As college students start classes this fall, it’s the worst of the worst-case scenarios: What if that new roommate turns out to be not just a bad fit but outright violent?
Such cases are, no doubt, rare — and colleges should be able to sort out most of them. But if a victim needs to go to law enforcement, it turns out there’s a loophole in state law that leaves college students and other people living in nontraditional joint living arrangements with insufficient recourse.
If a family member is abusive, the victim can get a restraining order. But the restraining order law, it seems, wasn’t crafted with all modern living situations in mind, leaving gaps in who can be legally protected from violent living situations. If the court does not clarify the law, the Legislature should, while ensuring that the rights of the alleged victim and the accused are protected.
The state law creating abuse prevention orders, 209A, is intended to address domestic violence. It lets judges grant restraining orders to victims of abuse when the parties are or were married, related, dating, have a child in common, or live in the same household. A judge can issue a restraining order that imposes conditions on a subject — like not abusing the victim, having no contact with the victim or their children, staying away from certain locations like a mutual home or the victim’s workplace, or giving up firearms. Violating the order can be a criminal offense.
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State courts have adopted an expansive definition of familial relationships. But the law is murkier as it applies to roommates without familial or romantic ties. The question of what constitutes a “household” for the purposes of a restraining order has been decided on a case-by-case basis, and the answer is not straightforward.
The Supreme Judicial Court in 2014 decided a case, Silva v. Carmel, in which two adults with intellectual disabilities were living in a state-funded group home and one pushed the other into a bathroom. The victim applied for an abuse prevention order, but the SJC ruled that two residents in a government-licensed residential program are not a “household.” “Outside of the fact that the two individuals lived in the same facility, there is no evidence that there was a socially interdependent relationship between the two,” the court found.
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Two recent Appeals Court cases examined situations involving college roommates. One was dismissed because the conduct did not rise to the level of abuse needed to obtain a restraining order. The second, S.J. vs. T.S., focused on whether roommates constitute a “household.”
The case involved two first-year college roommates, identified only by initials, who were assigned to live together in January 2022. That March, S.J. applied for an abuse prevention order against T.S. after T.S. physically assaulted him. A District Court judge granted the order. Last month, the Appeals Court vacated the order, in a decision first reported by Universal Hub, finding that the two men were not “household members.”
The Appeals Court wrote that several factors should be considered in deciding whether two people constitute a household — whether they are living together voluntarily, how much of the living space is shared, the length of their relationship, and whether they engage in communal living activities.
Questioning by the three judges during oral arguments illustrated how difficult a distinction it is. S.J. did not participate in the appeal, but judges quizzed T.S.’s attorney Kevin Dwyer about what defines a household and whether it matters if someone chooses a roommate voluntarily or is assigned to live with one, if they have been living together for two months versus a year, and if they share a bedroom or have a common space like a living room.
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A separate law called 258E, which authorizes harassment prevention orders, is meant to fill gaps in the domestic violence law, and in many ways it does. Harassment prevention orders offer similar protections but do not require that two people be part of a family or household. They are commonly used to address harassment between neighbors.
But there are different standards for the conduct that qualifies for one. An abuse prevention order can be granted after one instance of causing or attempting to cause physical harm. Typically, someone needs to prove three separate instances of harassment to get a harassment prevention order, with the exception of a few specific crimes, mostly related to sexual coercion, where one incident is sufficient.
The harassment prevention law was not written with people living together in mind. Jamie Sabino, deputy director of advocacy for the Massachusetts Law Reform Institute and an expert in domestic violence law, said abuse is abuse, and it would be wrong to require the college student “to wait for his roommate to punch him the face three times on three separate days” before granting him protection. Sabino said the law should protect anyone living in close contact, and it is difficult to make logical distinctions based on whether a person has a separate bedroom or whether roommates cook together.
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Sabino questioned, for example, whether the protection of a restraining order would be available to individuals living together in a homeless shelter or supportive housing arrangement.
It is important to have strict standards and case-by-case analysis in roommate conflicts to ensure someone cannot abuse the court system simply to get rid of a roommate they dislike. Students may have alternatives, like asking the college for a room transfer. But the lack of clarity around what type of legal protection is available to roommates leaves a gap.
As Marsha Kazarosian, a past Massachusetts Bar Association president and partner at Kazarosian Costello, said, “If you experience abuse, you don’t want to wait until the second or third time to be protected if you’re living in the same room or building or household.”
The issue is ripe for clarification by the high court.
Editorials represent the views of the Boston Globe Editorial Board. Follow us @GlobeOpinion.
