Can You Get a Restraining Order Against Someone’s Having Sex with Your Daughter (Who Is Above the Age of Consent But Under 18)?

From today’s Massachusetts Supreme Judicial Court decision in E.C.O. v. Compton:

This case concerns whether a parent may seek an extension of an abuse prevention order under G.L. c. 209A to prevent his daughter, who was sixteen years of age [and thus above the age of consent in Massachusetts] from voluntarily engaging in a sexual relationship with an adult.

The answer, the court said, was “no,” reversing such an order that had indeed been issued:

General Laws c. 209A enables a person “suffering from abuse from an adult or minor family or household member” to obtain a protective order directing the defendant, among other things, to refrain from abuse or contact…. [F]amily or household members include persons who “are or have been in a substantive dating or engagement relationship.” “Abuse” is defined as “the occurrence of one or more of the following acts between family or household members: (a) attempting to cause or causing physical harm; (b) placing another in fear of imminent serious physical harm; (c) causing another to engage involuntarily in sexual relations by force, threat or duress.” The issuance of an abuse prevention order is a civil procedure, and abuse need only be proved by a preponderance of the evidence. A violation of an order to refrain from abuse or contact, however, is a crime, punishable by a fine or imprisonment in a house of correction, or both.

Here, as conceded by the father, the defendant has neither physically harmed nor attempted physically to harm the daughter. In addition, because she is over the age of sixteen, she is legally capable of “consenting” to sexual intercourse, and as admitted by the father, the defendant has not caused the daughter to engage involuntarily in sexual relations by force, threat, or duress. Thus, there was no basis for the judge to issue the extension order under G.L. c. 209A, § 1 (a) or (c).

The father contends that the defendant’s actions placed the daughter “in fear of imminent serious physical harm” under G.L. c. 209A, § 1 (b), because in suggesting that he was going to supply the plaintiff with alcohol, the defendant essentially offered to supply alcohol to a minor in violation of G.L. c. 138, § 34 (“whoever furnishes … alcohol for a person under 21 years of age shall be punished by a fine … or by imprisonment for not more than one year or both”). We disagree.

The definition of “abuse” under G.L. c. 209A, § 1 (b), closely approximates the common-law definition of the crime of assault, and we are guided by our definition in considering whether the defendant’s conduct rose to such level of “abuse” under the statute. We consider whether the defendant’s conduct placed the daughter in “reasonable apprehension that [the defendant] might physically abuse her.” The defendant’s passing references in his electronic communications with the daughter implying that he might furnish her with alcohol, while understandably reprehensible to the father, is not evidence suggesting physical abuse or evidence that the defendant planned to give alcohol to her in order to have involuntary sexual relations with her, certainly a form of physical abuse. We conclude that this conduct does not meet the definition of “abuse” under G.L. c. 209A, § 1 (b), and thus fails to serve as a basis for issuing the extension order. [Footnote: Were the defendant actually to furnish alcohol to the daughter, such conduct would violate G.L. c. 138, § 34 (furnishing alcohol to minor) and G.L. c. 119, § 63 (contributing to delinquency of minor), and would present a different circumstance than existed here.] Because the judge had no basis to issue the extension order, it must be vacated.

Unsurprisingly, given the pace of the civil justice system, the one-year order had already expired by the time of the decision; indeed, since the daughter was 16 in July 2011, when she met defendant, she must be either 18 or very nearly 18 now. But the court concludes the appeal isn’t moot, quoting an earlier case: “Notwithstanding that both the ex parte and the extension orders have expired, the appeal is not moot. The defendant ‘could be adversely affected by [the orders] in the event of future applications for an order under G.L. c. 209A … [and] has a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record.’”