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) 492 3000.

A Boston assault and battery on Cambridge woman – further discussion of MA

On Saturday night, a 31-year old woman was jogging on the Esplanade. Suddenly,
she reports that a gang of men surrounded and attacked her.

Apparently, she was able to escape the men after having been punched twice in
the head. She says that the men had been standing around and drinking beer
when she passed them and they attacked her.

The jogger is indeed lucky that she escaped without further harm from the
attack. There have been three sexual assaults on the Esplanade since 2007,
according to the police. However, the Commonwealth does not believe that this
weekend’s incident is related to those earlier ones.

In my last blog, we discussed how the crime of Massachusetts assault and battery can trigger other, more serious charges. You do not need a Boston criminal lawyer to tell you that what happened this past Saturday night involved assault and battery. We have also discussed that it may not even matter who did the punching because the Commonwealth would likely charge all the men under the theory that the group
attack was a joint venture.

Attorney Sam’s Take On Massachusetts Assault And Battery

“Sam, I notice that sometimes it is called “assault and battery” and other times
simply “assault”. What is the difference?”


Assault and battery are actually two different crimes. The battery is the
actual striking, or touching, the individual. Assault is putting the person in
fear of the immediate striking. In other words, as I pull back my arm to throw
a punch, I am assaulting the person I am about to hit. Once I hit him, it is a
battery.

This is why simply pointing a firearm at someone is assault with a deadly
weapon. the weapon is obviously the gun and the assault is putting the person
in fear. In such a case, assuming there is no shooting or touching, there is no
charge of battery.

“Twice you used the term ‘touching’. Is simply touching somebody a battery?”

Believe it or not, the answer can be “yes”. All that is needed is that said
touching is offensive and that such a touching was unwanted.

“What if I approach a stranger an tap him on the shoulder and it turns out that
he found that offensive and unwanted?”

It’s a battery.

Now, such a battery may not be prosecuted…that would be up to the police and
the prosecutor. However, it could be. Successfully, in fact.

“What if I tell someone I am going to hit them and never touch them? Is that an
assault?”

No, that would be another Massachusetts crime. It is a crime to threaten to commit a crime. It would be a crime to strike the person and by saying you are
going to do it is making a threat.

“What if I were saying it as a figure of speech, like ‘I could kill you’?”

Believe it or not, under certain circumstances, that could be prosecutable. If
so, it would be making a threat to commit a crime. The crime threatened, of
course, would be homicide.

“Gee, back in the day, people understood that sometimes folks get angry and say
certain things without meaning them.”

True. However, we are no longer in that day.

To view the original article discussed herein, please go to
http://www.bostonherald.com/news/regional/view.bg?articleid=1373858&srvc=rss

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