Facebook Tag results in Jail time on Restraining Order Violation

Facebook is frequently mentioned in Court cases involving violations of a 209A order in Massachusetts.  Recently, I was in Marlborough District Court waiting for an OUI trial to be heard; in front of me were two trials regarding 209A violations allegedly involving Facebook posts.  A case in New York illustrates how Facebook posts can lead to a violation of a restraining order.

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A New York woman was recently sentenced to one year in jail for violating an order of protection her ex-husband had gotten against her.

Rafael Calderon had gotten an order of protection-otherwise known as a restraining order- against the defendant Maria Gonzalez, during their divorce settlement. After tagging her former sister-in-law in a derogatory Facebook post, the Westchester County Supreme Court ruled the communication as a violation of the protection order and upheld the second-degree criminal contempt charges against her.

According to the New York Post, Gonzalez referred to Calderon’s sister as “stupid” in one Facebook post and wrote “you and your family are sad 🙁 ” in another. Gonzalez’s attorney, Kim Frohlinger, argued that the protection order did not include communication via Facebook.

The Westchester County Supreme Court disagreed with Gonzalez’s defense, stating that the the order of protection prohibited Gonzalez from “contacting the protected party by electronic or any other means”. Although the messages were not sent directly to the protected parties, Calderon’s sister received a notification via Facebook alerting her that she had been “tagged” or referenced in Gonzalez’s Facebook post. As a result, the judge constituted this notification as sufficient in establishing whether a violation occurred.

Although this is a New York case, restraining order violations arising out of social media posts, such as Facebook, are increasingly common. In Massachusetts, the prosecution must must prove 4 items beyond a reasonable doubt in order to show a restraining order (209A) violation occurred:

  • The court had issued an order that required the person not abuse, not contact and stay away from a household or workplace of another.
  • The order was in effect at the time of the alleged violation.
  • That the defendant was aware the terms of the order.
  • That the defendant violated the order.

 

With social media constituting as “electronic means” as in the Gonzalez case, it is important for defendants and their attorneys to understand the complexity of electronic communication and that everything that is published in social media is essentially public, despite the apparent “private” nature of a simple status update.

Many people are unaware of the seriousness of a 209A violation. Although the restraining order is a civil order, a violation of it is actually a criminal offense so hiring a defense attorney is essential.

To Learn more about Restraining Order Violations I have a page devoted to Massachusetts Restraining Order Violations and how they can be defended.

 

 

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