Domestic Violence Allegations
Domestic Violence Charges In Massachusetts
Domestic violence and spousal abuse are common crimes in Massachusetts District Court. Over nearly three decades, we have handled hundreds of domestic violence cases. These charges can commonly include Assault and Battery on a Family or Household Member, Strangulation, Assault and Battery on a Person 60 Years or Older, Assault and Battery on a Pregnant Person, Violating a 209A Restraining Order, Witness Intimidation, and others.
Allegations of Domestic Abuse Result In Mandatory Arrest
Many people don’t know that most police departments have a mandatory arrest policy when the police are called to a home for allegations of domestic violence. That means that if a neighbor calls 911 because a husband and wife are screaming at each other and causing a commotion next door, the police will go to that residence intending to arrest the more “culpable” one — however they view that. Someone is getting arrested even if the supposed victim recants, and even if no other evidence supports the accusation that an assault and battery took place. Sometimes a husband will literally “volunteer” to be arrested so that his wife can remain home with the kids. Other times, the police simply get it wrong. These policies have resulted in many people being arrested based on little or no evidence other than words uttered by a partner in the heat of anger or jealousy.
An Alleged Victim Cannot Drop Criminal Charges
There is a common misconception that when or if the alleged victim, often a spouse, decides they do not want to press charges, the prosecution simply stops. That they have the power to “drop the charges.” This is just not the case in Massachusetts. The District Attorney’s office is in total control of what cases are brought to completion and which are dismissed, and they are generally not responsive to the wishes of the victim, even when the victim recants his or her testimony.
Once a person is arrested and brought before a court for arraignment, the district attorney’s office takes control of the case. Most prosecutors will never agree to dismiss domestic violence charges at an arraignment, the initial court date. That means that if you are charged with domestic assault and battery, or violation of a restraining order, or any other type of domestic violence, and even if your spouse or partner does not wish for you to be prosecuted, you should hire a good attorney to work toward ultimately getting the case dismissed.
If you are an alleged victim of domestic violence who is seeking to have criminal charges dropped against your boyfriend, girlfriend, spouse or relative, be prepared to withstand a lot of pressure from the district attorney’s office. Early in the process, you will likely be contacted by a victim-witness advocate from the district attorney’s office. The advocate’s job is supposed to be to provide information to an alleged victim, as well as to get input from the alleged victim regarding his or her views about how the case should be handled. However, often a victim-witness advocate will try to convince an alleged victim to “go forward” with the charge, to testify against his or her loved one. Remember that the District Attorney’s Office and their prosecutors and Victim-Witness Advocates do not represent you. The alleged victim is a witness in the case. The DA’s office represents the Commonwealth of Massachusetts.
An alleged victim who is unfamiliar with the justice system oftentimes winds up feeling confused and helpless. You should be aware that unless you are married to the person who is charged with the crime, the district attorney’s office can likely force you to testify at trial. They will try to make sure that you have been served in hand with a subpoena. You may then be forced to appear in court and testify — or risk being arrested yourself for contempt.
False Accusations of Domestic Abuse
There are certainly cases where charges of domestic violence are simply false. In many of these cases, there are ongoing or planned divorce proceedings, emotions are running high, custody of children is at issue, and restraining orders are being sought. Unscrupulous divorce attorneys will sometimes advise their clients to file a criminal charge of domestic violence against their former partner in order to gain leverage for them in a divorce action.
Sometimes people think that because the only evidence against them is an untrue allegation from an angry spouse or partner, the case will be dismissed quickly or will be easy to resolve. Sadly, that is not true. Many people have been convicted in cases where the only evidence against them is the statement of one person. If you have been falsely accused, get an experienced lawyer now. Don’t wait. In cases where the evidence is solely a false statement, it is critical that you don’t do anything to add to the evidence against you.
What Happens After An Arrest For Domestic Assault?
Arraignment
Your arraignment is your first court date. After you are formally advised of the charges against you, the court will determine whether you will be released from jail until the trial. You may be released without bail (on your own personal recognizance), on bail at a certain amount of cash set by the court (this may be in combination with conditions of release, such as a promise to stay away and not contact the alleged victim), held in jail without bail until your next court date.
Most people charged with a first offense misdemeanor domestic assault are released on cash bail or their own recognizance with a promise to appear at every court date and not commit any offenses while on bail.
If you have been charged with assault before or have other convictions on your record, the prosecutor may request a dangerousness hearing to move that you be held without bail for a significant period of time. If the judge makes a preliminary ruling that you pose a danger to the alleged victim and the community, you will be held until the dangerousness hearing.
Dangerousness Hearing
Generally, a dangerousness hearing will be held a few days after the arraignment, and you will be held in custody until then. At the hearing, the prosecutor will present evidence in the form of witness statements, police reports, testimony, and your prior charges to show that your release would pose an imminent threat to the community. If the court agrees that there are no available options other than incarceration that would keep the public or the victim safe, you will be held until the trial date or 120 days, whichever is sooner.
Potential Penalties For Massachusetts Domestic Assault And Battery Charges
Every case is different, and the facts and circumstances of each case determine what charges are issued and what penalties are imposed. In cases where there are minor injuries and no aggravating factors, the defendant will likely be charged with Assault and Battery on a Family/Household Member, a misdemeanor offense in violation of M.G.L. c. 265 §13M, and punishable by up to 2 ½ years in the house of correction and a maximum fine of $1,000.00.
When the victim has been seriously injured, was pregnant, over 65, or the victim had an outstanding no contact order against the defendant, the assault and battery can be aggravated. Aggravated assault and battery is a felony offense and you could face up to 5 years imprisonment.
If a dangerous weapon is involved, which can be anything the defendant knew or should have known could cause grave bodily harm, then the defendant can be charged with the serious crime of assault and battery with a dangerous weapon, which can result in up to 15 years imprisonment.
In addition, if convicted of a domestic violence offense you will be prohibited from buying or possessing a firearm – and will likely have your license to carry and/or FID card revoked or suspended.
Separately, you could be subject to a restraining order preventing you from seeing or contacting your spouse and your children. With a domestic violence conviction on your record, it could be difficult to get a job, be approved for a loan or find a decent place to live. In other words, a conviction can unfortunately follow you long after you have paid your debt to society.
How is a charge of Assault and Battery on a Family or Household Member Proved?
Under Massachusetts General Laws c. 265 §13M, assault and battery on a family or household member, a misdemeanor, is punishable by up to 2 ½ years imprisonment in the house of correction. To be convicted of assault & battery on a family/household member the government must prove the following:
the defendant touched the alleged victim;
the touching was intentional;
the touching was without consent or likely to cause bodily harm; and
the alleged victim was a family or household member, or involved in a substantive dating relationship with the defendant at the time of the offense.
The law defines “household or family or household member” as two persons who:are or were married;have a child in common; or have been in a substantive dating or engaging relationship, including relationships involving persons who identify with the LGBT (lesbian, gay, bisexual, or transgender) community.
Some Defenses To Domestic Assault & Battery Charges
Again, every case is different and has its own unique facts and circumstances. So, every case must be evaluated individually to determine what the best defense strategies will be. Two defenses often used in such cases are self-defense and credibility, or “it never happened.”
Self Defense
If the jury (or judge in a bench trial) finds that you acted in self-defense and acted reasonably, then you must be found not guilty.
It Never Happened/They Are Lying
In cases where there is limited or no physical evidence, denying the allegations or claiming the alleged victim is lying can be an effective defense. It is important to have evidence that shows that the alleged victim has a reason to lie, a motive. In cases involving divorce and/or infidelity, that evidence can be particularly useful.
Not Enough Evidence
The prosecution has to prove all of the elements of a crime beyond a reasonable doubt. At trial, the judge will instruct the jury what that means. He will tell them that even if they think the defendant is “probably” guilty, that is not enough proof for a guilty finding, and they must find him Not Guilty. This strategy can be particularly effective if the defendant is someone the jury will like and the alleged victim, well, isn’t.
Ernest STone has nearly three decades of experience successfully defending good people charged with domestic violence crimes..
If you or a loved one is facing the possibility of arrest or has been charged with a domestic violence crime in Massachusetts, having a highly knowledgeable and experienced criminal defense attorney by your side is important. Contact us today for a free consultation.
Being accused is traumatic. We understand. We will get you through the storm.
Schedule a free case review online or by calling (978) 705-4537.
