Harassment Orders in Massachusetts: Are They Issued Too Easily?

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Harassment Orders in Massachusetts: Are They Issued Too Easily?


Massachusetts family law attorney James M. Lynch reviews harassment orders in Massachusetts following a recent Appeals Court decision.

A recent Massachusetts Appeals Court case illustrates the difficulties presented to District Court judges by the 6-year old harassment prevention statute, G.L.c. 258E and seems to suggest, ever so gently, that perhaps the issuance of harassment prevention orders has become a bit too automatic in Massachusetts.

Gassman v. Reason (2016), involved two women who lived in the same Brighton apartment building. Gassman, who lived directly above Reason’s apartment, played the piano frequently. Reason complained directly to Gassman about the noise and eventually called the police on her. Reason even called the police and complained Gassman had assaulted her. However, it was Gassman – the piano player – who sought and obtained the harassment prevention order against Reason. Gassman testified that she had an anxiety disorder and that Reasons complaints to the police made her fearful. After a hearing, the judge ordered Reason to stay 10 yards away from Gassman inside their apartment building – and 50 yards away outside the building. The order was extended twice for a period of 2 years and Reason appealed the last extension.

A Question of Mootness: Even Expired Orders Have Negative Consequences for Defendants

During the appeal period the harassment order simply expired and so the Appeals Court had to decide whether the issue was moot. The Court concluded that it was not moot because the party challenging such an order has an ongoing concern about the lingering effects of a wrongfully issued order. Those lingering effects include the potential adverse impact of an expired or terminated order might have in the event of future applications for an abuse prevention order.

The Court went on to cite the case of Lawrence v. Gauthier, 82 Mass. App. Ct. 904, 904-905 (2012), in which the Appeals Court noted that “a wrongfully issued harassment prevention order [pursuant to G. L. c. 258E] poses the same concerns for a defendant about collateral consequences as does a wrongfully issued abuse prevention order [issued pursuant to G. L. c. 209A].” Further, the Court noted that “the order simply expired at the end of the extension period and this defendant has neither a judicial termination of the order nor an order that law enforcement should destroy all copies of it.” For these reasons, Gassman’s appeal was allowed to proceed, despite the expiration of the order prior to the hearing before the Appeals Court.

Busy Massachusetts Courts Enter Harassment Orders Without Considering the Consequences for Defendants

The Gassman Court discussed the challenges busy Massachusetts judges face when applications for harassment orders are filed, but cautioned against reflexive entry of such orders on the mistaken belief that such orders “cannot do any harm”:

Civil harassment cases present a significant challenge in busy municipal and district courts, as the record in this case illustrates. Applications for such orders are filed by feuding neighbors, as here; expressive bar patrons, see id. at 415; angry hockey or baseball parents, see Seney, 467 Mass. at 58; and contentious roommates, see Smith v. Mastalerz, 467 Mass. 1001 (2014), among others. The inclination to issue an order for the parties to stay away from one another, concluding that such an order cannot do any harm, is understandable.

That observation by the Court is one to which many practicing attorneys in the district courts will attest. “Nevertheless,” the Court concluded “harassment prevention orders issued pursuant to G.L.c. 258E carry significant collateral consequences that cannot be undone completely, even when a court later determines that the order “should not have issued in the first place”.

Three Incidents of Harassment Required

The Court then examined the definition of harassment set out in G.L.c. 258E §1(i): “3 or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”

No Need for Fear to be Reasonable, but Defendant Must Have Malicious Intent

The Court went on to emphasized that the 3 qualifying acts must be shown to have been “maliciously intended” before setting out the crux of its holding. As to whether Gassman was placed in fear, the Court noted that “there is no reasonable person test for judging that fear … the question is only whether Gassman was in fact placed in fear, not whether the fear was reasonable.” This is the part of the statute and its interpretation that troubles lawyers the most – i.e., that there is no requirement that the fear be reasonable. However, the Court was quick to add that the applicant must also prove that the defendant “acted with intent to cause fear, intimidation, abuse or damage to property.”

Regarding intent, the Court cited existing precedent as follows:

“[A]n essential element of civil harassment is intent. Conduct may constitute civil harassment where an individual wilfully and maliciously uses `fighting words’ that are `a direct personal insult addressed to a person’ and `so personally abusive that they are plainly likely to provoke a violent reaction and cause a breach of the peace,’ . . . or uses `true threats,’ such as `words or actions that — taking into account the context in which they arise — cause the victim to fear such harm now or in the future.'” The conduct must have been intended to cause, and must actually cause, abuse (defined as “attempting to cause or causing physical harm to another or placing another in fear of imminent serious physical harm”), intimidation, fear of personal injury, or damage to property.

Without Malicious Intent, no Order Should Issue

So, while the Appeals Court could not question the judge’s finding that Gassman was in fear, the Appeals Court found that there was no evidence that Reason intended to cause any harm at all to Gassman and, thus, there was insufficient evidence to support the second extension of the harassment prevention order. In summary, the Court noted the following about the case:

Despite the fact that the order in this case was issued or extended by three different judges, there simply is no evidence that Reason intended to cause any harm at all to Gassman, much less that she wilfully committed three or more acts, aimed at Gassman, each with the intent to cause fear, intimidation, abuse, or damage to property. … There is no evidence of a true threat or of fighting words. Nor can repeated complaints about noise from the upstairs apartment reasonably be described as intimidation, intending to cause fear of physical harm or damage to property. … Even considering as a whole the interaction between these two women in the same apartment building over a period of years, we are satisfied that there was insufficient evidence to support the second extension of the harassment prevention order.

It is important to note that the only thing under appeal was the second one year extension of the harassment order and not the validity of the original order itself. That said, it is abundantly clear that the Appeals Court felt that the harassment order never should have issued in the first place.

About the Author: James M. Lynch is a Massachusetts family law attorney for Lynch & Owens, located in Hingham, Massachusetts.

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By | 2017-03-29T09:13:00+00:00 August 24th, 2016|Categories: Family Law, Restraining Orders, Updates|Tags: , , |Comments Off on Harassment Orders in Massachusetts: Are They Issued Too Easily?

About the Author:

James M. Lynch is the Managing Partner at Lynch & Owens, and is a frequent contributor to the Lynch & Owens Blog. Attorney Lynch’s areas of expertise including divorce, family law, personal injury, DUI defense and domestic violence cases. Attorney Lynch can be reached by phone at (781) 741-5000 or email at [email protected], or visit his bio page at lynchowens.com/attorneys/.