MA high court avoids question of right to counsel in DV cases

02/18/2022, Litigation, Domestic Violence - Accused Person

In February 2022, the Supreme Judicial Court of Massachusetts (SJC) issued its opinion in Commonwealth v. Leon G. Dufresne in which it explicitly declined to answer whether defendants in civil protection order cases are constitutionally entitled to counsel. 


The defendant appealed his criminal conviction for violation of an abuse prevention order which had been issued in a civil proceeding (“209A proceeding”) where he was not represented by counsel. The defendant argued, in part, that he could not be criminally punished for the violation of an abuse prevention order imposed in a civil proceeding where he was unrepresented by counsel.  The SJC solicited amicus briefs on the right to counsel issue specifically, to which the NCCRC and others responded.  The amicus briefs generally argued that the right to counsel for plaintiffs and defendants are linked and as such the Court could not address the right to counsel for one without the other.

While the Court stated that neither the State nor the Federal Constitutions were violated where “as here, a constitutionally permissible proceeding -- even one to which the right to counsel does not apply -- provides a predicate for a subsequent incarcerable offense," the Court also explictly declined to address whether the failure to provide counsel rendered the proceedings constitutionally impermissible because it stated the defendant himself had claimed he was not arguing for a constitutional right to counsel for protection order cases.  As such, the Court relied on prior holdings that had found the proceedings constitutionally permissible.  In a footnote, the Court declined to decide whether a line of cases, which established the right to counsel in civil cases where parental rights were implicated, applied in this case because there was no evidence that the parental rights were at stake.



The NCCRC submitted an amicus brief and also collaborated with amici Boston Bar Association, Women’s Bar Association, and the Massachusetts Legal Reform Institute.