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.

Articles Posted in Domestic Violence

Beginning in 1996, federal law made it illegal for any person convicted of domestic abuse to purchase a firearm. But in the more than 20 years since that law passed, countless mass shootings have been perpetrated by individuals with a history of spousal abuse. Recently, a man convicted by the Air Force of beating his wife and stepson opened fire at a church in rural Texas, killing 26 people. How did Devin P. Kelley obtain an AR-15 military-style rifle after a domestic abuse conviction? According to the Air Force, his conviction was never entered into the National Criminal Information Center database.

“I am deeply disturbed — in fact, outraged — that this domestic violence conviction was apparently never reported, and what concerns me equally is the possibility that it’s only one example of non-reporting by the Department of Defense,” said Senator Richard Blumenthal, in a recent interview.

Massachusetts Laws on Guns and Domestic Violence

As of 2014, anyone convicted of a crime of domestic violence is prohibited from owning a firearm in Massachusetts. This is even true of misdemeanor convictions. In MA, domestic abuse includes any act of violence or abuse committed by one member of the household against another. Abuse includes:

  • causing or attempting to cause physical harm,
  • putting someone in fear of serious bodily harm, and
  • threatening or forcing another to have sexual relations.

And domestic abuse isn’t always physical. It can be emotional or sexual, and can even involve neglect or financial abuse. Domestic abuse crimes include:

  • assault,
  • violation of a 209A abuse prevention order (restraining order), and
  • intimidation of a witness.

What About Restraining Orders?

In MA, the issuance of a 209A abuse prevention order will automatically disqualify you from having or obtaining a License to Carry Firearms (LTC), or a Firearms Identification Card (FID). Regardless of whether the order is temporary, permanent, or an emergency order, you will have to surrender all firearms to the police. Once the order is lifted, you may be able to get your FID reinstated, and your firearms may be returned to you. A Boston criminal defense attorney can help you determine your rights if a protective order has been issued against you.

Can I Seal a Domestic Abuse Conviction?

In addition to the prohibition on buying or possessing firearms, any type of domestic violence conviction can negatively impact your ability to get a job or find housing for years into the future. In some cases, you may be able to get your conviction sealed, effectively hiding it from background checks conducted by employers and landlords. Once your record is sealed, only law enforcement agencies will have access to your criminal record. In rare cases, your sealed record may be accessed if you apply for a firearms license.

If your conviction was for a misdemeanor, you must wait five years to have your record sealed. The waiting period for a felony is 10 years. A MA defense lawyer can help you determine if you are eligible to have your criminal record for domestic violence sealed from public view. Continue reading

Unfortunately, domestic violence is not uncommon in this country. Although the term domestic violence usually brings to mind the image of an abusive husband or boyfriend, this offense actually covers a broad range of criminal behavior. When a person subjects a parent or grandparent, child, cohabitant, or current or ex-partner to unlawful physical or emotional injuries, that person may be charged with domestic violence.

Domestic violence can involve physical abuse, such as when a parent strikes a child, and emotional abuse, such as when a husband forbids his wife to leave the house. Domestic violence – which may also be called domestic abuse, dating violence, and spousal abuse – occurs when one person in one of the aforementioned domestic relationships puts down, attempts to control, or physically harms the other.

Types of Domestic Violence

Domestic violence comes in many forms, and many victims experience multiple forms of abuse. Some of the most common types of domestic violence include:

  • Child endangerment is one lesser-known type of domestic violence. This form of abuse occurs when a caretaker places a child in a high-risk situation.
  • Elder abuse refers to the abuse or neglect of a person age 65 or older. In addition to physical and emotional abuse, this offense encompasses financial exploitation and abandonment.
  • Domestic sexual abuse can take many forms, from forcing a spouse to engage in unsafe sex practices to incest and rape of a child.
  • When an intimate partner, or a child caring for an elderly parent or grandparent controls the victim by withholding or stealing money, this type of financial abuse can be a form of domestic violence.
  • Stalking involves repeatedly harassing and threatening a victim, showing up at his or her home or place of employment, leaving harassing voicemails, and repeatedly sending unwanted emails or texts. A MA stalking defense attorney can help you determine how to proceed if you’ve been charged with stalking or cyber-stalking.
  • Teen intimate partner abuse occurs with shocking frequency; up to 12 percent of all teens in grades 7 through 12 have been victims of physical abuse by their teen partner, and about 20 percent have been victims of psychological abuse. Teen intimate partner abuse dramatically increases the victim’s risk of developing risky behaviors, such as practicing unsafe sex, using drugs, eating disorders, and suicide. Further, teen victims of domestic violence are more likely to become victims again as adults.

Studies show that domestic violence affects up to five percent of adult relationships in this country alone. About two million of those victims are women. In 2003, domestic violence was involved in approximately 1,300 deaths. And about 50 percent of all women who are murdered are domestic violence victims.

Depending on the severity of the charge and whether the defendant has a criminal record, domestic violence can be a misdemeanor or a felony offense. If the victim is a child, a felony charge is more likely. If you are charged with domestic violence you may have to pay hefty fines, perform community service, attend anger management programs, and submit to a restraining order. You may also see time behind bars. A Boston domestic violence defense attorney can help you determine how to protect your rights if you’ve been charged with domestic violence or any other crime. Continue reading

People make mistakes, and couples fight. When that fighting becomes physical, criminal charges may follow. But what if you were both drinking and things just got a little out of control; she pushed you and you pushed her back. Nobody got hurt, but in her intoxicated state, she called the police. When the officers arrived, she exaggerated the situation, saying you pushed her into the wall and her head has been throbbing ever since. You are arrested and charged with domestic abuse. In the light of day, she regrets what she did…but it’s too late. Or is it?

Record

Create a written record of the night’s events. If police ignored your claims during the arrest, they may not have written an accurate report. With time, even your memory about the situation will begin to fade. Write down what happened as soon as you can. A MA defense attorney can help you protect your rights, reputation and freedom if you’ve been charged with domestic abuse.

Witnesses

If anyone witnessed the incident, or has witnessed past incidents that could corroborate your story – see if they are willing to provide a sworn written statement, or an audio or video recording. Also, if anyone will testify that the alleged victim was drunk the night of the incident, this information can help you challenge his or her credibility.

Text Messages

In today’s world, text messages are an extremely useful piece of evidence in criminal cases. A string of belligerent text messages from the night of the incident can provide unparalleled insight into a person’s thoughts and feelings at a specific moment in time. Social media and email can be just as useful.

Dress to Impress

Conservative, business attire should be worn at all meetings, court hearings, and in any court setting. Tattoos and facial piercings should be covered if possible. Fair or not, it is human nature to judge a book by its cover. When it comes to criminal cases, you want to be judged in the most favorable light possible.

Consult with an Experienced Attorney

Domestic abuse cases are not something you want to attempt to handle on your own. A skilled Boston defense attorney can help you determine how to proceed if you are facing domestic abuse charges. Your attorney will know what questions to ask to position you for the best possible outcome. For example, if the alleged victim lied about the abuse, what motivations did he or she have to lie? Is there any unexplored evidence? What might negatively impact the alleged victim’s credibility?

Affidavit of Non-Prosecution

If the alleged victim lied – and felt badly about it soon after – he or she may decide to drop charges. But alas, in the state of MA, the accuser cannot just drop charges. Once a report is made, remorse isn’t enough to stop the freight train that will follow. If the alleged victim signs an Affidavit of Non-Prosecution, however, a dismissal may be easier to achieve. An Affidavit of Non-Prosecution is a sworn statement from the alleged victim, requesting to stop prosecution. Continue reading

Domestic abuse is a serious matter, and a false accusation can be severely damaging to your reputation and to the criminal justice system as a whole. False accusations create an environment in which the integrity of victims of actual domestic abuse is called into question. False accusations of domestic abuse are more common than most people think. Jealousy, anger, and revenge can drive people to do unspeakable things. A Boston criminal defense attorney can help you protect your rights, reputation, and freedom if you have been falsely accused of domestic abuse.

 

  • Don’t meet with your accuser alone. If you have to come into contact with your accuser, make sure that you have a witness with you, and meet in a public place. For example, if you have to pick up personal belongings, ask your partner or ex-partner to meet you in a grocery store parking lot with the items, and have someone with you during the exchange. Without a witness and a public location, the meeting could turn into another false allegation.

 

  • Seek legal counsel immediately. An experienced attorney is essential to a favorable outcome in this type of situation. A lawyer will understand the complexity of your situation and will position you for the best possible outcome. He or she will ensure that you don’t say or do the wrong thing, and that you fully understand your rights and options. The right attorney will also provide moral support during what may be an emotional process.

 

  • Avoid behaviors that may be used against you in court. Your integrity and character will be assessed in court. As such, you want to present yourself in the best light possible. To achieve this goal, it is crucial to avoid certain actions, such as engaging in arguments with your accuser, punching holes in walls, or making violent or threatening jokes. Any of these actions can make you look unstable, further substantiating your accuser’s case.

 

  • Remain calm and focused. False accusations of domestic abuse can be extremely stressful. In a stressful situation, it is easy to make poor decisions, but even one bad decision can destroy your case. This is another reason why a good lawyer is so important; a compassionate, experienced MA defense lawyer can guide you through the process so that you avoid making destructive choices. It’s also important to look after your physical and emotional health during such a stressful process. Maintain a healthy diet, get plenty of exercise, and surround yourself with supportive people.

Consequences of Domestic Abuse Allegations

Beyond damage to your reputation, false allegations can create a tidal wave of other life-altering consequences, including:

  • Custody issues
  • Mediation for family disputes may be disallowed
  • The issuance of a restraining order
  • Exclusion from the family residence
  • Parenting issues
  • The need to complete anger management or treatment programs
  • Restriction of certain civil liberties

Further, if you are convicted of any type of domestic violence, you will likely receive time behind bars, hefty fines, and a criminal record. If you have been falsely accused of domestic abuse, don’t act out of anger, and don’t make the mistake of hiring an inexperienced attorney. Continue reading

As of 2014, residents of Massachusetts are prohibited from owning firearms if they’ve been convicted of any type of domestic violence crime. That being said, no law is currently in place requiring courts to notify those affected by this legislation. If you have been found with a firearm following a domestic violence conviction, it is crucial to consult with an experienced Boston criminal defense attorney immediately. MA takes gun charges seriously, especially when the defendant has a past criminal history.

The Second Amendment of the Constitution guarantees the right to bear arms to all citizens of the United States, except under certain circumstances. For example, if you are convicted of a felony, you give up your rights under the Second Amendment. In some cases, individuals can restore their civil rights following a felony conviction. But this is rare. You may be prohibited from possessing a firearm if you:

  • Were convicted of a juvenile crime.

If you were falsely accused of domestic assault and battery, it’s important to seek the counsel of an experienced defense attorney, and fast. The charges – also known as domestic violence or domestic abuse – have serious implications in MA. In addition to a criminal record and fines, you may be required to complete anger management programs, or more expensive “batterer’s” programs. In some instances, you may have to avoid all contact with the person you are accused of harming.

Domestic violence is a serious crime, but an experienced MA defense lawyer understands how often these charges are exaggerated – or even completely fabricated – as a result of relationship problems. More than one jealous lover has falsely accused his or her mate of domestic violence. These false accusations are even worse because they undermine incidences of real domestic abuse.

What is Domestic Assault and Battery?

Domestic Assault and Battery is similar to regular assault and battery, but it involves a family member or someone who lives with you and with whom you have a close, personal relationship. Assault is a threat of violence, and battery involves unwanted physical contact with the intent to cause harm. Neither assault nor battery have to result in actual physical harm to be a crime. Even the intent to harm another can land you behind bars.

Penalties for Domestic Assault and Battery

If convicted of any type of domestic violence, you may face penalties including hefty fines and time behind bars. As with any crime, the penalties vary depending on the severity of the underlying offense and prior criminal history. Penalties may include:

  • First offense: Up to 30 months in prison and a $1,000 fine. You may also have to enroll in a Certified Batterer’s Program, which can cost more than $3,500.
  • If the victim is seriously injured, over the age of 65 or pregnant, the crime may be classified as “aggravated.” Aggravated domestic assault and battery is a felony offense and carries up to five years in prison.
  • When a dangerous weapon is involved, you may be charged with assault and battery with a dangerous weapon. If convicted, the penalty is up to 15 years in prison.

False accusations are a serious problem; they are costly, time consuming, and can ruin a person’s reputation and life. An experienced Boston defense attorney will know how to find the weaknesses in the prosecution’s case and use them to prove your innocence. Domestic violence is a serious crime in MA. Don’t let a bad break up give you a criminal record.

What if My Accuser Drops Charges?

In Massachusetts, even if the alleged victim recants his or her accusation, you will still be arrested. This may seem odd, and even unfair, but this policy is intended to protect victims of abuse. If your accuser decides they don’t wish to press charges, you are still not in the clear. The District Attorney’s office often ignores requests to drop charges in domestic violence cases. It is common for victims of domestic violence to feel pressured by their abuser to drop charges and “work things out,” and the courts want to avoid a revolving door of repeat cases. Continue reading

Also known as domestic abuse, domestic violence charges are aggressively prosecuted in Massachusetts. To understand how to handle these charges, it’s important to first understand what constitutes domestic violence. In MA, domestic violence includes almost any crime of abuse that is committed by one household member against another. Types of abuse include:

  • An attempt to cause physical harm
  • Causing fear of imminent physical harm
  • Making another engage in sexual relations by physical force, threat, or duress

As you can see from the different forms of abuse above, domestic violence can be emotional and sexual, as well as physical. It can even include economic control and neglect. For example, if a man refuses to buy food for his wife unless she has sexual relations with him, or if a boyfriend locks his girlfriend in the basement for two days because he is jealous of her male friendships.

In order to make an arrest for domestic violence in MA, a police officer must have probable cause to believe that a domestic violence offense has occurred within the past four hours. If the officer believes this to be the case, he or she will arrest the individual believed to be the main aggressor in the incident. In some situations, this is obvious. In others, the primary aggressor is difficult to determine. If a restraining order was violated in the process, state law requires the mandatory arrest of the one in violation.

Charges Cannot be Dropped

In MA, domestic violence cases are not dismissed, even if the victim decides to drop charges. Once filed, only the prosecutor is able to drop charges. And the judge has to approve the prosecutor’s request for case dismissal. It is not uncommon for the State to prosecute a case even when the victim wishes to drop charges and refuses to testify against the defendant. A MA criminal defense lawyer can help you determine how to proceed if you are facing charges for domestic violence.

Penalties for Domestic Abuse in MA

Domestic abuse can be a misdemeanor or a felony. How this charge is classified, and how it is penalized, is largely dependent on the underlying crime, and the defendant’s prior criminal history. In most cases, domestic violence convictions will result in a prison sentence of up to two-and-a-half years and a fine of up to $1,000. Probation, counseling, and substance abuse treatment are often required as well. In some cases, such as when a restraining order was violated in association with the crime, a domestic violence conviction may bring up to five years in prison and up to $5,000 in fines. A Boston domestic violence defense lawyer can help you determine what penalties you may be facing based on the nature of your crime. Continue reading

The words “assault” and “battery” are usually used together to describe the criminal act of physical violence, or the threat of physical violence, against another person. These two words have distinctly separate meanings. However, they also have many similarities and often occur together. While assault can involve just a threat of violence, battery involves the intentional offensive or harmful touching of another person.

The Three Elements of Battery

For a person to be convicted of battery, the following three elements must have been present:

  • The touching was intentional.
  • The touching was offensive or harmful.
  • The victim did not consent to the touching.

It may come as a surprise that battery does not require an intent to harm, only an intent to make contact with the victim. So, accidentally bumping into a person who subsequently falls down and is injured is not battery. But spitting on someone, although it does not result in injury, may constitute battery. Basically, if you make offensive or harmful contact with another person, you may be charged with battery. A Boston defense lawyer can help you determine how to proceed if you are facing battery charges.

Penalties for Battery in Massachusetts

If you have been charged with battery, you may be wondering what penalties you are facing. In MA, individuals convicted of this offense may receive the following penalties:

  • First offense: Up to two-and-a-half years in jail, and a fine of up to $1,000.
  • When bodily injury to a child occurs: Up to five years in prison.
  • When significant bodily injury to a child occurs: Up to 15 years in prison.
  • When serious bodily injury occurs, or the act is committed against a pregnant woman: Up to five years in prison, and a fine of up to $5,000.
  • Second and subsequent offenses against a family member: Up to five years in prison.

As with any crime, penalties for battery are largely dependent on prior criminal history, previous battery-related convictions, and whether any aggravating circumstances were present when you committed the act. If, for example, you have no prior criminal record, you are not likely to face serious penalties if you are charged with battery for spitting on someone. On the other hand, if you have an existing criminal record, and you are charged with battery for harming a pregnant woman, you may be facing some serious time behind bars. In either situation, the help of a skilled MA defense attorney can make all the difference in the world.

Domestic Assault and Battery

Domestic assault and battery is basically the same act as regular assault and battery, with one exception. Domestic assault and battery involves a family or household member. Penalties for this offense depend on the specifics of your particular case, but the standard penalty is up to 30 months in prison, and up to a $1,000 fine. In addition, you may be required to complete a Certified Batterer’s Program, which can cost more than $3,500 in some situations. Continue reading

The United States Constitution holds that a citizen is presumed innocent until proven guilty. However, there are some exceptions. In Massachusetts, an individual accused of a crime can be detained in the county jail, before his trial, for up to 90 days if he is deemed a “dangerous person.” This is known as pre-trial detention.

In addition to creating extra stress and hardship, pre-trial detention can impede the defendant’s ability to work with his lawyer on a defense. In most cases, a defense lawyer works with the defendant, immediately following a charge, to craft an effective defense while details are still fresh in his mind. During these crucial hours and days following a criminal charge, the defendant may:

  • Provide contact information for witnesses.
  • Visit the scene of the alleged crime with his lawyer.
  • Provide details of the events leading to his arrest.
  • Work with his attorney to gather important evidence.

If the defendant is locked in pre-trial detention during this important phase of the defense process, his chances of success are dramatically reduced. For this reason, among others, it is essential to find a Boston defense attorney who understands how to avoid pre-trial detention. And if, for any reason, your attorney is unable to remove such an order, he or she should understand how to use it to your advantage. When a defendant is subjected to pre-trial detention, his attorney is generally permitted greater access to the prosecution’s witnesses. During cross-examination, a skilled MA defense attorney can look for weaknesses in the prosecution’s case and use them to the defendant’s advantage.

What Types of Crimes Can Place a Defendant in Pre-Trial Detention in MA?

This type of order is most commonly issued in domestic abuse cases, but the following scenarios may also result in the pre-trial detention of a defendant:

  • Felonies involving “the use, attempted use or threatened use of physical force against the person of another.”
  • Felonies that involved a “substantial risk” of physical force or injury even if no injury occurred.
  • Violations of restraining orders.
  • Misdemeanors or felonies involving abuse.
  • Drug offenses with mandatory minimum sentences of three years or more.
  • Third or subsequent motor vehicle offenses (generally involving drunk driving).

Prior to the issuance of a pre-trial detention order, a hearing must be held. The hearing is like a mini-version of the upcoming trial; the judge makes rulings and examines the facts. However, the hearing is also an opportunity for the defense attorney to learn a great deal about the prosecution’s evidence, or lack thereof.

What Factors Does a Judge Consider When Deciding if a Pre-Trial Detention is Necessary?

  • The level of danger posed to the community by the defendant.
  • The allegations of violence against the defendant.
  • The potential penalties if the defendant is convicted.
  • History of mental illness.
  • The defendant’s reputation.
  • The risk that the defendant will attempt to intimidate witnesses or obstruct justice.
  • Past criminal record.
  • Whether the alleged crime included abuse.
  • History of restraining order violations, if any.

Continue reading

Former Massachusetts Governor Deval Patrick signed new legislation in 2014 dramatically changing the way domestic violence is penalized in MA. The new law, An Act Relative to Domestic Violence, created two new crimes: domestic assault and domestic assault and battery. A MA criminal defense attorney can help you determine how to proceed if you are facing any type of domestic abuse charges.

Before we discuss domestic assault and battery laws, let’s first discuss what is meant by assault and assault and battery. Battery is a physical act of harmful or offensive contact. Assault basically means “attempted battery”, therefore, you don’t even have to make physical contact with the victim to be charged with assault. For an assault and battery conviction to be likely, the following circumstances must have been present:

  • You touched the victim with no right or good excuse for doing so.
  • You intended to touch the victim.
  • The touching was harmful or offensive, and without the person’s consent.

With regard to the domestic assault and domestic assault and battery laws, the above mentioned elements must still be present. The difference from other assault cases, however, is that the victim must have been a family or household member. If the victim was your spouse, or a boyfriend or girlfriend, or if you have a child together, you will likely be charged with domestic assault or domestic assault and battery. If you are facing these charges, it’s in your best interest to consult with a Boston defense lawyer immediately.

Penalties for Domestic Assault and Domestic Assault and Battery

Here’s where the biggest differences come into play. The penalties for domestic assault and domestic assault and battery are more severe than for their non-domestic counterparts. Although the punishment is generally the same – up to two-and-a-half years in jail –  the fines are much higher. Assault and battery carries fines of up to $1,000, whereas domestic assault and battery fines can be as high as $5,000.

Additional Consequences

If you are convicted of assault and battery (even if it’s a first-time offense), you must complete a batterer’s intervention program. Further, if you are charged with domestic assault or domestic assault and battery, the legislation passed in 2014 now requires you to wait at least six hours before posting bail. This is for the added protection of your spouse or family member. And if this isn’t your first conviction, things can get even worse. Second convictions carry an aggravated penalty, which can land you in a state prison for up to five years. Aggravated assault and battery is a felony offense. You can also be convicted of an aggravated offense under the following circumstances:

  • If the victim is seriously injured, over age 65, or pregnant.
  • If the victim had filed a no contact order against the defendant.
  • If a dangerous weapon is involved (carries a penalty of up to 15 years in prison).

Continue reading

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