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May 1, 2022

Legal Update
Tristan P. Colangelo

Supreme Judicial Court and Appeals Court Analyze Defendant’s Rights in c. 209A Abuse Prevention Proceedings

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Abuse allegations are serious. Given the relationship between the parties and the nature of the testimony, abuse prevention proceedings are always challenging, and the results carry serious consequences. Courts have the authority to issue abuse prevention orders (sometimes referred to as restraining orders) prohibiting a defendant from abusing, contacting, or going near the victim. Courts also have the power to order a defendant to vacate and stay away from the victim’s house and place of work, award temporary support to the victim and the victim’s children, award the victim compensation, require the defendant to surrender any firearms or licenses to carry firearms, award temporary custody of minor children, or order the defendant to stay away from the victim’s children. Importantly, violations of abuse prevention orders can be prosecuted criminally.

Two recent Massachusetts cases address constitutional challenges to abuse prevention proceedings. In the first case, Commonwealth v. Dufresne, 489 Mass. 195 (2022), the Supreme Judicial Court ruled that the defendant in an abuse prevention proceeding does not have a constitutional right to counsel. In the second case, Idris I. v. Hazel H., 100 Mass. App. Ct. 784 (2022), the Appeals Court ruled that the defendant’s due process rights were violated when she was not given a meaningful opportunity to be heard or otherwise present a defense.

Definition of Abuse and Abuse Prevention Proceedings

The Massachusetts Legislature enacted the Abuse Prevention Act to address domestic violence. See G.L. c. 209A et seq. A party can apply for an abuse prevention order as part of divorce proceedings in the Probate and Family Court, but they can also be sought in the District Court, Boston Municipal Court, and Superior Court.

Section 1 of the statute defines “abuse” as

the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm;

(b) placing another in fear of imminent serious physical harm;

(c) causing another to engage involuntarily in sexual relations by force, threat, or duress.

G.L. c. 209A, § 1. Abuse prevention proceedings are civil proceedings, not criminal proceedings, and include three types of hearings. An initial ex parte hearing occurs at the time the plaintiff files the complaint. Because the defendant is not present and the court only hears the plaintiff’s evidence, the court can only issue a temporary abuse prevention order that expires after ten business days. An initial hearing after notice is an evidentiary hearing at which both parties are allowed to testify, present evidence, and challenge the evidence offered by the other. If the plaintiff establishes abuse by a preponderance of the evidence, the court can issue an abuse prevention order that remains in effect for no more than one year. When the order after notice is set to expire, the plaintiff can again appear and request the order be extended or become permanent. As with the initial hearing after notice, the defendant is given notice of the hearing and may present a defense.

While these are civil proceedings, a violation of an abuse prevention order’s terms and conditions can be prosecuted criminally. See G.L. c. 209A §§ 3B & 7. Where the Commonwealth criminally charges the defendant with violating these orders, the Commonwealth need only prove beyond a reasonable doubt that a validly issued abuse prevention order was in effect on the date of the alleged violation, the defendant knew the order, and the defendant violated it.

Commonwealth v. Dufresne, No Right to Counsel at Abuse Prevention Hearings

In Dufresne, the Supreme Judicial Court had to decide whether defendants in abuse prevention proceedings had the right to counsel because, if the court issued the restraining order and the defendant later violated it, the defendant could face criminal charges. In Dufresne, the defendant’s ex-romantic partner applied for and obtained an abuse prevention order against the defendant, which was later extended for one year. The abuse prevention order required the defendant to stay away from the victim and the boarding house where she lived. While the protective order was in effect, the defendant returned to the boarding house, and, even though the victim was not present, the police were notified, and the defendant was arrested and charged with violating the prevention order under G.L. c. 209A, § 7. A jury found the defendant guilty at his criminal trial, where he was represented by counsel.

The Supreme Judicial Court reaffirmed the right to counsel for all criminal defendants who, if found guilty, face “actual imprisonment.” The SJC also noted that, with very few exceptions, civil defendants do not have a constitutional right to counsel. By statute, G.L. c. 209A, § 3A, abuse prevention proceedings are civil in nature – leading the SJC to hold that the defendant in an abuse prevention proceeding is not entitled to legal representation. Just because a defendant could violate the abuse prevention order in the future and be charged with a crime does not entitle the defendant to counsel in the civil abuse prevention proceedings. The SJC affirmed the defendant’s conviction because he did not have the right to counsel at the initial c. 209A proceeding but was appointed counsel for the subsequent criminal proceeding for violating the initial abuse prevention order.

Idris I. v. Hazel H., Due Process Requires Every Defendant Be Given a Meaningful Opportunity to Present a Defense

In Idris I., the Appeals Court had to decide whether the defendant was given a meaningful opportunity to be heard. The Appeals Court noted the initial hearing after notice can be “informal,” but it must provide the defendant with “certain minimum standards of fairness[.]” These minimum standards include notice of the hearing, “an opportunity to address the material and determinative allegations at the core of a party’s claim or defense and to present evidence on the contested facts[,]” which includes “the defendant’s right to testify, to present evidence, and to cross-examine the witnesses against her.” After reviewing the transcript from the initial hearing with notice and the District Court’s ruling, the Appeals Court found the defendant’s rights had been violated because she was not given a meaningful opportunity to defend herself.

After the plaintiff successfully obtained a temporary abuse prevention order in the District Court, both parties appeared for the initial hearing after notice. After the judge heard briefly from the parties, the plaintiff’s counsel led the plaintiff through a thorough and detailed direct examination that included several questions related to documentary evidence submitted by the plaintiff. Defense counsel objected to the submission of evidence because the plaintiff’s counsel had not produced it to the defendant’s counsel before the hearing. Moreover, when the defendant’s counsel sought to cross-examine the plaintiff, the judge first refused to allow counsel to present evidence on the defendant’s behalf, and eventually cut-off defense counsel’s questioning altogether and directed counsel for the parties to give their closing statements.

Defendant’s Right to Testify, Present Evidence, and Cross-Examine Witnesses

In evaluating whether the proceeding afforded the defendant the procedural protections required by the Constitution, the Appeals Court noted the disparities between the presentation of the evidence by the plaintiff and the defendant. Whereas the plaintiff’s attorney was allowed to conduct a detailed and guided examination of the plaintiff, the defendant’s attorney was not given any opportunity to conduct an examination of the defendant, depriving her of her right to testify and present evidence in her defense. Similarly, the plaintiff’s submission of documentary evidence into the record for the judge’s consideration without providing copies of the same to the defendant denied the defendant the right to challenge the evidence presented against her. Furthermore, the judge refused to give counsel for the defendant the opportunity to cross-examine the plaintiff fully. Finally, the Appeals Court ruled that it was also an error for the judge to terminate the cross-examination of the plaintiff before confirming that all the relevant and admissible evidence had been presented.

Due process requires every defendant to be granted a meaningful opportunity to be heard. This meaningful opportunity to be heard includes, at a minimum, that the defendant is allowed to testify, present evidence, and cross-examine other witnesses. Any proceeding that fails to provide these procedural safeguards to a defendant is likely unconstitutional and subject to reversal.