In August 2014, former Massachusetts Governor Deval Patrick signed into law An Act Relative to Domestic Violence. This law ushered in many changes in Massachusetts criminal law and procedure, which will be a topic of several blog posts here at bostonlawyerblog.com. In today’s post I will be addressing one of two new crimes created by the law: domestic assault/assault and battery, Mass. Gen. Laws. ch. 265, § 13M.
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 of another 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 2½ 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 2½ 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.
The passage of the Domestic Violence Law last year has made the consequences for charges of domestic assault or domestic assault and battery more serious than a simple assault or assault and battery. If you have been charged with this offense you should seek competent legal advice immediately. Please call us at (617) 742-6020 or fill out our contact form to reach us.