An Act Further Regulating The Abuse Prevention Laws
Long version bill synopsis
Abuse prevention law (MGL 209A) is designed primarily to protect women from domestic violence. Over time, its provisions have been broadened to the extent that allegations of domestic abuse can become a powerful, no-risk weapon for someone seeking strategic legal advantage in a civil matterparticularly in divorce when custody of minor children is being contested.
A defendant subject to an abuse protection order can lose contact and all legal access to his children, be forced to vacate his home, have his name entered into a state-wide Abuse Registry (from which removal is presently impossible), ordered to pay restitution and child support¾ all merely on the hearsay testimony of his accuser, at a hearing where he may or may not be present.
The law must find the delicate balance between these opposing interests: (1) ensuring that all victims of domestic violence receive the protection they need and, (2) protecting due process for the accused. This bill attempts to redress the imbalance that presently exists between these two conflicting interests. It provides some fundamental and essential rights for the accused, while removing incentives and providing some disincentives for fraudulent misuse of the law. This bill does the following:
House SECTIONs 1 & 2/Senate SECTIONs 7 & 8 modify section 6B of MGL 209A and section 46 of MGL 208, respectively, by providing a basis for gathering data on the prevalence of restraining orders in divorce and custody litigation.
House SECTION 3/Senate SECTION 5 modifies the definition of abuse: "placing another in fear of imminent serious physical harm" is replaced by "threatening another with imminent serious physical harm".
House SECTIONs 4 & 9/Senate SECTIONs 9 & 10 remove provisions for no-contact with a defendant's children when they are not alleged to be the victims of abuse.
House SECTION 5/Senate SECTION 12 removes permanent restraining orders.
House SECTION 6/Senate SECTION 13 modifies the criteria by which a restraining order can be extended: The fact that no abuse has occurred can be an argument to deny extension of an order.
House SECTION 7/Senate SECTIONs 3 & 4 provides disincentives for committing perjury in order to obtain a temporary abuse protection order, and also requires that all hearings to obtain abuse protection orders be conducted in comportment with the Civil Rules of Evidence.
House SECTION 8/Senate SECTION 14 modifies the arrest provisions by recommending that arrest "may" be the preferred response, rather than "arrest shall be the preferred response."
House SECTIONs 10 & 12/Senate SECTIONs 1 & 2 require that violations of the no-contact provisions of a restraining order be intentional.
House SECTION 11/Senate SECTION 11 strikes the gender-specific special punishments prescribed for violations of an abuse protection order that are alleged to result from a child support or paternity issue.
House SECTION 13/Senate SECTION 6 requires that restraining order requests (Complaints) be signed under the pains and penalties of perjury.
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