Thursday, April 24, 2014

209A Protections not available to Residents of DDS Residential Programs

The Abuse Protection statute in Massachusetts M.G.L. c. 209A, often referred to as a restraining order, does not apply to all relationships.  You cannot obtain a restraining order protecting you from anybody.  The statute limits the protections to individuals suffering from abuse by "family or household members" which is defined in the statute as follows:
“Family or household members”, persons who:

(a) are or were married to one another;
(b) are or were residing together in the same household;
(c) are or were related by blood or marriage;
(d) having a child in common regardless of whether they have ever married or lived together; or
(e) are or have been in a substantive dating or engagement relationship, which shall be adjudged by district, probate or Boston municipal courts consideration of the following factors:
(1) the length of time of the relationship; (2) the type of relationship; (3) the frequency of interaction between the parties; and (4) if the relationship has been terminated by either person, the length of time elapsed since the termination of the relationship. - M.G.L. c. 209A § 1
SJC refuses to expand this definition 
beyond family relationships.

The SJC recently reiterated their refusal to expand this definition beyond family relationships except as required by the language of the statute.

The recent appeals case of Silva v. Carmel, SJC-11438 (2014) limited section (b) of this definition.  In the Silva case, the SJC was asked to overturn an order from a District Court Judge who had awarded an Abuse Prevention Order against a defendant who resided in the same State-governed residential program as the victim.  The case turned on whether two parties residing in a state residential facility could be considered "residing together in the same household."    The SJC decided it cannot.

The Court points out that "the defendant and the victim were not voluntarily living together" and they were "assigned to the residence by a government agency."  The SJC determined that to include individuals in these facilities as living with the definition of a "household" under c. 209A would be too restrictive on the State agency, but also not within the language of the statute.

It is unclear from the decision whether the victim was unable to obtain suitable protections from the Department of Developmental Services but the footnotes indicate the defendant lost housing and support from the department due to the restraining order.  This suggests the Department was unable or unwilling to accommodate one of the parties in a different facility.  The SJC has essentially pushed the issue back to that Department, indicating that a 209A restraining order can't be used for protection of the victim in this case.  Hopefully, the Department finds a way to provide services to both, without endangering the victim.

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