Resources

Manslaughter

Involuntary vs Voluntary Manslaughter Charges
In the criminal justice system, a person may be charged with Manslaughter if they cause the death of another person. This charge is different than murder, which applies when the situation involves premeditation or malice aforethought. Yes, manslaughter is a form of murder, but the justice system views it as very different from a deliberate act that results in death.

There are two forms of manslaughter charges, involuntary and voluntary. Both are felony criminal charges, but they carry different penalties and have a different set of circumstances leading up to the death of a victim.

Involuntary Manslaughter – when a murder occurs, but the suspect had no intention to kill
Voluntary Manslaughter – when a murder is committed in retaliation for a reasonable provocation as defined by the law
To illustrate the differences between involuntary and voluntary manslaughter, consider a few examples.

Involuntary:

The death occurred while the suspect was committing another felony, like burglary or robbery.
A death occurred when the suspect caused a vehicle accident.

Voluntary:

You are under duress and in the heat of an argument and while provoked you kill someone at that time. A killing that occurs during mutual combat.

The court has discretion in placing charges for murder or manslaughter. The details and elements of anger, provocation, premeditation and timing all enter into that decision about which type of manslaughter will be charged when there is a killing.

Felony Manslaughter Charges

Felony Manslaughter carries tougher penalties for the convicted person. There will be fines and jail time, as there is with other felony convictions. A judge will look at the circumstances of the crime, and base sentencing on evidence that clarifies elements like aggravating and mitigating factors.

The penalties for voluntary manslaughter are considerably tougher than those for involuntary manslaughter. For example, an involuntary manslaughter charge that results when someone kills another person in a vehicle accident caused by their own negligent behavior is more of an unfortunate coincidence than a deliberate killing. While the negligent behavior exhibited by the driver is a crime, the actual murder was not premeditated or planned.

With voluntary manslaughter charges, the suspect faces a much longer time in prison, higher fines and other penalties. This is viewed as a deliberate act, although not a premeditated murder. Since premeditation is normally a factor in a murder charge, most murder charges are not reduced to manslaughter and they bear much more severe penalties, including a possible death sentence.

Massachusetts Manslaughter Laws

The state of Massachusetts recognizes both types of manslaughter charges – involuntary and voluntary. The judge does have guidelines to follow, but any sentence will depend on the particular facts of each case.

There are many factors that can cause a person to kill someone else. Sometimes, the person committing murder believes it is justified, but the courts would disagree. Each case is unique, and the court will look closely at all evidence. Timing is one element of concern. If a person commits a murder in the heat of passion, they could be charged with manslaughter rather than murder. If however, someone was involved in a heated argument, got mad and left, and later returned with a weapon and killed someone, it most likely would be charged as a murder and not manslaughter. They had time to cool off, but also to think about (premeditate) how to get back at that other person.

Who the person is can be another factor in any decision about criminal charges. If they are related to the person who was killed, it could be that there were emotions that interfered with judgment. One key in deciding whether to charge someone with manslaughter is reasonable provocation. Was there undue provocation leading up to the moment of killing? Was the suspect in some way a victim of harassment, unfair arrest tactics or attacked?

Sentencing Factors

Any special circumstances leading to the incident and death will be examined. If there are aggravating factors, the crime is viewed as more serious. Mitigating factors, such as provocation, allow the crime to be considered as less serious. Sentencing is done on an objective basis, without attention to certain factors that others may feel could be relevant, such as physical appearance of the subject or any previous head injury that might interfere with their ability to make a reasonable judgment.

Punishment

Generally, a conviction on voluntary manslaughter will get you at least three years, and up to 20 years in a state prison, along with high fines and possibly victim restitution. A conviction for involuntary manslaughter leads to a sentence of 10-16 months in prison, but that can be increased if the incident was due to recklessness. There is a minimum sentence when involuntary manslaughter is caused with a car.

Criminal Defense Lawyer – Manslaughter

If you, a loved one or friend are accused of killing someone, it is essential to obtain an experienced Criminal Defense Lawyer immediately. They will examine the case thoroughly and help you make important decisions about your case. They will have full understanding of state laws and the various charges that could be placed against you for manslaughter, voluntary or involuntary. They can argue to have charges reduced from murder to manslaughter and represent you at hearings, court trials and appeals.

Your Criminal Defense Attorney will compile a sound case to present to a jury or judge. They will act on your behalf to achieve the best possible results. If an appeal is needed, they will argue aggressively to get you the results you want, possibly a reduced charge or sentence. Do not hesitate to call for an appointment to discuss your case in confidence with an experienced Criminal Defense Manslaughter Lawyer.

Citations:

http://legal-dictionary.thefreedictionary.com/Manslaughter
http://statelaws.findlaw.com/massachusetts-law/massachusetts-voluntary-manslaughter-law.html

Assault and Battery with a Dangerous Weapon

Assault & Battery by Means of a Dangerous Weapon

woman with knifeThe crime of Massachusetts Assault and Battery With a Dangerous Weapon (“ABDW,” in legal shorthand) is a more serious form of the lesser offense of “simple” Assault and Battery (“simple” doesn’t mean the offense isn’t serious; it only means that other, more serious legal elements aren’t present.) Governed by Massachusetts General Laws Chapter 265 Section 15A, Assault and Battery With a Dangerous Weapon is indeed a very serious offense in Massachusetts, and one that prosecutors inside District Attorneys’ offices don’t take lightly. Anyone who is charged with this offense is going to need an experienced Massachusetts Assault and Battery With a Dangerous Weapon lawyer defending their case. If the lawyer who represents you only handles these types of cases “occasionally,” you’re probably going to end up in a lot of legal trouble, and with an outcome that you never wanted.

LEGAL ELEMENTS OF THIS CRIME, AND WHAT THE COMMONWEALTH MUST PROVE TO OBTAIN A CONVICTION

There are two legal elements of this crime:

  1. The defendant intended to commit, and did commit, an underlying assault and battery. (Click on this link to learn the legal elements of assault and battery.)
  2. The defendant assaulted and/or battered the victim with the use of a dangerous weapon.

To secure a conviction on this charge, the prosecution must prove these two legal elements to a jury or judge beyond a reasonable doubt (that’s no surprise to anyone who’s ever watched a TV crime show).

However, here’s where these cases can become tricky: The Massachusetts Legislature has never defined the term “Dangerous Weapon.” So, exactly what is one? Many times, as with the use of a gun or knife, the answer is obvious and not subject to debate. Other times, however, the answer isn’t so clear. Case law has provided the courts with a general legal interpretation, which broadly speaking, is as follows: A “dangerous weapon” is any weapon that the defendant exercised under his control during the alleged commission of the crime, which is likely to cause death or inflict serious bodily injury. Many items, not normally considered dangerous, can be legally deemed to constitute a “dangerous weapon,” owing to the manner in which the item(s) was used by the defendant in the process of allegedly committing the assault and battery. Some unlikely examples: A chair; a book; a pen. More obvious examples: A small baseball bat; a paperweight. Or even a woman’s stiletto heel.

Because of the much more severe sentences and punishments that follow a conviction of Massachusetts Assault and Battery With a Dangerous Weapon, (See Penalties, below,) the primary legal challenge in these cases is to get the charges reduced to “simple” assault and battery. To successfully do this, it is critical that your Massachusetts assault and battery with a dangerous weapon lawyer be extremely experienced at this skill, and possess an expert-level qualification with these cases. Do not make a mistake in your choice of attorney, or you could end up facing a state prison term.  We have been very successful in either dismissing these charges outright or in reducing the charges to eliminate the exposure to a severe prison sentence. 

PENALTIES UPON CONVICTION – BASIC PUNISHMENT

The statute governing this crime provides for “base” penalties, which are increased if certain additional factors accompany the commission of the crime. The statute provides for base punishment ranges of either a maximum state prison sentence of 10 years, or a sentence to a County Jail/House of Correction for a maximum of 2.5 years, or a maximum fine of $5,000, or both incarceration and a fine. Note: As I’ve said elsewhere on this website, a state prison sentence is not the same as a sentence to a County Jail/House of Correction. County Jail sentences usually run no longer than 2.5 years, and inmates there are generally incarcerated for more minor offenses. State prison is very different: Sentences are much longer than 2.5 years, the inmates imprisoned there are generally being incarcerated for very violent offenses, and the overall environment is very severe. Take our word for it: You don’t want to end up there.

ADDITIONAL PENALTIES AND PUNISHMENT

When certain additional factors are present with the charge of Massachusetts Assault and Battery with a Dangerous Weapon, the punishment following a conviction is increased substantially. The penalties escalate when one of the following four additional factors are present:

  • The defendant inflicted serious bodily injury on the victim
  • The defendant committed the underlying assault and battery against a victim who the defendant knew or had reason to know was pregnant when the incident occurred
  • The defendant committed the underlying assault and battery against a person that the defendant knew had an Abuse Prevention Order (Restraining Order) or a Harassment Prevention Order against him or her when the incident occurred
  • The defendant was age 17 years or older at the time of the incident, and committed the underlying assault and battery against a victim who was age 14 or less

If any one of these additional factors above is present, the punishment increases to a maximum of 15 years’ incarceration in state prison, or a sentence to a County Jail/House of Correction for a maximum of 2.5 years, and a maximum fine of $10,000.00

It doesn’t end there. An additional factor that results in more severe punishment is when a defendant is convicted of committing an assault and battery with a dangerous weapon on a person who is age 60 years or older, for the second time. For this second offense, a defendant is subject to incarceration of up to 10 years in state prison, or a maximum of 2.5 years in a County Jail/House of Correction, or a maximum fine of $1,000.00. Upon conviction of a second offense, there is a mandatory minimum jail sentence of at least 2 years.

Home Invasion

The Crime of Home Invasion In Massachusetts

What Is Considered A Home Invasion In Massachusetts?
The crime of home invasion is defined in Massachusetts General Laws Chapter 265 Section 18C. There are four elements that must be proven beyond a reasonable doubt before a defendant can be convicted of this offense.

First, the prosecutor must prove that the defendant entered another’s dwelling place unlawfully. In this context, “entering” means entering without consent. The defendant is considered to have entered, even if he only places his hand or foot into the dwelling place unlawfully. A “dwelling place” is a place in which people live or reside. Places such as hotels, hospitals, dormitories and even barns are considered “dwelling places.” Generally, any place where persons sleep is considered a “dwelling place.” A defendant enters “unlawfully” if he has no right to enter.

Second, the prosecutor is required to prove that the defendant either knew or had a reason to know that someone was inside of the building. Alternatively, this element can be satisfied if it is proven that the defendant stayed inside of the building after he found out that someone was home. If the defendant entered the building for any innocent reason (i.e. by accident), this element is not satisfied. The defendant’s knowledge may be proven by his actions or words and the inferences drawn from them.

Third, the prosecutor has to prove that the defendant was armed with a dangerous weapon when he entered the building. Common dangerous weapons are guns, knives, and brass knuckles. Additionally, many seemingly harmless items can become dangerous weapons when they are used in dangerous manners. Even pencils, lighted cigarettes and shoes can be considered dangerous weapons when they are used in ways that could inflict serious bodily injury or cause death.

Lastly, the prosecutor has the burden of proving that the defendant used or threatened force against a person in the building.

What Is The Difference Between A Home Invasion And A Breaking And Entering?
The major distinction between these crimes is that with a home invasion—someone was home during the commission of the breaking and entering and the defendant had reason to know that someone would be home. Thus, if a defendant broke into a house or apartment during the night then the jury could infer that the defendant should have known that someone would be home. Depending on the case, a jury can rely on reasonable inferences in deciding whether the District Attorney satisfied this element of the crime.

What Are Some Defenses That Can Be Raised To Defend This Crime?
Obviously, every case is different. However, after examining the facts of a particular case an experienced attorney must determine whether to raise a defense of misidentification, alibi [I was not there] or that the District Attorney failed to prove its case beyond a reasonable doubt.

What Are The Potential Sentences If Convicted Of This Crime?
Home invasion is a felony which means that if convicted of this crime a defendant will be sentenced to state prison as opposed to a house of correction. In Massachusetts the state prisons are M.C.I. Walpole [Walpole], M. C.I. Norfolk [Norfolk], Souza Baranowski Corretional Center, M.C.I. Shirley [Shirley] and Bridgewater. If you are convicted of home invasion, you will be punished by at least 20 years in prison.

Robbery

Armed Robbery

In Massachusetts, armed robbery is a crime that is covered by Massachusetts General Laws Chapter 265. The law states that armed robbery consists of robbing or stealing from someone while you are armed with a deadly weapon.

For you to be convicted of armed robbery in Massachusetts, the prosecution needs to prove four elements:

  1. He must prove that you were armed with a deadly weapon, which is a weapon that can jeopardize life or cause serious harm. It does not need to be designed for such purposes. It also does not matter if the weapon was actually used or when he was armed, as long as it was related to the robbery. Common deadly weapons include brass knuckles, knives and guns.

  2. He must prove that the threat was made by you to put the victim in a fearful state, or that you physically hurt the victim. The prosecutor needs to prove that the robbery or stealing of property was caused by the threat of force.

  3. He must show that you took the possession of the victim with the intent of actually stealing it. To prove this, the prosecutor needs to show that he took it against the victim’s will.

  4. The prosecutor needs to show that the taking of the property was against the will of the victim.

It is important to note that in this state, you do not have to be armed to be convicted of armed robbery. All that needs to happen is to tell the victim that you are armed. That is enough for the district attorney to charge you with this crime and convict you. The key in this type of conviction is that by just stating or implying that you have a weapon, you have created a state of fear in the victim and that is enough under the law to convict you.

Sentencing Guidelines

If you are convicted of armed robbery in Massachusetts, you could be facing life in prison. There is a minimum five year sentence in state prison for armed robbery, and the minimum is 15 years if you have a previous record.

The judge on the case does have the discretion to impose a sentence of a variety of years. However, he or she does have the option of sentencing you to life in prison.

There are a number of factors that come into play in the length of the sentence for armed robbery. These include:

  • Your prior criminal record, if any.

  • How the robbery was committed.

  • Characteristics of the victim – if the person was over 60 years of age, you can get up to 20 years in prison.

  • If you entered the victim’s home to commit armed robbery, you can be sentenced to life in prison without parole.

  • If you wore a disguise or a mask, there is a minimum five year sentence for a first offense.

  • If you were armed with a gun, there is a minimum sentence of five years.

Defenses Against Armed Robbery

Your defense will need to cast doubt upon one or more aspects of the prosecution’s case. Your attorney can do so by questioning the credibility and evidence against you. He or she also can try to suppress evidence against you. Suppressing evidence can be done if you can prove that the evidence was obtained illegally or incorrectly.

Another good way to defend you against armed robbery is to raise doubt on whether or not it was really you who committed the crime. The case of course hinges on the prosecution proving that you were the one who committed the armed robbery offense. Your lawyer may be able to get you acquitted if enough doubt can be raised on this point.

Lastly, the defense can try to undermine the case of the prosecution by bringing into question if you were really armed. If the police did a search illegally or they did not follow procedures in collecting evidence, the evidence of the weapon used might be able to be suppressed.

Assault and Battery

Assault & Battery

Sometimes people get into a situation where threats are made or they actually are physically attacked by another person. In these cases, the crime that is committed is assault or assault and battery. The main difference between assault and battery is the use of physical contact. Assault occurs when a person acts in a manner that is threatening to another person, making that other person feel threatened. The violator can be charged with assault even if there was no physical contact. An attempt to strike, hit or touch another person in a violent manner can be considered an assault.

Battery, however, does involve physical contact, no matter how minor. When someone touches another person in a violent manner, intentionally and without justification, this is battery. Also, if you throw something at another person, spit at them or engage in any other sort of aggressive behavior, you may be charged with battery. Battery is a more severe crime than assault.

Assault and Battery Charges & Punishments

The main difference between assault and battery charges is deliberate physical contact that is violent or threatening. Punishments for assault and battery vary by state, but it always is a serious crime. The degree of seriousness depends on the actual event; a suspect may be charged with a misdemeanor or a felony degree crime.

Punishment also varies by state. For example, in Massachusetts, both assault and assault and battery crimes can be punished by up to 2.5 years in the state prison. If the crime is severe enough to be raised to the level of a felony crime, the punishment will also be more severe. The guilty person could spend time in a state prison instead of a county jail or house of corrections.

Examples of Assault and Battery

Examples of assault and battery are easy to envision. People that get into a bar fight, or an argument at a baseball game that soon gets physical could be charged with assault and battery. A heated talk that becomes a pushing and shoving match could also be categorized as assault and battery, due to the element of physical contact.

Many people think that someone who is charged with assault and battery must have had a deadly weapon to use. Actually, assault and battery charges can be made when any type of weapon is part of the scene, including a shoe, a plate or a rock.

Punishment

Punishment doled out for those convicted of assault or assault and battery crimes will vary by several factors. Severity of the injuries may have some impact upon sentencing and punishment. If any weapons were used, the charge could be boosted to a felony rather than a misdemeanor. Special circumstances may also affect the severity of any punishment. Heavier punishments could be rendered if the victim was a minor, or the assault and battery was part of domestic violence.

In Massachusetts, convictions on a misdemeanor assault and battery charge will bring up to 2.5 years in the county jail or house of corrections. If the crime is rated as a felony, the sentence can be more than 2.5 years in a state prison. The most violent offenders or career criminals are found in state prisons. Lower level offenders usually are housed in county jails or local houses of corrections.

Any punishment for this crime will be influenced by the actual circumstances of the event. If there is a small conflict and one person retreats, but then the other person comes after them with intent to harm, the second person might face criminal charges for assault. Use of deadly force may or may not be a factor in punishment, depending on the flow of events. Deadly force could be reasonable in a case of self-defense. Other factors that influence punishment may include consideration of the size, strength and age of the parties.

Criminal Defense for Assault and Battery

An experienced Criminal Defense Attorney who has successfully defended clients accused of Assault and Battery crimes will work hard on your behalf to protect your rights and your freedom. They may try to argue that you were acting in self defense, protecting another person or defending your property when the interaction got physical.

Proving voluntary consent is another defense against these charges. If you engage in a physical activity and someone gets hurt, that is not a crime of assault and battery. For example, players in a football game consent to and expect physical contact of a reasonable nature. If, however, they are hurt because another player deliberately tried to hurt them, that could be assault and battery. The issue at point here is whether or not the contact was more than what was reasonable and common.

If you are accused of assault or assault and battery, get competent legal advice and representation right away. You have no time to waste; your attorney will work diligently to examine all details of your case and work up a strong defense case to present to a judge or jury. If you are convicted, your attorney will make an appeal and possibly be able to get charges reduced to a lower level or eliminated.

No matter what actually happened, facing criminal charges can be a life-changing event. You could lose your freedom for several years, be slapped with high fines and have a permanent criminal record to follow you around forever. Being convicted of a physical crime may also interfere with your ability to find work or housing or travel freely in the future. Get help immediately from a Criminal Defense Lawyer who is experienced handling Assault and Battery cases.

Domestic Assault and Battery

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
freedom!

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:
https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265/Section13m[1]

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.

Penalties

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.

Waiting Periods

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.

Reporting Requirements

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.

Harassment and Stalking

Criminal Harassment  and Stalking

A criminal harassment charge can be levied against you in Massachusetts for several reasons. For you to be found guilty, prosecutors must show that you willfully and maliciously engaged in a pattern of conduct that would cause a reasonable person to feel emotional distress.

In most cases, the person who is charged knows the alleged victim. You might have been in a romantic relationship or a business partnership, and the other person desired you to stop contacting him or her but you did not stop. Or, you may have had no relationship with the person but a recent event caused you to contact the person more than one time, and he or she has gone to the police.

Sentencing Guidelines

If you are found guilty of criminal harassment in Massachusetts, you can be jailed for up to 2.5 years and given a fine of $1,000 for a first offense. A second offense for criminal harassment can net you up to 10 years in jail.

A judge will consider several factors to determine what your sentence will be. For example, she may consider how much harm was done to the victim, any remorse that was shown, your criminal history and other factors.

Conviction for Criminal Harassment

For you to be convicted of criminal harassment, the prosecution needs to prove four elements beyond a reasonable doubt:

Must show that you engaged in a pattern of conduct on at least three occasions that were directed at the alleged victim.

Must show that the actions could cause a reasonable person to suffer emotional distress.

Actions must have caused the alleged victim to be seriously alarmed.

Must show that you engaged in such actions willfully and with malicious intent.

Under the laws of Massachusetts, ‘substantial emotional distress’ is required for you to be convicted of criminal harassment. This is something more than mere uneasiness, nervousness or unhappiness.

The conduct that needs to be directed towards the alleged victim three times or more includes any type of exchange, be it in person, by phone, email, letter or text message. However, if you sent an email to another person who then forwarded it to the alleged victim, this would not be direct contact.

People who have been victims of abuse or harassment can petition the court for an Order of Protection or Restraining Order. The state of Massachusetts provides such victims with two types of relief: abuse prevention order and a harassment prevention order. both injunctions will require you to do or not do certain acts. If you do not comply with one of these orders, you can incur fines, probation and sometimes jail time. Abuse and harassment orders are most common in cases involving domestic violence, harassment and stalking.

Stalking Even More Serious

Stalking in Massachusetts is related to criminal harassment but is more serious. Stalking requires the prosecution to show that you made a threat with intent to make a person fear harm or death. If you are convicted of stalking in this state, you face up to five years in prison and a $1000 fine for a first offense.

If you are convicted of stalking in violation of a protection order, you will get a minimum mandatory sentence of two years and up to 10 years in prison.

Restraining Order Violations

Violations of Restraining orders (“209A” Orders), and Harassment Prevention Orders

Violations of Restraining and Harassment Prevention orders carry serious penalties, and such a charge can be brought against you on what seems like very little evidence.

Often the evidence supporting a charge of violating a restraining order is solely the testimony of the alleged victim.  A claim that someone violated the “no contact” or “proximity” provisions of the order can be brought solely on the basis of the alleged victim’s statement that she was contacted or the defendant came to her house or place of work, or was near her at a bar or restaurant.

But no matter how “good” the evidence appears, these cases are extremely serious.

Judges take these charges very seriously precisely because they begin with a court having issued a restraining order. A violation is a violation of a previous court order.

At your initial appearance, the judge can either detain you or may impose stringent conditions upon your release. Conditions may include house arrest, mandatory sobriety tests, ankle bracelets and drug testing. If convicted, in addition to any jail and probation time you must complete a 42-week batterer’s treatment program.

Penalties for violating a restraining order can vary from probation to significant jail time, depending on the nature of the violation and the criminal record of the person accused.  Violations can also have serious consequences for child custody and visitation, and other family court matters such as divorce cases.

Restraining order violations are misdemeanors and are handled in the district court. The penalty is up to 2.5 years in jail and/or a fine of up to $5,000.00, plus the batterer’s program and any other probation conditions the court orders.

What can constitute a restraining order violation?

A violation of any of the conditions set by the order is a criminal offense. A restraining order violation could arise out of an allegation that you made contact with an individual protected by a restraining order, by appearing either at their home or their work, or within a certain distance from the person or a place as defined in the order.  “Third party contact” is when you have someone else contact the person on your behalf.

Contact can include:

  • Phone contact;
  • In person contact;
  • Emailing;
  • Texting;
  • Commenting on a person’s social media post;
  • Sending or leaving notes or mail;
  • Causing a third party to contact the person on your behalf.

Another form of violation is “abuse” of the person protected by the order. Sometimes this is when there is a charge of a  assault and battery and at the time there was also a restraining order between you and the person assaulted. But it can could also happen when the only provision of the restraining order is “no abuse” of the person, and you get in a verbal argument or make threats to them.

Abuse can include threats, intimidation, or even causing utilities to be shut off at the home where the Plaintiff is living, even if you own the home.

Proving a violation of a restraining order.

In order to convict you of a restraining order violation, the prosecution must prove beyond a reasonable doubt:

  • First, that a valid restraining order was issued against you by a court;
  • Second, that you received notice that the order was in effect or learned of the terms of the order;
  • Third, that you violated a term of the order; and
  • Fourth, that the order was in effect on the date and at the time of the violation.

Defenses to a charge of violating a restraining order.

If you were charged with violating a restraining order, you may have viable defenses, including but not limited to:

  • You were not served with the order;
  • That the contact did not violate the terms of the order;
  • That it was unintentional and simply accidental or “incidental” contact;
  • Even if there is a technical violation of the order that was not intended to abuse, threaten or intimidate the plaintiff, the penalty may be greatly mitigated;
  • That the contact or abuse never happened.

Charges of restraining order violations sometimes start out as “he said, she said” cases, but often phone records, screen shots of texts, or video surveillance recordings are found that either prove or disprove the charges.  Cases that seem simple at the outset can sometimes prove to be much less clear after some investigation.

A complainant may have a motive to lie about the violation.  The conduct may not be an actual violation, especially when an order has been modified to accommodate shared child custody or allows for some kinds of contact but not others.

If you are charged with violating a restraining order.

Most importantly, get yourself an experienced, qualified lawyer who has handled these kinds of cases before. This is not the time to wing it.

Unfortunately, if you are charged, you will be facing an uphill battle, because prosecutors can be particularly zealous in these cases.  Depending on the facts alleged against you, a judge is likely to impose bail, or hold you in custody as dangerous if the prosecutors request it.  You can expect to be treated by the court and prosecutors as if the allegations are true right from the start.  Domestic violence is a serious and dangerous issue, and courts and prosecutors will go out of their way to protect the “victim”, even before anyone has been found guilty of a violation.

Remember that from the moment someone makes an allegation of a restraining order violation against you, everyone, from the police to the prosecutors to the judge, will be watching you closely, looking for signs that you are “dangerous” or that you don’t take the court’s order seriously.

Remember that you are being observed and evaluated from the beginning. From the moment that you learn you are being accused, it is imperative that you:

  • remain calm, don’t argue or get excited or loud;
  • be respectful of police and court officials;
  • don’t try to explain – once the allegation is made, you are probably getting charged no matter what you say;
  • get a lawyer;
  • and again, don’t try to talk your way out of it, you will probably make your defense harder.

Most importantly, get experienced, qualified representation from a criminal defense lawyer who has handled restraining order violation cases successfully.