Boston Lawyer BlogLegislature’s Expansion of Abuse Prevention Orders Raises Concerns of Vagueness and Confusion
As part of a bill broadly aiming to protect victims of abuse, including revenge porn and deepfakes, the Massachusetts legislature recently enacted an amendment to the restraining order statute that may have substantial unintended consequences. Although the well-intentioned provision allows a person suffering from “coercive control” to seek an abuse prevention order, there are numerous undefined or poorly-specified terms that are likely to create confusion in the courts. In addition, the amended statute may allow children to obtain restraining orders against their parents for normal parenting decisions, surely not what the General Court had in mind.
Chapter 209A of the General Laws has enabled victims of abuse to get orders of protection against family or household members (including those in substantive dating relationships), where “abuse” was defined as attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm, or causing another to engage involuntarily in sexual relations by force, threat, or duress. The focus on physical harm or sexual violence has meant that the standards for these types of orders are fairly well understood. (Other types of harassing conduct are covered by a separate law governing harassment prevention orders.)
The new law creates a separate category of abuse called “coercive control.” Each of the 12 different categories of acts or behavior that fall under that heading requires an intent “to threaten, intimidate, harass, isolate, control, coerce or compel compliance of a family or household member” and that the family or household member “reasonably fear physical harm or have a reduced sense of physical safety or autonomy.” (Several of these terms, like control, coerce, and autonomy are not defined; others, like harass, have multiple legal definitions and it is unclear which, if any, might apply.) If these conditions are met, the definition of “abuse” now explicitly includes a single act of harming the plaintiff’s child or relative, abusing an animal connected to the plaintiff, or publishing sexually explicit images of the plaintiff. These seem clear enough. But coercive control now also includes a pattern of behavior (which likely means at least three acts, based on existing jurisprudence on abuse and harassment prevention orders) from a non-exclusive list of behavior including “isolating” the plaintiff from “friends, relatives or other sources of support”; “controlling, regulating or monitoring” the plaintiff’s “activities, communications, [or] finances”; “compelling” the plaintiff to “abstain from or engage in a specific behavior or activity”; or intentionally damaging the plaintiff’s property.
The fact that the definition of a pattern of coercive control is “not limited to” the nine items under that subheading is problematic on its own. How will a court meaningfully assess whether the plaintiff has a “reduced sense of physical safety or autonomy” if the defendant is alleged to have done things that are not on the list? In addition, the statute does not make clear whether speech alone can now be considered “abuse” (which would raise constitutional issues and quite possibly lead to courts invalidating or narrowing the law, as they had to do previously to bring harassment statutes into compliance with the constitution). The list is also so broad that it may apply to a range of situations the Legislature did not intend to prohibit. Because the statute has no de minimis exception and does not use adjectives like “substantial” or “significant,” it is easy to imagine April Fool’s pranks resulting in minor property damage that could qualify. More seriously, say Jamie believes their spouse Pat has a drug or alcohol problem, and attempts to encourage them to seek medical treatment through a series of ultimatums – “Get help, or I move out.” Pat might well believe that they have a “reduced sense of… autonomy” because Jamie is compelling them to abstain from drugs or alcohol. Can they now get an abuse prevention order that would go on a statewide registry and potentially impact Jamie’s ability to get employment in certain industries or become a foster parent? Such an outcome would dilute the importance and meaning of restraining orders.
And these unintended consequences pale in comparison to the implications for the parent-child relationship. Because the definition of family or household member includes those related by blood or marriage, a child can go to a variety of courts and seek an abuse prevention order against their parent – and now for a broader range of issues than the previous focus on physical harm or sexual abuse. If Mom says that a certain group of friends are bad news and the child cannot hang out with them anymore, is she “isolating [them] from friends”? If Dad punishes a disobedient child by taking away their phone, is he “controlling, regulating or monitoring [their] activities [or] communications”? If parents tell their children that they have to take turns doing chores every week, is that a pattern of behavior intended to “compel compliance” that limits the children’s “sense of autonomy”? The plain language of the statute seems to encompass these situations, but they are absurd on their face. If the Legislature does not provide further clarification and reasonable limitations, aggrieved teenagers may bring these scenarios and others to the courts, testing the discretion (and patience) of judges having to grapple with the new statutory scheme. This law had laudable goals of addressing new types of abuse, but in some areas it may have gone too far.
If you have experienced abuse or need assistance seeking or contesting a restraining order, fill out our intake form or call our attorneys at (617) 742-6020.
