Keeping Clients Safe with Restraining Orders

One of the most common client issues I have encountered, while operating under SJC Rule 3:03 certification (which allows students to work with legal aid clients under supervision, among other things), is harassment or abuse from family members, intimate partners or acquaintances. Restraining orders are available to keep people safe.

In Massachusetts, the only state where I have experience, there are two types of restraining orders: the Abuse Prevention Order (against family or current/past household members, or someone with whom you had a “substantial dating relationship”), and the somewhat lesser-known Harassment Prevention Order (which doesn’t require the same degree of relationship, but does require at least three instances of harassment, rape, or certain criminal conduct by the defendant). I have helped on cases involving both types of orders.

There is a sense, at least in my experience, that getting these orders is extreme or a last resort. However, the conduct of the person being restrained must reach a certain threshold before the order is granted, and the defendant may have gone far beyond that threshold.

You do not have to tolerate harassment for fear of your harasser.

The person seeking the restraining order (plaintiff) has to go through some tough stuff before they have an order solidly in place. They have to go to court, write an affidavit describing the abuse or harassment, and come before the judge in what’s typically an ex parte hearing (just a fancy term for a hearing without the other party present) to get an initial order, when they may be asked personal questions about their affidavit. The initial order stands until a full hearing can take place.

After that, the defendant is served with notice of an upcoming ’10-day hearing.’ The defendant can be heard, if they choose to attend. The plaintiff also attends this hearing, and may again have to answer some pretty personal questions. If the defendant has an attorney, they may cross-examine the plaintiff about what happened. The defendant may elect not to speak if there is a pending criminal case on the underlying facts (“plead the Fifth”). The judge will let the parties know if an order is being issued and the terms of the order (for instance, that for the next year, the defendant has to stay at least 100 yards away from the plaintiff, cannot communicate with her in any way, and cannot use third parties to contact her).

I have been involved in cases involving ex-spouses, renewals of orders issued several years ago, and orders involving every degree of relationship from family, to long-time partners, to people who met once. I have also been involved in a motion to impound, which keeps personal information about the victim confidential (the alleged abuser cannot access it) and had several clients with serious safety or confidentiality concerns, which made communication a challenge at times. Their safety always comes first.

It is a very rewarding experience as a law student to be able to protect your client from someone who has caused pain and fear. The process of getting a restraining order is difficult for clients, but in my experience, clients always feel relieved once the order is in place. If you have a chance to work on one of these cases in your time at BU, I can’t recommend it highly enough.

(Disclaimer: This post is not intended to serve as legal advice of any kind. Every case is different, and every jurisdiction is different, and the law can change. As always, I recommend that people seek the advice of an attorney rather than rely on a blog!)

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