Massachusetts Guidelines for Judicial Practice Abuse Prevention Proceedings Guideline 8:02

Violation of provisions of abuse prevention orders, other than orders for no abuse, no-contact, to vacate and/or stay-away from a household, multiple family dwelling or workplace, or to surrender guns, ammunition, and firearms licenses (FID; LTC), may not be prosecuted as criminal violations, but may be addressed through contempt proceedings.

Criminal contempt is usually charged in the court that issued the order, regardless of where the alleged violation occurred. Criminal contempt can be alleged and prosecuted even when the alleged violation occurred in another state.

In many circumstances, civil rather than criminal contempt proceedings are preferred. The basic distinction lies, not in the contemnor's actions, but in the court's goal:

• if the court's purpose is solely coercive or remedial, the contempt is civil;

• if the court has any punitive purpose (to punish the affront to the law or to deter others), the contempt must be treated as criminal.

Only violations of orders for no abuse, no-contact, or to vacate and/or stay-away from a household, multiple family dwelling or workplace, or to surrender guns, ammunition, and gun licenses can be prosecuted as criminal violations of an abuse prevention order.Commonwealth v. Finase, 435 Mass. 310, 313-314 (2001). However, these violations can, as an alternative, be prosecuted as criminal contempt of court or be the subject of civil contempt proceedings. Violations of any other types of abuse prevention orders (e.g., compensation, support, or custody) can be prosecuted only as criminal or civil contempt.

There is no statute prescribing the venue for criminal prosecutions for contempt. A complaint for criminal contempt for violating a court order should ordinarily be brought and tried in the court that issued the order.Commonwealth v. Brogan, 415 Mass. 169, 173 (1993). While the Probate and Family Court does not have jurisdiction over criminal violations of abuse prevention orders it issues, it does have the authority to enforce such orders by criminal contempt procedures.Furtado v. Furtado, 380 Mass. 137, 141 (1980). Actions for criminal contempt in the Probate and Family Court should be on the pre-printed Complaint for Contempt form (CJ-D 103).General Laws c. 209A, § 5A provides that “any protection order issued by another jurisdiction as defined in section one, shall be given full faith and credit throughout the commonwealth and enforced as if it were issued in the commonwealth for as long as the order is in effect in the issuing jurisdiction.” See Guideline 14:00 Filing and Enforcement of Abuse Prevention and Other Protective Orders Issued by Other Jurisdictions. This may include enforcement through criminal contempt proceedings.

Conduct that constitutes criminal contempt may be referred to the police or district attorney, or the victim should apply for a civilian complaint. Suggested charging language to be set forth on a complaint charging criminal contempt is as follows:

Did commit an act of criminal contempt, to wit, [describe the act constituting the contempt], in violation of an order issued by this court pursuant to G.L. c. 209A on [date of issuance of order].

Prosecution of the criminal contempt case should proceed as any other criminal case.SeeMass. R. Crim. P. 44.

In a case where the behavior constituting the violation of an order also gives rise to serious felony charges (e.g., assault with intent to murder, mayhem, rape, or kidnapping) or to an assault and battery with serious injuries, the court should proceed cautiously. Punishing the defendant for criminal contempt may preclude criminal prosecution on the underlying felonies or the assault and battery.See Mahoney v. Commonwealth, 415 Mass. 278, 283-287 (1993), and cases cited therein.

Under certain circumstances, it may be preferable to initiate civil rather than criminal contempt proceedings, the key distinction being that criminal contempt must be used to punish the alleged contemnor, whereas civil contempt proceedings must be used where the object is to compel compliance to benefit the party in whose favor the order was issued.See Guideline 8:02A Civil Contempt. A judgment of civil contempt presents no double jeopardy bar to a later prosecution for criminal contempt.Vizcaino v. Commonwealth, 462 Mass. 266, 268 n.1 (2012).

For an extensive analysis of contempt procedure, see A Guide to Contempt Procedures in the District Court (2021), available on Courtyard, the Trial Court's Intranet.