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The
Fatherhood

Coalition

An Act Relative To Abuse Prevention

Comprehensive (long) 209A Reform Bill with old text to be changed

House: #833, via Rep. Marie St. Fleur
Senate: #965, via Sen. Jack Hart


AN ACT RELATIVE TO ABUSE PREVENTION

(with accompanying existing text of the law to be changed)

[DATA GATHERING BY COURTS]

SECTION 1.   Section 6B of chapter 208 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by inserting after the word "any", in line 10, the following:

a listing of any abuse protection orders issued on either party, including date, court of jurisdiction, nature of abuse claimed, and relief granted by the court for the plaintiff.

 

SECTION 2    Section 46 of said chapter 208, as so appearing, is hereby amended by inserting after the word "granted", in line 4, the following:

a listing of any abuse protection orders issued on either party, including date, court of jurisdiction, nature of abuse claimed, and relief granted by the court for the plaintiff, an accounting of any attorneys fees awarded,

 

[DEFINITION OF ABUSE]

SECTION 3.   Section 1 of chapter 209A of the General Laws, as so appearing, is hereby amended by striking out paragraph (b), in line 6, in the definition of "abuse" and inserting in place thereof the following paragraph:

(b) threatening another with imminent serious physical harm. 

OLD:

"Abuse", the occurrence of one or more of the following acts between family or household members:

(a) attempting to cause or causing physical harm; 

(b) placing another in fear of imminent serious physical harm;

(c) causing another to engage involuntarily in sexual relations by force, threat or duress.

 

[REMOVAL OF CHILD NO-CONTACT PROVISIONS]

SECTION 4.   Section 3 of said chapter 209A, as so appearing, is hereby amended by striking paragraph (h), beginning in line 88, and inserting in place thereof the following paragraph:

(h) ordering the defendant to refrain from abusing the plaintiff's child, or child in plaintiff's care or custody;

OLD:

(h) ordering the defendant to refrain from abusing or contacting the plaintiff's child, or child in plaintiff's care or custody, unless authorized by the court;

[NO PERMANENT ORDERS]

SECTION 5.   Said section 3 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "or to enter a permanent order", in line 105.

 

[EXTENSION OF ORDERS]

SECTION 6.   Said section 3 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, of allowing an order to expire or be vacated, or for refusing to issue a new order", in lines 113 to 116, inclusive.

 

OLD:

Any relief granted by the court shall be for a fixed period of time not to exceed one year. Every order shall on its face state the time and date the order is to expire and shall include the date and time that the matter will again be heard. If the plaintiff appears at the court at the date and time the order is to expire, the court shall determine whether or not to extend the order for any additional time reasonably necessary to protect the plaintiff or to enter a permanent order. When the expiration date stated on the order is on a weekend day or holiday, or a date when the court is closed to business, the order shall not expire until the next date that the court is open to business. The plaintiff may appear on such next court business day at the time designated by the order to request that the order be extended. The court may also extend the order upon motion of the plaintiff, for such additional time as it deems necessary to protect from abuse the plaintiff or any child in the plaintiff's care or custody. The fact that abuse has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, of allowing an order to expire or be vacated, or for refusing to issue a new order.

 

[ACCOUNTABILITY FOR PERJURY and HEARINGS SHALL BE EVIDENTIARY]

SECTION 7. Section 4 of said chapter 209A, as so appearing, is hereby amended by adding at the end the following two paragraphs:

If, at the ten-day hearing after the issuance of a temporary order, the defendant demonstrates by sufficient facts to the court that the plaintiff made misrepresentations about material facts either at the hearing or in the affidavit supporting the complaint in order to obtain the emergency order, the court shall vacate the temporary order, shall make a finding of fraud upon the court, shall sanction the plaintiff an amount deemed just and fair by the court and the statutory costs of this action, and within ten days of the court so finding, shall hold a hearing on the damages, if any, caused to the defendant.  Under this section, the defendant may be awarded actual and punitive damages, reasonable attorney's fees, and costs, including the costs of licensed private investigators.

Upon timely written request of the court by the plaintiff or defendant, at hearing within ten court business days, or at any hearing to extend a restraining order issued under this chapter or Chapter two hundred and eight, such hearing shall be evidentiary and conducted in comportment with the Civil Rules of Evidence.

 

[WHEN TO ARREST]

SECTION 8.   Section 6 of said chapter 209A, as so appearing, is hereby amended by striking out the words "arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a person", in lines 71 and 72, and inserting in place thereof the following:

an officer may arrest any person that they witness or have probable cause to believe

 

[REMOVAL OF CHILD NO-CONTACT PROVISIONS]

SECTION 9.   Section 7 of said chapter 209A, as so appearing, is hereby amended by striking out the words "or the plaintiff's minor child", in line 23.

OLD:

Whenever the court orders under sections eighteen, thirty-four B, and thirty-four C of chapter two hundred and eight, section thirty-two of chapter two hundred and nine, sections three, four and five of this chapter, or sections fifteen and twenty of chapter two hundred and nine C, the defendant to vacate, refrain from abusing the plaintiff or to have no contact with the plaintiff or the plaintiff's minor child, the register or clerk-magistrate shall transmit two certified copies of each such order and one copy of the complaint and summons forthwith to the appropriate law enforcement agency which, unless otherwise ordered by the court, shall serve one copy of each order upon the defendant, together with a copy of the complaint, order and summons and notice of any suspension or surrender ordered pursuant to section three B of this chapter. The law enforcement agency shall promptly make its return of service to the court.

 

[VIOLATIONS MUST BE INTENTIONAL]

SECTION 10. Said section 7 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "Any violation", in line 42, and inserting in place thereof the following:

Any intentional violation of the no-contact provisions or any violation of any other provisions

OLD:

Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction, or by both such fine and imprisonment. Where the defendant has no prior record of any crime of violence and where the court believes, after evaluation by a certified or provisionally certified batterer's treatment program, that the defendant is amenable to treatment, the court may, in addition to any other penalty, order appropriate treatment as specified in this section. If a defendant ordered to undergo treatment has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to participate in said program as required by the terms of his probation. If the court determines that the violation was in retaliation for the defendant being reported by the plaintiff to the department of revenue for failure to pay child support payments or for the establishment of paternity, the defendant shall be punished by a fine of not less than one thousand dollars and not more than ten thousand dollars and by imprisonment for not less than sixty days; provided, however, that the sentence shall not be suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served sixty days of such sentence.

 

[SEPARATE PENALTIES FOR VIOLATIONS INITIATED AS A RESULT OF CS]

SECTION 11. The fifth paragraph of said section 7 of said chapter 209A, as so appearing, is hereby amended by striking out the last sentence, beginning in line 56 and ending in line 65. 

OLD:

Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction, or by both such fine and imprisonment. Where the defendant has no prior record of any crime of violence and where the court believes, after evaluation by a certified or provisionally certified batterer's treatment program, that the defendant is amenable to treatment, the court may, in addition to any other penalty, order appropriate treatment as specified in this section. If a defendant ordered to undergo treatment has received a suspended sentence, the original sentence shall be reimposed if the defendant fails to participate in said program as required by the terms of his probation. If the court determines that the violation was in retaliation for the defendant being reported by the plaintiff to the department of revenue for failure to pay child support payments or for the establishment of paternity, the defendant shall be punished by a fine of not less than one thousand dollars and not more than ten thousand dollars and by imprisonment for not less than sixty days; provided, however, that the sentence shall not be suspended, nor shall any such person be eligible for probation, parole, or furlough or receive any deduction from his sentence for good conduct until he shall have served sixty days of such sentence.

 

[VIOLATIONS MUST BE INTENTIONAL]

SECTION 12. Said section 7 of said chapter 209A, as so appearing, is hereby further amended by striking out the words "a violation", in line 83, and inserting in place thereof the following:

an intentional violation of the no-contact provisions or any violation of any other provisions

OLD:

In each instance where there is a violation of an abuse prevention order or a protection order issued by another jurisdiction, the court may order the defendant to pay the plaintiff for all damages including, but not limited to, cost for shelter or emergency housing, loss of earnings or support, out-of-pocket losses for injuries sustained or property damaged, medical expenses, moving expenses, cost for obtaining an unlisted telephone number, and reasonable attorney's fees.

 

 [COMPLAINT MUST BE SIGNED UNDER PAINS ... PERJURY]

SECTION 13. Section 9 of said chapter 209A, as so appearing, is hereby amended by adding the following sentence:

The complaint shall be signed by the plaintiff under the pains and penalties of perjury.


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