Attorney Sam’s Take: A Boston criminal lawyer answers questions about MA Domestic Violence

Last week, the Boston Criminal Lawyer Blog began addressing common questions regarding allegations of Massachusetts domestic violence cases. Today, Columbus Day, is one of those holidays when family members find themselves together to celebrate the actual holiday…or simply enjoy a day off. Either way, tempers sometimes erupt. More today than ever… lost tempers can easily end with someone being awarded the Commonwealth Bracelets of Shame.

“Why do you say ‘today more than ever’?”

Because, after years of looking the other way, these matters are treated with extra sensitivity these days. The term “extra sensitivity” translates to, “somebody is going to jail and the prosecution is not going to end any time soon no matter what either of you want”.

Too often in the past, matters in which someone was assaulted in any way were ignored until the incidents repeated themselves and people ended up dead. No, this does not mean that this was true with every domestic argument. However, our criminal justice system is not always great at splitting hairs. Therefore, we have a “no tolerance” approach to these things. We have seen this with cases involving children and any case involving a heated argument or unwanted touching, no matter how slight, between couples or family members. As a result, when the police are notified of such a disturbance, somebody from the household is going to accompany them back to the police station at the end of the visit.

“Well, what happens if it becomes clear the next morning that the situation was simply taken out of context and blown out of proportion the night before? Will the police simply dismiss the case? Will the prosecutor?”

I have always said that one can never say “never” in the criminal justice system, the answer is practically never. Once the arrest is made, the matter is going to be sent over to the local district attorney’s office and the arrestee will appear in court for an arraignment. No, the prosecutor is no more likely to dismiss the matter any more than the police did.

“Even if the victim explains that it was blown out of proportion?”

Yes. We touched on this last week. The fact that the complainant comes and says it was no big deal will not sway the prosecutor. Those days ended when things like “Battered Spouse Syndrome” were discovered. Now, it is more a question of covering one’s prosecutorial behind. After all, what if the defendant then goes out and kills the complainant for having called the police in the first place? That may seem paranoid to you, but it has been known to happen.

“What if it was not the complainant who called the police, but someone who overheard a fight?”

That happens a lot. Usually, it does not matter. If there is any allegation that conceivably fits under a crime…the arrest will be made. Otherwise, the officers will believe that their job is at risk should a tragedy result later on.

“Are there any exceptions to this?”

Sort of. For example, were a complainant to come to the prosecutor and swear that she was lying when the police were called and that nothing actually happened, the charges might be dropped. This would be unusual, though, because it opens the complainant herself open to prosecution.

Another exception is if the complainant and the defendant are married. In that case, when the time comes, the complainant can assert the marital privilege and refuse to testify against the spouse. However, that time usually comes much later…such as at trial when the complainant would be needed to testify. Until then, it is a question of getting the situation to the court’s attention, or getting the prosecutor to actually agree to a hearing on the subject. In the meantime, the Commonwealth will do everything possible to convince the complainant to testify.

“How much time does the crime of “Domestic Violence” carry?”

Domestic Violence is actually not, in itself, a crime. It is a category of crime. The actual crime charged will be something like Assault and Battery, Malicious Destruction of Property, Harassment, etc. The fact that the crime took place in a domestic incident merely brands the crime more serious.

” Are these charges what is meant by a 209A Hearing?”

No, but such a hearing often accompanies such charges. Under Massachusetts General Law Chapter 209A, a hearing may be held if someone in a domestic setting is in fear, or says they are in fear, of physical violence. It is considered a civil proceeding, resulting in a restraining order. However, it can have criminal repercussions. Certainly, violating such a restraining order is a crime that is taken quite seriously by both the Commonwealth and the courts.

If you find yourself facing such allegations, or have been served notice of a 209A hearing, you are best advised to hire experienced counsel immediately. You do have the right to “go it alone” and save money on the front end by not hiring a lawyer. However, as in the case of a Clerk Magistrate’s Hearing, that often means simply that you have the right to do very little to protect yourself and walk out having lost the hearing and in a lot of trouble.

Other than that…have a great, safe and law-abiding Columbus Day!

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