Closing the loophole in Massachusetts protection order legislation to provide greater security for victims of sexual assault: has Massachusetts General Laws Chapter 258E closed it enough?

• Author: Jodoin, Hayley

1. INTRODUCTION

   Jane (1) was fourteen years old when two of her middle school classmates kidnapped her while she was walking to a friend's house one afternoon. The perpetrators took her to a home owned by a relative, where they repeatedly raped and assaulted her at knifepoint. The boys kept her hostage in the home, going so far as to rip the phone out of the wall so that she could not call for help. Upon her escape, the perpetrators were arrested and charged with rape, kidnapping, indecent assault and battery, assault and battery with a dangerous weapon, breaking and entering, and intimidating a witness. They eventually entered into a plea bargain as youthful offenders, and were placed on probation for one year. They spent no time in jail.

   Despite a no-contact order issued in connection with the criminal case, the perpetrators proceeded to threaten, intimidate, and harass Jane for reporting her assault to the police. The perpetrators showed up to school events, knowing that Jane was in attendance, and they engaged in deliberate acts of intimidation, including yelling obscenities at Jane in front of the entire crowd. On other occasions, they sat directly behind her at sporting events and stared at her until she left. The perpetrators also followed both Jane and her mother while driving, repeatedly drove by Jane' s house and, on occasion, got out of the car and stood in front of the home. (2)

   Despite these terrorizing events, prior to May 2010, Jane and sexual assault victims like her could not seek a criminally enforceable protection order because they were not related to, living with, or romantically involved with their attackers. (3) Prior to May 2010, the only criminally-enforceable protection order available in Massachusetts to victims of sexual assault--other than a more complex family law or criminal proceeding--was the Chapter 209A Abuse Prevention Order, which requires that the plaintiff be married, related, living with, dating, or have a child in common with the person from whom they need protection. (4)

   However, with the passage of Massachusetts General Laws Chapter 258E ("Chapter 258E") (5) in May 2010, victims of sexual assault falling outside the definition of domestic violence won major legal protections in their ability to file a criminally enforceable civil protection order against their attacker. (6) Chapter 258E, entitled "Harassment Prevention Orders," now provides victims of sexual assault (7) and stalking a right to file for a civil order of protection, regardless of their relationship to the perpetrator. (8) Because the majority of sexual assault victims--like Jane--are not related to, living with, or romantically involved with their assailant, Chapter 258E closed a "glaring loophole" in the law of Massachusetts and afforded these victims "the full extent of the justice system." (9)

   Although Chapter 258E represents a major victory in the fight for the rights of sexual assault victims, the law, as written, has the potential to be misapplied to this crucial cohort of persons. (10) This Note weighs the fundamental protections that the statute provides to victims of sexual assault against the flaws related to the law's drafting, and it notes the statute's potential for improvement. (11) Part II outlines the complexities surrounding the problem of sexual assault and discusses the ways in which civil protection orders serve a vital purpose for these victims. (12) Part III provides a detailed history of the loopholes in protection order legislation in Massachusetts prior to the passage of Chapter 258E. (13) And, Part IV examines how Chapter 258E closed those loopholes. (14) Finally, Part V discusses the flaws of the statute as applied to sexual assault victims, attempts to balance these concerns with practical benefits gained by the law, and advocates that sexual assault victims in Massachusetts would be better served with a protection order statute specifically tailored to address their unique needs. (15)

2. FACTS

   1. Sexual Assault as an Epidemic (16)

      Research on the prevalence of rape in the United States suggests that between one in six and one in eight women have experienced at least one completed rape in their lifetime. (17) Further research on the incidence of rape among women suggests that approximately 620,000 women age eighteen years or older are raped every year in the United States. (18) Similar research on the prevalence of rape among men suggests that approximately one in forty-seven men have reported forcible penetration at least once within their lifetime. (19)

      The Massachusetts Department of Public Health has recognized sexual assault as a "serious social and public health problem in Massachusetts." (20) The Department estimates that in Massachusetts, 14.6% of women and 5.3% of men experience sexual assault at some point in their lifetime. (21) Between July 1, 2009 and June 30, 2010, there were 2564 incidents of sexual assault reported to Massachusetts Department of Public Health-funded rape crisis centers. (22)

      Despite its prevalence, sexual assault is the "least reported, least indicted and least convicted felony" in the United States. (23) Although almost every state in the nation has reworked its existing sexual assault laws in hopes of making the criminal justice process fairer to victims, the criminal justice process has remained a largely unsuccessful avenue for most victims of sexual assault. (24)

      The first level at which the criminal justice system breaks down for victims of sexual assault is the victim's reluctance to report the crime. (25) Studies show that although reporting to law enforcement has increased since the reforms of the 1970s, estimates of reporting rates have remained at 16% since the early 1990s. (26) Even if a victim chooses to report a sexual assault, research shows that arrest rates for forcible rape have substantially declined from the 50% range in the 1970s, to 26% in 2008. (27) Assuming there is an arrest, as many as 48% of sexual assault cases will be dismissed before trial. (28) If a sexual assault case does proceed to prosecution, of those defendants charged with rape, research suggests that only 54% are convicted of a felony. (29) Of those convicted, nearly 25% are not sentenced to prison, but released on probation. (30) In total, research shows that of all rapes committed against women, only 0.35% were reported, prosecuted, convicted, and resulted in the incarceration of the offender. (31)

   2. Why Sexual Assault Victims Need Protection Orders

      Given the overwhelming majority of assailants who are not punished criminally, sexual assault victims require protections beyond what criminal prosecutions offer. (32) This need is particularly enhanced in light of startling evidence that sexual assault victims face significant safety risks following an attack. (33) In some cases, the assailant may pose a risk of assaulting the victim again. (34) In other cases, the assailant may utilize the fear created by the first attack to continue to threaten, intimidate, or prevent the victim from seeking assistance or reporting the incident to law enforcement. (35) The victim may also be vulnerable to retaliation by the assailant if she chooses to seek assistance or report the crime to law enforcement. (36) Other victims often experience stalking in conjunction with their assault. (37) Moreover, all of these risks are heightened if the victim is subject to on-going contact with the assailant. (38) The victim may be at particular risk if the assailant knows where the victim lives, works, or goes to school. (39)

      Civil protection orders serve to protect the victim from her assailant, and they reduce the occurrence of future violence. (40) Civil protection orders combat the serious safety risks facing sexual assault victims because they provide police probable cause to arrest the assailant, should he violate the order. (41) The threat of such penalties serves to increase the victim' s safety by deterring the assailant from engaging in future acts of intimidation or harm. (42) Having such penalties attach to these orders works as an invaluable resource for victims whose safety concerns may not otherwise be recognized as an arrestable offense. (43) In this very crucial way, civil protection orders also make the threat to a victim's safety more credible to the police. (44) In creating a legally-arrestable offense that is punishable by incarceration or a substantial fine, civil protection orders, at the very least, provide an element of leverage with which to prevent further contact with the assailant. (45)

      In addition to the vulnerability of a victim's actual safety following an attack, a victim' s perceptions of physical safety are often virtually destroyed. (46) The victim may become "hyper-vigilant, anxious and frightened" for weeks, months, or years after being sexually assaulted. (47) Such fear is even more exacerbated for the majority of victims who know their attackers, and who will be subject to on-going contact with them after an assault. (48) For many victims, this terror will never go away. (49)

      Studies show that victims who obtain civil protection orders against their attackers subsequently experience increased feelings of safety after obtaining the order. (50) In addition, research indicates that "one of the most significant benefits of seeking and obtaining an Order for Protection" is that it serves to empower the victim by allowing her to initiate a course of action after a dehumanizing attack. (51) Moreover, victims often report that civil protection orders were instrumental in helping them recover and improve their overall feelings of well-being after an attack. (52)

      Civil protection orders also operate as a valuable tool for victims of sexual assault because they provide a remedy that is easy and quick to obtain, and they serve as a viable alternative to the criminal justice system. (53) In contrast to the one- to two-year time frame for a...