Taken from Mass Lawyer's Weekly Newspaper (Feb 8, 2021)
Where a judge denied an ex parte application for an abuse prevention order, a remand should be ordered so that an evidentiary hearing may be held.
"The plaintiff appeals from the order denying her motion for reconsideration of a District Court Judge's decision to deny her application for a G.L.c. 209A abuse prevention order, at the ex parte stage. ...
"Here the judge was well within her discretion in declining to issue an ex parte order. ...As the judge indicated, the sexual assualts occurred in private settings quite some time in the past and the only recent contact appeared to be in a public place where the plaintiff did not allege that the defendant did or said anything in particular. The judge reasonably could have concluded that the plaintiff had failed to demonstrate a 'substantial likelihood of immediate danger of abuse' to warrant an ex parte order. G.L.c.209A.
"In declining to set the matter for a two-party hearing, however, the judge essentially dismissed the plaintiff's complaint as a matter of law. Indeed, she ruled that the plaintiff had failed to meet her burden of establishing an 'objective reasonable fear of harm'. Yet, the plaintiff had sought an order of protection based upon the fact that she had suffered abuse when the defendant 'caused her to engage involuntarilly in sexual relations by force, threat or duress.' G.L.c. 209A. In order to show entitlement to an order of protection on this basis, the plaintiff was required to show that she continue to suffer from the abuse. ...
"The plaintiff testified that the defendant had sexually assualted her, and that she remained in fear of the defendant. Moreover, she described a relatively recent incident in which her fear was demonstrated by her compulsion to hide from the defendant in a public venue.Thus, the plaintiff made out a claim that she was suffering from abuse due to the defendant's past sexual assaults. She wsa entitled to an evidentiary hearing where the merits of her claim could be adjudicated 'in the ordinary course'. ...
"The order denying the plaintiff's motion for reconsideration is vacated. The case is remanded for an ex parte hearing consistent with this memorandum and order."
