Massachusetts Approach to Domestic Assault and Battery Between Family Members
In 2014 the laws in Massachusetts were amended to create a new crime of assault and battery on a family/household member, also sometimes referred to as domestic assault and battery. Before 2014, such cases were brought under the generic assault and battery statue. Under the 2014 law, the potential penalties for the crime of domestic assault and battery are increased from those of regular assault and battery in several ways.
First, any sentence is required to include referral to a state certified "batterer's intervention" program -- a very expensive and time consuming program -- unless the judge makes specific findings that it is unnecessary (something that is anticipated to be very rare).
Second, the law provides that a subsequent offense charge of assault and battery on a family/household member is a felony carrying up to 5 years in state prison. This new maximum sentence would apply for any person convicted under the new statute who had also previously been convicted of a first offense domestic assault and battery charge.
Third, the new law changes the way that “dangerousness hearings,” at which the Commonwealth can ask that a person be held without bail for up to 120 days operate. Following the highly publicized case of Jared Remy, it has become common practice for some District Attorney's offices to ask that defendants be . In the past, if the Commonwealth sought to have a person held without bail, it was the ordinary procedure for the Commonwealth to call the witnesses to testify at the hearing on its request. The 2014 law, however, directs the court to consider the statements of the witnesses even without their presence, and clearly indicates an intent that individuals be held without bail on a much more frequent basis.
Prosecutors in some counties are more likely to request that the person charged with the crime be held as a danger than others. In particular, Middlesex and Bristol Counties are known for making such requests more frequently than others.
Domestic assault and battery differs from normal assault and battery in that it allegedly is committed against a family/household member. The law defines family/household members as people who (i) are or were married to one another, (ii) have a child in common, or (iii) are or have been in a substantive dating or engagement relationship. When deciding what counts as a "substantive dating relationship," the statute states that the jury should consider "the length of time of the relationship; the type of relationship; the frequency of interaction between the parties; whether the relationship was terminated by either person; and the length of time elapsed since the termination of the relationship."
The Alleged Victim Cannot 'Drop' the Charges
If the person who is alleged to have been assaulted calls the District Attorney to say that it was "all a big misunderstanding" or that the (s)he wants to "drop the charges" the likely response will be that whether or not the charges are prosecuted is up to the District Attorney, not the alleged victim. Furthermore, the assistant district attorneys who handle individual cases are trained as a matter of course not to dismiss domestic assault and battery cases even if the alleged victim wants the charges dismissed. In these cases it is important that you have to have an attorney on your side who knows how to free the hands of the district attorney and the court system to get the case resolved.
Department of Children and Families
When children are present in the household during a domestic assault and battery, the police will notify the Department of Children and Families through a mechanism known as a 51A report of potential child abuse/neglect. In those cases you have more than just criminal charges to worry about and should always contact an attorney to protect your rights as a parent.
Defending Domestic Assault and Battery Charges
With 2014 enactments, it has become much more important for individuals charged with domestic assault and battery to fight the charges. Massachusetts will now maintain a database of all such charges, and the mere allegation of domestic violence will be enough for an entry to be made in this database, which will be attached to the person's criminal record.
Second, the penalties for domestic assault and battery are particularly severe, both in terms of the punishments imposed by the courts, and also in terms of what are known as "collateral consequences" -- consequences imposed on a person in addition to any criminal penalty. In the last 15 years, it has become clear that people convicted of a domestic violence charge will see that fact used against them if they apply for any kind of privilege, clearance, professional license, or firearms license. It is also clear that the legal system is headed in the direction of making such records publicly indexed information.
If you have been charged with a domestic assault and battery, be sure to carefully discuss your professional aspirations with your attorney. Contat me to set up a free consultation if you or someone you know is charged with domestic assault and battery.