If you have a 209A restraining order against you and you then, by mistake, send that person an electronic message or you run into that person in a store, be ready for that person to call the police, even though the contact was not intended.

This statute is not a “strict liability” statute ; in other words, the prosecutor must prove that you had the requisite mental state to have the contact ; you are not guilty for a mistake.

Which mental state required to convict you is more murky. The current jury instruction has a low threshold where, if you put into motion the contact, you are liable for the contact. The jury instruction is more of a general “knowing” mental state. However, I have a case , Commonwealth v. Leger, 52 Mass. App. Ct. 232 (2001) where the Court requires an “intentional act ” proven beyond a reasonable doubt, and under Commonwealth v. McKay 05-P-506 Appeals Court (Sept. 15, 2016), you are entitled to a jury instruction where a “mistake or accident” is not a criminal act.

Call me at 508-243-4877 if you have any question about violation of 209A orders. Doug Stoddart.