Domestic Violence
Massachusetts has a specific law for Assault and Battery on a Family or household Member, which is described in Chapter 265 §13M of the Massachusetts General Laws. The elements of the offense are the same as a typical assault and battery, with the added relationship requirement. To qualify as an offense under this section of chapter, the alleged victim must be family or household members; or be in, or have been in, a “substantive dating relationship.” The judge will need to make a determination that the relationship exists, and the government will provide a preliminary statement that abuse has occurred according to the allegations.
Oftentimes domestic abuse charges are accompanied by a restraining order meant to protect the alleged victim. This is a separate civil matter which is governed by its own standards. As with most legal matters, it is recommended that you consult with an attorney before a restraining order hearing. This is especially true if you are facing criminal charges as well.
What is Abuse?
For the purposes of these charges, abuse is defined in section 1 of chapter 209A of the Massachusetts General Laws. Abuse is defined as one of the following:
1. attempting to cause or causing physical harm;
2. placing another in fear of imminent serious physical harm;
3. causing another to engage involuntarily in sexual relations by force, threat or duress.
This definition is also important because along with criminal charges, the alleged victim will often request a restraining order under chapter 209A. A restraining order is a separate civil matter, where the plaintiff will try to show the judge that there is a substantial likelihood of immediate danger of abuse, as defined above. If the judge makes such finding, he will issue in an order that (among other things) the defendant stay away and have no contact with the alleged victim. A violation of a restraining order will result in misdemeanor criminal charges under chapter 209A §7 punishable by up to two and a half years in the house of corrections. It is imperative that a person subject to a restraining order strictly abides by its terms to avoid potential jail time.
What now?
Often, these charges are the result of a call to the police when a couple is in the midst of a fight, whether verbal or physical. It is important to remember that any touching, no matter how slight, can be an assault and battery if it was unconsented to, offensive, or harmful. A police officer responding to a domestic violence call will almost always make an arrest if there is some indication of a fight, even if the caller immediately recants. Many times, both parties will have cooled off by the time police arrive, and the caller will say that everything is fine. Police may still make an arrest if they see fit.
A married defendant may be able to avoid prosecution if the alleged victim spouse decides to use his or her marital privilege and not testify. If that testimony was the key evidence in the case, the government may dismiss the charges. Most other relationships do not have that same benefit. An experienced attorney will help you navigate the complex dynamic of the criminal and civil consequences of domestic violence allegations.