One of the most common crimes in Massachusetts is Assault and Battery on a Family / Household Member, and other aggravated forms of this offense. When charged with a domestic violence offense in Massachusetts, a defendant’s entire life can be turned upside down.
Consequences of domestic violence changes in Massachusetts
Criminal charges of a domestic violence nature can have a significant impact on a person’s employment, living situation and family life, especially if ordered to stay away and/or have no contact with the alleged victim. This can result in the defendant being uprooted from his or her home and not being able to see or communicate with a significant other, and/or their children.
What’s required to be charged with domestic violence in MA
The significance of this charge is that the assault and battery was committed upon a family or household member. This is an element that must be proven to be charged with the domestic part of the crime.
The prosecution must also prove beyond a reasonable doubt that the defendant touched the alleged victim and that he intended to do so.
The touching that is required is such that it would be likely to cause bodily harm, or it was offensive, i.e. without consent. Most of the time, this charge stems from an incident that happened between parties who are romantically involved, related by blood or marriage, or living under the same roof.
Defending a domestic violence charge in Massachusetts
Defending a domestic violence charge in Massachusetts requires a criminal defense attorney with skill, finesse, and experience.
The first thing a good criminal defense lawyer will do is conduct an independent investigation of what actually occurred and contact the complaining witness to determine whether or not the alleged victim wants to press charges against the defendant.
Without the alleged victim’s in-court testimony, it can be very difficult for the prosecution to prove its case. Often, these cases stem from incidents that occur in the heat of the moment, and shortly thereafter, following some reflection on the situation, the alleged victim no longer wants to see a significant other criminally prosecuted.
In many cases, the Court will order the defendant to stay away and/or have no contact with the alleged victim, but this does not include contact by the lawyer or his investigator.
It is common practice for an attorney to contact the alleged victim in a non-intimidating fashion to confirm whether or not they want to press the charges, and if not, their wishes regarding punishment. Obtaining this information early in the process will arm the defense for pretrial negotiations with the prosecution and aid with possible trial strategy decisions.
The Marital Privilege
The Marital Privilege applies to those individuals that are married at the time of the offense. Generally, in Massachusetts, a spouse shall not be compelled to testify in the trial of an indictment, complaint, or other criminal proceeding brought against the other spouse, and shall not testify as to private conversations with a spouse occurring during their marriage.
Only the alleged victim may claim this privilege, and therefore, it is not automatic. If this privilege both applies and is invoked, it my significantly impact the prosecution’s case.
The 5th Amendment privilege
The 5th Amendment privilege against self-incrimination belongs to the defendant as equally as to the complaining witness. If the alleged victim lied to police when making his or her complaint, such as by fabricating the allegations, leaving out material details, or making material misrepresentations, the complainant may invoke his or her 5th Amendment protection. Where this privilege applies, it too may significantly impact the prosecution’s case against the defendant.
Sometimes there are facts and circumstances that give rise to the alleged victim also being criminally responsible for the incident, whether by physically assaulting the defendant or other means. Under this circumstance, the defendant can file a private application for criminal complaint against the alleged victim.
If the criminal complaint issues, this places the alleged victim in a defensive position. The parties are then referred to as cross-complainants. With both parties on the defensive and being criminally charged, this regularly results in both parties invoking their respective 5th Amendment Privilege to avoid testifying, which can result in the dismissal of both cases.
Defending domestic violence allegations requires experience and resources. If you have been charged with a domestic violence offense in the Commonwealth of Massachusetts, contact the Massachusetts Domestic Violence Defense Attorneys of the Law Office of John L. Calcagni III, Inc. today for a free consultation (401) 351-5100.