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About a year and a half ago we mentioned the Owen Labrie case in New Hampshire, where an 18-year-old senior at the St. Paul School was charged with a variety of crimes, including forcible sexual assault, of a 15-year-old at the school. To briefly review the case: Labrie was alleged to have been participating in a longstanding tradition, “senior salute,” where male seniors competed to see who could get sexual favors from the most underclassmen. The victim in the case alleged that Labrie had invited her out as part of the senior salute, then raped her in an attic in the school.In August 2015 a jury acquitted Labrie of the felony forcible sexual assault charge, but found him guilty of three misdemeanor counts of statutory rape, and the felony of using a computer to lure a minor for sex. The latter conviction requires Labrie to register for life as a sex offender.

Throughout the trial, there was criticism from some in the legal community about both the charges brought, and the way the case was being handled by Labrie’s lawyers. As news reports noted, Labrie fired at least three lawyers before settling on famous Boston criminal defense lawyer J.W. Carney and Worcester lawyer Samir Zaganjori, and rejected a number of plea deals that would have prevented him from having to register as a sex offender for the rest of his life. One article reported that a law-enforcement official involved in the case said that if Labrie had acknowledged wrongdoing and expressed regret he would have likely been sent into a sex-offender program without being convicted of any of the crimes with which he was charged. Former federal judge and Harvard Law School professor Nancy Gertner told a reporter, “This was a fundamentally ‘untriable’ case,” and indicated surprise that the defense had taken the case to trial. Continue reading

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Massachusetts now has two types of restraining orders—abuse prevention orders under M.G.L. c. 209A, which are intended specifically to address and prevent domestic violence and are only available between family or household members (including people who have been in a substantial dating relationship), and harassment prevention orders under M.G.L. c. 258E, which can be issued absent any such connection where the standards for such orders are met. The basic procedure for either order is the same—a court can issue the order ex parte, without the knowledge or participation of the defendant against whom the order is sought. The defendant is then served with the order, and has the right to appear at a contested hearing, no more than 10 days later, regarding whether the order should be extended. The entry of any such order—even if it is not extended at the 10-day hearing—creates a permanent record maintained by the Commission of Probation. The courts have refused to expunge such records except where an order was issued due to “fraud on the court.” In a new decision, M.C.D. vs. D.E.D., the Massachusetts Appeals Court has now held that even where a court determines that a party committed perjury in order to obtain an order, the standard for expungement is not met. Continue reading

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In 2010 the Massachusetts legislature made a significant change in the law when it created harassment prevention orders, restraining orders that plaintiffs can seek to protect themselves against harassing behavior regardless of their relationship to the harasser.  (Before 2010, people seeking restraining orders in Massachusetts could receive protection only under an abuse prevention order, available only against abusers who are “family or household members” of the plaintiff seeking the order, a definition which includes anyone with whom the plaintiff has been in a serious dating relationship or with whom she has a child.)  Because the harassment prevention law is relatively new, the state courts are still refining when these orders are and are not available.  In the cases interpreting the law, it has become clear that the courts are struggling to strike a balance between protecting victims of real harassment from harm and unduly restricting free speech.

In a new decision issued this month in the case of Petriello v. Indresano, the Massachusetts Appeals Court has given courts considering whether to issue harassment prevention orders some important guidance, which should guide those seeking (or defending against) such orders going forward.  The plaintiff in the case was an elderly woman’s representative acting under a power of attorney, seeking a restraining order against members of her deceased husband’s family.  The plaintiff’s representative testified at the hearing, describing “constant . . . belittling, abuse.”  The elderly woman had to go to the hospital due to apparent distress related to this conduct, and an outside investigation substantiated allegations of elder abuse against her.  The district court issued a harassment protection order.

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