Law Offices of Ernest H. Hyde

Home

News

Bullying Law

New Massachusetts Bullying Law

by Ernest H. Hyde, Esq.

Governor Patrick signed into law a new statute dealing with bullying in the schools of the Commonwealth of Massachusetts on May 3, 2010. This article discusses what the law is and what it is not.

First, the Legislature has included in this law the requirement that the Governor proclaim each year on the fourth Wednesday in January, “No name calling day.” In more substantive sections of the law they have defined bullying as, “the repeated use by one or more students of a written, verbal or electronic expression or a physical act or gesture or any combination thereof, directed at a victim that : (i) causes physical or emotional harm to the victim of damages the victim’s property; (ii) places the victim in reasonable fear of harm to himself or of damage to his property; (iii) creates a hostile environment at school for the victim; (iv) infringes on the rights of the victim at school; or (v) materially and substantively disrupts the education process or the orderly operation of a school. For the purposes of this section, bullying shall include cyber-bullying.” Cyber-bullying is also defined in the statute.

A victim must be student. Bullying is prohibited on school grounds, on property immediately adjacent to school grounds, at school sponsored or related activities. This includes at bus stops, on the bus or other vehicle owned, rented or leased by the school district.

Each school district, public or private must develop and adhere to and update a plan to address bullying prevention and intervention in consultation with teachers, school staff, professional support personnel, school volunteers, administrators, community representatives, local law enforcement agencies, students, parents and guardian. The plan must contain descriptions of and statements prohibiting bullying, cyber-bullying and retaliation, clear procedures for handling bullying complaints and provisions for anonymous reporting, although no disciplinary action may be taken against a student based solely on an anonymous report. The plan must also define a range of disciplinary actions that may be taken against the perpetrator. Schools must notify both the bully’s parents and the victim’s parents of any report taken. Student making false reports are subject to disciplinary action.

Each school is required to give annual notice to students, parents and guardians of relevant sections of the plan. They must post the plan on their website. All school staff is required to report to the principal any instances of bullying or retaliation. The principal will decide if law enforcement agencies should be notified if the bullying constitutes criminal activity.

Lastly, four criminal statutes have been amended as a result of this law. They are the laws dealing with Stalking, Criminal Harassment, Intimidation of a Witness and the Annoying Phone Calls. Each of these statutes have been amended by adding wording to them that include cyber-communications as a potential act that could violate the law.

A committee is established under this law to review the law to determine if changes are necessary as time passes. Also, schools need to file their plans with the state by December 31, 2010.

Now for what the law doesn’t have. This new law does not create a private right of action. This means that this law does not create any new ground for a law suit against the perpetrator that did not previously exist. Other theories of law may support a suit against the perpetrator, such as intentional infliction of emotional distress, assault and battery, harassment and the likes. It also does not have any penalty prescribed for failing to report bullying by any member of the school staff, including cafeteria workers, bus drivers, paraprofessionals, volunteers, coaches, advisors, custodians, educators, administrators and school nurses. There is nothing in the law that resembles the duties of a mandatory reporter as is including in child abuse statutes such as 51A which define who a mandatory report is and what their responsibilities are with respect to reporting abuse.

The law also does not create any new criminal laws against bullying, rather, as mentioned above, it beefs up existing laws to include actions previously not stated in the law such as cyber-communications like email, messaging, blogs, and websites as means for violating the laws.

The law in its entirety can be found at http://www.mass.gov/legis/laws/seslaw10/sl100092.htm.

New Harassment Prevention Law

By Francine Traiger Poor

On February 9, 2010, Governor Deval Patrick signed “An Act Relative to Harassment Prevention Orders.” The new law takes effect in 90 days on May 11th and will fill an important gap in Massachusetts restraining order law. It promises to provide much needed protection for victims of stalking, abuse and sexual assault.

Previously, under Massachusetts General Laws ch. 209A, protection from abuse and a restraining order was available to a victim only if the perpetrator was a family member, roommate, current or former spouse, or a person with whom the victim had a substantial dating relationship. With the enactment of Massachusetts General Laws ch. 258E, victims of abuse or harassment may petition for a protection order regardless of the perpetrator’s relationship to the victim.

The new law defines ‘harassment” as

“Three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.
Or an act that “ by force threat or duress causes another to involuntarily engage in sexual relations”
Or an act that violates the laws against indecent assault and battery on a child, indecent assault and battery on a mentally retarded person, indecent assault and battery, rape, forcible rape of a child, statutory rape, assault to rape, assault to rape a child, enticing a child, criminal stalking, criminal harassment or drugging for sexual intercourse.

The legislation was enacted by unanimous votes in both the House and Senate last month. “A criminally enforceable restraining order for these situations creates a legal option to interrupt intimidation and harassment and help increase safety for victims,” said Stephanie DeCandia, manager of system advocacy and policy development at the Boston Area Rape Crisis Center.

The provisions of the new law are substantially the same as Massachusetts General Laws ch. 209A, with two important exceptions; the new law eliminates the requirement that the victim have a family or dating relationship with perpetrator and applies to “anyone suffering from harassment” and, unlike Massachusetts General Laws ch. 209A, restraining orders under the law cannot be issued by the Probate and Family Court.

The similarities between the two laws are equally important. Like 209A, violations of chapter 258E orders are criminal offenses, there are no filing fees, the orders can be entered without advance notice, initial orders are valid for 10 court business days after which the court will schedule an extension hearing date and there need not be any violations of the order for the order to be extended after its original expiration date.

Under the new law, the Perpetrator may be ordered not only to refrain from abusing or harassing the Victim, but also not to contact the Victim, stay away from the Victim’s home or work and pay restitution for directly resulting losses. Unlike 209A however, the new law does not authorize firearms surrender and the issuing Judge does not have the authority to order child support or custody.

Both Massachusetts General Laws chapter 209A and the new chapter 258E have their place in protecting victims of abuse and harassment. Massachusetts General Laws ch. 258E extends the legal protections available to stalking and sexual abuse victims by permitting them to receive protective orders against people who are neither domestic partners nor family members.

Financial Management in Troubled Times

Today, the best thing you could be doing for the economy is to spend as you normally do in good times. With today's economic climate, it is difficult to do what should be done. We don't know from day to day whether we still have a job or our spouse does and we do not know what the prices of necessary items will be over the next week or so. For these reasons, people are understandably cautious with their money today and for good reason. To help you get through this trying time, I offer the following suggestions.

CREDIT CARDS

Do not use credit cards to see your way through these times. They will only prolong your pain and may cause you more pain in the end. If you cannot pay the entire balance on the credit card when it comes in monthly, cut up those cards and do the best you can to pay off the balances as soon as possible. Credit cards can be a wonderful thing in the right hands, but an unbelievable disaster in the wrong hands. If you use a credit card for convenience and pay the bill each month, you get to use the credit card company's money for about 30 days or so without paying any interest. On the flip side of that is when you do not pay the card in full each month and get stuck with an 18% to 23% per year interest charge. Do not do it. That interest charge could be used for necessities. If you are in this predicament, call the card company and ask for a lower interest rate or look for a company with a lower rate and transfer your balances to the new company.

MORTGAGES

Some people find themselves falling behind on their mortgage because they took out the mortgage or refinanced it when times were good and their incomes were higher for various reason such as overtime pay or multiple jobs and so on. Today, they find themselves trying to keeping up with the mortgage to save their house. If you are having trouble keeping up, talk to your bank or financial institution. Ask if they can refinance the loan to stretch out the payments longer or give you a better interest rate. Do not ignore the problem; it will undoubtedly result in a foreclosure on your home.

TAXES

If you are still working, check with your payroll department to determine what exemptions you have selected for tax purposes. You may want to increase your exemptions to lower the amount taken for taxes, especially if you usually get a large refund at the end of each year. This will give you the money now, when you most need it rather than to wait until the taxes are done in April. While I am on this subject, also consider the use of a 401(k) plan if your company offers one or and IRA if they do not. This also reduces you taxes because the money invested is taken off of your income before taxes are calculated. It may not help your immediate need for cash but if you can afford to do it, it certainly will help your future need for money when you retire. This is also a good time to get your funds into the stock, mutual fund and bond market, since they are at lows that we have not seen for years. Investing the 401(k) money in the market over the long term should reap significant benefits for the patient investor. Once the money is invested, leave it alone until retirement. Withdrawing the money prematurely results in excessive taxes and penalties.

SHOPPING

Shopping for food, clothing, and other essentials is an important activity in conserving one's assets and cash. Buy only what you need, do not waste and forgo that which is a luxury, for now, to get by during these times. The important thing is knowing the difference between what you need and how much and a luxury.

HELP

If you are having problems and need some advice, please call us for an appointment to discuss your particular circumstances. We are eager to help. Our free half hour consultation should be sufficient to point you in the right direction or determine how we can assist you further.

New Child Support Guidelines for 2009

By Francine Traiger Poor

In Massachusetts, the child support guidelines are used by the Probate Court to calculate child support whenever the parents of a child are no longer living together. This applies whether the parents of the children are married or unmarried, and in all temporary, permanent or final orders for current child support. In all orders where an order for child support is requested, a guideline worksheet must be filled out, regardless of the income of the parties.
By Francine Traiger Poor

On January 1, 2009, the guidelines will change. Although the amount of child support payed to the custodial parent will be different under the new guidelines, existing child support orders cannot be modified for three years unless there is a change in health insurance or a material change in circumstances.

There are, however, circumstances where the new guidelines will not apply. If any of the following circumstances exist, the court will be allowed to deviate from the guidelines: If,

        parties agree and court approves it
        child has special needs or aptitudes
        child has extraordinary medical or other expenses
        application of guidelines leaves a party without the ability to self support
        payor is incarcerated, is likely to remain so for 3 years and has no assets
        application of guidelines would lead to gross disparity in income
        parent has extraordinary medical expenses
        parent has extraordinary travel or other expenses related to parenting
        application of guidelines may adversely impact re-unification of parent and child
        application is not in the best interest of the child.

There are many changes in the child support guidelines. The new guidelines specify how military pay, Social Security Disability Income and self-employment income should be accounted for. The new guidelines also recognize Massachusetts’ health insurance mandate and provide a larger benefit for health insurance premiums. The amount the non-custodial parent pays, in most cases, will be higher, but the custodial parent is no longer given a $20,000 credit. Below is a side-by-side comparison of the major changes in the new support guidelines.

For the full guideline text and worksheet go to: http://www.mass.gov/courts/childsupport/index.html

and for a video presentation of the Legal Ease show on the guidelines, click on Legal Ease above on this website and select the Guidelines show.