Domestic Assault and Battery
An allegation of domestic assault and battery is a serious matter in Massachusetts. Based
on recent high profile cases involving local defendants (see the Jared Remy case out of
the Waltham District Court) and defendants in other jurisdictions (see NFL player Ray
Rice’s case in Maryland) the Legislature in Massachusetts undertook the drastic step of
amending the law in our Commonwealth to create the specific crime of domestic assault
and battery under M.G.L. Ch 265 § 13M. This particular offense did not even exist prior to
the amendment in August 2014, and the changes to the landscape of defending this
particular charge go way beyond the enhanced penalties provided for under the new law.
You can be sure that every district attorney’s office in the Commonwealth is making the
prosecution of domestic assault and battery their top priority. This is evidenced by the
hard-line stance they take in not dismissing these cases short of a trial date, the specific
red “DV” stamp they use on the case folders (the modern “Scarlet Letter”), and the
lengths to which they will go to make these charges stick despite the wishes of the
alleged victim. The one-size-fits-all approach to prosecuting these cases is frustrating to
many defendants and their loved ones, as it does not take into account the alleged
victim’s true desires, and it completely ignores the complexity and history of relationship
between the individuals involved. While no one should ever be in fear that they will be
the victim of domestic violence, similarly no one should be forced to feel victimized
when that is not the reality of the situation. Quite often citizens will call the police to
legislate their relationships or to “just get the other person to leave” without realizing
the long-term consequences of that decision. The police are not a relationship counselor
or a mediator. They are there to make an arrest, and you can be sure that when it comes
to domestic assault and battery calls they are instructed that an arrest is the only
appropriate course of action to prevent the possibility of further disturbances.
Once you have been arrested for a domestic assault and battery, you will be held in
custody for a MINIMUM of 6 hrs, even if the alleged victim protests that this is
unnecessary. When you are eventually brought to court, even someone with no prior
record can expect the prosecutor to ask for bail in a domestic assault and battery case,
and it is important to have a qualified and experienced lawyer on your side to rebut that
request. The prosecutor will also file an “allegation of domestic abuse” which will be
forever stored in a database under the Commonwealth’s control. The Commonwealth can
also ask for what is called a “dangerousness hearing,” at which a judge will be asked to
make a preliminary determination about the likelihood that the defendant is
“dangerous.” If the Judge makes a preliminary determination that a defendant is indeed a
danger to the alleged victim or the community at large, the Commonwealth is entitled to
3 days to prepare for a final hearing, and the defense can ask for a continuance of up to 7
days. At the final hearing evidence will be taken, and witnesses will be heard as to the
defendant’s alleged “dangerousness,” and if the Judge sides with the Commonwealth a
defendant shall be held for 120 days without the right to post bail. This can be a
devastating and completely horrific consequence to any defendant. But, it is especially
nightmarish for those who have never spent time in custody, and whose cases may
eventually be resolved without any incarcerated sentence. People lose their homes, jobs,
business, etc by virtue of being taken out of their community for 4 months without
warning. So before a jury ever hears your case, you may have to spend 4 months away
from your friends, family, etc. The stakes are very real and very high when you are
charged with a domestic assault and battery. You cannot afford to take chances with your
If you are convicted of a domestic assault and battery you can face a sentence of up to 2.5
years in jail and up to a $1,000 fine. Further, the change in the law in August 2014
requires that anyone convicted of this offense complete a “certified batter’s program.”
This condition is extremely onerous on most defendants as it requires the expenditure of
a considerable amount of time (approximately 80 hours over 40 weeks) and money (as
costly as $3,500 in program fees).
The days of a domestic assault and battery being viewed as a “private” or a “family”
matter are long gone, and you can expect the prosecutor to prefer the possibility of
losing a case at trial to the possibility of dismissing a case like this prior to a scheduled
trial. For this reason you absolutely need a capable and seasoned trial lawyer to represent
you in any assault and battery case. From the moment you are charged with a domestic
assault and battery you need to work with your attorney to formulate a strong and
sensible defense to protect yourself.
You can find more information about the penalties for domestic assault and battery at:
A&B on a Family or Household Member
Before delving into how this new crime of domestic assault/assault and battery is different, we must first examine the existing crimes of assault and assault and battery. An assault is either (1) an attempted battery or (2) an immediately threatened battery, where a battery is a harmful or unpermitted touching of a person.
To convict a defendant of an assault and battery, the Commonwealth must prove that:
(1) the defendant touched the person without having any right or excuse for doing so;
(2) the defendant intended to touch that person; and
(3) the touching was either harmful or was done without the person’s consent.
The new crime of domestic assault or domestic assault and battery is proved by showing the above-mentioned elements, but in addition, the Commonwealth must show that the defendant and alleged victim was a “family or household member” of the defendant, which is defined in the statute as persons who:
(i) are or were married to one another;
(ii) have a child in common regardless of whether they have ever married or lived together; or
(iii) are or have been in a substantive dating or engagement relationship.
Mass. Gen. Laws ch. 265, § 13M.
In short, if you are accused of assault or assault and battery on a “family or household member” as defined above, then you can be charged with domestic assault or domestic assault and battery.
One big difference in being charged with domestic assault/assault and battery (instead of simple assault or assault and battery), is the possible penalties involved. As with assault or assault and battery, the punishment for conviction of a domestic assault/assault and battery is up to 2.5 years in a house of correction, but where the fine for an assault or assault and battery is up to $1,000, the fine for a domestic assault/assault and battery can be up to $5,000. There is also an aggravated penalty for a second domestic assault/assault and battery, where conviction can result in up to 2.5 years in a house of correction or 5 years in state prison. Ch. 265, §§ 13A, 13M(a), (b).
In addition, a person convicted of or taking a continuance without a finding (CWOF) for a domestic assault or domestic assault and battery must complete a certified batterer’s intervention program, unless the court concludes, in written findings, that there is good cause to relieve the person of this requirement. Ch. 265, § 13M(d).
The penalty for conviction of this crime also includes a mandatory $50 fee that will be deposited in the Domestic and Sexual Violence Prevention and Victim Assistance Fund and that will be controlled by the Department of Public Health to fund grants for domestic violence prevention programs. See ch. 17, § 20.
Persons charged with domestic assault/assault and battery, must now wait a period of 6 hours before a clerk or any other person authorized to take bail (other than a judge in open court) can admit him/her to bail. Moreover, if the Commonwealth chooses, it can make the accused wait a maximum of 3 hours after the complaint is signed before he/she is arraigned. Ch. 276, § 42A, 57, 58.
The mandatory waiting periods are significant, as defendants accused of this crime may now be waiting in jail longer than those accused of other crimes before they are released on bail. In addition, as to the 6 hour waiting period for bail, if a person is still in custody by the time he/she is arraigned, his/her lawyer will not be able to argue to the judge when requesting bail that the fact that the client was released by a clerk on bail and showed up for arraignment is proof that the client will show up for trial. With respect to the 3 hour waiting period for arraignment, should a defendant be charged late in the day, the 3 hours may expire after the court is closed, meaning that the person will not be arraigned until the following day.
Lastly, there are new reporting requirements where domestic abuse is merely alleged. The law says that before any criminal defendant is released, discharged, or admitted to bail, the court must ask the Commonwealth whether domestic abuse is alleged to have occurred prior to or in conjunction with the crime charged. If this is the case, the Commonwealth must file a written allegation of domestic abuse. When the court is satisfied that there has been an allegation of abuse of a family or household member (as would be the case if a domestic assault or domestic assault and battery is alleged), the court must make a written ruling that such abuse is alleged and such a ruling will be included in a statewide domestic violence record keeping system. This 56A allegation, as it is commonly referred to, can only be removed if the person is subsequently found not guilty, if a grand jury has returned a no bill, or if the court makes a finding of no probable cause. The Commonwealth’s decision to dismiss the case will not remove the allegation from the statewide domestic violence record keeping system. See ch. 276, § 56A.
Although 56A allegations will not be included in the defendant’s criminal offender record information (CORI), so that employers and the general public will not be able to see such entries, these allegations will be listed on the defendant’s court activity record information (CARI). CARI records are used by courts and probation departments when making decisions that relate to the issuance of restraining orders and, in domestic relations cases, domestic relations protective orders. They are also used by juvenile courts when making decisions regarding custody and guardianship of children. Therefore, a 56A allegation can have wide-ranging consequences for the accused outside of the criminal case from which it was generated.