Massachusetts Indecent Assault and Battery

Criminal Defense Law Office of John L. Calcagni, III

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In the Commonwealth of Massachusetts, sexual assault is referred to as Indecent Assault and Battery.  This consists of unwanted or non-consensual sexual contact that does not involve any form of sexual intercourse or sexual penetration. 

Under Massachusetts criminal law, the crime of Indecent Assault and Battery is a felony sex offense and may be found at Massachusetts General Laws, Chapter 265, Section 13H. 

If the offense involves a person with intellectual disability go to: Indecent Assault and Battery on a Person with an Intellectual Disability

If the offense involves a child under 14 go to: Indecent Assault and Battery of a Child Under 14

Legal Elements of Indecent Assault and Battery

In order to be found guilty of Indecent Assault and Battery under Massachusetts criminal law, there must be strong evidence of the following seven legal elements:

  1. the complaining witness was age 14 or older
  2. the defendant intended to engage in a physical touching of the complainant
  3. the defendant committed a touching
  4. the touching that was harmful or offensive
  5. the touching was indecent
  6. the touching was committed without legal justification; and
  7. the touching occurred without the complainant’s consent

Aspects of a Touching Required for Indecent Assault and Battery in Massachusetts

Under Massachusetts criminal law, the touching required to prove Indecent Assault and Battery must be intentional, harmful or offensive, indecent, and without legal justification.  

All elements of the touching must be present in order for the touching to constitute an indecent assault and battery.

The law looks to the intent of the defendant.  He must have intended to make physical contact in order to be guilt of Indecent Assault and Battery.   Incidental or accidental contact is not sufficient.

A harmful touching is one that is physically or potentially physically harmful.  Actual harm or injury is not required.  An offensive touching is one that is an affront to a person’s integrity.

Indecent means that which the common sense of society would regard as immodest, immoral and improper.  What is indecent should be measured by common understanding and practices.

An indecent touching includes those acts where the defendant directs or commands the alleged victim to touch a private part of the defendant or another person, and where a defendant touches the alleged victim with his own private part or that of another person. 

For example:

The fondling of a person’s breast, touching of buttocks, or reaching between his or her legs may constitute indecent assault and battery.  An unwanted kiss on the mouth may also constitute indecent conduct, depending upon the circumstances. 

Forcing a victim  remove her clothing or commit an indecent touching on herself or another person also may constitute indecent conduct.

Lack of Consent Necessary to Prove Indecent Assault and Battery in Massachusetts

Among the legal elements necessary for an indecent assault and battery conviction under Massachusetts criminal law is that the touching charged occurred against the complaining witness’s or victim’s will. 

This means the evidence must establish that the physical contact occurred without the victim’s consent.  This may be proven with evidence that the complaining witness communicated the lack of consent to the defendant or resisted the sexual advances verbally and/or physically.  

However, a person is not required by law to use physical force to resist an unwanted sexual encounter.  If a person fails to resist because of fear or bodily injury, the sexual encounter is not consensual. 

The complainant must be free to exercise her will to engage in sexual contact without any physical restraint or psychological coercion.  

The issue of consent  (or lack thereof) is determined by considering the totality of the circumstances leading up to and during the parties’ encounter.

Defending an Indecent Assault and Battery Allegation in Massachusetts

There are a limited number of ways to successfully defend an Indecent Assault and Battery allegation. 

One common defense is that the evidence does not establish that the alleged indecent contact occurred.  Perhaps the victim identified the wrong assailant or simply fabricated the encounter. 

False allegations do occur and are difficult to overcome.  Because of this, the power of a sexual assault or Indecent Assault and Battery allegation cannot and should not be underestimated. 

The second and most common defense to an Indecent Assault and Battery charge is consent.  

Under this theory, the defendant admits that sexual contact occurred, but that the encounter was with the complainant’s knowledge and permission. 

Under Massachusetts criminal law, strong evidence of lack of consent is necessary for an Indecent Assault and Battery conviction. 

Defendants moving forward on a consent defense may both attack the prosecution’s evidence and offer affirmative defense evidence.  

Evidence of consent may be established during cross-examination of Commonwealth or prosecution witnesses at trial, as well as by the defendant testifying in his defense at trial, should he elect to do so.    

Consent or lack of consent is a fact-based determination based upon the totality of evidence presented, to include the absence of evidence. 

Common factors include:

  • verbal resistance
  • physical resistance, or lack thereof
  • statements or actions consistent with a consensual sexual encounter
  • the sexual history and prior relationship between the parties
  • the sequence of events during the sexual encounter
  • the complainant’s actions after the sexual encounter
  • timing of the allegation in relation to the sexual encounter

These factors should be considered individually and collectively and analyzed through the lens of common sense. 

Potential Punishment if Convicted of Indecent Assault and Battery in Massachusetts

The potential consequences for Indecent Assault and Battery, if convicted, in the Commonwealth may be found at Massachusetts General Laws, Chapter 265, Section 13H. 

A defendant convicted of Indecent Assault shall be sentenced to a term in state prison that does not exceed five years, or in a jail or house of corrections for not more than 2 ½ years.  

Because Indecent Assault and Battery is a sex offense, convicted offenders must also comply with statutory sex offender registration and treatment requirements. 

If you have been charged with indecent assault and battery, call (508) 213-9113 to schedule a free consultation with an experienced Massachusetts Sex Crimes Defense Lawyer.