Indecent assault and battery is essentially any kind of intentional unconsented-to touching of the private area of another person.
Private areas include genital areas, public areas, buttocks, breast, thighs and abdomen or other areas. However, charges of indecent assault and battery may not be limited to those areas and it is open to interpretation by what would be considered offensive or immoral under contemporary standards of decency. It may also be determined by the context in which the touching occurred. For example, in certain instances, hugging or kissing another person against their will could very well qualify. Such a charge would apply whether the victim was either clothed or unclothed.
The charge of indecent assault and battery differs from rape that is defined as an unconsented-to sexual intercourse with another person who is compelled to submit by either force or threat of bodily injury.
It also differs from a regular assault and battery which is defined as an unconsented touching of another person though not necessarily of a sexual nature.
There are different penalties for indecent assault and battery on a person aged 14 or older or indecent assault and battery on a person under the age of 14. If the victim was under the age of 14, even if the minor consented to the touching, it would still be a crime. This is because any victim under the age of 14 is considered under the law to lack capacity to consent. That means that the child is so young that he or she is considered legally incapable of consenting to such sexual contact.
This is also true of the charge of indecent assault and battery on a person with intellectual disabilities since they, too, would be considered, under the law, as having no ability to make a reasoned consent. Additionally, there are statutes outlawing indecent assault and battery on an elderly person or person with a physical disability as they may be extra vulnerable to a physical assault.
To be convicted of indecent assault and battery, the prosecution must prove beyond a reasonable doubt that:
- The alleged person was of a certain age;
- The touching was intentionally on purpose;
- The touching was either without the permission of the alleged victim or not justifiable;
- That the touching was, by today’s standards, indecent and offensive meaning that the touching could be reasonably and commonly understood to be that of a sexual nature particularly that the area of the body touched was considered private such as the breast, buttocks or genital areas;
If convicted of indecent assault and battery of a victim 14 years or older, the penalties include up to two and one-half years in the House of Correction or five years in state prison.
If convicted of indecent assault and battery of a victim under the age of 14 years, the penalties include up to two and one-half years in the House of Correction or ten years in state prison.
Additionally, upon conviction, it is a requirement that one register with the Sex Offender Registry Board. Obviously, being on the sex offender registry can lead to a variety of severe consequences including its effect on housing, jobs, travel, immigration status, and general reputation in the community.
Also, it is a requirement that, as with most sex offenses, one must wear a GPS monitoring ankle bracelet during the entire period of probation one receives which could typically be anywhere up to 5 or 10 years. During that period of time wearing the mandatory GPS device, one may not leave the Commonwealth of Massachusetts although it might be possible under certain circumstances, to go before a judge to get permission to travel on a particular specific occasion that comes up.
The law recognizes a number of defenses to indecent assault and battery to try to ensure that an innocent person is not falsely accused. Many of the defenses pertain to the issue of consent.
- Did the accused not realize the intoxication of the alleged victim by either drugs or alcohol had reached a level where, even though consent was given or no lack of consent was expressed, the alleged victim was not legally capable at the time?
- Did the accused wrongly presume that there was consent because there had been consensual sexual contact in the past with the alleged victim?
- Was there a genuine mistake through words or actions that consent had been given?
- Was the touching purely by accident or was it incidental?
- Did the incident, in fact, never even happen and a false accusation is being made to get revenge for an unrelated reason?
The law of indecent assault and battery is vaguely written, subject to interpretation and is complicated in its application. It is important to get the best representation possible by a veteran attorney with long experience in representing people falsely accused of the charge of indecent assault and battery. This is particularly true in that the legal penalty of being listed on the sex offender registry can last a lifetime far beyond even a period of incarceration or probation.