HOUSE DOCKET, NO. 4382        FILED ON: 7/28/2009

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1137

The Commonwealth of Massachusetts

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In the Year Two Thousand Nine

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An Act To Protect and Enhance the Rights of Victims and Witnesses of Crime..

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1.  Section 1 of this act may be cited as the Harassment Prevention Act of 2009.  The General Laws are hereby amended by inserting after chapter 209A the following chapter:-

Chapter 209A½

HARASSMENT PREVENTION ORDERS

Section 1.  [Definitions.]  In this chapter, the following words shall have the following meanings:

 “Court”, the superior, district, Boston municipal, or juvenile court departments of the trial court.

“Harassment”, the occurrence of one or more of the following: (a) willfully and maliciously engaging in conduct or acts directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer emotional distress; (b) causing another to engage involuntarily in sexual conduct; (c) causing another to engage involuntarily in sexual conduct by force, threat, or duress, including, but not limited to, incapacitation through chemical restraint, drugs or intoxication; or (d) engaging in the enticement of a child under the age of 16 as defined in section 26C of chapter 265.

“Harassment prevention order”, an order or emergency order granted under this chapter.

            “Involuntarily”, a lack of freely given consent.

“Law officer”, any officer authorized to serve criminal process.

“Petitioner”, any named petitioner for a harassment prevention order or any named victim of harassment on whose behalf the petition is brought.

 “Protection order issued by another jurisdiction”, any injunction or other order issued by a court of another state, territory, or possession of the United States, the Commonwealth of Puerto Rico, or the District of Columbia, or tribal court that is issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communications with or physical proximity to a victim of harassment, including temporary and final orders issued by civil and criminal courts filed by or on behalf of a person seeking protection.

“Respondent”, any named person against whom a petitioner seeks a harassment prevention order.

            “Sexual conduct”, any intentional or knowing touching or fondling, either directly or through clothing, of any part of the body, or any transfer or transmission of semen upon any part of the clothed or unclothed body, for the purpose of sexual gratification or arousal; or any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or object into the sex organ or anus of another.  Evidence of emission of semen is not required to prove sexual conduct.

“Victim”, any person who suffers harassment, regardless of whether the conduct has been reported to a law enforcement agency or whether a criminal complaint or indictment has issued.

Section 2.  [Venue.]  Proceedings under this chapter shall be filed, heard and determined in the superior, district, Boston municipal or, if the petitioner or respondent is a juvenile, the juvenile court departments of the trial court having venue over where (a) the petitioner resides,  (b) the respondent resides, or (c) the alleged harassment occurred.           

Section 3.  [Persons protected by this chapter.]  A petition for a harassment prevention order may be filed by (a) any person who is a victim of harassment, (b) a person on behalf of a minor child who is a victim of harassment, or (c) a person on behalf of an adult who is a victim of harassment but, because of age, disability, or health cannot file the petition.           

Section 4.  [Remedies; period of relief.]  (a) A petitioner may file a petition requesting protection including, but not limited to, the following orders:

(1) ordering the respondent to refrain from attempting to cause or causing physical harm or harassment of the petitioner, whether the respondent is an adult or minor;

(2) ordering the respondent to refrain from contacting the petitioner, either directly or indirectly, unless authorized by the court, whether the respondent is an adult or minor;

(3) ordering the respondent to stay away from the petitioner, the petitioner’s household, multiple family dwelling or workplace; or

(4) ordering the respondent to pay the petitioner monetary compensation for the losses suffered as a direct result of such harassment.  Compensatory loss shall include, but not be limited to, loss of earnings, out-of-pocket losses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical costs, moving expenses, cost for obtaining an unlisted telephone number and reasonable attorney’s fees.

(b) Any relief granted by the court shall be for a fixed period of time not to exceed 1 year. Every order shall on its face state the time and date the order is to expire. If the petitioner appears at the court on or before the close of business on the date the order is to expire, the court shall determine whether or not to extend the order for another period of time reasonably necessary to prevent future harassment or intimidation of the petitioner by the respondent, or contact between the petitioner and the respondent.  When the expiration date stated on the order is on a weekend day or holiday, or a date when the court is closed to business, the order shall not expire until the close of business on the next date that the court is open to business. The petitioner may appear on such next court business day to request that the order be extended.  At a hearing to extend the order for such additional time, the court shall consider the totality of the circumstances.  The fact that harassment or contact between the parties has not occurred during the pendency of an order shall not, in itself, constitute sufficient ground for denying or failing to extend the order, or allowing an order to expire or be vacated, or for refusing to issue a new order.

(c)   The court may modify its order at any subsequent time upon motion by

either party. When the petitioner's address is inaccessible to the respondent, as provided in section 7(c), and the respondent has filed a motion to modify the court's order, the court shall be responsible for notifying the petitioner. In no event shall the court disclose any such confidential address.

 (d)  A court shall not deny any petition filed under this chapter solely because it was not filed within a particular time period after the last alleged incident of harassment.   

            Section 5.  [Commencement of action; filing fees.]  (a) An action for a harassment prevention order is commenced:

(1) independently, by filing a harassment prevention order petition in any court, and shall not be contingent upon reporting the alleged harassment to a law enforcement agency nor shall it be contingent upon prosecuting such case criminally; or

(2) by a prosecutor in conjunction with a delinquency proceeding or a criminal  prosecution for the same act, by filing, on behalf of the victim, a petition for a harassment prevention order petition under the same case number as the delinquency proceeding or criminal prosecution.  Such petition may be granted during pre-trial release of a respondent, with any dispositional order issued under section 58 of chapter 119, or as a condition of release, supervision, conditional discharge, probation, periodic imprisonment, parole, or mandatory supervised release, or in conjunction with imprisonment or a bond forfeiture warrant.

(b)  Withdrawal or dismissal of any petition for a harassment prevention order prior to adjudication shall operate as a dismissal without prejudice. 

            (c)  Any action commenced under the provisions of this chapter shall not preclude any other civil or criminal remedies.  Dismissal of the delinquency proceeding or criminal prosecution for the same act, or a finding of not guilty, shall not require dismissal of the action for a harassment prevention order.

(d)  No filing fee shall be charged for the filing of the petition. Neither the petitioner nor the petitioner’s attorney shall be charged for certified copies of any orders entered by the court, or any copies of the file reasonably required for future court action or as a result of the loss or destruction of petitioner’s copies.           

Section 6.  [Form of complaint; promulgation.]  The chief justice for administration and management, in consultation with the chief justices of the superior, district, Boston municipal and juvenile court departments, shall promulgate a form of petition for use under this chapter in form and language that would permit a petitioner to prepare and file such petition pro se.

Section 7.  [Pleading; confidentiality of records.]  (a) A petition for a harassment prevention order shall be in writing and verified or accompanied by affidavit and shall allege that the petitioner has been the victim of harassment and there exists a substantial likelihood of immediate danger of harassment.

             (b) The records of cases arising out of an action brought under this chapter where the petitioner or respondent is a minor shall be withheld from public inspection except by order of the court; provided, that such records shall be open, at all reasonable times, to the inspection of the minor, said minor’s parent, guardian or attorney, and to the petitioner and the petitioner’s attorney, or any of them.

            (c)  The petitioner’s residential address, residential telephone number, cellular telephone number and workplace name, address and telephone number contained within the court records of cases arising out of an action brought under this chapter shall be confidential and withheld from public inspection at all times, except by order of the court and pursuant to the provisions of section 24C of chapter 265.  All confidential portions of the records shall be accessible at all reasonable times to the petitioner and petitioner's attorney, to others specifically authorized by the petitioner to obtain such information, and to prosecutors, victim-witness advocates as defined in section 1 of chapter 258B, sexual assault counsellors as defined in section 20J of chapter 233, and law enforcement officers, if such access is necessary in the performance of their duties. This paragraph shall apply to any protection order issued by another jurisdiction that is filed with a court of the commonwealth pursuant to section 13. Such confidential portions of the court records shall not be deemed to be public records.

(d)  Upon the filing of a petition under this chapter, the court may enter such temporary orders as it deems necessary to protect a petitioner from further contact by the respondent.  Such relief shall not be contingent upon reporting the alleged harassment to a law enforcement agency or upon prosecuting such case criminally, nor may the court consider such factors in rendering its decision.

(e)  In any proceeding to obtain a harassment prevention order, a petitioner must establish by a preponderance of the evidence that he/she is a victim of harassment and that there is a substantial likelihood of immediate danger of harassment.

(f)  If the court finds reasonable grounds to believe that the petitioner is the victim of harassment and there is a substantial likelihood of immediate danger of harassment, the court may enter such temporary relief orders without notice as it deems necessary to protect the petitioner from harassment and shall immediately thereafter notify the respondent that the temporary orders have been issued. The court shall give the respondent an opportunity to be heard on the question of continuing the temporary order and of granting other relief as requested by the petitioner no later than 10 court business days after such orders are entered. 

Notice shall be made by the appropriate law enforcement agency as provided in section 9.  If the respondent does not appear at such subsequent hearing, the temporary orders shall continue in effect without further order of the court.

(g) An order issued under this chapter shall be filed in the statewide domestic violence record keeping system maintained by the office of the commissioner of probation.           

Section 8. [Hearing.]  When a petitioner seeks relief under this chapter, it is recommended that any such hearing be heard at sidebar in order to protect the petitioner’s privacy.  The rules of evidence do not apply.  If the petitioner is a minor, or the application is filed on behalf of a minor, it is recommended that the hearing be closed to the public as in juvenile proceedings.           

Section 9.  [Harassment prevention order; record search; service of order; enforcement; violations.]  When considering a petition filed under this chapter, a judge shall cause a search to be made of the records contained within the statewide domestic violence record keeping system maintained by the office of the commissioner of probation and shall review the resulting data to determine whether the named respondent has a civil or criminal record involving domestic or other violence. Upon receipt of information that an outstanding warrant exists against the named respondent, a judge shall order that the appropriate law enforcement officials be notified and shall order that any information regarding the respondent's most recent whereabouts be forwarded to such officials. In all instances where an outstanding warrant exists, a judge shall make a finding, based upon all of the circumstances, as to whether a substantial likelihood of immediate danger of harassment to the petitioner exists. In all instances where a substantial likelihood of immediate danger of harassment is found to exist, the judge shall notify the appropriate law enforcement officials of such finding and such officials shall take all necessary actions to execute any such outstanding warrant as soon as is practicable.

Whenever the court issues an order under this chapter, or directs that an order from another jurisdiction become effective in the Commonwealth, the clerk-magistrate shall transmit 2 certified copies of each such order and 1 copy of the petition and summons forthwith to the appropriate law enforcement agency which, unless otherwise ordered by the court, shall serve 1 copy of each order upon the respondent, together with a copy of the petition, order and summons and notice of any suspension or surrender ordered pursuant to section 11. The law enforcement agency shall promptly make its return of service to the court.

Law enforcement officers shall use every reasonable means to enforce such harassment prevention orders. Law enforcement agencies shall establish procedures adequate to ensure that an officer on the scene of an alleged violation of such order may be informed of the existence and terms of such order. The court shall notify the appropriate law enforcement agency in writing whenever any such order is vacated and shall direct the agency to destroy all record of such vacated order, and the agency shall comply with that directive.

Each harassment prevention order issued shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.

Any violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not more than $5,000, or by imprisonment for not more than 2½ years in a house of correction, or both. In addition to, but not in lieu of, the forgoing penalties and any other sentence, fee or assessment, including the victim witness assessment under section 8 of chapter 258B, the court shall order persons convicted of violating a provision of this chapter an additional assessment of $25 that shall be transmitted to the treasurer for deposit into the General Fund.

In each instance of a violation of a harassment prevention order or a protection order issued by another jurisdiction, the court may order the respondent to pay the petitioner for all damages including, but not limited to, loss of earnings, out-of-pocket losses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical costs, moving expenses, cost for obtaining an unlisted telephone number, and reasonable attorney's fees. 

Any such violation may be enforced in the superior, district, Boston municipal or juvenile (if the respondent is a juvenile) court department, regardless of the court that issued the order. Criminal remedies provided herein are not exclusive and do not preclude any other available civil or criminal remedies. The superior, district, Boston municipal or juvenile court departments may each enforce by civil contempt procedure a violation of its own orders.

The provisions of section 8 of chapter 136 shall not apply to any order, complaint or summons issued under this chapter.

Section 10.  [Granting of relief when court is closed; certification.]  When the court is closed for business or the petitioner is unable to appear in court because of severe hardship due to the petitioner's physical condition, any justice of the superior, district, Boston municipal, or juvenile (if the petitioner or respondent is a juvenile) court departments may grant relief to the petitioner as provided under section 7 if the petitioner has been a victim of harassment and demonstrates a substantial likelihood of immediate danger of harassment.  In the discretion of the justice, such relief may be granted and communicated by telephone to an officer or employee of an appropriate law enforcement agency, who shall record such order on a form of order promulgated for such use by the chief justice for administration and management and shall deliver a copy of such order on the next court day to the clerk-magistrate of the court having venue and jurisdiction over the matter. If relief has been granted without the filing of a petition pursuant to this section, the petitioner shall appear in court on the next available business day to file said petition. If the petitioner in such a case is unable to appear in court without severe hardship due to the petitioner's physical condition, then a representative may appear in court on the petitioner's behalf and file the petition with an affidavit setting forth the circumstances preventing the petitioner from appearing personally. Notice to the petitioner and respondent and an opportunity for the respondent to be heard shall be given as provided in section 9.

            Any order issued under this section and any documentation in support thereof shall be certified on the next court day by the clerk-magistrate of the court issuing such order to the court having venue and jurisdiction over the matter. Such certification to the court shall have the effect of commencing proceedings under this chapter and invoking other provisions of this chapter but shall not be deemed necessary for an emergency order issued under this section to take effect.

Section 11. [Order for suspension and surrender of firearms license; surrender of firearms; petition for review; hearing.]  Upon issuance of a temporary or emergency order under sections 7 or 10, the court shall, if the petitioner demonstrates a substantial likelihood of immediate danger of harassment, order the immediate suspension and surrender of any license to carry firearms and or firearms identification card which the respondent may hold and order the respondent to surrender all firearms, rifles, shotguns, machine guns and ammunition which the respondent then controls, owns or possesses in accordance with the provisions of this chapter and any license to carry firearms or firearms identification cards which the respondent may hold shall be surrendered to the appropriate law enforcement officials in accordance with the provisions of this chapter and, said law enforcement official may store, transfer or otherwise dispose of any such weapon in accordance with section 129D of chapter 140; provided however, that nothing herein shall authorize the transfer of any weapons surrendered by the respondent to anyone other than a licensed dealer. Notice of such suspension and ordered surrender shall be appended to the copy of harassment prevention order served on the respondent pursuant to section 9.  Law enforcement officials, upon the service of said orders, shall immediately take possession of all firearms, rifles, shotguns, machine guns, ammunition, any license to carry firearms and any firearms identification cards in the control, ownership, or possession of said respondent. Any violation of such orders shall be punishable by a fine of not more than $5,000, or by imprisonment for not more than 2 ½ years in a house of correction, or both.

Any respondent aggrieved by an order of surrender or suspension under this section may petition the court which issued such suspension or surrender order for a review of such action and such petition shall be heard no later than 10 court business days after the receipt of the notice of the petition by the court. If said license to carry firearms or firearms identification card has been suspended upon the issuance of an order issued pursuant to sections 7 or 10, said petition may be heard contemporaneously with the hearing specified in section 7.  Upon the filing of an affidavit by the respondent that a firearm, rifle, shotgun, machine gun or ammunition is required in the performance of the respondent's employment, and upon a request for an expedited hearing, the court shall order said hearing within 2 business days of receipt of such affidavit and request but only on the issue of surrender and suspension pursuant to this section.

Section 12. [Continuation or modification of order for surrender or suspension.]  Upon the continuation or modification of an order issued pursuant to section 7, or upon petition for review as described in section 11, the court shall also order or continue to order the immediate suspension and surrender of a respondent's license to carry firearms, including a Class A or Class B license, and firearms identification card and the surrender of all firearms, rifles, shotguns, machine guns or ammunition which such respondent then controls, owns or possesses if the court makes a determination that the return of such license to carry firearms, including a Class A or Class B license, and firearm identification card or firearms, rifles, shotguns, machine guns or ammunition presents a likelihood of harassment to the petitioner. A suspension and surrender order issued pursuant to this section shall continue so long as the harassment prevention order to which it relates is in effect; and, any law enforcement official to whom such weapon is surrendered may store, transfer or otherwise dispose of any such weapon in accordance with section 129D of chapter 140; provided, however, that nothing herein shall authorize the transfer of any weapons surrendered by the respondent to anyone other than a licensed dealer. Any violation of such order shall be punishable by a fine of not more than $5,000, or by imprisonment for not more than 2½ years in a house of correction, or both.

Section 13.  [Protection order issued by another jurisdiction; enforcement; filing; presumption of validity.]  Any protection order issued by another jurisdiction 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.

A person entitled to protection under a protection order issued by another jurisdiction may file such order in the superior, district, Boston municipal, or juvenile (if the petitioner or respondent is a juvenile) court departments by filing with the court a certified copy of such order which shall be entered into the statewide domestic violence record keeping system pursuant to section 7. Such person shall swear under oath in an affidavit, to the best of such person's knowledge, that such order is currently in effect as written. Upon request by a law enforcement agency, the clerk of such court shall provide a certified copy of the protection order issued by the other jurisdiction.

A law enforcement officer may presume the validity of, and enforce in accordance with section 9, a copy of a protection order issued by another jurisdiction which has been provided to the law enforcement officer by any source; provided, however, that the officer is also provided with a statement by the person protected by the order that such order remains in effect. Law enforcement officers may rely on such statement by the person protected by such order and cannot be subjected to civil or criminal liability so long as they have acted in good faith reliance upon the representations.

Section 14. [Powers of police.]  Whenever any law officer has reason to believe that an individual has been harassed or is in danger of being harassed, such officer shall use all reasonable means to prevent further harassment. The officer shall take, but not be limited to the following action:

(1) remain on the scene of where said harassment occurred or was in danger of occurring as long as the officer has reason to believe that at least one of the parties involved would be in immediate physical danger without the presence of a law officer. This shall include, but not be limited to, remaining in the dwelling for a reasonable period of time;

(2) assist the victim in obtaining medical treatment necessitated by the harassment, which may include driving the victim to the emergency room of the nearest hospital, or arranging for appropriate transportation to a health care facility, notwithstanding any law to the contrary. If possible, the officer shall take the victim of a sexual assault to a location where a sexual assault nurse examiner is present.  The officer shall consider the victim's preference in this regard and what is reasonable under all the circumstances;

(3) assist the victim in locating and getting to a safe place including, but not limited to, a designated meeting place for a shelter or a family member or friend’s residence.  The officer shall consider the victim's preference in this regard and what is reasonable under all the circumstances;

(4) give such person immediate and adequate notice of his or her rights.  Such notice shall consist of handing said person a copy of the statement that follows below and reading the same to said person. If said person's native language is not English, the statement shall be then provided in said person's native language whenever possible.

"You have the right to appear at the Superior, District, Boston Municipal, or Juvenile  (if the petitioner or respondent is a juvenile) Court, if you reside within the appropriate jurisdiction, and file a petition requesting any of the following applicable orders: (a) an order directing your harasser to refrain from contacting you, an order directing your harasser to stay away from you, your dwelling and your workplace; and (b) an order directing your harasser to pay you for losses suffered as a result of the harassment including, but not limited to, loss of earnings, out-of-pocket loses for injuries sustained, replacement costs for locks or personal property removed or destroyed, medical costs,  moving expenses, cost for obtaining an unlisted telephone number and reasonable attorney’s fees.

To file a petition under this statute, you do not have to go forward with a criminal proceeding or file a report with a law enforcement agency.

For an emergency on weekends, holidays, or weeknights the police will refer you to a justice of the Superior, District, Boston Municipal, or Juvenile  (if the petitioner or respondent is a juvenile) Court departments.

You have the right to go to the appropriate Superior, District, Boston Municipal, or Juvenile (if the petitioner or respondent is a juvenile) Court and seek a criminal complaint for related offenses.

If you are in need of medical treatment, you have the right to request that an officer present drive you to the nearest hospital or otherwise assist you in obtaining medical treatment. If you are the victim of sexual assault and if possible, the officer shall take you to a location where a sexual assault nurse examiner is present.  The officer shall consider your preference in this regard and what is reasonable under all the circumstances.

If you believe that police protection is needed for your physical safety, you have the right to request that the officer present remain at the scene until you can leave or until your safety is otherwise ensured. You may also request that the officer assist you in locating and taking you to a safe place, including but not limited to, a designated meeting place for a shelter or a family member's or a friend's residence, or a similar place of safety.  The officer shall consider your preference in this regard and what is reasonable under all the circumstances.

You may request a copy of the police incident report at no cost from the police department.''

The officer shall leave a copy of the foregoing statement with such person before  

leaving the scene or premises.

            (5) assist such person by activating the emergency judicial system when the court is closed for business;

(6) inform the victim that the assailant will be eligible for bail and may be promptly released; and

(7) arrest any person a law officer witnesses or has probable cause to believe has violated a temporary or permanent harassment prevention order or judgment. When there are no harassment prevention orders or judgments in effect, arrest shall be the preferred response whenever an officer witnesses or has probable cause to believe that a person:

(a) has committed a felony;

(b) has committed a misdemeanor involving harassment as defined in section 1 of this chapter; or

(c) has committed an assault and battery that involved harassment.

The safety of the victim shall be paramount in any decision to arrest. Any officer arresting both parties must submit a detailed, written report in addition to an incident report, setting forth the grounds for dual arrest.

No law officer investigating an incident of harassment shall threaten, suggest, or otherwise indicate the arrest of all parties for the purpose of discouraging requests for law enforcement intervention by any party.

No law officer shall be held liable in any civil action regarding personal injury or injury to property brought by any party to a harassment incident for an arrest based on probable cause when such officer acted reasonably and in good faith and in compliance with this chapter.

Whenever any law officer investigates an incident of  harassment, the officer shall immediately file a written incident report in accordance with the standards of the officer's law enforcement agency and, wherever possible, in the form of the National Incident-Based Reporting System, as defined by the Federal Bureau of Investigation. The latter information may be submitted voluntarily by the local police on a monthly basis to the crime-reporting unit of the department of justice and public safety information services.

The petitioner shall be provided a copy of the full incident report at no cost upon request to the appropriate law enforcement department.

When a judge or other person authorized to take bail grants bail for any person arrested under this chapter, the judge or other person authorized to take bail shall make reasonable efforts to inform the petitioner of such release prior to or at the time of said release.

When any person charged with or arrested for a crime involving harassment under this chapter is released from custody, the court or the emergency response judge shall issue, upon the request of the petitioner, a written no-contact order prohibiting the person charged or arrested from having any contact with the petitioner, either directly or indirectly, and shall use all reasonable means to notify the petitioner immediately of release from custody. The petitioner shall be given at no cost a certified copy of the no-contact order.

SECTION Section 1 of chapter 258B of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after the word “delinquency”, in line 10, the following words:- or conviction as a youthful offender

SECTION Section 1 is hereby further amended by striking out, in lines 12-14, the words “or found delinquent or against whom a finding of sufficient facts for conviction or finding of delinquency is made”, and inserting in place thereof, the following words:- adjudicated as a delinquent or convicted as a youthful offender, or against whom a finding of sufficient facts is made

SECTION Section 1 is hereby further amended by inserting after the word “stepparent”, in lines 15-16, the following word:- grandparent,

SECTION Section 1 is hereby further amended by inserting after the word “victim.”, in line 18, the following words:-“Orientation”, a familiarization with the courtroom setting, court personnel and rules of the court, to the extent practicable under the circumstances as required within this chapter; this requirement may be satisfied through the use of diagrams, photographs, or other reasonable methods.

SECTION Section 1 is hereby further amended by striking out, in line 25, the word “which”, and inserting in place thereof the following word:- that

SECTION Section 1 is hereby further amended by striking out, in line 31, the words “incompetent or deceased,” and inserting in place thereof the following words:- or incompetent, the family members of such person if the person is deceased even if no arrest, indictment or complaint has been issued,

SECTION Section 1 is hereby further amended by striking out, in line 40, the words “is expected to”, and inserting in place thereof the following word:-  may

SECTION Section 1 is hereby further amended by inserting after the word “prosecution”, in line 41, the following words:- or family member or guardian if such person is a minor, incompetent or deceased

SECTION Subsection (b) of section 3 of chapter 258B, as so appearing, is hereby amended by inserting after the word “all”, in line 16, the following words:- adult and juvenile

SECTION Subsection (d) of section 3 is hereby amended by striking out, in lines 31-34, the words “protection from the local law enforcement agencies from harm and threats of harm arising out of their cooperation with law enforcement and prosecution efforts”, and inserting in place thereof the following words:- assistance in developing safety plans and appropriate referrals to address harm,  threats of harm, or fears arising out of their cooperation with law enforcement and prosecution efforts

SECTION Section 3 is hereby further amended by striking out subsection (i) in its entirety and inserting in place thereof following subsection:-

            (i) for victims, family members and witnesses, to be provided by the court, subject to section 17 of chapter 211B, with a secure waiting area or room which is separate from the waiting area of the defendant or the defendant’s family, friends, attorneys or witnesses, and separate from any district attorney’s office, during court proceedings.  The court shall designate a waiting area at each courthouse and develop any reasonable safeguards to minimize contact between victims and the defendant, or the defendant’s family, friends, attorneys or witnesses;

SECTION  There shall be a task force established to conduct an assessment and implementation plan regarding the designation or creation of separate and secure waiting areas for victims and witnesses of crime in the commonwealth’s district and superior courthouses, as required under subsection 3(i) of chapter 258B and section 17 of chapter 211B.

The task force shall be co-chaired by the executive director of the Massachusetts office for victim assistance and the chief justice for administration and management or his designee.  The task force shall include the chairpersons of the joint committee on the judiciary, the chairpersons of the senate and house ways and means committees, the chairperson of the victim and witness assistance board, the secretary of public safety and security, the secretary of administration and finance and the commissioner of the department of capital asset management, or their designees; 1 victim/public member of the victim and witness assistance board; 1 community-based victim services provider; 3 representatives selected by the Massachusetts district attorneys association, including 2 victim witness assistance program directors from district attorneys’ offices; and such other members as the governor may appoint in consultation with the co-chairs of the task force.

Within 180 days of the passage of this act, the task force shall file a report, including the implementation plan for separate and secure waiting areas plan, with the clerks of the house and the senate.  If deemed necessary by the co-chairs, they may grant the commission a 90-day grace period for submission of the report.  Once the report has been filed, the task force shall submit an implementation progress report to every 365 days. For those district and superior courthouses undergoing new construction, for which the final design phase has not commenced as of the effective date of this act, a separate and secure waiting area shall be included in the final plans and completed construction.

SECTION Subsection (l) of section 3 of chapter 258B, as so appearing, is hereby amended by striking out, in line 86, the words “fourteen A”, and inserting in place thereof the following figure:-  14B

SECTION Subsection (m) of section 3 is hereby amended by inserting after the word “informed”, in line 88, the following words:- by the prosecutor

SECTION Subsection (m) of section 3 is hereby further amended by inserting after the word “interview;”, in line 92, the following words:- provided further, that a victim or witness who is under the age of 18, incompetent or cognitively impaired shall be informed of these rights in the presence of a parent or guardian who is not the defendant.

SECTION Subsection (p) of section 3 is hereby amended by striking out, in line 111, the word “at”, and inserting in place thereof the following word:- before

SECTION Subsection (p) of section 3 is hereby further amended by inserting after the word “defendant”, in lines 111-112, the following words:- , even if there is admission to sufficient facts, the sentence is mandatory, or there is an agreed-upon plea

SECTION Subsection (p) of section 3 is hereby further amended by inserting after the word “crime;”, in line 117, the following words:- provided further, that upon a showing by the prosecutor that a personal appearance by the victim will cause an unreasonable hardship on the victim, the court shall permit the victim to exercise the right to be heard by submitting a statement through audiotape or videotape to be heard or viewed before sentence or disposition is imposed.

SECTION Section 3 is hereby further amended by striking out subsection (t) in its entirety and inserting in place thereof the following subsection:-

            (t) for victims and witnesses, to be informed by the prosecutor about their notification rights and their right to receive criminal offender record information under section 178A of chapter 6.  The criminal history systems board, or in the case of a juvenile defendant, the department of youth services, shall give victims and witnesses, using the most recent contact information provided by the victim or witness, reasonable advance notice of when a convicted offender receives a temporary, provisional or final release from custody or is transferred from a secure facility to a less-secure facility, or forthwith when a convicted offender escapes from custody;

SECTION Section 3 is hereby further amended by inserting at the end the following subsections:-

(w) for victims and witnesses who are minor children or adults with disabilities as defined in section 13K of chapter 265, notwithstanding any law to the contrary, to have parents, a counselor, friend or other person having a supportive relationship with the victim or witness, in addition to the victim witness advocate, remain in the courtroom during the child’s or adult’s testimony unless, in written findings made and entered, the court finds that the defendant’s constitutional right to a fair trial will be prejudiced;

            (x) for victims and witnesses who are minor children or adults with disabilities, as defined in section 13K of chapter 265, for prosecutors to provide an orientation, as defined in this chapter, to the courtroom setting, court personnel, and rules of the court, to the extent practicable under the circumstances;

            (y) for victims and witnesses, to have a summary of the rights afforded under this section conspicuously posted in all courthouses and police stations.  The victim and witness assistance board, under section 4, shall devise and provide posters to satisfy this requirement to court officials and police station personnel, and, upon request and at the discretion of the office and board, to any other institution or organization to post and maintain in space accessible to the general public.  The board shall develop the posters in a variety of languages as determined by the Massachusetts office for victim assistance.  Upon request, the board will respond, to the extent possible, to any requests for additional language translations of the posters;

            (z) for victims, to confer with the prosecutor prior to the acceptance of a plea of guilty or admission to sufficient facts.  Before the judge accepts a plea of guilty, an admission to sufficient facts, a disposition, or an agreed-upon sentence recommendation, the judge shall ask the prosecutor if the victim has been consulted regarding plea discussions, if the victim was notified of the court date and is present, and if the victim would like to assert their right to offer a victim impact statement, which may include the victim’s views of the disposition;

            (aa) for victims, to be notified by the prosecutor that they have the right to provide the sex offender registry board with a written impact statement for inclusion in the convicted sex offender’s classification determination under subsection (1)(k) of section 178K of chapter 6.  Upon the specific request of the victim to the sex offender registry board, the sex offender registry board shall, regardless of the classification level and registration status of the offender, inform the victim of the sex offender’s registration and classification status and the addresses of where the sex offender lives, works, and attends an institution of higher learning;

            (bb) for victims and witnesses, to be informed by the court at the daily commencement of the regular criminal docket at which accused persons are arraigned, that a summary of their rights is posted and the location of said posting within the courthouse;

            (cc) for victims of the commission or attempted commission of violent acts, and others as deemed appropriate by the responding officer, to be notified by said officer who has determined that a crime has been committed, of their rights under this act.  Unless the officer reasonably concludes that it is not practicable or safe to do so under the circumstances, he or she shall present a card prepared by the Massachusetts office for victim assistance in consultation with the victim and witness assistance board which includes, but is not limited to, a summary of their rights under this chapter, relevant referrals to victim services and referrals for victim compensation under chapter 258C.

SECTION Said chapter 258B is hereby further amended by striking out section 6.

SECTION Section 7 of said chapter 258B, as so appearing, is hereby amended by striking out, in line 1, the second appearance of the word “local”.

SECTION Section 8 of said chapter 258B, as so appearing, is hereby amended by  striking out, in lines 4-5, the words “.  The court shall impose an assessment of $50”, and inserting in place thereof the following words:- , and

SECTION Section 8 is hereby further amended by striking out, in lines 21-31, the words “In the discretion of the court or the clerk magistrate in the case of a civil motor vehicle infraction that has not been heard by or brought before a justice, a civil motor vehicle assessment imposed pursuant to this section which would cause the person against whom the assessment is imposed severe financial hardship, may be reduced or waived.  An assessment other than for a civil motor vehicle infraction imposed pursuant to this section may be reduced or waived only upon a written finding of fact that such payment would cause the person against whom the assessment is imposed severe financial hardship.  Such a finding shall be made independently of a finding of indigency for purposes of appointing counsel”, and inserting in place thereof the following words:- Any assessment made pursuant to this section shall not be subject to waiver by any court for any reason.

SECTION Said chapter 258B is hereby further amended by striking out section 9.

SECTION Chapter 265 of the General Laws is hereby amended by striking out section 13M, as inserted by chapter 534 of the acts of 2008, and inserting in place thereof the following section:-

Section 13M.  (a) Whoever commits an assault or assault and battery on a family or household member, as defined in section 1 of chapter 209A, shall be punished by imprisonment in the house of correction for not more than 2 ½ years or by a fine of not more than $5,000 or both.

(b) Whoever is convicted of committing an assault or assault and battery on a family or household member, after having previously been convicted of, placed on probation for, granted a continuance without a finding for, or otherwise having pleaded guilty to or admitted to a finding of sufficient facts for (1) an assault or assault and battery on a family or household member; (2) an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another; (3) an offense that has as an element the possession, use, or threatened use of a deadly weapon; (4) a “sex offense” as defined in section 178C of chapter 6 of the General Laws, or (5) a violation of section 7 of chapter 209A, shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 2 ½ years, or by a fine of not more than $10,000, or by both such fine and imprisonment.

(c) For any violation of this section, or as a condition of a continuance without a finding, the court shall order the defendant to complete a certified batterer’s intervention program unless, upon good cause shown, the court issues specific written findings describing the reasons that batterer’s intervention should not be ordered or unless the batterer’s intervention program determines that the defendant is not suitable for intervention.

SECTION   Chapter 265 of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by inserting after 13M the following section:-

Section 13N.  (a) For the purposes of this section the following words shall have the following meanings:

“Strangulation” shall mean the intentional interference of the normal breathing or circulation of blood by applying pressure on the throat or neck of another.

“Suffocation” shall mean the intentional interference of the normal breathing or circulation of blood by blocking the nose or mouth of another. 

“Family or household member" shall have the same meaning as found in section 1 of chapter 209A.

“Serious bodily injury” shall mean bodily injury that results in a permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death.

(b)   Whoever strangles or suffocates a family or household member shall be punished by imprisonment in the state prison for not more than 5 years or in the house of correction for not more than 2 ½ years, or by a fine of not more than $5,000, or by both such fine and imprisonment.

(c) Whoever: (i) strangles or suffocates a family or household member and by such strangulation or suffocation causes serious bodily injury; or (ii) strangles or suffocates a family or household member who is pregnant at the time of such strangulation or suffocation, knowing or having reason to know that the person is pregnant; or (iii) is convicted of strangling or suffocating a family or household member after having been previously convicted of the crime of strangling or suffocating a family or household member under this section, or of a like offense in federal court or the court of any state; or (iv) strangles or suffocates a family or household member who he or she knows has an outstanding temporary or permanent vacate, restraining or no contact order or judgment issued pursuant to section 18, 34B or 34C of chapter 208, section 32 of chapter 209, section 3, 4 or 5 of chapter 209A, section 7 or 10 of chapter 209A½, or section 15 or 20 of chapter 209C, in effect against him or her at the time the offense was committed, shall be punished by imprisonment in the state prison for not more than 10 years or in the house of correction for not more than 2½ years, and by a fine of not more than $10,000.