To convict a defendant, Commonwealth must prove beyond a reasonable doubt that .... defendant violated the order. Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997).

Intent is not an element of the crime of violating a c. 209A order. "The statute . . . requires no more knowledge than that the defendant knew of the order. We decline to read any additional mens rea requirements into the statute." Commonwealth v. Delaney, 425 Mass. 587, 595-597 (1997).

A conviction does not require proof of actual intent to violate an order. Commonwealth v. Collier, 427 Mass. 385, 388 (1998). (Where son drove defendant, without defendant’s acquiescence, to place within impermissible proximity to the protected person, and "[w]here the evidence fairly raises an issue as to the defendant's intent either to direct, or acquiesce in, conduct of a third party, there must be proof that the defendant at least intended the act that resulted in the violation." Id. at 389-390), cited with approval in Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).

The traditional view is that, in the absence of specific language to the contrary, the Legislature does not intend to make accidents and mistakes crimes. Commonwealth v. Wallace, 14 Mass. App. Ct. 358, 364 (1982), citing State v. Brown, 38 Kan. 390, 393 (1888).

The "'long-standing' common-law principle is that, absent contrary indication from the Legislature, it is assume the Legislature did not intend to make a crime out of an accident or mistake.

Commonwealth v. Finase, 435 Mass. 310, 315 (2001), quoting from Commonwealth v. Collier, 427 Mass. 385, 388 (1998). Commonwealth v. Raymond, 54 Mass. App. Ct.448, 493 (2002).Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002).

Defendant "cannot be convicted of violating a 'no contact' [or stay away] order issued under c. 209A where the contact occurs in circumstances where [he] did not know, and could not reasonably have been expected to know," of the proximity of the plaintiff or his children. Commonwealth v. Raymond, 54 Mass. App. Ct. 488, 493 (2002); Litchfield v. Litchfield, 55 Mass. App. Ct. 354 (2002).

Defendant’s state of mind, apart from his awareness of the terms of the restraining order, would sometimes be relevant was explored in a different context in Commonwealth v. Silva, 431 Mass. 194 (2000). (restrained husband made contact with his protected divorced wife when he telephoned her residence for the purpose of speaking to the couple's teenage daughter. Such a call was authorized by the terms of the c. 209A order. The Supreme Judicial Court characterized the contact that occurred between the parties when the ex-wife answered the phone as "a lawful incident of the order," id. at 198, which would not by itself be sufficient to prove a violation. In Silva, the incidental contact between the parties degenerated into an angry outburst on the part of the defendant which warranted the finding that the c. 209A order had been violated. Id. at 198-199.)

The facts of a case may entitle the defendant to an instruction that "an incidental contact" occurring in the course of a permitted activity was not a violation of the c. 209A order. See, Commonwealth v. Leger, 52 Mass. App. Ct. 232, 237 (2001), cited with approval in Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).

In the context of a prosecution for violation of a "stay away" order issued under c. 209A, "accidental, mistaken, or unknowing violations of the distance requirements of an abuse prevention order" will not be sufficient by themselves to support a conviction under G. L. c. 209A, 7. See Commonwealth v. Finase, 435 Mass. 310, 315 (2001), cited with approval in Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).

The policies advanced with remedies available under c. 209A do not require that restrained parties be convicted for what would generally be considered innocent activities. To hold otherwise would incorporate into the statute a concept of strict liability, and there is no basis for believing that this was the Legislature's purpose. Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).

In a case where, if defendant’s claims are believed, a jury could find that the contact with protected person was incidental to a permitted activity, or an accidental, mistaken, or unknowing violation, or even a coerced violation, the court must instruct that they may find the defendant not guilty. Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).

Failure to make the above instruction is an error that creates a substantial risk of a miscarriage of justice, one which may be raised on appeal, even if not preserved below. Commonwealth v. Raymond, 54 Mass. App. Ct.448 (2002).