Westwood Domestic Violence Lawyer
Defending Domestic Violence Charges in Norfolk County
Charges of Domestic Violence carry very significant penalties including the potential for a long jail sentence. Additionally, these types of cases can result in long terms of probations, anger management classes, the batterer’s program and many other conditions.
Massachusetts criminal law defines a “domestic relationship” as two people who:
- Are or have ever been married.
- Are or have ever lived in the same home.
- Have a child together.
- Are or have been in a “substantive dating relationship.”
What Is Considered a “Substantive Dating Relationship”?
A judge will look at a number of criteria to determine if two people were in a substantive dating relationship. The judge will consider the length of the relationship, the type of relationship, how often the two people saw each other, and, if the relationship is now over, how long it has been over.
If the Victim Drops the Case Can the State Prosecutor Still Press Charges?
Yes, this is a common misconception in criminal cases. The victim cannot “drop the charges.” The two parties in the any criminal case are the defendant and the state. It is the state’s case against you and only the state (the District Attorney’s Office or Attorney General’s Office) can drop the charges (either by making a motion to dismiss or filing a nolle prosequi). There may be circumstances in which a victim cannot be forced to testify in a criminal case and, therefore, the state may not be able to proceed in their case against you. This can occur if a victim has a 5th Amendment Right not to testify in each case, can assert the “Marital Privilege” so that they do not have to testify against their husband or wife, or have some other reason why they cannot be forced to testify.
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by filling out our confidential contact form or by calling (617) 523-3500. Serving Clients in Norfolk, Suffolk, Plymouth, Barnstable, Bristol, Essex & Middlesex Counties.
Frequently Asked Questions About Domestic Violence
Do I Have to Live with the Person for a Domestic Violence Charge to Occur?
No. Living together is one possible way that charges can be considered domestic violence. However, there are other types of relationships that can give rise to those charges as well such as having a child together or being related.
If I Plea to the Charge, Can I Have My Record Sealed?
Massachusetts does provide for ways to have your record sealed in many cases. Depending on the outcome of your case, there may be a waiting period to apply to have it sealed, or you may be able to apply the same day that it is resolved.
What Happens if I Plea to the Charge?
Any charge of domestic violence carries a wide range of possible sentences. You have an absolute right to a trial in any criminal case. If you decide to change your plea, however, it is important that your attorneys negotiate with the district attorney’s office and make a strong presentation to the judge to avoid a lengthy jail sentence in your case. In cases of domestic violence, in addition to any sentence of jail or probation that may be imposed, judges will often also order that the defendant attend anger management classes or a batterer’s program.
If I am Convicted, Will it Affect My Gun Rights?
Yes, depending on the charge and the outcome in the case, it can affect your ability to legally own a firearm.
If I Share a Home with the Alleged Victim, Which of Us Can Stay on the Property?
Cases involving domestic violence can many times also be accompanied by stay away orders, no contact orders, or 209A restraining orders. In situations where both parties live together and there is an order imposed preventing them from staying in the same home, the judge will generally order one party to vacate the home while the order is in effect.
What Is a Protective Order?
A protective order can be issued by the judge in any criminal case, not just cases of domestic violence. A protective order can limit the public’s or the defendant’s access to certain information in a case. It is important that issues of protective orders be dealt with by experienced attorneys as, in some cases, limited access to information about your case can interfere with your defense.
Massachusetts’ New Domestic Violence Law
On August 8, 2014, a new domestic violence law went into effect in Massachusetts. Among other changes, the new law creates new crimes, changes many court procedures, and increases penalties.
Per the new domestic violence law, crimes can now include:
- Domestic Assault: There is now separate criminal offenses for domestic assault and domestic assault and battery. It must be alleged that the defendant assaulted or assaulted and battered the victim, and that they had a domestic relationship. (See the definition of a domestic relationship). The crime carries up to 2 1/2 years in jail or house of corrections.
- Aggravated Domestic Assault: Also created was the crime of Aggravated Domestic Assault or Aggravated Domestic Assault and Battery. It must be alleged that the defendant assaulted or assaulted and battered the victim, that they had a domestic relationship (See the definition of a domestic relationship), and the defendant had previously been found culpable for an offense of domestic violence.
- Strangulation: Strangulation carries a penalty of up to 2 1/2 years in jail (house of corrections) or up to 5 years in state prison. Aggravated Strangulation carries up to 2 1/2 years in jail (house of corrections) or up to 10 years in state prison.
- Bail: The law creates new restrictions for when a defendant accused of a crime of domestic violence can be released from custody (either from the police station after an arrest, or from the court upon arraignment).
- Arrest (6 Hour Rule): When someone is arrested and accused of a crime when court is not in session, they are entitled to have a clerk magistrate consider the issue of bail (any bail set during this time will be reconsidered by a judge or magistrate during the defendant’s arraignment in court). Now, in cases where a person is arrested and accused of a crime of domestic violence (violation of restraining order, domestic assault, domestic assault and battery, or strangulation) when court is not in session, no bail can be set until 6 hours after the time of arrest.
- Arraignment (3 Hour Rule): Generally, when an individual is charged with a crime and brought before the court, as soon as the criminal complaint is signed and issued by the clerk, the defendant can be arraigned as soon as all parties are ready to proceed with the arraignment. Now, in crimes of domestic violence (violation of restraining order, domestic assault, domestic assault and battery, or strangulation), the arraignment cannot proceed until at least 3 hours after the complaint is issued and signed by the clerk. Only the Assistant District Attorney handling the case can waive the 3-hour rule.
- Dangerousness Hearings: In Massachusetts, when a defendant is arraigned in a case, the Assistant District Attorney can “move for dangerousness.” Generally, a judge will continue the case 3-7 days to schedule a Dangerousness Hearing. At the hearing, the Assistant District Attorney will seek to introduce evidence to show that the defendant poses an imminent danger to the community and that there are no less restrictive means other than incarceration (imprisonment) that would ensure the safety of the community). A defense attorney can challenge that evidence, present evidence on behalf of the defendant, and argue that there are, in fact, less restrictive means than imprisonment that would ensure the community’s safety (ankle bracelet, drug testing, etc.)
The new domestic violence law changes Dangerousness Hearings in 3 important ways:
- First, a judge must consider hearsay in police reports or victim and witness statements (previously, the judge could consider such statements, but was not required to do do).
- Second, before being permitted to summon the alleged victim or a member of the victim’s family to court to present evidence at the dangerousness hearing, the defendant must show a good faith basis for a reasonable belief that such evidence would support a denial of the commonwealth’s motion for dangerousness.
- Third, if a finding of dangerousness has been made, the period for which the defendant will be held without bail increases from 90 days to 120 days. Now, without a showing of a change of circumstances, if a defendant is held pursuant to a dangerousness hearing, he or she will be held for 120 days without bail.
- Bail Revocations: If a person has an open criminal case, and is charged with a new crime, they may be subject to a motion to revoke bail. (In this instance, an “open case” refers to an untried or unresolved matter. If the defendant is on probation and is charged with a new offense, the defendant will be subject to a probation violation hearing). The new Massachusetts domestic violence law changes the amount of time that a defendant will be held without bail in all cases. Previously, a person was held for 60 days without bail if their bail was revoked. Now, if a bail is revoked in any case, a person will be held without bail for 90 days.
- Accord and Satisfaction: An accord and satisfaction, agreed upon by both the defendant and victim in a criminal case, can be a way to get a misdemeanor dismissed. The new Massachusetts domestic violence law prohibits the acceptance by the court of an accord and satisfaction in any domestic abuse cases (violation of restraining order, domestic assault, domestic assault and battery, or strangulation).
- Batterer’s Program: In all cases in which the defendant is placed on probation or a continuance without a finding for violation of a restraining order, domestic assault, or domestic assault and battery, the sentencing judge must order that a condition of the defendant’s probation be that he or she enter and complete a certified batterer’s program, or the judge must make specific findings as to why he or she did not make such an order.
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