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Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network.
To speak to Sam about a criminal matter call (617) 206-1942.

Posted On: May 20, 2013

“I AM BEING ACCUSED OF MASSACHUSETTS DOMESTIC VIOLENCE. WILL I LOSE MY CHILDREN AND GO TO JAIL?”

An allegation of Massachusetts domestic violence can affect your entire life. It can create irreversible harm long before you have a trial or resolve the criminal charges. This Boston criminal lawyer has handled many such cases over the past quarter century. Through my Attorney Sam’s Take, I have attempted to warn you how serious these charges are.

The warning deserves repeating…both for the sake of the accused as well as the accuser.

Years ago, society did not treat such allegations with the appropriate amount of seriousness. Now, the courts tend to err on the other side of the occasion. I still come across cases where a complainant admits that he or she called the police claiming a domestic disturbance out of anger, even when no such violence took place. They are then surprised to learn that they cannot simply tell the police or the prosecutor that they have decided they want to forget about the whole thing.

The fact is that, once the police are called, it is too late for that.

"What exactly is domestic violence? Do I actually have to hit someone in order to be charged with a crime?”

Actually…not always. Other crimes, such as harassment, can sometimes be brought even if no physical violence is alleged. Further, allegations of “emotional abuse” can be prosecuted by law enforcement and acted upon by the Department of Children and Families (“DCF”).

“What does DCF have to do with it? I thought that only the police and the prosecutors get involved when these charges are made.”

Not so if there are kids in the home. If there are children in the home, then DCF starts its own investigation. The rules governing DCF are much more elastic that common sense would indicate. Let’s take the following fact scenario:

Husband and wife have an argument. Wife calls the police. The police arrest husband (as they are practically mandated to do…regardless of what the wife wants). Husband and wife make up and wife admits that she overreacted. No violence actually took place. She even shows up in court the next day at the arraignment to tell the judge and prosecutor that the case should be dropped.

The case is not going to be dropped.

Instead, the prosecutor will likely refuse to speak with wife (once it becomes clear that she wants to drop charges) until the day of trial many months later. Ironically, if the couple are legally married, the prosecutor cannot force wife to testify and so the case will be dismissed anyway (if the case cannot be proven without her testimony). The bottom line is that husband and wife are now trapped in the system until the wheels churn and bring them to a trial date.

Meanwhile, if there are children in the home, DCF will become involved. While the prosecution is pending, DCF may do things like threaten wife to take away the kids if she does not divorce husband or, at least, testify the way the prosecution wants her to.

“Well, DCF has to make some kind of showing of violence in the home, don’t they?”

You would be surprised at how little DCF need show to become involved and support their case against husband and/or wife. DCF is an agency with a great many powers and very few restraints.

“If the prosecution dismisses the case, then DCF will as well, right?”

Not necessarily. The rules are different for each.

“Wait a minute. You have written many blogs about a clerk magistrate hearing. Doesn’t the defendant have a right to such a hearing to determine probable cause if the allegation is simply a misdemeanor?”

Nope. We have become so tough on domestic cases that there is an actual exception in the law for these cases. Even if the defendant is not arrested (which would negate the need for such a hearing in itself), there is no right to a hearing in domestic violence cases.

“So, what can I do?”

Two things. The first is preventative. It is important that folks realize what a quagmire they are instantly thrown into once that call to the police is made. This is not to suggest that someone who is actually a victim of violence should not call the authorities, but those who would make claims simply because they are angry should understand the nightmare that their call will bring.

Once the allegation is made, of course, there is really only one thing to do. Retain the services of an experienced criminal defense attorney to advise, guide and defend you.

"Can the right attorney do any good?"

Yes. As with most criminal actions, the rules surrounding domestic violence and DCF cases can be complex. However, the best way for the Commonwealth (either agency) to simply trample your rights and get a very simple result to your detriment is for there not to be a qualified and experienced attorney opposing them.

It is up to you to prevent that from being the case.

Fail to do so at the first possible opportunity at your own risk!