Commonwealth v. Finase
The good result from the District Court was overturned in 2001 by the SJC. See below.
209A: Specifies which violations can be prosecuted as statutory
offense and which may be prosecuted only under criminal contempt
Types of Orders
A violation of a "stay away" provision of an abuse prevention order may be prosecuted under G.L. c. 209A §7.
The abuse prevention order stated that the defendant was to have "no contact" and "to stay at least 100 yards" away from the victim. Shortly thereafter, the defendant attended a concert and stood 3-4 feet from the victim for 10-15 minutes. The victim reported the incident to the police, who arrested the defendant for violation of the order.
The District Court judge ruled that the "stay away" provision was not a statutory violation enumerated under c. 209A and therefore could not be prosecuted under that section, but only under a common law theory of criminal contempt. The judge relied upon Comm. v. Gordon, 407 Mass. 340 (1990). However, due to numerous statutory changes to c. 209A since Comm. v. Gordon, the SJC noted that the scope of §7 has expanded to include violations of orders to vacate, to refrain from abusing or to have no contact.
The SJC did clarify the distinction between "no contact" and "stay away." Because "a 'no contact' order mandates that the defendant not communicate by any means with the protected party…a 'no contact' order is broader than a 'stay away' order." The Court underscored that staying away from a person is "probably the most fundamental and important form" of not contacting the person.
The Court found no merit in the defendant's argument that such an interpretation would allow convictions for accidental or unintentional violations.
Where it is alleged that a defendant has violated an order that he stay at least 100 yards away from his ex-girlfriend, I find that he cannot be prosecuted under G.L.c. 209A, Sect. 7, as the violation of a "stay away" provision is not a statutory violation enumerated under Sect. 7.
Accordingly, the defendant's motion to dismiss is allowed without prejudice to prosecution for criminal contempt.
"The Court first considers the Commonwealth's contention that any violation of a 209A order is punishable under G.L.c. 209A, Sect. 7. The Commonwealth asserts that the Legislature's 1990 amendment of Sect. 7, specifically the language that: 'Each abuse prevention order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE. Any violation of such order or a protection order issued by another jurisdiction shall be punishable by. ...' 'was enacted in direct response to the [Commonwealth v.] Gordon [407 Mass. 340 (1990)] decision and should be interpreted as foreclosing any doubt created by Gordon that criminal prosecutions under Sect. 7 are not limited to only certain types of violations.' ...
|Accordingly, violation of an order to
'stay away' from the plaintiff at unspecified locations is not an enumerated offense under
Sect. 7 and cannot be prosecuted except as criminal contempt."
Commonwealth v. Finase
However, the Supreme Judicial Court has favorably cited Gordon since the 1990 legislative amendments, noting that '[w]e have read Sect. 7 as limiting to the enumerated offenses those actions which will constitute a criminal violation of G.L.c. 209A. Commonwealth v. Gordon, 407 Mass. 340, 345 (1990). All other violations of a c. 209A order cannot be prosecuted as a statutory offense; rather, they can be prosecuted as criminal contempt. ...' Commonwealth v. Delaney, 425 Mass. 587, 596 (1997).
The offenses enumerated in Sect. 7 which are punishable as statutory criminal violations are limited to orders requiring the defendant to 'vacate, refrain from abusing the plaintiff or to have no contact with the plaintiff.' The Trial Court Guidelines for Judicial Practice: Abuse Prevention Proceedings (October 1996; revised June 1997), cited with approval in Delaney, 425 Mass. at 596, provide in part at Sect. 8:02 that: 'CRIMINAL CONTEMPT, RATHER THAN A STATUTORY VIOLATION, MUST BE CHARGED WHERE THE DEFENDANT ALLEGEDLY VIOLATED AN ORDER OTHER THAN A REFRAIN FROM ABUSE, NO-CONTACT, VACATE OR GUN SURRENDER ORDER.'
Accordingly, the Court finds that the Commonwealth cannot prosecute, as it claims, any violation of an Abuse Prevention Order under G.L.c. 209A, Sect. 7 absent enumeration of the offense under the statute.
"The Commonwealth's remaining contention presents a thornier issue. The Commonwealth asserts that 'the defendant's violation of the "stay at least 100 yards away" provision was part of the "no-contact" provision of the restraining order ... and, as such, constitutes a "no-contact" violation' which is an enumerated offense under Sect. 7. ...
the Court finds that the Commonwealth cannot prosecute, as it claims, any violation of an
Abuse Prevention Order under G.L.c. 209A, Sect. 7 absent enumeration of the offense under
Commonwealth v. Finase
The Court is mindful that 'c. 209A represents a legislative response to the troubling social problem of family and household abuse in the Commonwealth. Judicial orders issued pursuant to c. 209A afford abused individuals the opportunity to avoid further abuse and to provide them with assistance in structuring some of the basic aspects of their lives, such as economic support and custody of minor children, in accordance with their right not to be abused.' ...
For this reason, the Court will broadly construe the language of the Abuse Prevention Order to effectuate its protective purpose. However, the Court also is mindful that '[c]riminal statutes are strictly construed and must give "clear warning" of the particular conduct which is proscribed. ... "Words or phrases in a statute are to be given their ordinary meaning. They are to be construed according to their natural import. ... [They] are to be given their ordinary lexical meaning unless there be a clear indication to the contrary." ...' ...
"The meaning of the phrase 'no contact,' while broadly construed by the Appeals Court, never has been stretched to include mere proximity without some verbal or non-verbal 'communication' or contact. ... A broad reading of the Abuse Prevention Order would support a finding that 'stay at least 100 yards from the Plaintiff' means something more, and hence affords greater protection, than merely to have 'no contact.' Indeed, if 'stay away' were comprehended within the 'no contact' provision, there would be no reason for the Appeals Court and Supreme Judicial Court to refer separately to 'no contact' and 'stay away' orders. ...
For these reasons, the Court finds that the reference to 'no contact' in G.L.c. 209A, Sect. 7 is not a short-hand reference to the provision to 'stay away' from the plaintiff. The provision to 'stay away' from the plaintiff affords greater protection to the plaintiff than the provision for the defendant to have 'no contact' with the plaintiff. Accordingly, violation of an order to 'stay away' from the plaintiff at unspecified locations is not an enumerated offense under Sect. 7 and cannot be prosecuted except as criminal contempt."
"For the reasons stated and based on applicable law, [defendant Timothy] Finase's motion to dismiss is allowed without prejudice to prosecution for criminal contempt."
Commonwealth v. Finase (Lawyers Weekly No. 16-016-00) (8 pages) (Winslow, First J.) (Wrentham District Court) Attorneys were William T. Harrington and Edward J. McCormick III (Docket No. 9957CR1529).
Return to CPF home page