The appellate courts of the Commonwealth of Massachusetts have been busy authoring opinions. A fair number of them, but no overwhelming tidal wave, have involved the scope and parameters of the Abuse Prevention Statute and the prosecution of cases for violation of protective orders issued under the statute.⁽¹⁾ Here we attempt a comprehensive survey of the recent opinions involving the statute insofar as it involves the prosecution of violations of protective orders.⁽²⁾ Generally, the cases fall into certain categories which will be used to group them for purposes of discussion. The categories we employ here are: validity and notice of the restraining order;⁽³⁾ proving the existence and violation of the order;⁽⁴⁾ arrest;⁽⁵⁾ bail;⁽⁶⁾ verdicts and sentencing;⁽⁷⁾ probation;⁽⁸⁾ appellate review of orders;⁽⁹⁾ firearms;⁽¹⁰⁾ miscellaneous criminal proceedings involving orders;⁽¹¹⁾ free speech;⁽¹²⁾ and contempt.⁽¹³⁾ We hope to provide an easy reference for prosecutors involved in the day-to-day charging and proof of violations of protective orders, and to enable prosecutors to aid the courts, the police, and the probation departments in protecting victims and enforcing protective orders.

A. Validity and Notice of Orders Issued Under Massachusetts General Laws Chapter 209A

Earlier this year, chapter 209A survived a challenge to its facial validity under the state constitution in Frizado v. Frizado.⁽¹⁴⁾ The Massachusetts Supreme Judicial Court (SJC) held that the chapter 209A process did not violate the defendant's right to a jury trial under Article Twelve of the Massachusetts Declaration of Rights because the confiscation of property available through a restraining order (e.g., possession of the defendant's home due to a vacate order), is not punitive in purpose.⁽¹⁵⁾ While the court noted that compensation for losses resulting from abuse is not prospective, it did not indicate that its analysis would differ in such cases.⁽¹⁶⁾ The defendant also argued that he was entitled to a jury trial prior to the issuance of a protective order, relying upon Article Fifteen of the state constitution, which provides for jury trials in civil actions where the right existed at common law at the time of the adoption of the Constitution of the Commonwealth in 1780.⁽¹⁷⁾ The court rejected this claim and held that there was no such right to a jury trial, as the remedy provided by the statute is in the nature of injunctive relief, and no similar rights or proceedings had existed under the common law.⁽¹⁸⁾

The court went on to discuss the defendant's Article Twelve privilege against self-incrimination, holding that it was not violated by the civil chapter 209A proceeding, in spite of the fact that a negative inference may be drawn from the defendant's silence at the hearing.⁽¹⁹⁾ In response to the defendant's general argument that chapter 209A facially violates a defendant's right to due process of law as stated in Article Twelve, the court stated that "[a] court will fill in necessary and appropriate procedural elements unless circumstances indicate a contrary legislative intent."⁽²⁰⁾ Proceeding to do so, the court enumerated procedural safeguards that have evolved in custom and practice: a chapter "209A plaintiff must make a case for relief by a preponderance of the evidence"; a defendant has the right "to testify and present evidence"; a "defendant has a general right to cross-examine witnesses," although a judge "may limit [or eliminate] cross-examination for good cause"; and "a defendant or his counsel are entitled to adequate opportunity to consider any affidavit filed . . . on which the judge intends to rely" before they decide whether to cross-examine witnesses.⁽²¹⁾ The rules of evidence need not be followed in a chapter 209A proceeding if there is "fairness in what evidence is admitted and relied on."⁽²²⁾

In a footnote, the court indicated that its view of when a judge may exercise his or her discretion to limit cross-examination may be somewhat more restrictive than the view expressed in the District Court's Draft Standards of Judicial Practice, Abuse Prevention Proceedings.⁽²³⁾ The court quickly added its agreement with section 5:01 of the standards which states that "the court should not permit the use of cross examination for harassment or discovery purposes. However, each side must be given a meaningful opportunity to challenge the other's evidence."⁽²⁴⁾

In Flynn v. Warner,⁽²⁵⁾ the SJC held that the right to a reasonable opportunity to review affidavits in support of chapter 209A orders does not include the right to service of the affidavit with the order.⁽²⁶⁾ The court held that there is no statutory or constitutional requirement of such service; even if there were some due process right, a defendant is not prejudiced by not receiving service of the order where the judge permits the defendant to read the affidavit upon request.⁽²⁷⁾

The parameters of a "substantive dating relationship" within the reach of the statute were discussed in Brossard v. West Roxbury Division of the District Court Department.⁽²⁸⁾ Plaintiff, by his own pleadings--a "confusing melange of copies of documents"--referred to the complainant protected by order of the West Roxbury Court as his former girlfriend, and claimed that they had dated two to three times a week, and had maintained an active sexual relationship for a period of fourteen months.⁽²⁹⁾ Even if she had been living with another man at that time, the court recognized that the statute did not "preclude the possibility of a complainant's being in more than one `substantive dating relationship' at any one time."⁽³⁰⁾ There was, therefore, no abuse of discretion nor error of law by the single justice's judgment denying relief from the protective order.⁽³¹⁾ Finally, the court noted that judicial action is required to effect the court order; thus, even if the complainant had requested withdrawal, such action was of no import absent the district court's action on the request.⁽³²⁾

B. Proving the Existence and Violation of a Protective Order

An example of sufficient evidence to support a conviction for violation of a chapter 209A order by abuse can be found in Commonwealth v. Robicheau.⁽³³⁾ In Robicheau, the victim had obtained successive protective orders against the defendant and had informed him in person of the existence of the order at her residence on an occasion two weeks prior to the events at issue.⁽³⁴⁾ The defendant was convicted of violating the provision against abuse and challenged the sufficiency of the evidence on appeal.⁽³⁵⁾

On the date in question, the facts supporting the conviction were as follows: after an overnight visit, the defendant dropped off their son on the street, three stories below the victim's residence; the victim was behind her locked apartment door in a three-family house.⁽³⁶⁾ The victim went to her window and yelled down to the defendant, advising him that if he stepped out of his automobile she would call the police and report his violation of the protective order.⁽³⁷⁾ Despite her admonition, the defendant exited his automobile and stood on the street, and shouted "Shut the f[] up," gave her "the finger," and said that he would do exactly as he pleased; he then "drove away with a loud, aggressive display."⁽³⁸⁾ Upon returning home, the defendant called the victim and threatened to kill her, saying that he was "not playing anymore."⁽³⁹⁾

The court held that this evidence was sufficient to support the conviction for abuse by placing the victim in imminent fear of serious physical harm.⁽⁴⁰⁾ As the court stated:

The victim's relationship with the defendant was so tense that she had sought and obtained consecutive 209A orders against him. In light of this relationship and the other circumstances enumerated above, the jury were entitled to find that the defendant's belligerent words and conduct caused a reasonable apprehension in the victim that he intended to harm her.⁽⁴¹⁾

The court took note that the victim had testified that the defendant frightened and upset her and that she thought he would kill her.⁽⁴²⁾ "The victim's fear, although neither necessary nor determinative, is material in finding the defendant guilty."⁽⁴³⁾ It is interesting and worthy of note that the defendant was, at all times, either on the street some three stories and one locked door removed from the victim, or a telephone call away.⁽⁴⁴⁾ Furthermore, his conduct on this particular occasion involved getting out of his car, shouting at the victim, making an obscene gesture and leaving with a squeal of his tires, and then making a telephone call.⁽⁴⁵⁾

The court went on to note that the trial judge had erred in limiting the jury to consider evidence of a prior incident only to the charge of threats, rather than allowing the evidence to be considered also on the charge of abuse.⁽⁴⁶⁾ In the prior incident, to which the victim testified, the defendant had kicked open the door to her apartment, pulled a telephone out of her hands, grabbed her by the throat, and pushed her against a wall while choking her, releasing her when their child began to scream, and telling the child that his mother was nothing but a "f[]ing slut and whore."⁽⁴⁷⁾ In keeping with Commonwealth v. Gordon,⁽⁴⁸⁾ the court held that the instruction precluding the jury from considering this evidence with respect to the alleged violation of the restraining order was erroneous, and had given the defendant a benefit to which he was not entitled.⁽⁴⁹⁾

In Commonwealth v. Foster,⁽⁵⁰⁾ a prosecution for violation of a 209A order and other charges, the defendant claimed prosecutorial misconduct when the trial prosecutor elicited testimony concerning the reason that the victim's mother had obtained a restraining order against the defendant.⁽⁵¹⁾ Although the two restraining orders were exhibits, the trial judge told the prosecutor before trial not to call forth "any testimony about the bad blood . . . [that may] have existed between the parties."⁽⁵²⁾ The judge told the prosecutor that he would entertain a request to allow rebuttal testimony if it seemed appropriate at the close of the defendant's case.⁽⁵³⁾

During cross-examination of the victim's mother, the defendant raised an inference "of an ongoing social relationship between the defendant and the mother."⁽⁵⁴⁾ The prosecutor responded, on redirect examination, by asking about the reasons for the restraining order.⁽⁵⁵⁾ The judge cut off questioning after eighteen questions, but did not strike the testimony.⁽⁵⁶⁾ The defendant then testified that he and the victim's mother had no problems and continued to have an intimate relationship.⁽⁵⁷⁾ Again, the prosecutor responded by asking about the incident that led to the mother obtaining a chapter 209A order.⁽⁵⁸⁾

The court held that there had been no prosecutorial misconduct because, by allowing the testimony, the judge modified his pretrial order.⁽⁵⁹⁾ "A judge . . . has a right to vary his rulings any time prior to closing, as long as such variance does not cause harm to a party."⁽⁶⁰⁾ The court reasoned that the testimony was not prejudicial, since it was, to a great extent, cumulative of the restraining orders which were in evidence.⁽⁶¹⁾ The evidence of the existence of, and reasons for, the restraining order was "admissible to refute the inference of an ongoing social relationship sought to be established by the defendant."⁽⁶²⁾

In Commonwealth v. Kirk,⁽⁶³⁾ the Massachusetts Appeals Court held that a chapter 209A order, affidavit, and return of service cannot be used as evidence in a prosecution for assault and battery for the purpose of establishing the identity of the assailant.⁽⁶⁴⁾ The prosecution presented the spontaneous utterances of the victim, made to another civilian, describing an assault and battery by her boyfriend.⁽⁶⁵⁾ The victim did not name the boyfriend, but upon arriving at the police station she signed a complaint and affidavit seeking a protective order, in which she named the boyfriend.⁽⁶⁶⁾ As the victim did not testify, the Commonwealth sought to use the 209A complaint and affidavit to prove the truth of the matter stated therein; that is, the identity of her assailant.⁽⁶⁷⁾ The appeals court held that the statements of identity constituted inadmissible hearsay, not falling within any hearsay exception, and violated the defendant's state and federal right to confront and cross-examine witnesses.⁽⁶⁸⁾ In addition, the identification testimony of the police officer who had served the defendant with the order was held to be indirect hearsay, and likewise inadmissible.⁽⁶⁹⁾ Nonetheless, the court also noted that prior identification testimony is not hearsay and is admissible when the witness who made the statement testifies at trial and is subject to cross-examination.⁽⁷⁰⁾

In the event that a protective order formed the basis for the arrest, and its existence is not at issue, but the possibility exists that the defendant may seek to pose lack of notice as a defense to prosecution, then charging the crime of assault in addition to, or as an alternative to the violation of the protective order, may avoid a defense based upon the lack of notice of the existence of the protective order.⁽⁷¹⁾

C. Arrest for Violation of a Protective Order

The power of police to make warrantless arrests was addressed in Commonwealth v. Jacobsen.⁽⁷²⁾ The warrantless arrest of the defendant was for threats made against his wife, and he was charged with threatening, under Massachusetts General Laws chapter 275, section 2, as no protective order was then in effect.⁽⁷³⁾ The court held that a warrantless arrest for threatening to commit a crime was unlawful, but also held that dismissal of the complaint was overly harsh and not an appropriate remedy.⁽⁷⁴⁾ Because there had been neither egregious police misconduct, nor any showing that the conduct of the police had prejudiced the defendant or impeded his ability to obtain a fair trial, the matter was remanded for a determination of whether any evidence was to be suppressed because of the possibility of its being tainted by the unlawful conduct of the police.⁽⁷⁵⁾

As to the possibility of a warrantless arrest for "abuse" occurring in violation of a protective order, the court indicated that a warrantless arrest could be made for "conduct" which places a person in fear of "imminent serious physical harm."⁽⁷⁶⁾ The opinion also indicates that when a warrantless arrest is made for such statutorily defined "abuse," a complaint for assault under Massachusetts General Laws chapter 265, section 13, would be appropriate.⁽⁷⁷⁾

Subsequent to Jacobsen, at least one district court opinion, Commonwealth v. Silva,⁽⁷⁸⁾ has been written in which the court held that conditional threats made in the presence of police officers, which were sufficient to give reason to fear imminent serious physical harm, supported a lawful warrantless arrest for threats, under Massachusetts General Laws chapter 275, section 2, because these threats constituted "abuse" under chapter 209A, section 6(7).⁽⁷⁹⁾ The difficulties of reconciling Silva and Jacobsen are considerable. A more sensible approach, recognizing the broader protection afforded to family or household members, or those in substantive dating relationships, is to arrest and charge assault for an incident of statutory "abuse," even if occurring by threatening words alone. That is, the authors propose that the statutory definition of abuse may be interpreted as encompassing a new, hybrid form of what was common-law assault--one which can be made by words alone, so long as the words offer to do bodily harm, and, based upon the entire relationship between the parties, the words reasonably cause the specific victim to fear imminent serious physical harm.

Such an interpretation of the statutory definition of "abuse" is supported by Robicheau,⁽⁸⁰⁾ where the defendant stood on the street, three stories below the victim, shouted and made an obscene gesture, and then, on the telephone moments later, threatened to kill her; and its predecessor, Gordon,⁽⁸¹⁾ where the defendant arrived uninvited at the victim's house, exited his automobile, and, despite the victim's "obvious unwillingness to speak with him," propped open her door with his back, and called her "immature and ridiculous."⁽⁸²⁾ Indeed, the SJC was quite careful to point out in Gordon that the statutory definition of abuse by "`placing another in fear of imminent serious physical harm,' closely approximates the common law description of the crime of assault."<sup>(83)</sup> The court also stated that the "Legislature . . . provided a similar definition for `abuse' in chapter 209A."⁽⁸⁴⁾ There is, therefore, no precedential authority, nor any compelling reason, to read a statutory misdemeanor involving "abuse" under chapter 209A as necessarily coincident and identical with the crime of assault as defined at common law.⁽⁸⁵⁾ The use of words alone to place another in fear of imminent serious physical harm does not appear to meet the classic common law definition of assault. Yet, where there is a significant relationship and a history of prior violence between the perpetrator and the victim, then the recognition that an assault may be perpetrated by words alone is consonant with a logical and reasonable reading of the statutory definition of abuse and the statutory command to arrest for misdemeanors involving abuse.⁽⁸⁶⁾

Indeed, a reasonable reading of chapter 209A would recognize that even if physical acts must accompany language to constitute "abuse," then such acts need not be tantamount to raising a fist or pointing a firearm, and that the present ability to actually cause the harm threatened need not be proven, so long as the defendant intended that the victim hearing the words be placed "in fear of imminent serious physical harm."⁽⁸⁷⁾ This interpretation is consistent with the statutory scheme which includes both "attempting to cause or causing physical harm" and "placing another in fear of imminent serious physical harm" as forms of "abuse."⁽⁸⁸⁾ The Jacobsen court opined that conduct which places a person in fear of imminent serious physical harm is sufficient to support a charge of assault.⁽⁸⁹⁾ Either the conduct which causes a victim to fear imminent serious physical harm must be more than mere language, and thus meet a classic definition of common-law assault, or the definition of an offense involving "abuse" is broader than the common law forms of assault.⁽⁹⁰⁾ As "abuse" is an arrestable offense, chargeable under Massachusetts General Laws chapter 265, section 13, a new hybrid of common-law assault, that is, threats uttered between family or household members, and persons in substantive dating relationships, appears to have emerged with chapter 209A. Affording such protection under the statute is entirely consistent with the fact that arrest and prosecution for such abuse is mandated when the subject of a protective order under Massachusetts General Laws chapter 209A uses threatening language which places the person protected by the order in fear of imminent serious physical harm.⁽⁹¹⁾

Even if the statutory scheme does not encompass a third form of assault, it has nonetheless broadened the arrest power of police. Under the common law, the power to arrest for a misdemeanor was limited to those committed and continuing in the presence of the police officer

and involving a presently occurring, or likely to follow, breach of the peace.⁽⁹²⁾ But under the statute, the misdemeanor upon which arrests may be founded need not occur in the presence of the police officer, so long as probable cause exists to believe that an assault and battery upon a family or household member, as defined in chapter 209A, or, a misdemeanor involving abuse (i.e., assault) under chapter 209A, has in fact occurred.⁽⁹³⁾

D. Bail

The SJC was not deterred from writing an opinion on bail proceedings where a defendant on bail allegedly violated a protective order, even though the complaint charging the violation of that order was dismissed prior to the argument on appeal.⁽⁹⁴⁾ The court considered the case, in part, to clarify whether the Superior Court had the authority to review a district court bail revocation under Massachusetts General Laws chapter 276, section 58(3).⁽⁹⁵⁾ As to the revocation of bail, the court held that the commission of a crime, even without a conviction for that offense, was a sufficient ground to revoke bail, and that the Commonwealth was not required to commence a separate prosecution as a prerequisite to the district court holding a hearing and revoking bail based upon the subsequent crime.⁽⁹⁶⁾ The court also held that the Superior Court did not have the authority, under the third paragraph of the bail statute at issue, to review a revocation order entered by the district court.⁽⁹⁷⁾

The effect of a protective order on potential bail questions in the defendant's future played an important role in Frizado.⁽⁹⁸⁾ The court allowed the defendant's challenge despite the fact that the plaintiff had the restraining order vacated prior to the defendant's appeal to the full bench.⁽⁹⁹⁾ The case was deemed not moot because the existence of a 209A order on the defendant's record, although vacated, could have consequences in future bail decisions and 209A proceedings.⁽¹⁰⁰⁾

In Aime v. Commonwealth,⁽¹⁰¹⁾ the court invalidated as unconstitutional certain amendments made to the bail statute, Massachusetts General Laws chapter 276, section 58.⁽¹⁰²⁾ The particular provisions invalidated there, with the addition of requisite due process safeguards, have essentially been re-enacted.⁽¹⁰³⁾ Noted by the court, and of interest regarding the setting of bail for defendants charged with violating chapter 209A, sections 3-5, or with a misdemeanor or felony involving abuse, is that such defendants may only be admitted to bail by a justice of the SJC, Superior Court, District Court, or a sheriff with the approval of a justice of the Superior Court, but not by "[a] clerk of courts, clerk of a district court, bail commissioner or master in chancery."⁽¹⁰⁴⁾

E.  Verdicts and Sentencing

In Commonwealth v. Robicheau,⁽¹⁰⁵⁾ the defendant was charged with threats to commit a crime in violation of Massachusetts General Laws chapter 275, section 2 and violation of a protective order issued under chapter 209A.⁽¹⁰⁶⁾ The jury acquitted the defendant of the threats charge, but convicted him of violating the protective order.⁽¹⁰⁷⁾ The defendant argued on appeal that the inconsistent verdicts violated his due process rights.⁽¹⁰⁸⁾ The court noted that the crime of threatening may contain elements of the crime of abuse by placing another in fear of serious physical harm, so that "the threat may also [be used to] prove the abuse."⁽¹⁰⁹⁾ The court reaffirmed that the defendant had no right to consistent verdicts even if the inconsistency indicated a compromise verdict, or the return of a not guilty verdict "for even impermissible reasons."⁽¹¹⁰⁾ The verdict of guilt on the protective order violation was affirmed.⁽¹¹¹⁾

In Commonwealth v. Lebon,⁽¹¹²⁾ a judge's indication that he would sentence the defendant to a term of committed incarceration if the defendant elected a jury-trial on the charge of a protective order violation, but no committed term if the defendant proceeded jury-waived, vitiated the defendant's guilty plea even though the judge conducted a full and complete colloquy.⁽¹¹³⁾ The Appeals Court held that the statements of the judge coerced the defendant into giving up his right of trial by jury by raising the specter of enhanced punishment for electing a trial by jury and remanded the case for a new trial.⁽¹¹⁴⁾

F.  Probation

In Delisle v. Commonwealth,⁽¹¹⁵⁾ the petitioner's probation was revoked for failure to comply with the conditions of a protective order, as well as other reasons.⁽¹¹⁶⁾ The petitioner claimed that his probation term had already concluded, that he was denied counsel of his choice, and that his due process rights had been violated because he had not received adequate notice of the hearing.⁽¹¹⁷⁾ The court rejected his claims, holding that where a judge imposes two sentences with probation provisions, the second sentence to run from and after the first, the second sentence does not begin to run until the conclusion of the probation provision in the first sentence, rather than from the end of the term of incarceration imposed on that sentence.⁽¹¹⁸⁾ In addition, the court noted that the defendant assented to an immediate hearing and had no constitutional right to counsel of his choosing.⁽¹¹⁹⁾

In Commonwealth v. Delaney,⁽¹²⁰⁾ the court reaffirmed that hearsay may be used in a probation revocation hearing when it bears adequate indicia of reliability.⁽¹²¹⁾ In Delaney, the probation department sought revocation based on the defendant's violation of a restraining order.⁽¹²²⁾ On a night when the defendant was scheduled to watch his daughter dance in a school play, a car pulled into the driveway of the defendant's ex-wife's residence to drop off the daughter.⁽¹²³⁾ The defendant's ex-wife testified that she had arranged for the daughter to call her after the play to be picked up.⁽¹²⁴⁾ She could not see whether the defendant was in the car, but testified that her daughter told her that the defendant was in the car.⁽¹²⁵⁾ The defendant testified on his own behalf that he had had his new wife drop him off some blocks away from his ex-wife's house to avoid a restraining order violation.⁽¹²⁶⁾ The defendant asked that his daughter be brought to court to testify, but the judge denied his request.⁽¹²⁷⁾ The judge made no specific finding of good cause for not allowing the defendant to confront his daughter, and having the daughter testify was not shown to be unrealistic.⁽¹²⁸⁾ For these reasons, and because there was no other indicia of reliability in the ex-wife's hearsay testimony, the court held that the error in admitting the hearsay was material.⁽¹²⁹⁾

The issuance of a restraining order under chapter 209A against the defendant led the probation department to seek revocation in Commonwealth v. Marvin.⁽¹³⁰⁾ The opinion does not directly concern the Abuse Prevention Act, but does hold that neither the defendant nor his counsel are entitled, under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, to make closing arguments during a probation revocation proceeding.⁽¹³¹⁾ The defendant presented no claim that either a state or federal constitutional right to counsel had been violated by the preclusion of closing argument.⁽¹³²⁾ The court noted, however, that such argument may be helpful in clarifying the facts and the legal issues presented in the hearing.⁽¹³³⁾

In addition, the revoking judge had erroneously failed to write findings of fact and rulings of law, and quite possibly had erred by revoking the probation based on the mistaken belief that the defendant had actually been charged with a violation of a protective order, rather than

based upon his wife's testimony of the defendant's violent and criminal acts, were not grounds to reverse the revocation order where the defendant had failed to press his request for findings and rulings, which would have clarified the basis for the revocation.⁽¹³⁴⁾

G.  Appellate Review of Massachusetts General Laws Chapter 209A Orders

The question of the appropriate appellate forum for challenging the validity of a chapter 209A order was settled in Flynn v. Warner.⁽¹³⁵⁾ The court held that the proper route to appellate review lay only by a petition under Massachusetts General Laws chapter 211, section 3, seeking relief from a single justice of the SJC.⁽¹³⁶⁾ In so doing, the court explicitly rejected appellant's argument that he had been denied state or federal constitutional rights to due process and equal protection because chapter 209A did not provide a convenient avenue of appeal.⁽¹³⁷⁾ "The prospects of obtaining timely relief from an unlawful G.L. c. 209A order through a complaint under G.L. c. 211, §3, are at least as good as they would be if relief were available by an appeal to a panel of an appellate court."⁽¹³⁸⁾

These cases may be cited to counter any defendant who files a motion to dismiss a criminal prosecution based upon the claimed invalidity of the underlying order. That is, the appropriate forum for determination of the validity of the protective order is either the single justice session of the SJC, or the civil court that actually issued the order, but not the criminal court in which the prosecution for violation is held. Indeed, the United States Supreme Court, in the context of a bankruptcy proceeding, has reaffirmed the long-standing rule that the validity of a court order or injunction must be challenged in the issuing court, and that such an order otherwise carries with it a presumption of validity.⁽¹³⁹⁾ Here in the Commonwealth, the law is clear that civil judgments are not subject to collateral attack, but are valid between the parties, even if allegedly obtained by false testimony, false pretenses, or inadequate evidence.⁽¹⁴⁰⁾

In Burrill v. Burrill,⁽¹⁴¹⁾ the Appellate Division of the District Court declined jurisdiction over appeals from chapter 209A orders.⁽¹⁴²⁾ The court reasoned that it does not have a general grant of equity jurisdiction, and that chapter 209A cases are "essentially equitable in character."⁽¹⁴³⁾ A desire for "uniformity of treatment of litigants and the development of a consistent body of law" also prompted the court's decision.⁽¹⁴⁴⁾ Because chapter 209A orders are available from the Superior Court and the Probate Court, in addition to the District Court, appellate jurisdiction in the Appellate Division of the District Court would not achieve this aim.⁽¹⁴⁵⁾

H.  Firearms and Massachusetts General Laws Chapter 209A Orders

In 1994 the legislature amended the Abuse Prevention Statute to provide that the court shall order the suspension of any firearms identification card or license to carry, and the surrender of firearms, when a complainant has demonstrated a "substantial likelihood of immediate danger of abuse."⁽¹⁴⁶⁾ The subject of the order may request a hearing to modify this provision, and if the subject appends an affidavit indicating that the firearm is needed for employment purposes, a hearing shall be held within two days.⁽¹⁴⁷⁾ This provision of the order may be continued for as long as the restraining order is in effect, and shall be continued upon a showing of "a likelihood of abuse."⁽¹⁴⁸⁾ The need for continuation of this provision is, thus, less onerous to prove than is the burden of demonstrating the initial necessity for surrender of the firearms.⁽¹⁴⁹⁾

The United States Court of Appeals for the First Circuit has determined that chapter 209A violations can be used as predicate offenses under the federal "felon in possession"⁽¹⁵⁰⁾ law.⁽¹⁵¹⁾ The felon in possession law makes it a crime for a felon to knowingly possess a firearm that has been in interstate commerce.⁽¹⁵²⁾ Despite the fact that Massachusetts classifies chapter 209A violations as misdemeanors, such convictions are felonies for the purposes of federal prosecution.⁽¹⁵³⁾ Under federal law,⁽¹⁵⁴⁾ "any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less" is excluded as a predicate conviction.⁽¹⁵⁵⁾ Because a chapter 209A violation carries a two-and-one-half-year maximum sentence, it does not fall into this exclusion.⁽¹⁵⁶⁾ Defendants will find no comfort in 18 U.S.C. § 921(a)(20), which excludes those who have been "found worthy" by their state governments and received pardons or expungements or have had their civil rights restored.⁽¹⁵⁷⁾ Because Massachusetts does not deprive misdemeanants of their civil rights, they cannot be restored.⁽¹⁵⁸⁾ Without such an affirmative show of faith on the part of the Commonwealth, a defendant's chapter 209A violation conviction can be used as a predicate conviction under 18 U.S.C. § 922.⁽¹⁵⁹⁾

I.  Relevance of Massachusetts General Laws Chapter 209A Orders in Miscellaneous Criminal Prosecutions

In Commonwealth v. Beals,⁽¹⁶⁰⁾ a mother was prosecuted for parental kidnapping under Massachusetts General Laws chapter 265, section 26A, when she took her children and left the Commonwealth with the intention of holding the children in Puerto Rico permanently or for a protracted period.⁽¹⁶¹⁾ The mother was married to the children's father at the time.⁽¹⁶²⁾ There was no court order concerning the custody of the children or the defendant's marriage to the children's father at the time when the defendant left.⁽¹⁶³⁾ Ten days after she left, the defendant's husband obtained an ex parte 209A order granting him temporary custody of the children.⁽¹⁶⁴⁾ The court held that because the defendant had no knowledge of the order and no service had been made, she could not be prosecuted for parental kidnapping.⁽¹⁶⁵⁾ Parental kidnapping requires that the offending parent be in violation of a court order.⁽¹⁶⁶⁾

In Commonwealth v. Yazbeck,⁽¹⁶⁷⁾ the recent securing of a protective order by the defendant's girlfriend against her estranged husband was relevant to the defendant's claim of self-defense in pointing a rifle at plainclothes police officers who broke down the door of their shared residence to execute a search warrant on the charge of assault by means of a dangerous weapon.⁽¹⁶⁸⁾ The defendant's girlfriend had received the protective order two days prior to the 10:45 p.m. execution of the search warrant, due to a recent beating, threats, and vandalizing of her car by her estranged husband, "Digger."⁽¹⁶⁹⁾ The defendant, his girlfriend, and his mother were watching television when they became aware of someone breaking in through the front door--no knock or announcement had been heard.⁽¹⁷⁰⁾ The "defendant's mother screamed, `It must be Digger.'"⁽¹⁷¹⁾ The defendant's girlfriend ran into a bedroom and hid in a closet, while the defendant retrieved his rifle and pointed it down the hallway at the plainclothes police officers who were in the hallway.⁽¹⁷²⁾ The court noted that the recent serious threats against the occupants and the smashing of the door could cause a reasonable apprehension of serious bodily harm or death on the part of the occupants; therefore, justifying the defendant's actions in retrieving and pointing his weapon at the intruders.⁽¹⁷³⁾ By extension, a person who has recently sought or received a protective order from a court based on incidents of abuse will likely seek to introduce evidence of the same, and of the underlying incidents, in the event that he himself or she herself is complained against for criminal behavior directed at the subject of the restraining order, and perhaps other persons intimately associated with the subject of the order.

J.  Free Speech and Protective Orders Under Chapter 209A

The SJC rejected a defendant's claim that threats he made to his ex-wife, in violation of a protective order, were protected by the First Amendment in Commonwealth v. Robicheau.⁽¹⁷⁴⁾ The defendant argued both that his language did not constitute "fighting words," and that he had a "right to respond to the victim's statements [to him]."⁽¹⁷⁵⁾ The court rejected his claims, noting that even if the language did not constitute "fighting words," the threats to harm another person, particularly where the threatening language and conduct rise to the level of placing the victim in fear of imminent serious physical harm, are not constitutionally protected, and that any so-called "right to respond" would not encompass the right to threaten or assault.⁽¹⁷⁶⁾

K.  Contempt by Violation of a Massachusetts General Laws Chapter 209A Order

In Commonwealth v. Mahoney,⁽¹⁷⁷⁾ the SJC addressed the issue of whether a person who has been adjudged in contempt of court for violation of a protective order could thereafter be prosecuted for the crimes of violating the order or of assault and battery and threats, by the same acts.⁽¹⁷⁸⁾ The court held that the contempt proceedings, which were held at the time the defendant was arraigned on the criminal charges, and pursuant to which the defendant was ordered to serve thirty days in the common jail, did not raise a double jeopardy bar to continuing the criminal prosecutions.⁽¹⁷⁹⁾ The court noted that the statute specifically provides that violations are not exclusively to be remedied by criminal process, but that contempt proceedings may be held by the court that issued the protective order.⁽¹⁸⁰⁾ The action of the arraigning judge of the District Court in adjudicating the defendant in contempt, and committing him to jail, but allowing the contempt to be purged by the posting of five thousand dollars with the clerk of the court and the defendant's representation to the court that he understood and agreed to abide by the conditions of the two orders was remedial, and not punitive, and thus posed no bar to prosecution.⁽¹⁸¹⁾ Finally, the court held that the summary nature of the proceeding, in which the defendant was notified of the contempt proceeding, was represented by counsel, and was heard, was appropriate and consistent with the "clear intent of chapter 209A, that there be speedy intervention by the courts in domestic disputes to protect the health and safety of the domestic partners."⁽¹⁸²⁾

The recent enactment of the Abuse Prevention Statute, and the subsequent issuance of a great number of protective orders, has led, in a few short years, to a fair number of appellate opinions here in the Commonwealth. All of the opinions seem to reach results which would fairly have been anticipated even if the cases did not substantively involve the Abuse Prevention Statute. The single opinion which might come to be viewed as extraordinary is Jacobsen, which broadly refers to "conduct" placing a person "in fear of imminent serious physical harm" as supporting an arrest for assault, and which may, therefore, prove the progenitor of a third form of assault expanding the common law definition. The appellate courts have had the opportunity to develop and analyze various constitutional issues in the context of these cases, and have been scrupulous in balancing the rights of victims with those of defendants to achieve a just result in each case. We can expect that future opinions shall likewise engage in the same scrupulous balancing of the rights to privacy, personal safety and integrity, against those of free speech and due process, in both civil and criminal proceedings involving the Abuse Prevention Statute.

* Nancy L. Hathaway is an Assistant District Attorney in the Suffolk County District Attorney's Office. She is a 1994 graduate of Northeastern University School of Law, and she clerked for the Justices of the Massachusetts Superior Court.

** Assistant District Attorney, Suffolk County District Attorney's Office; B.A. University of Dallas, 1983; J.D. University of Connecticut School of Law, 1986; former Law Clerk to Chief Judge Antoinette Dupont, Appellate Court, State of Connecticut.

1. Massachusetts General Laws chapter 209A is the Abuse Prevention Statute. For a discussion of earlier appellate opinions deciding 209A issues, see John P. Zanini, Overview of Mass. Gen. L. ch. 209A, the Abuse Prevention Statute, and the Prosecutorial Role of the District Attorney's Office, 28 New Eng. L. Rev. 261 (1994).

2. Some of the reported cases which mention Massachusetts General Laws chapter 209A, but which provide no substantive guidance for prosecutors, are not addressed in this article. Orders issued pursuant to the statute will be referred to in this article as "209A" or "protective" or "restraining" orders.

3. See infra part II.A.

4. See infra part II.B.

5. See infra part II.C.

6. See infra part II.D.

7. See infra part II.E.

8. See infra part II.F.

9. See infra part II.G.

10. See infra part II.H.

11. See infra part II.I.

12. See infra part II.J.

13. See infra part II.K.

14. Frizado v. Frizado, 420 Mass. 592, 651 N.E.2d 1206 (1995).

15. Id. at 594-95, 651 N.E.2d at 1209.

16. Id. at 595, 651 N.E.2d at 1209.

17. Id.

18. Id. at 595-96, 651 N.E.2d at 1210.

19. Frizado, 420 Mass. at 596, 651 N.E.2d at 1210.

20. Id. at 597, 651 N.E.2d at 1210.

21. Id. at 596-97, 651 N.E.2d at 1210-11.

22. Id. at 597-98, 651 N.E.2d at 1211.

23. Id. at 598 n.5, 651 N.E.2d at 1211 n.5 (citing District Court's Draft Standards of Judicial Practice, Abuse Prevention Proceedings (Dec. 1994)).

24. Frizado, 420 Mass. at 598 n.5, 651 N.E.2d at 1211 n.5 (quoting District Court's Standards of Judicial Practice, Abuse Prevention Proceedings (Dec. 1994)).

25. Flynn v. Warner, 421 Mass. 1002, 654 N.E.2d 126 (1995).

26. Id. at 1003, 654 N.E.2d at 127.

27. Id.

28. Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 629 N.E.2d 295 (1994).

29. Id. at 184-85, 629 N.E.2d at 295-96.

30. Id. at 185, 629 N.E.2d at 296.

31. Id.

32. Id. at 185-86, 629 N.E.2d at 296.

33. Commonwealth v. Robicheau, 421 Mass. 176, 654 N.E.2d 1196 (1995).

34. Id. at 181, 654 N.E.2d at 1199.

35. Id. at 180, 654 N.E.2d at 1198-99.

36. Id. at 178, 654 N.E.2d at 1197.

37. Id., 654 N.E.2d at 1197-98.

38. Robicheau, 421 Mass. at 178-82, 654 N.E.2d at 1197-99.

39. Id.

40. Id. at 181-82, 654 N.E.2d 1199-2000.

41. Id. at 182, 654 N.E.2d at 1199.

42. Id.

43. Robicheau, 421 Mass. at 182, 654 N.E.2d at 1199-2000 (citing Commonwealth v. Tarrant, 367 Mass. 411, 417 n.5, 326 N.E.2d 710, 715 n.5 (1975)).

44. Id. at 178-82, 654 N.E.2d at 1197-99.

45. Id.

46. Id. at 180 n.4, 654 N.E.2d at 1198 n.4.

47. Id.

48. Commonwealth v. Gordon, 407 Mass. 340, 553 N.E.2d 915 (1990).

49. Robicheau, 421 Mass. at 184-85, 654 N.E.2d at 1201.

50. Commonwealth v. Foster, 411 Mass. 762, 585 N.E.2d 331 (1992).

51. Id. at 766-68, 585 N.E.2d at 332-34.

52. Id. at 766 n.3, 585 N.E.2d at 334 n.3.

53. Id.

54. Id. at 767, 585 N.E.2d at 334.

55. Foster, 411 Mass. at 767, 585 N.E.2d at 334.

56. Id.

57. Id.

58. Id.

59. Id. at 767-68, 585 N.E.2d at 334.

60. Foster, 411 Mass. at 767, 585 N.E.2d at 334 (citing Catania v. Emerson Cleaners, Inc., 362 Mass. 388, 390, 286 N.E.2d 341, 342-43 (1972); Ferris v. Ray Taxi Serv. Co., 259 Mass. 401, 405, 156 N.E.2d 538, 539 (1927)).

61. Id. at 768, 585 N.E.2d at 334-35.

62. Id. at 767-68, 585 N.E.2d at 334.

63. Commonwealth v. Kirk, 39 Mass. App. Ct. 225, 654 N.E.2d 938 (1995).

64. Id.

65. Id. at 226-27, 654 N.E.2d at 938-41.

66. Id., 654 N.E.2d at 938-40.

67. Id. at 228, 654 N.E.2d at 941.

68. Kirk, 39 Mass. App. Ct. at 228-33, 654 N.E.2d at 941-44.

69. Id. at 229-30, 654 N.E.2d at 942.

70. Id. at 230 n.5, 654 N.E.2d at 943 n.5 (citing Commonwealth v. Weichell, 390 Mass. 62, 71-72, 453 N.E.2d 1038, 1044-45 (1983)).

71. See infra notes 70-75 and accompanying text for a discussion of Commonwealth v. Jacobsen, 419 Mass. 269, 644 N.E.2d 213 (1995).

72. Commonwealth v. Jacobsen, 419 Mass. 269, 644 N.E.2d 213 (1995).

73. Id. at 269-70, 644 N.E.2d at 214.

74. Id. at 275-76, 644 N.E.2d at 217.

75. Id. at 275-77, 644 N.E.2d at 217-18.

76. Id. at 273-74, 644 N.E.2d at 216 (citing Mass. Gen. L. ch. 209A, § 6(7) (1994)); see also Mass. Gen. L. ch. 276, § 28 (1994).

77. Jacobsen, 419 Mass. at 274-75, 644 N.E.2d at 216.

78. Commonwealth v. Silva, No. 9504CR0259 (Mass. Dist. Ct. July 3, 1995) (order denying motion to dismiss).

79. Id.

80. Commonwealth v. Robicheau, 421 Mass. 176, 178-82, 654 N.E.2d 1196, 1197-99 (1995).

81. Commonwealth v. Gordon, 407 Mass. 340, 348-49, 553 N.E.2d 915, 919-20 (1990).

82. Id. at 350, 553 N.E.2d at 920.

83. Id. at 349, 553 N.E.2d at 920 (quoting Mass. Gen. L. ch. 209A, § 1 (1988)).

84. Id. (citing Selectmen of Topsfield v. State Racing Comm'n, 324 Mass. 309, 313, 86 N.E.2d 65, 69 (1949)).

85. See Mass. Gen. L. ch. 209A, §§ 1, 6(7)(b) (1994); Commonwealth v. Gordon, 407 Mass. 340, 348-49, 553 N.E.2d 915, 919-20 (1990) ("[A]n act placing another in reasonable apprehension that force may be used is sufficient for the offense of criminal assault." (quoting Commonwealth v. Delgado, 367 Mass. 432, 437, 326 N.E.2d 716, 719 (1975))); see also Commonwealth v. Musgrave, 421 Mass. 610, 611 (1996) (adopting Commonwealth v. Musgrave, 38 Mass. App. Ct. 519 (1995), which distinguished assault by attempted battery from assault by immediately threatened battery, and holding that proof of the defendant's intent to instill fear or apprehension must be proven in the latter); Commonwealth v. Slaney, 345 Mass. 135, 139, 185 N.E.2d 919, 922 (1962) (noting that assault is attempt to commit a battery; or, attempt or offer to do bodily harm to another by force and violence); Commonwealth v. White, 110 Mass. 407, 409 (1872) (noting that threatening language accompanied by unloaded gun, and thus actual inability to perpetrate the harm, was assault, as the conduct "produced the fear of harm which it was intended to produce, with the same consequential tendency to provoke a breach of the peace as if he had the actual ability to do the harm").

86. Mass. Gen. L. ch. 209A, §§ 1, 6(7)(b) (1994).

87. See Robicheau, 421 Mass. at 180-82, 654 N.E.2d at 1198-1200; Gordon, 407 Mass. at 348-49, 553 N.E.2d at 919-20; Commonwealth v. Ditsch, 19 Mass. App. Ct. 1005, 1005, 475 N.E.2d 1235, 1235 (1985).

88. Mass. Gen. L. ch. 209A, § 1 (1994).

89. Jacobsen, 419 Mass. at 274, 644 N.E.2d at 216.

90. In a similar vein, the legislature has provided for the introduction of evidence of the history of an abusive relationship, and expert testimony regarding the perception of an imminent threat of death or serious bodily harm, where the defendant has raised a defense of self-defense, defense of another, duress or coercion, or accident, to a charge involving the use of force against another person. Mass. Gen. L. ch. 233, § 23E (1994). As summarized by the Chief Justice of the Supreme Judicial Court,

[t]he statute allows expert testimony on the common patterns in abusive relationships, the nature and effects of abuse and typical responses thereto, how those effects relate to the perception of the imminent nature of the threat of death or serious bodily harm, the relevant facts and circumstances that form the basis for the opinion, and evidence of whether the defendant displayed characteristics common to victims of abuse.

Paul J. Liacos, Handbook of Massachusetts Evidence § 7.7 (6th ed. Supp. 1995). In conjunction with Massachusetts General Laws chapter 209A, these statutes evince a legislative recognition that abusive relationships may affect not only the perception of imminent harm, but also the mode and manner in which threats of such harm are communicated. See Commonwealth v. Rodriquez, 418 Mass. 1, 6-7, 633 N.E.2d 1039, 1042 (1994) (reversing manslaughter conviction where self-defense was raised and evidence of abusive relationship was excluded).

91. Mass. Gen. L. ch. 209A, §§ 1, 6(7) (1994).

92. See Commonwealth v. Howe, 405 Mass. 332, 334, 540 N.E.2d 677, 678 (1989); Commonwealth v. Gorman, 288 Mass. 294, 297, 192 N.E. 618, 619 (1923).

93. Mass. Gen. L. ch. 276, § 28 (1994); Mass. Gen. L. ch. 209A, § 6(7) (1994); Jacobsen, 419 Mass. at 273-75, 644 N.E.2d at 215-17.

94. Delaney v. Commonwealth, 415 Mass. 490, 491-97, 614 N.E.2d 672, 673-76 (1993).

95. Id. at 492 n.3, 614 N.E.2d at 674 n.3.

96. Id. at 492-94, 497, 614 N.E.2d at 673-74, 676.

97. Id. at 494-97, 614 N.E.2d at 674-76.

98. Frizado v. Frizado, 420 Mass. 592, 651 N.E.2d 1206 (1995).

99. Id. at 593-94, 651 N.E.2d at 1208-09.

100. Id. at 594, 651 N.E.2d at 1209.

101. Aime v. Commonwealth, 414 Mass. 667, 611 N.E.2d 204 (1993).

102. Id. at 668, 611 N.E.2d at 206.

103. See Mass. Gen. L. ch. 276, § 58A (1994).

104. Aime, 414 Mass. at 671 n.6, 611 N.E.2d at 208 n.6 (discussing Mass. Gen. L. ch. 276, § 57 (1990)).

105. Commonwealth v. Robicheau, 421 Mass. 176, 654 N.E.2d 1196 (1995).

106. Id. at 177, 654 N.E.2d at 1197.

107. Id.

108. Id. at 183, 654 N.E.2d at 1200.

109. Id. at 183-84, 654 N.E.2d at 1200.

110. Robicheau, 421 Mass. at 184 (citing Harris v. Rivera, 454 U.S. 339, 345-46 (1981)).

111. Id. at 185, 654 N.E.2d at 1201.

112. Commonwealth v. Lebon, 37 Mass. App. Ct. 705, 643 N.E.2d 45 (1994).

113. Id. at 706, 643 N.E.2d at 46.

114. Id. at 708, 643 N.E.2d at 47.

115. Delisle v. Commonwealth, 416 Mass. 359, 622 N.E.2d 601 (1993).

116. Id. at 361 n.1, 622 N.E.2d at 602 n.1.

117. Id. at 361-63, 622 N.E.2d at 602-03.

118. Id. at 361-62, 622 N.E.2d at 602-03.

119. Id.

120. Commonwealth v. Delaney, 36 Mass. App. Ct. 930, 629 N.E.2d 1007 (1994).

121. Id. at 930-31, 629 N.E.2d at 1007-09.

122. Id.

123. Id. at 931, 629 N.E.2d at 1008.

124. Id.

125. Delaney, 36 Mass. App. Ct. at 931, 629 N.E.2d at 1008.

126. Id.

127. Id., 629 N.E.2d at 1009.

128. Id. at 932, 629 N.E.2d at 1009.

129. Id.

130. Commonwealth v. Marvin, 417 Mass. 291, 292, 629 N.E.2d 1317, 1318 (1994).

131. Id. at 294-95, 629 N.E.2d at 1319.

132. Id. at 292, 629 N.E.2d at 1318.

133. Id. at 294-95, 629 N.E.2d at 1319.

134. Id. at 292-95, 292 n.1, 294 n.3, 629 N.E.2d at 1318-19, 1319 nn.1 & 3.

135. Flynn v. Warner, 421 Mass. 1002, 654 N.E.2d 926 (1995).

136. Id. at 1003, 654 N.E.2d at 927.

137. Id. at 1002-03, 654 N.E.2d at 926-27.

138. Id. at 1003, 654 N.E.2d at 927; accord Callahan v. Boston Mun. Court Dep't, 413 Mass. 1009, 1009, 604 N.E.2d 1287, 1288 (1992).

139. Celotex v. Edwards, 115 S. Ct. 1493 (1995).

140. See Coughlin v. Coughlin, 312 Mass. 452, 454, 45 N.E.2d 388, 390 (1943); Stephens v. Lampron, 308 Mass. 50, 52, 30 N.E.2d 838, 838-39 (1941); Noyes v. Bankers Indemnity Ins. Co., 307 Mass. 567, 569, 30 N.E.2d 867, 868-69 (1940); Commonwealth v. Harkins, 128 Mass. 79, 82-83 (1880).

141. Burrill v. Burrill, No. 9224, 1993 WL 390522 (Mass. App. Div. Sept. 22, 1993).

142. Id. at *2.

143. Id.

144. Id. (quoting Department of Revenue v. Jarvenpaa, 404 Mass. 177, 181, 534 N.E.2d 286, 289 (1989)).

145. Id.

146. Mass. Gen. L. ch. 209A, § 3B (1994).

147. Id.

148. Mass. Gen. L. ch. 209A, § 3C (1994).

149. Compare Mass Gen. L. ch. 209A, §§ 3B, 3C (1994).

150. 18 U.S.C. § 922 (1994).

151. United States v. Ramos, 961 F.2d 1003, 1007 (1st Cir. 1992).

152. Id. at 1004.

153. Id. at 1006-07.

154. 18 U.S.C. § 921(a)(20)(B) (1994).

155. Ramos, 961 F.2d at 1007.

156. Id.

157. Id. at 1007-10.

158. Id. at 1008.

159. Id.

160. Commonwealth v. Beals, 405 Mass. 550, 541 N.E.2d 1011 (1989).

161. Id. at 551, 541 N.E.2d 1012.

162. Id.

163. Id.

164. Id.

165. Beals, 405 Mass. at 551, 541 N.E.2d at 1012.

166. Id.

167. Commonwealth v. Yazbeck, 31 Mass. App. Ct. 769, 583 N.E.2d. 901 (1992).

168. Id. at 770-71, 583 N.E.2d at 903.

169. Id. at 770, 583 N.E.2d at 903.

170. Id.

171. Id.

172. Yazbeck, 31 Mass. App. Ct. at 770, 583 N.E.2d at 903.

173. Id. at 770-71, 583 N.E.2d at 903.

174. Commonwealth v. Robicheau, 421 Mass. 176, 654 N.E.2d 1196 (1995).

175. Id. at 182, 654 N.E.2d at 1199-1200.

176. Id. at 182-83, 654 N.E.2d at 1199-1200.

177. Commonwealth v. Mahoney, 415 Mass. 278, 612 N.E.2d 1175 (1993). For a detailed discussion of Mahoney, see Mary E. Collins, Comment, Mahoney v. Commonwealth: A Response to Domestic Violence, 29 New Eng. L. Rev. 981 (1994).

178. Mahoney, 415 Mass. at 278, 612 N.E.2d at 1176.

179. Id. at 283-86, 612 N.E.2d at 1178-80.

180. Id. at 280 n.3, 612 N.E.2d at 1176 n.3.

181. Id. at 279-86, 612 N.E.2d at 1176-80.

182. Id. at 287, 612 N.E.2d at 1180.