The Massachusetts legislature has substantially expanded the scope of the law that allows judges to issue “restraining orders” against certain individuals. The original law (Chapter 209A) has been in effect since 1978, and its boundaries have become well understood.

Under Chapter 209A, a plaintiff could obtain an “abuse prevention order” against a defendant who was a family member, who lived with the plaintiff, who shared children with the plaintiff, or who had been in a substantial dating relationship with the plaintiff.

To obtain such a restraining order, the plaintiff had to prove that he or she had been subject to “abuse,” which for many years was defined as (a) attempting to cause, or causing, physical harm; (b) placing another in fear of imminent serious physical harm; or (c) causing another to engage involuntarily in sexual relations by force, threat, or duress. The standards for restraining orders were well understood by parties, attorneys, and judges.

Restraining orders are serious matters. The order itself is a civil order, but a violation of the order is a criminal offense. Any significant change in the law can have significant consequences.

An Expanded Definition of “Abuse”

A significant change in the law will take effect on September 18, 2024, when the definition of “abuse” under Chapter 209A will be expanded to include a new category of misconduct called “coercive control.”  Under the revised law, “coercive control” is a pattern of behavior that is intended by the perpetrator to threaten, intimidate, harass, isolate, control, coerce, or compel compliance of a family member or household member that causes that family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy.

Under that greatly expanded definition of “abuse,” a plaintiff seeking an abuse prevention order will be able to justify the issuance of a restraining order by introducing evidence of a far broader array of abusive behaviors.

Massachusetts is not the first state to include “coercive control” as a new standard for restraining orders. California, Connecticut, Colorado, Hawaii, Washington, and New Jersey have expanded their laws in the past five years by defining “coercive control” as a form of domestic violence.

What Constitutes “Coercive Control”?

The amended Massachusetts statute provides the following non-exclusive list of types of acts or behavior that fall under the heading of coercive control:

  • isolating a family member or household member from his or her friends, relatives, or other sources of support;
  • depriving the family member or household member of basic necessities;
  • controlling, regulating, or monitoring the family member’s or household member’s activities, communications, movements, finances, economic resources, or access to services, including through technological means;
  • compelling a family member or household member to abstain from, or to engage in, a specific behavior or activity, including engaging in criminal activity;
  • harming a child or a relative of the family member or household member, or threatening to do so;
  • committing cruelty or abuse to an animal connected to the family member or household member, or threatening to so;
  • intentionally damaging property belonging to the family member or household member;
  • publishing, threatening to publish, sensitive personal information relating to the family member or household member, including sexually explicit images; or
  • filing repeated court actions that are determined by a judge to be unwarranted by existing law or by good faith argument.

A Judicial Predicament

The law tries to recognize and protect one person in a relationship from the many insidious ways that another person in the relationship may inflict harm. Several new key terms in the statute are undefined, however—such as “control,” “coerce,” and “autonomy.” As a result, judges will have the difficult task of defining how the unfamiliar new terms apply to sets of facts that the judges have not previously faced.

That predicament will be worsened by the fact that judges are required to make on-the-spot rulings at abuse prevention hearings. They do not have the benefit of reflecting on the evidence, reviewing written pleadings, consulting colleagues, or researching caselaw.

Some of the specified acts, such as harming the plaintiff’s child, abusing an animal connected to the plaintiff, or publishing sexually explicit images of the plaintiff, are unmistakable. But “coercive control” includes many other patterns of behavior, such as isolating the plaintiff from friends, monitoring the plaintiff’s communications or finances, and compelling the plaintiff to abstain from a specific behavior or activity. Where do those behaviors cross the line from mere annoyance to punishable coercion?

The fact that the defined pattern of coercive control is “not limited to” the actions listed in the statute will make it difficult for the judge to assess whether the plaintiff has suffered a “reduced sense of physical safety or autonomy,” especially if the defendant is alleged to have done things that are not on the list. In addition, the list is so broad that it may apply to conduct that the Legislature did not intend to prohibit.

Unintended Consequences

It’s no secret that a person who obtains an abuse prevention order against a spouse typically obtains an advantage in divorce proceeding. Under the new bill, judges will have to determine whether behavior that previously would have been characterized as annoying, petty, or immature now constitutes actionable abuse.

Suppose that A repeatedly and vociferously demands that B—who holds a high-pressure job—abandon a long-standing practice of joining colleagues for a drink after a hectic workday. Is A threatening B with a “reduced sense of autonomy”?

Or suppose that A demands to review every monthly statement that B receives from an investment account that B established long before their marriage and that B regards as entirely private. Does B qualify for a restraining order on the basis that A is attempting to “control, regulate, or monitor B’s finances”?

A judge’s issuance of a restraining order often has serious consequences. The restrained party can be forced to leave their shared residence, for example. Worse yet, perhaps, is the fact that the restrained party’s name will be placed on a statewide registry of restrained individuals, which potentially impacts his or her ability to work in certain industries, to become a foster parent, or to coach a child’s sports team. Lowering the legal standard of “abuse” too far may have the unintended consequence of diluting the importance and meaning of restraining orders.

Impact of Coercive Control on Family Law Cases

Many individuals who seek abuse prevention orders also have a case pending in probate and family court, which also conducts abuse prevention order hearings. In child custody cases, Massachusetts judges are required under G.L. c. 208, § 31A (married parents) and G.L. c. 209C, §10 (unmarried parents) to “consider evidence of past or present abuse toward a parent” in child custody decisions. These statutes prohibit judges from granting custody to an abusive parent without written findings stating why the order is in “the child’s best interests.”

Although §31A does not explicitly import the definition of “abuse” from Chapter 209A, it essentially restates the prior legal standard under 209A for abuse, which is limited to physical harm or nonconsensual sexual relations. The new coercive control law does not include amendments to G.L. c. 208, § 31A or G.L. c. 209C, §10 to revise the definition of “abuse” in the context of child custody proceedings. But courts using different definitions for “abuse” seems untenable—a loophole or omission that will undoubtedly need to be corrected by the Legislature. Perhaps this would also provide an opportunity to clarify the boundaries of coercive control, as well, to ensure fair and equitable rulings for everyone involved.

Image: Wesley Tingey