusetts criminal defense attorney can represent you throughout this process. Additionally, your attorney can challenge the validity and trustworthiness of any testimony or other evidence being offered against you.
Source: Massachusetts Court System, "What is the difference between an Abuse Prevention Order (209A) and a Harassment Prevention Order (258E)?" accessed Mar. 24, 2015