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Tuesday, October 13, 2009

Is there a Criminal Record of a 209A Restraining Order?

If you are served with a Complaint for Protection from Abuse (sometimes referred to as a 209A Restraining Order because of the statute: M.G.L. c. 209A) then your name and the Complaint are recorded in the Domestic Violence Record Keeping System which is visible to Judges and law enforcement officials (and certain airport personnel) through CARI (Court Activity Record Information), a subset of CORI (Criminal Offender Record Information).

There is presently no statutory provision in Massachusetts allowing these records to be expunged.

This is explained in greater detail in a Massachusetts Bar Association article which indicates that the Mass Bar proposed an amendment to the statute, mandating expungement of the record when the Order was vacated at the first hearing (after being issued on an ex parte hearing, which most 209A Orders are initially). Unfortunately, this legislation was not enacted by the legislature, and today the law remains that there is no statute allowing these records to be expunged.

In Vaccaro v. Vaccaro a Husband requested via Motion that the record be expunged in the statewide system after a Judge found insufficient facts to justify extension of the Order, but the Supreme Judicial Court overturned the expungement because there is no statutory authority to expunge the record. Vaccaro v. Vaccaro, 425 Mass. 153, 680 N.E.2d 55 (1997)

In Commissioner of Probation v. Adams the Court did allow a record to be expunged, distinguishing the circumstances in that case by stating “a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court.” In that case “fraud” consisted of a calculated pattern of nineteen false and perjurious statements. Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 730, 843 N.E.2d 1001 (2006)

In Noble v. Noble the Appellate Court (quoting Rockdale Mgmt. Co. v. Shawmut Bank, N.A., 418 Mass. 596, 598, 638 N.E.2d 29 (1994)) further defined a “fraud on the court” as when it can be “demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense.” Noble v. Noble, 75 Mass.App.Ct. 1121, 909 N.E.2d 59 (2009)

Unfortunately, this means that in most cases where a 209A Restraining Order is vacated at the first hearing, it is still unlikely that the Defendant can get the original Order expunged from their record. The Courts have stated that this reflects a legislative intent to give the Courts and police as much information as possible when dealing with domestic violence situations. Unfortunately, as is often the case, this information can cost an innocent person their rights, even if they were falsely accused (but can't meet the burden of proving fraud).

8 comments:

  1. Justin,
    As I'm sure you know, October has long been National Domestic Violence Awareness Month. See, e.g., President Obama's Official Proclamation released October 1, 2009.

    As someone who spent years as an advocate and attorney for survivors of domestic violence, it always concerns me when there is even a hinted suggestion of rampant abuse of protective order statutes, such as MA's Chp. 209A, by vengeful and/or scorned women trying to punish their ex-partners or "gain a leg up" in the divorce and/or custody case and a hand-tied judicial system (law enforcement and the courts) who recognize the abuse but are powerless to stop it. It seems to me that is almost always turning the situation on its head.

    I don't doubt that there are some who are willing to take the time, energy, and effort to go to court, file papers fabricating or seriously exaggerating claims of abuse, but we really can't let a few drops poison the well. In my experience, what I observed was that it took a tremendous amount of courage for people (mostly women) whose partners had or were still abusing them to enter the imposing halls of a courthouse, fill out an affidavit under pains of perjury disclosing painful and embarassing personal details, then appear in a public court hearing with strangers present and before a robed judge to testify that what she wrote is true and explain it further. It took an even greater amount of courage to return 10 days later and have her abuser confront her in open court like that.

    So, sure, there will always be some who are wrongfully accused and deserve to have their records expunged, but please let's be careful to clarify that that is not the majority of the cases out there.

    Respectfully, your friend & colleague,
    Danielle

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  2. Danielle,

    Thank you for your Comments. I believe you are correct in noting that the majority of 209A Restraining Order cases are legitimate, and brought by courageous victims seeking protection from their abusers.

    As in many areas of life, however, a few bad eggs can make everyone else's life more difficult. Misuse of the 209A process is as much an insult to the victims who truly need its protection as it is to the wrongfully accused Defendant.

    It is difficult to tell how much the 209A process is misused or abused. By my own anecdotal experience, I have only come across a handful of cases where I believe the process was being abused by the alleged victim. In these cases it is disappointing that a Defendant's life can be so turned upside down by the mere allegation, when we supposedly live in a country that espouses the theory of "innocent until proven guilty." And these are the cases that make me wonder whether there should be a minor addition to the statute giving Judge's at least some discretion in expunging a record (outside extensive fraud).

    Although I do believe the statute could be improved slightly to make it more fair, I also understand that the intent of the current language is to be better safe than sorry. The legislature and most courts err on the side of protecting the Plaintiffs if there is any uncertainty, and if we are truly looking to eradicate, or at least minimize, domestic violence then maybe we have to accept an imperfect system (as with anything else).

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  3. Thanks very much for your thoughtful reply, Justin. I couldn't agree more! Best wishes.

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  4. Nice piece Justin! Keep up your good work of creating awareness about domestic violence.

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  5. Dear DVGE: I disagree with your thoughts. Restraining orders have become a valuable weapon in civil disputes to gain leverage and deliberately harm the other party. It is a free ticket for unsavory lawyers and clients to destroy another persons reputation and life. Many "victems" induce the subject of the restraining order to violated it so they can have them arrested and prosecuted which is the ultimate revenge in a bitter divorce.

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  6. In many states, criminal records are restricted and you need the person's date of birth and social security number in order to conduct the search. public records Usually, prospective employers have this information but they are required by law to inform their applicants that a criminal background check is being conducted on them. They also need to provide the applicant access to the public information they gathered.

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  7. This post is for Danielle. I was the Defendant Vaccaro in the MA SJC case 425 MASS 153 1997. I never committed an act of domestic violence but when I brought an action of divorce against my wife I was charged with violation of CH209A in Massachusetts on an ex parte basis. My wife was and still is a licensed attorney practicing domestic relations law in MA. The action was brought ex parte before a female judge she had been before on numerous times on other cases with an unsigned affidavit alleging many instances of domestic violence. After a full trial before another trier where both parties were represented by legal counsel, the judge found in my favor. To add spice which she attempted to do, I was also a Federal Firearms Dealer. Now if she had a case would any judge quash the ex parte order and turn a gun nut loose? And if the evidence was insufficient to continue the order, how can anyone with a a brain suggest that she never took a course in evidence in law school? So I have to ask if this was a "fraud on the court" or was it just a little female revenge. About 2 years later after the divorce I asked the same District court to expunge the matter which they did. The Comonwealth of Massachusetts was not happy that a white male conservative had escaped.

    The MA SJC was confronted with an issue: Does an ex parte order proof of it's own validity? Also does an ex parte order have permanent probative value? The SJC also suggested that when doing the balancing test, that I was not a case where there was no law enforcement value to my record. After 30 years in the Commonwealth I have to admit to a criminal record...2 speeding tickets. So you see that if it's political...or politically incorrect...you lose. Justice is a very relative term.

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  8. Victim of VAWA scam who is being punished by "wife" for moving out. No abuse. No threats...January 11, 2012 at 4:15 PM

    Domestic violence is absolutely unacceptable - a grievous pattern of bodily injury, manipulation, which has, not just in the occasional case, worsened over time in its severity and its hold upon the battered party. However, even OJ Simpson (maybe a bad example, as he's a filthy murderer) was not referred to in this manner: "Will the murderer please stand?" All kinds of disgusting, unconscionable, and devastating criminal acts still require due process. But it's absolutely horrific, regardless of the gender of the Plaintiff and Defendant, that one person can go in and say they're scared of just about any other, and it's just an accepted practice. Public funds pay for any accuser's attorney, deprive defendant's accused of this crime only, and there are no means of clearing the reputation of those falsely accused. There is also no deterrent in place to curb even the most transparently fraudulent claims. Violence should disgust any sentient person - not to mention the violence perpetrated upon your lover, spouse, or parent to your mutual children... The notion of equal protection under the law, which is supposed to have been safeguarded in the Bill of Rights, extends (quite often to an appropriate finding and sentence) is extended to foreign nationals plotting to bomb populations centers, to mothers whose cars "smelled like death" and to a degree at Nuremberg even. However, someone alleges to "being afraid" near someone else, even with blatant lies and ill-intent, and is afforded the opportunity to destroy the reputation, appropriate the belongings, and ruin the life of the "abuser", who would be termed "the defendant" or "the accused" in any other setting where justice was handed down.

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