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It’s Nearly Impossible to Eliminate the Record of a Restraining Order in Massachusetts—And That’s a Problem

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.

In M.C.D., the plaintiff obtained an ex parte 209A abuse prevention order against her husband, alleging extreme physical abuse. At the hearing after notice to the defendant, he appeared with an attorney and presented extensive evidence that he had been at his office throughout the time on which the plaintiff had claimed that the incidents of abuse had taken place. Following his presentation of evidence, the Court vacated the order and granted his motion to expunge the records of that order. As grounds, the Court found “that it had been shown by clear and convincing evidence that the plaintiff made false statements in court under oath for the purpose of obtaining the order and that her false assertions constituted a fraud on the court.” The Commission of Probation appealed, and the Appeals Court ultimately concluded that the order, even if obtained by false statements, had not been obtained by “fraud on the court,” which required a showing of a larger plan to harass the defendant or undermine the judicial process; the court gave as examples of such a scheme bribery of judges or jurors.

In so holding, the court distinguished Commissioner of Probation v. Adams, in which it previously held that a plaintiff on a restraining order had committed fraud where he made 19 “false and perjurious” allegations, sought the order as part of a larger pattern of harassment, and in addition to filing false affidavits in the restraining order matter falsely complained to the Board of Bar Overseers regarding the defendant. The upshot of M.C.D. is that it will be difficult, if not impossible, for defendants to demonstrate “fraud” in most cases where restraining orders are obtained through false testimony. However, one remaining possible strategy for defendants in appropriate cases may be to seek to show that such false testimony was, as in Adams, a part of a larger scheme to use the court system to perpetrate harassment.

All restraining orders, whether issued as abuse prevention orders or harassment prevention orders, are entered into the state’s Domestic Violence Recordkeeping System, and in the Court Activity Record Information (“CARI”) for the defendant. Those records are accessible by the courts and by law enforcement agencies and courts are required to consult them in family law matters. As the Massachusetts Supreme Judicial Court has previously written, the system of recordkeeping for restraining order is “designed to promote the goal of preventing abuse . . . by providing a judge (and other authorized agencies) with complete information about a defendant . . . Because all restraining and protective orders are listed, both active and inactive, a judge may be better able to identify situations in which the plaintiff may face a particularly heightened degree of danger.” While those are praiseworthy goals, refusing to expunge restraining orders obtained through false testimony will create a false impression of dangerousness regarding defendants on such orders. Where judges and law enforcement officers are given such an impression, the result (as detailed in this article) is likely to be unnecessary arrests, reduced ability to contest the issuance of misdemeanor criminal charges, unduly harsh pretrial conditions of release or unwarranted confinement, and possible disadvantage in family law matters against the party who falsely obtained the order. Defendants on such orders may also face questioning when traveling; some airport personnel can access CARI records.

It is also worth noting that the recordkeeping system, originally designed for abuse prevention orders, now also applies to harassment prevention orders. (While I am not aware of the courts explicitly addressing expungement of such orders, the recordkeeping language in both statutes is identical, and therefore it is likely that expunging a harassment prevention order also requires a showing of “fraud” as defined in M.C.D.) Such orders can be issued in many situations, including between, as the Appeals Court has said, “feuding neighbors,” “expressive bar patrons,” “angry hockey or baseball parents,” and “contentious roommates,” most of which have nothing to do with domestic violence, and it isn’t clear that it makes any sense to treat the two types of order identically in this regard. The permanent record that such an order creates is particularly problematic because the Massachusetts courts have struggled to define when harassment prevention orders should be granted; the Appeals Court just recently complained that harassment prevention orders are a “challenge” for the courts, and cautioned that while judges may feel inclined “to issue an order for the parties to stay away from one another, concluding that such an order cannot do any harm,” they should remember that such orders have serious collateral consequences that endure even if an appellate court ultimately concludes that the order should not have issued in the first place.

It is concerning that 209A orders can be expunged only in such rare circumstances. It is even more concerning that the unilateral action of a disgruntled neighbor, roommate, or acquaintance can have life-long collateral consequences for those who happen to be at the receiving end of an unwarranted harassment prevention order.

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