Fear Without Hard Evidence in Massachusetts Protective Order Law

In the Commonwealth of Massachusetts there is a 20-year old domestic violence law on the books that’s referred to as the 209A restraining order. There are a number of different labels for a domestic violence restraining order – in Maryland it’s called a protective or peace order – but the results are the same. In the simplest terms: one party must stay away from the other with varying conditions. Domestic violence is a very serious and real problem, but a fathers’ rights group in Massachusetts thinks the 209A needs to be repealed and then rewritten.

The standard of proof under the 209A law is preponderance of the evidence, which means the trier of fact (the judge) must believe the accusation is more likely to be true than not. Therefore, a woman can claim they are in fear of a boyfriend or husband, and the children will automatically be placed in the custody of the accusing party even if no crime has been committed and no hard evidence of threats or violence exist. The Massachusetts Fatherhood Coalition claims “this [law] makes criminals out of men who have not broken any laws”, said Chairman Joe Ureneck, “often with only the word of an angry wife or girlfriend who has an ax to grind.”

Coalition member Doug George says he has been arrested multiple times for false allegations. “I have spent countless thousands in lawyers’ bills, and I have spent so much time in jail, time I will never get back, even though I was found not guilty.” In one case he claims, “I was arrested for violating a restraining order one day because I was in traffic when my ex pulled up next to me. She went to the police saying I had violated the order and they said I was technically in violation so I spent 18 days in jail.”

While we certainly understand the concerns of the Fatherhood Coalition, domestic violence remains a very serious matter and there need to be tough laws in place to protect families. According to the Maryland State Police, in 2009 over 18,000 Marylanders reported domestic violence incidents. But, the standard of proof in Maryland to obtain a final protective order is “clear and convincing evidence.” It’s a higher standard than 209A. It requires the judge to believe that it is substantially more likely than not that the allegations of domestic violence are true.  Situations described by Mr. George in Massachusetts would likely not occur under the laws of Maryland.

So what do you readers think? Does the Massachusetts 209A law need to be rewritten? Or is it far better to err on the side of caution when the issue is domestic violence?