Instruction 6.740, Criminal Model Jury Instructions for Use in the District Court

VIOLATION OF A HARASSMENT PREVENTION ORDER

G.L. c. 258E, § 9

The defendant is charged with knowingly violating a harassment

prevention order issued by a court.

In order to prove the defendant guilty of this offense, the

Commonwealth must prove the following four things beyond a

reasonable doubt.

First: That a court had issued an order pursuant to chapter 258E

of our General Laws which ordered the defendant:

(to refrain from abusing or harassing [name of plaintiff] )

(to refrain from contacting [name of plaintiff] (directly or

indirectly) unless authorized by a court)

(to stay a particular distance away from [name of plaintiff] )

(to remain away from the household or multiple family dwelling

of [name of plaintiff] )

(to remain away from the workplace of [name of plaintiff]

[located at [address]] );

Second: That such order was in effect on the date when its

violation allegedly occurred;

Third: That the defendant violated the order by:

(abusing or harassing [name of plaintiff] )

(contacting [name of plaintiff] (directly or indirectly) unless

authorized by a court)

(failing to stay a particular distance away from [name of plaintiff])

(failing to vacate or remain away from the household or multiple

family dwelling of [name of plaintiff] )

(failing to remain away from the workplace of [name of plaintiff]

[located at [address]] ); and

Fourth: That the defendant knew that the pertinent term(s) of

the order (was) (were) in effect, either by having received a copy of

the order or by having learned of the pertinent term(s) of the order in

some other way. You should consider all of the evidence and any

reasonable inferences you choose to draw from that evidence to

determine the extent of the defendant’s knowledge at the time when it

is alleged the order was violated.

SUPPLEMENTAL INSTRUCTIONS

1. “Abuse” By “abuse” the law means: causing or attempting

to cause another person physical harm, or placing another person

in fear of immediate serious physical harm.

2. “Harass” By “harass” the law means: a willful or malicious

act aimed at [name of plaintiff] committed with the intent to cause

fear, intimidation, abuse, or damage to property, or an act that by

force, threat or duress causes another to involuntarily engage in

sexual relations, or an act that constitutes the crime of: indecent

assault and battery on a child; indecent assault and battery on a

person with an intellectual disability; indecent assault and battery;

rape; forcible rape of a child; statutory rape; assault with intent ot

rape; assault with intent to rape a child; enticement of a child;

criminal stalking; criminal harassment; drugging for sexual

intercourse.

A person acts willfully if (he) (she) intends both the conduct

and its harmful consequences.

A person acts maliciously if the act is characterized by cruelty,

hostility, or revenge.

G.L. c. 258E, § 1

3. “Remain away” An order to stay away or remain away from a

particular location (e.g., residence, workplace) is violated by (1)

entering the property on which the (residence) (workplace) is

located; (2) taking actions that directly intrude on the (residence)

(workplace); or (3) being in a position sufficiently near to the

property identified in the order such that the defendant would be

able to (abuse or harass) (contact)0F1 the plaintiff, in the event that the

plaintiff were on the property, or entering or leaving it. However,

merely being in the vicinity of the particular location without more is

not a violation.

1 If the order contains both a “no abuse or harass” and “no contact” provision, both “abuse or

harass” and “contact” should be referenced in this instruction. If the order contains a “no abuse

or harass” provision but not a “no contact” provision, only “abuse or harass” should be

referenced. “Abuse” is defined in supplemental instruction No. 1. “Harass” is defined in

supplemental instruction No. 2.

A person enters property when he (she) goes onto a piece of

property or into a structure on it. A person intrudes on a piece of

property when he (she) takes actions nearby that have a direct

impact on or inside the property identified in the order. A person is

sufficiently near a piece of property when he (she) could (abuse or

harass) (contact) the plaintiff in the event the plaintiff were on the

property, or entering or leaving it. Such conduct constitutes a

violation even if the plaintiff is not present.

Commonwealth v. Telcinord, 94 Mass. App. Ct. 232 (2018); Commonwealth v. Watson, 94 Mass. App.

Ct. 244 (2018) Commonwealth v.Goldman, 94 Mass. App. Ct. 222 (2018); Commonwealth v.

Habenstreit, 57 Mass. App. Ct. 785 (2003).

The following supplemental instructions, citations and notes

arose under G.L. c 209A. They appear to be relevant to

cases arising under G.L. c. 258E, but have not been so held.

4. Accidental Contact If there is evidence that suggests that the

alleged (contact) (encounter) may have occurred by accident, the

commonwealth must prove one of two things beyond a reasonable

doubt: either that the alleged (contact) (encounter) did not occur by

accident or, if it did occur by accident, that the defendant failed to

take reasonable steps to end the accidental (contact) (encounter).

An accident is an unexpected happening that occurs without

intention or design on a person’s part. A (contact) (encounter) was

accidental if the defendant did not have reason to know or believe

that [name of plaintiff] would be present at that time or place.

If a (contact) (encounter) occurred by accident, the defendant

is required to take reasonable steps to end the (contact)

(encounter). The defendant must be found not guilty unless the

Commonwealth proves beyond a reasonable doubt that (he) (she)

could have taken steps to terminate the accidental (contact)

(encounter) but unreasonably delayed or failed to do so.

The Commonwealth is not required to prove that the defendant

intended to violate the abuse prevention order. It must prove only

that (he) (she) intended the act which would constitute the violation.

So if the evidence raises the possibility that the defendant did

not know or could not reasonably have known that [name of plaintiff]

would be present at the time and place alleged, then the

Commonwealth must prove beyond a reasonable doubt either that

the (contact) (encounter) was not accidental or, if it was accidental,

that the defendant failed to take reasonable steps to end it.

If the Commonwealth has proved beyond a reasonable doubt

each element of the offense and also proved beyond a reasonable

doubt either that the (contact) (encounter) was not accidental or that

the defendant did not take reasonable steps to end an accidental

encounter, you should return a verdict of guilty.

If the Commonwealth failed to prove beyond a reasonable

doubt any element of the offense, you must return a verdict of not

guilty. In addition, if the Commonwealth failed to prove beyond a

reasonable doubt either that the (contact) (encounter) was not

accidental or that the defendant unreasonably delayed in ending an

accidental (contact) (encounter), you must return a verdict of not

guilty.

If a person subject to an abuse prevention order happens upon a protected person

whom he or she did not and could not reasonably know to be present at the time and

place, the party subject to the order must make reasonable efforts to terminate the

accidental encounter. Commonwealth v. Stoltz, 73 Mass. App. Ct. 642, 644-46 (2009),

citing Commonwealth v. Kendrick, 446 Mass. 72, 76 (2006). When there is evidence

that fairly raises the issue of accident, the burden falls on the Commonwealth to

disprove it. See Commonwealth v. Zezima, 387 Mass. 748, 756 (1982);

Commonwealth v. Ferguson, 30 Mass. App. Ct. 580, 583 (1991) (“Where the evidence

raises the possibility of accident, the defendant is, as a matter of due process, entitled

upon request to a jury instruction that the Commonwealth has the burden of probing

beyond a reasonable doubt that the act was not accidental”).

5. Incidental Contact If there is evidence that the alleged conduct

may have been incidental to a legitimate, lawful activity such as

[e.g., going to work, going to school] , then the Commonwealth must

prove beyond a reasonable doubt that the alleged violation was not

incidental to that permitted activity. Conduct that is incidental to

legitimate, lawful activity is conduct which is connected to that

activity – conduct which is purely or naturally a reasonable

outgrowth or necessary part of that legitimate, lawful activity.

So, for example, if a person subject to a harassment

prevention order waited in the only public hallway of a courthouse

for the start of a hearing, and the person protected by that order was

waiting somewhere else in that same public hallway, that conduct

would be incidental to a legitimate, lawful activity – attending the

court hearing. Although there might be a no contact order in effect,

there would be no violation of that order because the conduct was

purely a natural and reasonable outgrowth of the scheduling of the

hearing.

On the other hand, if the defendant entered the public hallways

and intentionally stood directly next to the plaintiff when the

defendant could have stood elsewhere, that would violate the order

because it was not incidental or necessary to the lawful activity.

The Commonwealth may prove that the defendant’s conduct

was not incidental to a lawful activity by proving that the alleged

violation was not purely or naturally a reasonable outgrowth or

necessary part of that legitimate, lawful activity. Put another way,

the Commonwealth must prove that the defendant’s conduct was

not a good faith attempt by the defendant to do that which was

permitted.

In deciding whether there was any contact which violated the

abuse prevention order, you may consider any evidence relevant to:

(1) the nature and purpose of any contact; (2) the number of

contacts over time; (3) the length of any contact; and (4) the

substance and character of any statements made during any

contact.

You should consider all the evidence in the case to decide

whether any contact was made in good faith for a legitimate reason

or whether that reason was merely a pretext or excuse for

contacting the protected party.

If the Commonwealth has proved beyond a reasonable doubt

each of the elements of the offense and also that the violation was

not committed incidental to a legitimate, lawful activity, you should

return a verdict of guilty. If the Commonwealth has failed to prove

beyond a reasonable doubt any of the elements of the offense or

failed to prove beyond a reasonable doubt that the contact(s) was

(were) not incidental to a legitimate, lawful activity, you must

returned a verdict of not guilty.

Compare Commonwealth v. Collier, 427 Mass. 385, 391 (1998) with Commonwealth v.

Silva, 431 Mass. 194, 200 (2000).

Compare Commonwealth v. Stewart, 52 Mass. App. Ct. 755, 761 (2001) with

Commonwealth v. Leger, 52 Mass. App. Ct. 232,238 (2001).

6. Violation through third party If there is evidence that the conduct

by which the defendant is alleged to have violated the abuse

prevention order resulted from the action of a third person, the

Commonwealth must prove beyond a reasonable doubt that the

defendant had an intent, or shared an intent with the third person, to

do an act that could result in a violation of the protective order. The

defendant is not guilty unless he (she) had such an intent or shared

intent. The defendant cannot be found guilty for an act of another

person which he (she) did not intend and over which he (she) had

no control.

The Commonwealth is not required to prove that the defendant

specifically intended to violate the abuse prevention order. It is

required only to prove that the defendant intended, or shared an

intent with the third party, that an act be done which violated the

order.

If the Commonwealth has proved beyond a reasonable doubt

each of the elements of the offense and also that the defendant had

an intent or shared intent with a third person to do an act that could

result in a violation of a protected order, you should return a verdict

of guilty. If the Commonwealth failed to prove beyond a reasonable

doubt any element of the offense or failed to prove beyond a

reasonable doubt that the defendant intended or shared the intent of

a third party to commit such an act, you must return a verdict of not

guilty.

Commonwealth v. Collier, 427 Mass. 385, 389 (1998) (where act constituting violation

was committed by third party, Commonwealth must prove act was intended by

defendant but not that defendant intended to violate order). See also Commonwealth

v. Russell, 46 Mass. App. Ct. 307 (1999).

If appropriate, here instruct on inferences (Instruction 3.100).

Notes (involving G.L. c. 209A cases):

1. Attempted physical harm requires an overt act. The nature of an attempt to cause a

person physical harm, “like criminal attempt, is predicated on an unsuccessful but affirmative effort at

commission of the underlying offense.” Commonwealth v. Fortier, 56 Mass. App. Ct. 116 (2002).

“Usually acts which are expected to bring about the end without further interference on the part of the

criminal are near enough, unless the expectation is very absurd.” Id. at 122, citing Commonwealth v.

Kennedy, 170 Mass. 18, 20-21 (1897).

2. Service or knowledge of extended order. A defendant may be prosecuted for violating

an order that was extended unchanged after a “10-day” hearing, despite not being served with the

extended order, if he had been served with the prior ex parte temporary order, which provided sufficient

notice that his failure to attend the scheduled hearing would result in the continuation of the temporary

order by operation of law. Commonwealth v. Delaney, 425 Mass. 587 (1997). However, the same is not

true of successive annual extensions of the order; failure to serve the copy of the current extended order

is fatal where there have been successive annual extension unless the Commonwealth proves

constructive knowledge of the extension. Commonwealth v. Molloy, 44 Mass. App. Ct. 306 (1998).

3. Intent to violate order. The statute does not require any specific mens rea or intent to

violate the order, merely knowledge of and violation of the order. Commonwealth v. Delaney, 425 Mass.

587 (1997).