By Peter Elikann
Bail is not supposed to be a punishment. After all, people are presumed to be innocent until they are convicted. Yet if an arrested person is held on bail that is too high for them to make, they could be held in jail pretrial for many months and, often, much more than a year. If one is innocent, they are, essentially, being punished until their trial date. This is why a good attorney can give you your best opportunity to stay out of jail at least until you’ve exercised your right to trial either having you put up no bail at all or a minimal bail that you can afford.
Since it is not supposed to be a punishment, the main purpose of bail is to ensure that you will continue to return to court and not be a risk of flight. Here in Massachusetts, unlike many other states, at the end of the case, whether you win or lose, you will get back the entire amount of bail minus a $40 fee which is required in certain cases. For example, if you are bailed out for the amount of $5,040.00, when the case is completed and you have always showed up, you will get $5,000.00 returned.
The way it works in Massachusetts is that, when you are arrested, a bail commissioner will come to the police station and determine whether bail is to be set. Most times, no bail is required and only the $40 bail commissioner fee must be paid. This is known as being released on your own personal recognizance. You are then given a piece of paper noting when you are to appear in court for your arraignment. It is usually the next time the court is in session. Since court is in session Monday through Friday yet closed weekends, you usually must come to court the next day unless you have been arrested during a weekend and then you will have to wait until Monday. However, if you are arrested early enough in the day, you might have an opportunity to get to court later that same day.
If bail is set and it is too high an amount for you to make, then when you are brought to court, you have an opportunity to make an argument to the judge on why you should not be required to post any bail or, in the alternative, to have the bail request lowered to an amount you can afford.
The judge, in determining whether the accused is a risk of flight, must consider a variety of factors:
Does the accused person have a history of previous criminal charges?
- If the person does have a previous criminal history, do they have a history of defaults? Defaults are recorded when a person does not show up in court when they are supposed to.
- Does the person have strong ties to the community so that they would not want to become a fugitive from the area? Ties might include family, a job with a consistent employment record, a home, and perhaps having lived a very long-time in the area with many friends and a history of community involvement. Such a person is deemed more likely to appear than, let’s say, someone who doesn’t live or work in Massachusetts and was just briefly passing through the state when they were alleged to have committed a crime.
- Is the accused person already on probation or parole at this time on another case?
- Is the accused person currently out on bail on another pending charge?
- What is the nature of the charge and is there a potential very heavy penalty for that particular offense? Defendants are more likely to flee if it is a very serious offense and they are facing a huge penalty. That is why, if someone is facing an extremely serious charge such as murder, they likely might not be granted parole at all.
- Do they have a history of using aliases and false identification?
- Are there any current restraining orders in effect against the accused?
- Is there a history of mental illness or substance abuse?
If you are released on bail or without bail on your own personal recognizance, the judge can set conditions of release. These might include wearing a GPS monitor so that your movements can be tracked; getting substance abuse or mental health treatment; a stay-away or no-order where you must stay away from a particular location or person or not contact someone; must be subject to random drug or alcohol tests; are limited to where you might travel; must hand in your passport; surrender your firearms; have a curfew where you must remain at home during certain hours; and even possibly remain in home confinement.
There are a number of reasons why it is helpful to your case to be released on bail beyond just everyone’s understandably obvious desire to be free and not confined. These include:
- You can maintain employment. Not only does everyone want to work to support their family, home and pay their legal bills, but, if the day comes when you are to be sentenced for the offense, there are circumstances where a judge might not want to incarcerate someone who is responsibly holding a job and possibly ruin their career.
- You have an opportunity to show the judge that a period of time has gone by that you have been crime-free. Sometimes if a case goes on for a long period of time before it is completed, your attorney can say to the judge that a couple of years have gone by where you have done everything right and now have a track record of living a better life and the court should not interrupt this by taking you out of the community and into jail.
- If you are not held in custody, you have a better opportunity to help with your defense. You can travel to your attorney’s office frequently to discuss the matter and plan a defense strategy, can help contact witnesses, raise money in case you need to hire witnesses and travel to the crime scene to point out important factors to your attorney.
- If not in custody, you will have greater opportunities to get counseling whether for substance abuse or mental health issues. In the case that you either plead to or are convicted for the offense, a judge will appreciate the fact that you have begun the positive process of addressing some of the issues that resulted in your being charged in the first place.
When one is released on bail or on personal recognizance by the judge, the judge will explain that, if during the period of your release, you get charged with a new offense, your bail can be revoked and you can be held for a period of months without bail.
If a bail is set that is too high for you to come up with, you can request a bail review with the Superior Court.
A perennial concern is that bail can be made by people with better financial resources while the poor may languish in their locked-up circumstances for even the relatively modest amounts of $100 or $200 bail that they just cannot come up with. However, the Massachusetts Bail Fund is an organization that may come up with the bail for amounts of $500 or less or, if the bail is above that, can donate if the family or friends can make up the difference. However, recent crime legislation and a recent court decision has attempted to make some correction to this inequitable situation. Judges must now give specific consideration to a defendant’s inability to make a bail. If a judge sets a bail that the accused clearly cannot afford, the judge must explain in writing the decision for setting it at an unattainable amount.
Have you just been arrested and need help with a bail hearing or a bail review if the bail has been set unaffordably high? If so, contact us today for a free legal consult.
By Peter Elikann
The law states that in order to be charged with “engaging in sexual conduct for a fee” can be either: (1) engaging; (2) agreeing to engage; or (3) offering to engage in sexual conduct with another person for a fee. It is not necessary that any sexual conduct does, in fact, occur. There simply must be an offer or agreement to engage in this sexual conduct.
There are two necessary requirements that must be met in order for someone to be charged with a prostitution-related offense. First, that there must be an agreement or offer to engage in a sexual act or the sexual act is actually conducted. Secondly, there must be some kind of a fee offered, agreed to or actually paid. If there is no form of payment involved then it still might be possible to be charged with some other sex offense, but it would not be any form of prostitution since prostitution is essentially sex for a fee. The fee need not necessarily be for actual money. An exchange for another good or service can count as a fee which could include such things as drugs for sex.
In the past, if the police intervened in such acts, the customer often went scot-free while the prostitute, or payee so to speak, was the one who was arrested and faced the penalties. Formerly, the payor (commonly referred to as a “john”), most often a male, might be told by the police to just leave as the handcuffs were put on the person receiving or hoping to receive the fee But that is no longer the trend as the law now views both parties as equally engaged in this activity so therefore they must be treated equally under law. The courts now look at the old practice as unfair and inequitable that only one of the two must face the consequences and penalties while no more responsible than the other.
There are numerous crimes related to prostitution including:
- Sexual conduct for a fee (prostitute): Where the person agrees to receive the fee, this is a misdemeanor where, if convicted, one faces a maximum sentence of one year in jail, a $500 fine, or both.
- Sexual conduct for a fee (customer of prostitute):
- Sexual conduct for a fee with a child under the age of 18:
- Soliciting for a prostitute (or receiving compensation for soliciting for a prostitute:
- Enticing a person for prostitution:
- Support from or sharing earnings of a prostitute:
- Inducing a minor into prostitution:
- Living off of or sharing earnings of a minor prostitute:
- Procuring a person to practice prostitution or enter a house of prostitution:
- Keeper of a house of ill fame
- Detaining or drugging to detain a person for prostitution:
Additionally, there has been a much greater effort to crack down on human trafficking. Law enforcement has been making greater efforts in Massachusetts to investigate massage parlors, chat rooms, ads and online solicitations. A common method is for the police in a sting operation to put an ad for massages in a publication or online such as Craigslist. Then, when a customer shows up at the location, they engage in a conversation with an undercover officer until there is an agreement to pay a certain amount of money for sex. Once the agreement is made, the prospective customer is arrested on the spot. Or the agreement to have sex for a fee is done through back and forth text messages or emails with the agreement documented in writing prior to the customer showing up and getting arrested.
There are numerous defenses to prostitution charges. Just several of these defenses are:
- It is not enough for two people to agree to have sex. The police must have proof that there was a fee transaction involved. This is frequently difficult for the police to prove and therefore the case can be dismissed. A fee must be passed between the two people or a verbal deal to pay was made.
- One can’t be charged with a prostitution-related offense if they have been entrapped by law enforcement. If they are approached and an undercover law enforcement officer posing as a prostitute repeatedly tries to convince them to agree to sex for a fee when they originally had no interest, that would be insufficient under the law and an entrapment defense could be used.
- One can’t be charged with the general status of being a prostitute either walking down the street or in a chatroom. Again, a specific instance or paying sex for a fee must be proved. It is not a person’s status that can be charged; it is only their criminal act that can be charged.
Sexual conduct for a fee (prostitute):
Sexual conduct for a fee (customer of prostitute):
Sexual conduct for a fee with a child under the age of 18: Where the person pays, agrees to pay, or offers to pay a minor under the age of 18, this is a felony carrying a maximum sentence of 10 years in state prison or two and one half years in jail; and a fine of no less than $3,000 or no more than $10,000.
Soliciting for a prostitute (or receiving compensation for soliciting for a prostitute: This carries a potential maximum sentence of two and one half years in jail, a fine of no less than $1,000 or more than $5,000 or both the fin and incarceration
Enticing a person for prostitution: This felony carries a maximum penalty of three years in state prison or one year in jail or a fine of $1,000 or both a period of incarceration and a fine.
Support from or sharing earnings of a prostitute: This felony shall be punished by a period of incarceration in state prison of 5 years ( of which, at least, 2 years must be served) and a $5,000 fine.
Inducing a minor into prostitution: This felony carries a mandatory minimum sentence of three years in state prison with a maximum sentence of five years and a $5,000 fine.
Living off of or sharing earnings of a minor prostitute: This felony carries a mandatory minimum sentence of not less than five years and a $5,000 fine.
Procuring a person to practice prostitution or enter a house of prostitution: This charge carries with it a mandatory sentence of three months and a possible maximum sentence of two years in jail along with a fine of between $100 and $500
Keeper of a house of ill fame: Those convicted of this misdemeanor can face a potential sentence of up to two years in jail.
Detaining or drugging to detain a person for prostitution: This felony carries with it a sentence of up to five years in state prison or between one to two and one half years in jail and a fine between $100 and $500.
Have you been charged with any offense related to prostitution or are you under investigation for it? If so, contact us today for a free legal consult.
What Happens at a Police Station in Massachusetts
Once you arrive at the police station, you will be booked, photographed and fingerprinted. During the booking, you will be asked some questions concerning basic information about yourself such as name, date of birth, address and phone number. You can answer these basic informational questions, but still should not answer any questions about the charges and the incident that led to your arrest.
You may make a phone call to whoever you’d like — usually to a friend or family member.
If it is early enough in the day, you will go straight to the courthouse after booking for the arraignment.
If it is too late to get to court you will probably spend at least a couple of hours (sometimes much more) waiting for a bail commissioner to arrive to determine whether to set a bail on you and, if so how much. Most of the time, there is just a one-time non-refundable fee of $40. Then you should be able to leave. If there is a bail and it is too high for you to make at that time, you will be brought into court for the arraignment and to argue a lower bail at the very next business day. (More on bail below) That should be the very next day. So, for example, if you are arrested on a Tuesday night, you will go to court Wednesday morning. However, if it is a weekend, since courts are closed on Saturday and Sunday, you will have to wait until the next business day which would be Monday. In the worst case situation, if you are arrested at the beginning of a three-day holiday weekend with the courts closed for the Monday holiday, you could wind up sitting for several days until Tuesday morning.
If you are released from the police station, you will be required to show up at the local courthouse the very next business day. You must show up or else the court will issue a default warrant for your arrest. Be there on time and it is best to dress appropriately. There is no specific dress code so a male doesn’t have to wear a jacket and tie and a female does not have to wear a business suit, but there are judges who will expect you to dress in a way that shows respect for the court. So it is inadvisable to show up wearing such things as flip-flops, tank tops, sweat pants or cut-off shorts.
When you arrive at the courthouse, report to probation to check-in. Again, they will just be asking you for basic information about yourself such as name, date of birth, address and phone number. If you are claiming indigency, cannot afford a lawyer and wish to receive a court-appointed bar advocate attorney, they will ask you a number of questions about your finances to see if you qualify and you will have to sign a financial affidavit.
Then you will go into the courtroom and wait for your name to be called. Everyone is given the same arrival time of 9:00 am, so you will have to wait your turn to be called in what could be a crowded courthouse.
When you are called, your charges will be formally read to you. This is what makes us different than many other countries where people are arrested and not told for months what the accusations against them are and for what charge they were arrested.
A not guilty plea is usually entered at that time. The police report giving the police version of the story against you is available that morning. Then you are given a date to come back to court usually between a month or two months from then. The court will warn you that if you get arrested while this current case is ongoing, you might be held in custody. The judge might also set conditions for you to abide by during the pendency of the case including such things as staying away from a particular location or person or an order forbidding use of alcohol and drugs.
In all likelihood, you will be out of the courthouse on the day of your arraignment some time that morning. In rare instances, one is stuck there all day until the court session closes around 4:30.
For some, though, where there is a question of bail, the arraignment is also where bail is determined. If bail was set by the bail commissioner earlier back at the police station, and the particular accused person cannot afford it, they and their attorney can argue before the judge for a lower bail or no bail at the arraignment.
Or, even if no bail was requested from them at the time of the arrest or they paid a bail back at the police station, there is a chance that bail could still be set against them at the arraignment.
Bail is generally determined by whether the judge believes that the accused defendant might pose a risk of flight and not return on future court dates. At a bail hearing, the judge will consider a number of factors to determine this including:
- Whether the defendant has a previous criminal history;
- And, if so, did they have a number of defaults in the past where they did not show up to court dates;
- The nature of the charges whether they are for very serious offenses;
- The potential penalty for the accused crime. For example, if there is a chance of lengthy incarceration that might be an incentive for the accused person to flee and not return to court;
- Whether the person was on probation or parole for an earlier offense when they got arrested for this new crime;
- The defendant’s ties to the community. It is assumed by the court that someone with many family members in the area, who always lived in the general area, and is employed there and very involved in the community will be less inclined to want to become a fugitive and leave his family and familiar home. This, as opposed to someone who is just passing through the area of the arrest and has no ties to the community or family, jobs or roots.
- Whether the accused person has a history of serious alcohol or drug abuse.
Although being held on bail is generally determined by the risk of flight a defendant poses, if there is concern for the potential safety of an individual or the community caused by the defendant, the prosecutor can move for a dangerousness hearing where it will be argued whether the defendant will be held without bail.
Counsel at Arraignment
It is best to have an attorney at every step of the process and, if possible, to show up at the arraignment with you the day after the arrest. Most criminal defense attorneys charge a flat fee for the entire case and do not charge extra to do an arraignment.
However, if you are unable to hire an attorney to be there at the beginning of your case for the arraignment within hours of your arrest, you don’t need to panic. If there is an attempt to hold you on bail and you are not indigent, the court will still likely appoint you an attorney for that first day even if it will only be for that one day.
An attorney can be crucial at the very beginning. Perhaps you would be eligible for some kind of diversion program that could ultimately result in a complete dismissal of your case, but that you must notify the court of just prior to or during the arraignment. There are a number of such diversion programs usually for the more minor offenses that are available to young people, veterans and those who commit certain relatively minor crimes. Without proper guidance from counsel, you might not be aware of these programs and have to risk fighting the charge the entire way.
Or a first rate experienced attorney might give you the best chance of avoiding being held on bail or being found to be dangerous and therefore held incarcerated without any bail.
It is true that you can’t be forced to be represented by an attorney and everyone in the United States has the right to be their own counsel even if charged with the most serious charge which is murder. But legal cases can be complex and, if one wants to represent themselves they might be at a disadvantage of not knowing the law and legal procedures such as certain evidentiary and non-evidentiary motions and rules such as the complicated rules of evidence. While no guarantees as to the results of a case can ever be made, an experienced attorney will give will give you your best opportunity of getting the finest result if you go through the unfortunate experience of being arrested.
Being arrested is usually a terrifying, overwhelming experience as you suddenly find yourself in a situation over which you have absolutely no control. Not only that, but it can result in extreme consequences to your life potentially including incarceration; loss of a job or entire career; loss of housing; loss of licenses; loss of relationships or family; great expenses; and damage to one’s reputation and standing in the community.
An arrest itself, though, might not be the end of the world as most of the serious consequences happen if you are eventually actually found guilty, convicted and then receive a criminal record. An arrest merely means that you are a person accused and does not mean you have been found to have done anything wrong. People who are completely and factually innocent get accused more often than you’d think, so no stigma should attach to an arrest. It is the potential conviction down the line that is a greater problem.
In order to charge someone with a crime, an arrest doe not necessarily have to take place. Sometimes, if the offense is minor, the police will tell you that you will eventually be receiving a summons in the mail ordering you to appear in court. If arrested, however, you will be handcuffed, read your rights, placed in a police vehicle, and transported to the police station.
Do Not Make a Statement to the Police
The first thing you need to know is not to speak to the police. People think that they can talk their way out of the arrest. That almost never happens. It is unlikely anything you say can prevent the charges once the allegations are made. The police’s goal is usually to get your statement so that it can eventually be used against you. They will write it down and then hand it off to the prosecutors at the court. The police officer can rarely make any deals with an accused person. The government person who might be able to make a deal with you way down the line during the court process would be a prosecutor.
It is generally not advisable to speak with the police even if you are genuinely innocent. For example, if you are truly upset and a bit confused what is going on, if you make the slightest innocent error or slip of the tongue in what you say, it will definitely be used against you. You can get charged with some form of obstruction of justice such as making a false statement to a police officer or, although it may not make sense to you, such false statements here in Massachusetts can trigger the witness intimidation statutes even though innocent errors in your statement do not seem to have anything to do with intimidation. Your protestations that you made a mistake in the heat of the moment under pressure might not likely be believed.
Sometimes those who are arrested don’t realize that they are giving valuable information against themselves or even accidentally confessing. For example, if you are being accused of drunk driving and the police officer asks you how many you had to drink, you might think you are helping yourself by saying, “Only a couple.” You might not realize that, even if that is not proof positive that you were driving under the influence of alcohol which is the crime, it is helpful to the police that at least you just confessed to drinking and driving. Or a person may be accused of a drug transaction thinks he is helping himself by blurting out, “I didn’t sell any drugs or make any money. I simply gave some to some friends for no money.” They don’t realize that the crime they are being accused of is drug distribution, not drug selling. So, even if they never made a dime of profit, they are still confessing to the distribution charge.
A police officer might attempt to cajole a statement out of you by saying something like, “If you won’t talk to us, that must mean you’re guilty. If you were innocent and didn’t do anything, you would talk to us.” That is simply not true. You can reply that you wish to exercise your right to speak with an attorney first which even a truly innocent person would be advised to do.
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.