Restraining-order filings unbound; As cases surge, court officials question Mass. law expansion
By David
Abel | Globe Staff | April 12, 2011
One man took his
neighbor to Malden District Court for allegedly blowing leaves on his property,
and a woman in Boston Municipal Court insisted that actor Chuck Norris used
high frequency radio transmissions to harass her at home.
And there were the
two elderly neighbors who, nurturing old grudges, spent more than five hours
seeking restraining orders against each other in Plymouth District Court. One
said the other's nighttime strolls in black clothing were frightening; the
other said the first blocked him from crossing the street.
Court and law
enforcement officers have cited such cases, which were all rejected by judges,
as evidence that lawmakers should reconsider a year-old law that expands the
rules for who can seek a restraining order. Previously, filing was restricted
to relatives, household members, or someone intimately related to the person
said to be harassing them.
Officials complain
the new law, which creates a category of restraining order called a harassment
prevention order, has led to a surge in filings. Too many of the cases are
frivolous, taxing the limited resources of courts and police departments, they
say.
``Now, it's every
kook in the world who comes in and wants to file a harassment order against their
neighbor or landlord or someone who just annoys them,'' said Dan Hogan, clerk
magistrate of Boston Municipal Court. ``It's nuts. This is not what the law was
intended to do. We don't have enough people to be handling all these things.''
Harassment
prevention orders were meant to close a gap in the law that made it difficult
to obtain a restraining order against an acquaintance or stranger who engaged
in a range of harassing behavior, including stalking, threatening to damage
property, and sexual assault.
Since the law passed,
the number of restraining order filings has shot up. In the ten months
beginning in June, the number jumped 47 percent over the same period last year
in a sampling of more than half of the state's district courts. The courts list
new and traditional restraining orders together.
Officials at the
Massachusetts Office for Victim Assistance, a state agency that helps residents
file restraining orders, said their clients sought 1,075 harassment prevention
orders between May and the end of February. Of those, 21 percent said they were
victims of stalking or sexual assault.
Harassment
prevention orders represented about 13 percent of the restraining orders sought
during that period. Judges granted a temporary harassment prevention order in
65 percent of the cases and long-term orders in nearly 33 percent of the cases.
In Boston Municipal
Court, officials said there have been at least 318 harassment prevention orders
sought between May and the end of March, which compares to 327 requests in
Malden District Court, 179 in Plymouth District Court, and 44 in Holyoke
District Court during the same period.
Proponents of the
law acknowledge that it burdens court resources and that it has sparked too
many complaints that do not belong before a judge. To be eligible for a harassment
prevention order, plaintiffs who were not sexually abused must cite three
occasions when they felt subjected to ``willful and malicious conduct.''
Proponents say it
is too early to say whether the law should be amended.
``There have been a
lot of frivolous cases, and we acknowledge that, but this is probably one of
the most important laws on the books for sexual assault and rape victims,''
said Colby Bruno, managing attorney for the Boston-based Victims Rights Law
Center, which spent years lobbying for the law.
She noted that an
estimated 85 percent of sexual assault victims know their assailants but lack a
substantive relationship with them. In the past, the victims' only other
options involved paying hundreds of dollars to seek a temporary restraining
order in Superior Court, which often required the help of a lawyer to comply
with court procedures. ``Even then, the only penalty was civil contempt if it
was violated,'' Bruno said.
Under the new law,
victims alleging harassment merely have to sign a sworn statement and await
their date in court. ``Now, if a criminal violates a harassment prevention
order, they are criminally liable,'' Bruno said.
Pressure to pass
the law increased in 2003, after a Middlesex jury convicted Steven Caruso of
Medford of using a package bomb to kill Sandra Berfield, a 32-year-old waitress
in Everett who repeatedly rebuffed his romantic advances.
``There was a
gaping hole in the legislation, and there were victims of criminal harassment,
stalking, and sexual assault who needed to have the ability to protect
themselves,'' said Helen Guyton, an associate at Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, PC, who helped shape the new law. ``This new order allows
victims of these different criminal acts to get the protection they need.''
But court and law
enforcement officers say abuse of the law has become a burden, pointing out
that the state's trial courts have lost more than 1,000 positions due to budget
cuts since fiscal 2008.
``It's been a
significant drain on resources,'' said Marybeth Brady, clerk magistrate in
Malden District Court, where harassment prevention orders this year account for
one-third of all restraining orders. ``We have a lot of neighbor disputes, and
landlord-tenant disputes. This is a new mechanism for them to hear their
problems, when a lot of these matters people used to resolve themselves.''
In Plymouth
District Court, where harassment prevention orders this year account for nearly
half of all restraining orders, Clerk Magistrate Philip McCue said he worries
that the number of frivolous complaints will ``dilute the significance'' of
traditional restraining orders.
``What we're seeing
is that a lot of people aren't litigating an incident; they're litigating a
relationship,'' he said.
In Great
Barrington, Judge James B. McElroy, who retired last month as presiding judge
in Berkshire District Court, said the law has had unintended effects.
``We would chuckle
at some of these cases,'' said McElroy, adding that a number of cases he heard
involved friends upset about what former friends said about them on Facebook.
He estimates that he denied granting harassment prevention orders in about 75
percent of the dozens of cases he heard in the past year and suggests that the
Legislature sharpen the law to include only cases in which people are ``in fear
of serious physical harm or financial harm.''
Wayne Sampson,
executive director of the Massachusetts Chiefs of Police Association, said many
law enforcement officials predicted from the start that the law would generate
frivolous complaints. ``But,'' he said, ``if we don't advise citizens that they
can seek redress through the courts, the communities might be at risk of
liability.''
David
Abel can
be reached at dabel@globe.com. Follow him on Twitter @davabel.
