Massachusetts Criminal Defense Attorney Blog
What is Domestic Assault and Battery?
Assault is the threat of violence, and battery involves unlawful physical violence or intentional touching of another person that was nonconsensual. When assault and battery occurs in the home or in a domestic situation between those in a familial relationship, it is referred to as domestic assault and battery in Massachusetts. Domestic disputes can and often do arise between significant others, family members and those who live together. There does not have to by any physical injury for a charge of assault and battery to be lodged against another person.
When a victim calls the police to allege a domestic assault and battery and police arrive and take the alleged offender away, it is very unlikely that the charges will be dismissed, even if the victim does not want to press charges. Massachusetts’ prosecutors are generally unreceptive to the victim’s wishes to dismiss the case and will often prosecute domestic assault and battery offenders to the full extent of the law.
The Marital Privilege
Depending on the circumstances, the Commonwealth cannot force a spouse to testify against the other spouse. This requires that the spouse exercise the marital privilege. Some courts require that the privilege be exercised on the day of trial. However, a handful of Massachusetts Courts allow the privilege to be asserted at an earlier date if the spouse is available.
The exercise of the privilege is not always the end of the case for a defendant. The Commonwealth will review the whole case to determine whether they can proceed against the defendant without the testimony of the spouse. Typical areas that are examined are whether there were other witnesses present, whether the “911” tape is admissible or whether its admission violates the defendant’s constitutional right to confrontation pursuant to Crawford and whether there are pictures of injuries or medical records. It is imperative to have an experienced attorney familiar with the types of motions to file to exclude these types of evidence on your side if you are facing this type if situation in either the district or superior court.
Aggravating Factors that Carry a More Severe Punishment
The punishment for domestic assault and battery depends on what happened during the dispute. While assault and battery many constitute a misdemeanor with a maximum jail sentence of 30 months, a fine and the likelihood of probation, there are a variety of “aggravating factors” that can elevate assault and battery to a felony offense and can carry more severe punishments, such as lengthier jail sentences. A few examples of aggravating factors include:
· Whether the victim was/is pregnant or very old, i.e., over 65 years of age;
· Whether the defendant has violated a no contact order against the victim; or
· Whether the victim is seriously injured as a result of the assault and battery.
If any one of these factors exists, the assault and battery charge will be escalated to the felony of “aggravated assault and battery,” which carries up to 5 years of prison time.
When a dangerous weapon is involved, such as a gun, knife or anything else that could cause serious bodily harm, the defendant can be charged with assault and battery with a dangerous weapon, which can carry up to a 15-year-imprisonment sentence.
Get in Touch with a Massachusetts Criminal Defense Attorney
When faced with any sort of assault and battery charges, it is imperative to obtain experienced legal counsel. Since most domestic assault and battery cases in Massachusetts boil down to a battle of the victim’s word against the defendant’s, the advice and guidance of a seasoned criminal defense attorney can make a significant difference in the outcome of the case.