A charge of some form of sexual assault is one of the very most serious and explosive charges that can be leveled against a person. Not only can one face serious prison time, but it is the kind of charge that may carry a stigma for life as one is labeled a sex offender and will likely be listed on the Sex Offender Registry.
In Massachusetts, other than the more serious charges such as rape or assault with intent to rape, a sexual assault is generally charged as Indecent Assault and Battery.
It differs from simple assault and battery which is defined as an unwanted or “unconsented touching” even if it is without force or apparent injury. If one intentionally or recklessly punches, grabs, slaps, spits or throws some substance on another person, or has any kind of unwelcome physical contact that would be simple battery.
But the even more serious offense of indecent assault and battery is charged generally depending on the specific area of the body that is touched or the specific act that the accused person does. There are no specific touched areas of the body as defined by the law that qualify an assault and battery as an indecent assault and battery as the law merely defines decency as “fundamentally offensive to contemporary standards of decency.” So, such charges can be subject to interpretation. But most indecent assault and battery cases have to do with the touching of body parts generally recognized as private such as the genital area, the buttocks or breasts.
So, essentially, the prosecution will have to prove three elements beyond a reasonable doubt in order to convict someone of an indecent assault and battery:
- That the alleged victim was touched intentionally.
- That the touching was indecent.
- That the touching was without consent and unwanted.
There can be even more serious charges depending on the alleged victim. One can be charged with indecent assault and battery on a child; indecent assault and battery on an elder (60 or over) or person with a disability; or indecent assault and battery on a person with an intellectual disability.
Potential truthful defenses to a charge of indecent assault and battery:
- Accident. Since someone who commits an indecent assault and battery must do so purposely with intent, it is a defense if such a touching genuinely happens by accident. For example, this could occur in a jam-packed trolley where the brakes are unexpectedly jammed-on and the riders may be thrown forward and unintentionally touch.
- Consent. There could be an incident where the alleged victim had consented to a sexual act and, only after the fact, regretted it or became angry with the sexual partner. Maybe after the act, the accused no longer wanted to see the alleged victim or perhaps the alleged victim learned that the supposed boyfriend had been unfaithful and therefore now had regrets. There are also issues concerning a victim’s inability to consent. If someone is intoxicated developmentally disabled, mentally incompetent, or under the legal age of consent, the fact that they may have, indeed, consented still might not be recognized as legal consent. The issue might be whether you knew or reasonably should have known that the other party was impaired in some way, although in the case of underage victims the fat that one didn’t know that they were underage is not a defense.
- Motive. As noted above, is there some apparent reason that the alleged victim would falsely accuse someone of the crime of indecent assault and battery? Are they in a child custody battle or divorce and can use this false charge against the other party to gain advantage in the other proceedings? Do they want revenge from a failed relationship, an unfaithful partner, feel very guilty about the act or did their spouse or other partner find out about the sex so now the victim is falsely claiming that it was not their fault and done against their will? Does any motive exist for someone to falsely make these charges?
- Tainted testimony. Particularly in the case of child testimony, there are a variety of ways that they can either be directly pressured to make false allegations or, particularly in some situations where the child is officially interviewed by professionals, interviewed in a way that is very suggestive. Children are impressionable and are vulnerable to biased questioning.
- Challenged evidence. Particularly in the case of indecent assault and battery on a stranger, there is also, occasionally, tainted evidence that is inaccurate. There might be a very flawed identification procedure of the accused through a line-up or photo array. DNA can be challenged and may scientific or forensic tests on physical evidence can be contaminated or mishandled. This is where an experienced veteran criminal defense attorney can make a difference on your case. Evidence can be uncovered and investigated that will help the accused along with witnesses found and new previously unseen evidence uncovered.
The consequences of a conviction on any sex offense can potentially be severe even beyond a lengthy prison sentence. It can destroy ones reputation for life as the public including neighbors and family reviles those who are convicted of these among the most scorned charges. A number of attorneys even refuse to defend the accused against such toxic charges. This is why an experienced criminal defense attorney dedicated to justice and unafraid to aggressively defend against such false accusations is crucial.
Have you been charged with sexual assault in Massachusetts? Contact us today for a free legal consult.
Guarding Against Potential Damage to Your Future
When it comes to prosecuting college and high school students, there is a recent trend that has been developing in schools across the Commonwealth of Massachusetts. It used to be that when a young person got in trouble on school grounds, the school dealt with it as an internal private matter. The problem remained in-house, so to speak. Yes, there might be serious consequences for the student, but the school handled it on its own grounds through its own disciplinary policy. Whether it was vandalism, theft, bullying, drugs, or schoolyard fighting, a school might mete out punishments or work on the problem with the student.
But, despite all the penalties and corrective measures, there was an underlying principle that, even though a student might face severe consequences at school, their future must not be destroyed. This is because referring all school misbehavior to the criminal justice system and having students taken away in handcuffs to police stations and courts and even jail could result in permanent punishment. Punishment that goes on for the rest of their lives. This is because, once a student gets a criminal record, this could forever and all time result, in their
- Not getting into the college of their choice;
- If they already are in college, not getting into graduate school to further their education;
- No longer being eligible for financial aid so having to drop out of college;
- Again and again being refused employment and having their dreams and goals of what they wanted to accomplish in life disappear
Yes, students need to understand that actions have consequences and a price must be paid for bad behavior. They can’t expect to behave badly and always walk away scot-free. So have them face the music, endure the consequence, learn the lesson, and then move ahead. But for those in their teens or early twenties who commit a one-time act of poor judgment or foolishness or just not thinking . . . and have them pay for it into their fifties and sixties and seventies is extreme to the point of being bizarre. This is because it doesn’t just ruin the student’s future, but it ruins the future of America as we good law-abiding citizen can never take advantage of the talents of a student with a once-bright future who never became a doctor or a job-creating business person or government worker or useful scientist because of the one dumb action they took as, let’s say, a nineteen-year old college sophomore or did some underage drinking.
With the almost overwhelming multitude of colleges and places of higher education in Massachusetts that now routinely pass off their disciplinary infractions to the police, there is more of a need than ever for effective attorneys who understand the unique issues of young people. Young people often act foolishly on impulse in a way that they will not once they mature. Scientific studies have shown that the brains of young people are different than adults, that they will change and therefore should not be permanently written-off before they have even reached maturity.
An effective attorney experienced in representing students will use a variety of methods to do everything possible to prevent them from getting a criminal record that could extinguish their once-bright futures before they ever get a chance to launch them. There are ways to creatively assist a student who is charged with a crime from getting a criminal record through diversion programs and alternatives to a criminal record. Such alternatives could consist of participating in programs, getting counseling, doing community service or an assortment of other methods. There was a group of college students who threw a rowdy noisy destructive party with illegal kegs of beer who avoided criminal records by performing a great deal of community service; a college student charged with reckless driving and some other motor vehicle offenses who got his case dismissed after having to take a brains-at-risk course that links the choices made behind the wheel to the devastating effect of traumatic brain injuries they might cause others or suffer themselves; and the student shoplifter who had the case dismissed by attending a special shoplifting lecture.
An effective attorney who understands and then zealously champions young people is a must for students who, despite the fact that they may have had a one-time incident of using poor judgment, can still turn their lives around rather than having their still bright futures extinguished with a permanent criminal record.
Are you a student in Massachusetts or parent of a student facing criminal charges? Contact us today for a free legal consultation.
There are three ways that a criminal case can begin in a Massachusetts District Court against an accused person.
- The police can go out and arrest a person in which case the arrestee is handcuffed, taken into custody, transported to the police station and then are officially brought before the court for an arraignment usually within 24 hours. They are either taken by the police to the courthouse or, in case they are bailed out quickly, they are released and can go to the courthouse under their own power.
- The second way a criminal case to get started is for the court to send out a summons in the mail notifying the person that they have been charged with a crime and informing them of the date they need to show up in court for the arraignment. This is certainly an easier and less traumatic way than being arrested. An arraignment is, essentially, an initial check-in with the court where one is officially informed of the charge, enters a plea of not guilty, can apply for a court-appointed attorney if one is indigent, and then is given a date to come back. If the prosecution requests a defendant be held on bail, this can be argued at a hearing before the judge.
- The third way a criminal case can begin in a Massachusetts District Court is through a summons, not to an arraignment in front of a judge, but to a Clerk’s Hearing, also known as a Show Cause Hearing or a Probable Cause Hearing. This means the person has not actually already been charged, but rather, it will be determined whether that person will be charged. A Clerk’s Hearing is conducted usually for the more minor misdemeanor offenses such as shoplifting, motor vehicle offenses or disputes between people after someone has filled out an application for a criminal complaint. A Clerk’s Hearing is held at the courthouse, but in front of a clerk either in the clerk’s office or in a small courtroom.
What to Expect at a Clerk’s Hearing
The Clerk’s Hearing is a rather informal affair where those speaking must be under oath, but there are almost no formal rules of evidence to follow. It is often a back and forth conversation and questions can be asked of each person speaking. A person can bring an attorney with them and any witnesses who can help them with their case.
The entire point of a Clerk’s Hearing is not to determine guilt or innocence, but just to determine probable cause. Is there enough evidence, at the very least, to at least charge the accused person even if it is not quite clear whether there is enough evidence that will eventually prove his guilt at a trial? If it is determined that there is sufficient probable cause, then one is given a date to come back to court to be officially charged and arraigned in front of a judge.
If the case is dismissed at the Clerk’s Hearing, then the entire matter ends there. If it is dismissed at the Clerk’s Hearing, this is ideal because, in that case, it is not like one was charged and then the case was dismissed. There will not even be an official record that the person was ever even charged. The matter, for most legal purposes, just disappears as if it never existed.
Even if probable cause is found, the clerk conducting the hearing has some discretion to still not issue the criminal complaint. This is why a Clerk’s Hearing might be an ideal place to resolve a matter by, essentially, mediating the dispute if there are opposing parties. The clerk might also let the accused person off with a warning and a lecture particularly if the offense is relatively minor such as a remorseful young person committing a first time shoplifting. The clerk may also find that probable cause exists, but continue the case for a few months or a year or so stating that, as long as the accused person stays out of any more trouble for that period of time, they will then dismiss it. But, in the meanwhile, the case is hanging over one’s head totally dependent on whether the person stays out of trouble for that time. In situations such as this, the court clerk can serve an important function by resolving very minor problems and not clogging up the regular courtroom schedule with small matters such as a dispute between neighbors where an apology might take care of everything.
This is why, if a person is summoned into a Clerk’s hearing where it is to be determined whether probable cause of a crime exists, all is not lost as it is a good place to try to resolve and settle the matter. Although no accused person can ever be forced to hire an attorney in any criminal matter whatsoever and people have even represented themselves when charged with murder, ones chances are greatly enhanced if they are represented by counsel especially at a Clerk’s Hearing where, if the hearing is handled correctly, an accused person may truly get an opportunity to make the case go away with no record of it when they achieve a dismissal.
Do you have a clerk’s hearing coming up? Have other questions about you can do to prepare yourself? Call (617) 742-9462 to contact us about a free consultation.
Almost everyone who has ever watched television or gone to the movies thinks they know the rights the police would read them if they ever found themselves in the unfortunate situation of being stopped by the police and questioned.
Even many children can recite the words from memory: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”
Nevertheless, there is a lot of confusion as to how those rights, known as Miranda warnings, are applied.
Frequently, people who have been arrested will ask their attorney if their case can be dropped because the police did not inform them of their rights. However, in many cases, it turns out that the police arrested them, but never questioned them. So, if you are not questioned, the police do not need to read you your rights, even though it might be good practice if the police did so every time just to be sure.
Also, the police do not need to read you your rights unless they question you while you are in custody. If the police merely question you out in the street while not in custody even if they suspect you, they do not have to tell you your Miranda warnings.
Now, in that situation, this is where it can get tricky and a lawyer might be of great help to you in getting your statements thrown out in court if you wound up saying anything that might have incriminated you. This is because there are situations where one is not technically placed under arrest or put in handcuffs and yet good legal counsel can argue that you were, in effect, in custody, because circumstances may have implied that you were not free to leave. You were somehow led to believe that you couldn’t just cut the conversation off with the police officer off and simply walk away.
Whether to Speak to the Police Even If Read Your Rights
It is generally advised for someone suspected of criminal activity not to speak to the police at all ever. Even if a person is truly innocent of any crime, they might say something in a way that it can be misinterpreted and used against them. Or they may just be nervous and say something by mistake that mistakenly makes them appear guilty of something. Also, some people think they are savvy and smart enough to speak to the police and yet don’t understand that they may inadvertently be admitting to criminal activity.
For example, there have been times that someone suspected of an illegal drug crime has said to the police that they have never sold drugs, just given some drugs to a friend for free if they had extra. They didn’t realize that the crime is not whether one made money or not from drugs; the crime is just that one distributed drugs whether paid or not. So, that person, thinking they were outsmarting a police officer by explaining that they were not selling drugs actually wound up giving a complete confession to the crime of distribution of drugs.
In another common example, someone stopped and suspected of drunk driving may tell the police officer that they are not drunk and only had two drinks. They don’t realize that this was helpful to the police and prosecutor at a later trial because they have already confessed to drinking while driving, now it is just a question of whether they were also impaired by that drinking. Even though they may truly have had something to drink earlier in the evening, but are truly not under the influence, they, nevertheless, are worse off than someone who simply kept their mouth shut and never conceded drinking any alcohol whatsoever.
When you invoke your constitutional right to remain silent, you can’t be vague, unclear or ambiguous. If you say something like, “Gee, I’m not so sure I should talk to you guys” or “I think maybe I might need a lawyer,” that may not be specific enough. Better to clearly state something like you definitely want to exercise your right to remain silent and you, without any doubt, want to speak to an attorney first.
At that moment, all questioning must stop. Otherwise, if police do not stop questioning you immediately, they will have violated your Miranda rights. Police can ask you routine questions such as your name, address, date of birth, or social security number without violating your rights, but you cannot be forced to answer even that.
There are times when, after someone invokes their right to remain silent, the police will try to get them to reconsider. They will say such things as “Well, I guess this means you must be guilty. If you haven’t done anything wrong and are innocent, you would probably be talking to us.” Or they might say, ” Oh come on, why spend money on a lawyer? You don’t need one. We just want to ask a few routine questions and then you can probably be on your way” Or they might say, “Obviously, you must have something to hide. Otherwise you wouldn’t need to get a lawyer.” That is not true. As I said above, even an innocent person can get themselves in trouble by speaking to the police if they nervously phrase something the wrong way or say things in a way that could be misinterpreted. Do not allow yourself to be intimidated into giving up your right to remain silent or to consult an attorney.
There are a number of reasons why a person who is on probation might want to apply for early termination of probation. They may want to move out of state and not go through the difficult and frequently fruitless task of attempting to get another state to accept a transfer. They may have to travel out of state frequently for work or to attend to a chronically sick family member at the last minute and not always have the time to get permission first. If, as a condition of probation, they wear a GPS monitor, it may greatly limit the hours and places they can go within the state while frequently malfunctioning and giving off false alarms at their workplace. There is also the expense of the monthly probation fee and the taking time off of work to report in person to ones probation officer. Or it may just be that, after years of being on probation where they have done everything right to both comply with the terms of their probation and to resume a good law-abiding life of contribution to the community, they may have earned it.
Until fairly recently, it used to be rare for a probationer to get their period of probation terminated early. Judges would frequently deny the request stating that the fact that someone was already doing so well for the time they had been on probation was expected of them and, besides, why end probation early if it is working out so successfully. They might also say that the judge, who originally handed out the sentence and was, therefore, the one possibly most familiar with the case, knew how long they wanted the defendant to be on probation and would have, indeed, sentenced the person to a shorter period of probation if they had seen fit.
However, recently, in the intended interest of public safety, there has been a trend in the opposite direction in favor of presumably giving probationers an incentive to do well and rewarding them for establishing a track record of resuming a good law-abiding life. It is the same idea as when a prisoner gets paroled early.
At this present time in the courts of Massachusetts, early termination of probation is actually being encouraged as a routine action when merited. In fact, as a result of the formation of a number of working groups assembled by Ralph Gants, Chief Justice of the Massachusetts Supreme Judicial Court, a report was issued entitled Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing in March of 2016. It suggested, as a Best Practice, that:
“At the time of sentencing, a judge should inform the defendant/probationer that, after a period of compliance, the court may look favorably upon a request for early termination of probation or lifting of certain conditions as an incentive to successful performance.”
The rationale as expressed in the report is that:
“Studies have also shown that probationers are often more likely to complete their probation successfully when their positive performance is acknowledged or rewarded. Positive reinforcement and the use of incentives can motivate a probationer to succeed, as opposed to probation practices that recognize (and sanction) only failure . . . As is true in life generally, so too in the context of probation: the prospect of a reward for success is sometimes more powerful than the threat of punishment for failure.”
Requirements for Early Termination of Probation
- In the time they have been on probation, they should have successfully complied with all conditions, had no violations of probation, and be up to date on payments. In other words, they should have had a good run as a model probationer.
- In order to show how successfully they have complied with probation, they should probably not apply for early termination until they have completed, at the very least, half the period of probation. So, if one has, for example, been sentenced to five years of probation, they should, practically speaking, probably not apply for early termination until, at the very soonest, they have already served two and one half years of it.
Also, it would be ideal to get ones probation officer to agree to the request. However, it is generally the policy of most probation offices to either routinely oppose such a request as a standard policy or to stay neutral and leave it up to the judge. If they oppose it, hopefully, a judge will understand that the probation officer is doing so as a matter of their office policy and not because the probationer did not earn it. Otherwise, it is actually still somewhat helpful for a probation officer to tell the judge that he or she takes no position on it either way but that they will affirm that the probationer has been in full compliance with all the rules and conditions of their probation.
The motion for early termination of probation itself should have as much detail as possible explaining not only did the probationer comply successfully with all terms of probation but also the other positive things going on in their life to show they are currently living a life of stability and responsibility. These might include their employment, family ties and whatever contributions they have made to the community, church or non-profit organizations or private acts of kindnesses to those around them even if it means so much as shoveling the snow for free for an elderly neighbor.
If the probationer has engaged in counseling, include a letter from the therapist noting their patient’s active engagement in it with some level of assurance that the indications are they are likely to continue living a responsible law-abiding life. Letters from family and friends can also be included.
Also, key is to give a reason why it would be better and in the interest of justice for the person to now get off of probation.
If the judge denies the request for early termination of probation, all hope is not lost. Some judges have told the applicant that they would like to see them show just a bit of a longer track record on probation before they will feel comfortable about terminating it. Someone who gets turned down for early termination of, let’s say, a five-year probation after completing half of it, could ask the judge if they might reconsider their decision if they come back in another year after they have completed three and a half years.
This kind of positive reinforcement and incentive that goes along with the hope of the possibility of an early termination of probation if the probationer’s conduct has been exemplary can help the probationer to succeed in resuming a good law-abiding life and, therefore, is in the interest of public safety.