In Massachusetts the spirit of restraining orders must be obeyed as well as the letter of the order.

Until recently I advised clients that they could not be convicted of violation of a restraining order in Massachusetts unless three elements were proven:

1.  A clear order

2. A clear violation; and

3.  An ability to comply with the order.

The first two elements are fairly clear. The third element covers situations like a chance encounter in a store or a restaurant. A chance encounter should not result in criminal conviction. This still seems to be the status of the law.  However, a series of recent cases changed the element of a clear order. Now, a person subject to a restraining order must obey the clear language of the order as well as the intent of the order.

In the case of Commonwealth v Telcinord a woman was ordered to stay away from her husband and to stay 50 feet away from him. She followed him in her car as he drove his car. Presumably she stayed the requisite 50 feet away. She was convicted of violating the restraining order because following in her car was a violation of the order to stay away. The defendant's behavior by the way she drove her car indicated that she wanted her husband to know she was following him and that she intended to confront him.

It appears that engaging in behavior that is intended to cause the protected person to become aware of the whereabouts of the defendant is a violation of the restraining order. A restraining order is intended to insulate the protected person from the presence of the defendant or from any form of unauthorized contact. Any intentional contact that causes the protected person to see the defendant may be considered to be a violation of the order.

In Commonwealth v Goldman, the Court explained what “stay away” in a restraining order means. Stay away

prohibits a defendant from (1) crossing the residence's property line, (2) engaging in conduct that intrudes directly into the residence, and (3) coming within sufficient proximity to the property line that he would be able to abuse, contact, or harass a protected person if that person were on the property or entering or leaving it. A protected person need not actually be present for such a violation of the order to occur.

Stay away can no longer be interpreted as a set distance. It is a concept that the person should stay far enough away from the protected person and their home so that the protected person can go about their activities without coming into contact with the Defendant. Truly accidental contact won't be a crime but contact in the vicinity of a protected person's home or work is likely to result in a conviction for violation of a restraining order.

If you are subject to a restraining order I recommend that you contact a lawyer familiar with restraining orders so that you understand what you are permitted to do and what you are not permitted to do.

Arrests made for violating restraining orders by social media contacts

Recently there have been several cases in which people have been arrested for violating restraining orders by contacting the protected person by social media. I have written about this topic in the past on my blog. These cases are the first cases I have found in which someone was arrested for using social media and violating restraining orders.

In December, 2013, a man in Beverly, Massachusetts was arrested because he sent his girlfriend an invitation to join his circle on Google Plus. He claimed that he didn't send the invitation and that he has no idea how it was sent. With Google Plus, people create circles as a way of expanding their social network. When a person is added to a circle, Google may send an invitation to that person. This is the equivalent of “liking” a person on Facebook.

Thaddeus Matthews, a radio show host in Memphis, was arrested after he “liked” a video posted on Facebook by a woman who had a restraining order against him. When a person “likes” a posting on Facebook, the “like” is posted on the Facebook wall of all “friends” and the person who posted the original posting. Although a person may claim to not understand the workings of Facebook, a court is likely to not believe this. The result for Thaddeus Matthews is that he is likely to be convicted of a crime.

Restraining orders require the restrained person to have nothing to do with the protected person. In almost all cases, this means that the restrained person can't follow or spy on the protected person. This prohibition should include cyber stalking. Thaddeus Matthews should not have been looking at postings by his former girlfriend once the restraining order issued. As I recommended in my previous blog post on this topic, once a restraining order issues, the restrained person should “unfriend” the protected person.

Restraining orders can  be difficult to understand and obey.  A person served with a restraining order should consult an experienced attorney who understands domestic abuse orders.  If that person uses social media, they should ask the lawyer about how to use social media and not violate the restraining order.

Threats to publish nude pictures resulted in conviction for extortion.

According to an article in The Valley Dispatch, a man was convicted of extortion as a result of texting threats to publish nude pictures of the victim. In this case, a the victim got a restraining order against the Defendant. He then sent texts and made calls to the victim's cell phone threatening to publish nude pictures of the victim on Facebook. Besides violating the restraining order, these threats also constituted the crime of extortion.

The elements of the crime of extortion are (1) a malicious threat (2) made to a named person (3) to accuse someone of a crime or to injure someone's person or property (4) with intent to extort money or something of value. In this case, a threat to publish nude photos is a malicious threat. He made the threats to a named person, the woman who took out the restraining order. While publishing nude photos is not accusing someone of a crime, it would constitute an injury to the person of the woman. Harm to reputation or ability to obtain employment is harm to a person. Extortion is not limited to physical harm. It includes emotional and psychological harm. The element of intent to extort something of value means of value to the Defendant. It does not have to be money. In the case of Commonwealth v. Miller, 385 Mass. 521 (1982) the value obtained was sexual intercourse.

When a restraining order issues, the person who is restrained should consult an experienced attorney to understand the requirements of the restraining order to avoid going to jail.

Restraining orders and Facebook*

Does a court ordered domestic abuse restraining order effect the way a person uses Facebook or other social media? In Massachusetts a typical domestic abuse restraining order includes a no contact and no abuse order protecting an individual or an individual and their children. As an example, a Court may order John to stay 100 yards away from his wife Jane and his children Mary and Sam. In addition, John is prohibited from contacting or abusing Jane, Mary, or Sam. Violation of any of these orders is a criminal act subjecting John to possible arrest and criminal prosecution. If convicted, John could be incarcerated. John is a user of Facebook and has been a user for years. His wife Jane and possibly his children are “friends” on Facebook. He and Mary have common “friends” on their Facebook accounts.

The first thing that John should do is to “unfriend” Jane and the children. As friends, his wife and children will receive postings from John's Facebook page on their own Facebook pages. Any postings by John that appear on Jane's Facebook page could easily be considered to be a violation of the no contact order. Since John is aware that Jane is a “friend” he should be aware that his postings will appear on the “walls” of his Facebook friends. This should be sufficient to constitute an intentional act that violates the no contact provision of the restraining order. However, is unfriending his wife and children sufficient? Probably not.

John should avoid mentioning Jane, Mary, and Sam in his Facebook postings. Even if John writes that “I love my children and will never stop loving them” he could be arrested. While I believe that such a posting doesn't violate the restraining order if the wife and children are no longer friends, my opinion is not enough to stop him from being arrested. Since John and Jane have common friends, one of these friends may tell Jane about the posting. If Jane calls the police, the initial decision about arresting and prosecuting John will be made by the police or Assistant District Attorney. The problem is that not every police officer, Assistant District Attorney, or even Judges understand Facebook and how it works. As a result, a criminal case can be filed against John. It is small comfort for John that at trial or on appeal, the case is dismissed. He may spend time in jail and may have to spend thousands of dollars to hire a lawyer and possibly an expert witness to fight the criminal case. The better choice is to avoid conduct that may result in the criminal charges.

I recommend the following actions if a order issues:

1. Immediately “Unfriend” the person identified in the restraining order as being protected.
2. Do not write or post anything online that uses the name of the protected person or an other term that identifies them. Identifying Jane as “my wife” or writing about “my children” is the same as identifying them by name.
3. Do not post any pictures or video of the protected person.
4. Do not discuss the restraining order in a public forum like Facebook.
5. Adjust your security settings on Facebook so that protected person can't see your content. 

If you are the subject of a restraining order you should consult an experienced lawyer to help you understand the order. There may be parts of the order that are not clear or confusing. You want to avoid any conduct that can result in an arrest for violation of the restraining order.

* Facebook is used in this discussion but the discussion applies to all social media.