Interesting editorial on harassment prevention orders

A recent editorial that appears in Massachusetts Lawyers Weekly addressed the issue of harassment prevention orders. Ostensibly enacted to fill the gap that exists where restraining orders are limited, such as the absence of a family or dating relationship; harassment orders often become tools used by feuding neighbors and former business associates who feel they need the courts to solve their problems.

The issue of harassment orders has been coming up more frequently on the street, complicating the police response to neighbor problems. It is no longer as simple as informing the parties that they need to grow up and find a way to live next to each other. Now, with increasing frequency, one of the parties is producing an official piece of paper from a court that says, “this guy is bothering me and you have to do something about it.”  What used to be “a civil matter” between former business associates now becomes an issue for the already overburdened criminal justice system.

Of course there are many examples of legitimate harassment, the editorial mentions the tragedy in Everett that occurred several years ago, and there needs to be recourse for aggrieved parties; however, the issuance of harassment orders should be done with the utmost thoughtfulness.

Or the police and the courts will become just another tool of the harasser.

I thought this was an interesting article and felt that it would probably resonate with many police officers.

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Harassment orders may cause more problems than they solve

Massachusetts Lawyers Weekly Editorial

December 9, 2010

Earlier this year Gov. Deval L. Patrick signed a new law permitting “harassment prevention orders.” The provision establishes jurisdiction in the Superior, District, Boston Municipal and Juvenile courts to issue protective orders at the request of victims of harassment.

The orders are similar in breadth to Chapter 209A domestic violence restraining orders, but do not require a family or dating relationship between the parties.

While the intent of the law was laudable, the practical results have been less so. The statute in many cases has become a tool to harass neighbors, acquaintances and business parties once a relationship has soured.

The original purpose of the measure was to give victims of harassment an avenue of relief from stalkers who posed an immediate danger. The catalyst for the change was a tragic case in Everett in which a woman was not able to obtain protection from a man who repeatedly followed her.

Although she reported his behavior to the police, she was informed there was no help available because she was not related to, or in a dating relationship, with the perpetrator.

The man was apparently severely disturbed and mailed a pipe bomb to her home. She died in the aftermath of the explosion.

But the victim in the bombing was wrongly informed that the courts could not grant her protection. The Superior Court could have issued an order restraining the stalker from having any contact with her.

Even if that had been done, however, it is unclear whether it would have prevented the tragedy. While restraining orders effectively work in many situations, the reality is that they are incapable of providing protection from someone who is bent on violence.

Further, the law that was enacted in the wake of the horrible incident is troublingly broad. The statute allows anyone claiming to be harassed on at least three occasions to seek relief from a local court.

Just a few minutes of observation in almost any District Court reveals how the process can be abused. Neighbors who are not getting along can use the law as retaliation. Business partners whose relationship has deteriorated can claim harassment.  Acquaintances who cannot figure out how to work out their differences can seek relief.

Fortunately, many judges are looking at the issuance of harassment orders with a discerning eye, recognizing that the process is fertile ground for abuse.

Nevertheless, even if an order is not issued or extended following a hearing, the defendant is still required to appear, with witnesses, and defend against the allegations. Many times the plaintiff does not even bother to show up. Apparently requiring the defendant to appear is satisfaction enough for some.

What can be done to deter individuals seeking to take advantage of the process? One solution might be to institute a filing fee, with a process in place to allow the truly indigent to have the fee waived. That step alone would likely deter many frivolous complaints.

Additionally, courts should be permitted to award a defendant’s costs or court fees if an order is determined to be wholly without merit or if the process is being abused.

If a defendant is required to take time off from work and the court is required to conduct a hearing, and it is determined that the application was brought in bad faith or was retaliatory, reasonable fees should be a viable option.

Harassment prevention orders doubtless serve a useful purpose in limited circumstances. But they should be granted only in extraordinary circumstances and when there is clearly a need for protection.

And ex-parte orders should be issued only when there is a clear showing by the plaintiff of the immediate need for relief.

 

 

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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