Domestic Violence

Given that you’re reading this page, it may well be that you or someone you know has been arrested on a Massachusetts domestic violence offense. If that’s the case, what you read here will be very important. Even more important will be the attorney or law firm that you hire to represent you. These charges can become very complex, so it’s important that you not make any mistakes in choosing the attorney who will represent you.

As far as sheer numbers are concerned, domestic violence and spousal abuse are some of the most common crimes brought before the District Courts in Massachusetts.

The primary source of statutory law governing domestic violence is Massachusetts General Laws Chapter 209A. This is commonly referred to as the Abuse Prevention Statute, and it largely provides a judicial framework and mechanism for certain, defined classes of people to obtain Abuse Prevention Orders (Restraining Orders) against individuals they are in fear of. Persons covered by this statute are members of an immediate family residing in the same household who are in fear of imminent, actual harm from another immediate family member, and for non-related and non-married partners who are in an ongoing dating relationship who also feel they are in imminent harm from a partner. These people can obtain Restraining Orders against someone in those classes of persons. Note: This statute does not apply to extended family members, such as cousins or in-laws, who do not reside with the alleged victim. Statutory protection is afforded from such persons, but the moving (complaining) party must proceed under another statute, most commonly M.G.L. c.258E, otherwise referred to as the Harassment Statute. The vast majority of Abuse Prevention Orders (or 209A Orders) are issued by a judge in what is known as an Ex Parte hearing. This means that the person against whom the Order is sought, is not yet present or had an opportunity to be heard.

The procedure for someone to be granted a 209A Order, is that an Application for Protection from Abuse is completed at a District Court by an applicant. A hearing is then immediately held before a judge, typically without the accused party being present, (as, typically, he or she will at that point not yet have been served notice of the Complaint against them.) A Temporary (commonly a Ten-Day) Protective Order is then issued by the judge, and a second hearing is scheduled on or before the expiration day of the Temporary Order. The court provides the local Police Department where the defendant resides with a copy of the Temporary Order issued against him or her, and a police officer delivers a copy of the Temporary Order to the defendant. In the Notice will be the date, location and time of the second hearing where the defendant may appear to respond to the accusations made against him or her at the initial hearing. At that second hearing, a judge will hear both parties, and the Temporary Order will either not be renewed, and therefore allowed to expire, or the Order will be extended in time, and possibly in scope (i.e., additional terms or conditions added.)

Special Problems For Defendants

While domestic violence cases almost always involve very similar offenses and legal elements as are involved in assault and battery cases, (and sometimes sexual assault and rape cases,) the problem is that they are treated much differently by prosecutors and judges – much more seriously. Most people don’t know that their local police department is likely to have a zero tolerance/mandatory arrest policy if they are called to a scene where allegations of domestic violence have been made. This is a typical approach by most Police Departments these days to allegations of domestic violence occurring in the home (i.e., between members of the same family living under the same roof,) or between dating partners (of either sex.). They will err on the side of caution, take no chances, and arrest the party in the house that appears to them to be more credible. In fact, as of October 2010, officials from various Massachusetts law enforcement agencies, police departments and anti-domestic violence advocates are close to completing a new set of standardized guidelines that are designed to aid police officers in a statewide crackdown on alleged domestic violence “batterers.” The new guidelines were developed over the past three years with a $1.1 million law enforcement grant, and the state Executive Office of Public Safety and anti-domestic violence advocates have already trained senior police officials in the new standards.

Now, arresting someone at the scene of a domestic violence call is official policy for police departments, statewide. As I said above, even though most all police departments have already ended up arresting someone at the scene of a domestic violence call, that approach was unofficial custom and practice. Now, for the first time in an official, uniform manner across the state, the new guidelines specifically call for officers on the scene of a domestic violence complaint to make arrest and prosecution the “preferred” way to deal with domestic violence accusations. Officers are instructed not to base the decision to arrest on evidence of a crime (often, there is no evidence other than the alleged victim’s accusations) — nor on an alleged victim’s desire to ultimately testify in court or prosecute (sometimes an alleged victim will tell officers that he or she only wants to “scare” the family member or partner.) Neither of these matters – the person accused is going to be arrested. Also in the new training guidelines, police are instructed to respond to domestic violence calls, whether or not a follow-up phone call is made to cancel the request for police. Officers are further instructed to obtain statements from everyone at the scene, and from anyone who might have knowledge of the assault. These steps are designed to heighten the odds that a prosecution will be successful, should the alleged victim later change his or her mind about testifying or moving forward with the case.

So you can see, the response from police and law enforcement to these calls, is only getting more and more aggressive. That’s why you need an even stronger, very experienced domestic violence attorney standing in front of you. That’s where our expertise can make the difference for you. If you’ve been arrested for a domestic violence charge and are reading this page because you’re looking for the right lawyer, you’re in trouble and about to make a critical decision. Don’t make matters worse by hiring an attorney who is not 100% expert at this. Contact us. We’ll protect you, and get you where you need to be.

Note that these arrest policies apply to domestic violence allegations between members of the same family living together (i.e. under the same roof,) and to partners who are in an ongoing dating relationship – not to in-laws or extended family not residing with the alleged victim. If an arrest has been made in those circumstances, something more serious is likely to have occurred, and those cases are prosecuted outside the framework of domestic violence cases.

It’s important to say that just as minor instances involving domestic violence can result in an arrest and prosecution, it’s also just as true that much worse examples than this can occur; cases involving horrific crimes such as kidnap and murder. Once a person is arrested on a charge of domestic violence and brought into court, a “scorched earth” approach by prosecutors is not uncommon. This policy approach is made so, due in large part to (many times justified) media attention that has been paid to very tragic circumstances in the past, where some of these cases were treated less seriously than they should have been, and tragedy later resulted in the form of severe bodily injury or murder committed by a defendant who, ideally, would not have been released when charged earlier. District Attorneys are elected officials, and no DA (or an appointed judge,) wants to see his or her name in the news, because a case like this was previously treated lightly and a tragedy followed afterward. The result? If you’re charged with a domestic violence offense in Massachusetts, you need a smart, experienced, effective lawyer by your side.

If you’ve been arrested on a Massachusetts domestic violence charge, your entire world and your future can be severely damaged - and on a very public level. If you are not a full U.S. citizen, any form of a conviction on a domestic violence charge could potentially damage your immigration status and even lead to deportation proceedings. Once these cases are brought to arraignment, prosecutors almost never agree to dismiss the charges at that stage. It takes legal talent, and a good amount of work, to achieve a rapid, favorable resolution for a client. We know what we’re doing with these types of cases. We know how to move aggressively from Day One, and we know how to maximize the chances that your case can be resolved without the need to go to trial. We know how to protect you to the maximum extent possible. Once we stand in front of you as your attorneys, we don’t stop until the best outcome has been secured. If you or someone you know has been charged with a domestic violence offense, don’t take any chances. .Attorney William D. Kickham has handled hundreds of domestic violence cases, and our office can aggressively represent you in whatever court you are charged before.

If you or someone you care about has been arrested or charged with a Massachusetts domestic violence offense, and you’re reading this page, you’re about to make a very important decision about who to hire as your defense attorney. Don’t make a mistake. Contact us. We know how to very effectively deal with this kind of legal problem, and produce the best legal results possible for you.

What kinds of conduct can result in a Massachusetts domestic relations charge? The answer is two-fold: 1) It doesn’t matter; and 2) It matters a lot. As to the first answer: It doesn’t matter to the police. Once called to a home for a domestic violence report, the alleged victim can claim that the accused simply engaged in some un-consented to physical contact – it doesn’t have to be sexual, and it doesn’t have to result in any physical harm. If the contact was unwanted and unconsented to, that is legally a battery. If the accuser had some advance awareness that the unwanted contact was about to take place before the contact actually occurred, that constitutes an assault. Even the threat of future physical contact or harm, without any actual bodily contact, can result in these kind of charges. Obviously, moving up from these very minor, grey areas, valid offenses become much more easy to identify and justify. But in the first instance, on the scene, it doesn’t matter to the police whether the allegations are clear or not -- they’re almost surely going to make an arrest, due to the fact that the accusations involve domestic violence within a home. As to the second answer (“It matters a lot”): The courtroom is where the provable facts will matter. That’s where I do so well what I do. I make it a point to showcase every last detail of the client’s story, and take apart every last detail of the police report, to exploit its weaknesses. Every possible legal attack is made to discredit and degrade the prosecution’s case – with very effective results. Contact us for a free consultation, and we’ll explain how we can help you.

A charge of Massachusetts domestic violence doesn’t just involve married couples and families. It applies to partners who are dating but not married, also. Another fact most people don’t know, is that the accusing party cannot simply “drop the charges” later on. Once the charges are brought before a Massachusetts District Court, it is the Commonwealth’s case, not the alleged victim’s. At that point, the prosecutor will make decisions on the case, not the complaining witness (the alleged victim.) In a boyfriend-girlfriend situation, it’s not uncommon for the complaining party to later change his/her mind, and want the case to be dropped. That doesn’t matter: At that stage, the case belongs to the Commonwealth – and the prosecution can decide to prosecute the case regardless of how the alleged victim feels. Also, once charges are brought in District Court, a member of the District Attorney’s Victim-Witness staff will soon contact the alleged victim.

The role of a Victim-Witness Advocate, “officially”, is to provide information to the alleged victim, but in many instances, when the alleged victim is “on the fence” about proceeding, the Victim-Witness Advocate ends up encouraging the alleged victim to go forward with the case. As most people reporting this type of crime are unfamiliar with the judicial system, if they did have any inclination to drop the case after their partner is arrested, once they hear from a Victim-Witness Advocate, they often go forward with the case. Even if they decide not to press the case, too many people think that, if the prosecutor persisted, they could simply refuse to testify. Wrong. That privilege applies only to persons legally married, and is referred to as spousal privilege. If the parties are not legally married, the prosecution can force you to testify. If you refused, you could be jailed for contempt. And if the prosecution did call an alleged victim to the stand and that person lied to protect their partner, that person would be cross-examined on conflicts with their prior statements appearing in the police report. So, these cases can get very complicated. Even worse scenarios are seen when the parties are divorcing. Custody or visitation of children is commonly contested in divorce proceedings, and it is not uncommon for one spouse to file spurious charges against the other, just to gain leverage on those custody issues.

The sum total of all of these realities is that Massachusetts Domestic Violence charges present grave threats to someone accused of this offense. If you or someone you know has been arrested for one of these offenses, don’t make a mistake of hiring the “wrong lawyer” – or you’ll end up in more trouble than you started with. These kinds of cases can become very complex and contested, and they require a specialist who handles these cases all the time – not a lawyer who takes these cases “occasionally.” Contact us for a free consultation. We’ll explain in clear language to you how we can help you.

Finally, aside from Massachusetts General Laws Chapter 209A referenced above, here are some additional statutory laws Related to Domestic Violence. We hope all this information is of help to you:

• MGL c. 209C, s.15 - This statute covers children born out of wedlock, and allows for domestic violence records searches
• MGL c.258E - This new statute (effective May 10, 2010,) provides for Harassment Prevention Orders for people who are not related, and/or who are not in a dating relationship to one another.
• MGL c. 265, s.43 - This statute defines Stalking and provides for punishment of same.
• MGL c. 277, s.62A - This statute confers jurisdiction for 209A matters, and provides for penalties and punishment for violations of Chapter 209A
• MGL c. 277, s. 62B - This statute provides for jurisdictional authority in stalking cases.