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.
Whatever one thinks of pornography, most forms are actually legal with the significant exception being child pornography.
More frequently than one would expect, some people wrongly assume that, because it is so readily available on the internet, it must be legal. It is not. It is, however, in fact, much more accessible than ever before. Until recently, people looking for pornography would have to make much greater assertive efforts to obtain it. They could travel to a specialized “bookstore” or send away to have things sent to them in a plain brown wrapper.
Nowadays, it is available instantly at the press of a button on one’s laptop. This may explain why the number of prosecutions for such illegal material has absolutely exploded and is more prevalent in courtrooms today than ever. One prosecutor described such prosecutions as equivalent to “shooting ducks in a barrel.” They are so easy to track down online with such a well-documented provable trail that it makes a defense all the more challenging. The only thing holding back an even greater number of prosecutions is the lack of more law enforcement manpower to monitor online activity.
Surprisingly, a number of people express surprise that the looking at this material online is such a serious crime. They say something to the effect of “But I was only looking at this by myself in the privacy of my room with no one else around. Who am I hurting? How can passively looking at photographs when no one else can see me doing it hurt someone? I would never ever approach or bother a child in person.”
The law clearly does not recognize this sentiment. The answer is that you, personally, just looking at a photo may not think you’re hurting the innocent child in that photo, but somewhere down the line someone else is. And if you weren’t providing an audience or market for that photo, then the actual in-person abuser taking the photo or video might not be creating it for you at his end.
Many others mistakenly believe that, if one looks at child pornography, then “deletes” it from their computer, that they are not in any legal jeopardy because it no longer exists. However, they may not be aware that anyone with knowledge of computers can tell you that a “deleted” item, still exists on the computer hard drive. It just can’t be easily and readily seen or accessed. However, if a computer is seized by the police, their forensic experts using their advanced skills and equipment, can still find it.
In addition to facing possible incarceration for such an offense, one will be required to be placed on the sex offender registry.
There are a number of defenses to be explored if one either has been charged or is being investigated for child pornography charges. For example, it is occurred that innocent people have been charged if a friend, roommate, family member or neighbor or others with access to ones computer used it to look at child pornography without the computer owner’s knowledge. Additionally, it has also happened that online viruses and hidden files have unwittingly placed such material on an innocent person’s computer. Every year that goes by, with the advancements in internet technology, everyone remains increasingly vulnerable to material being unknowingly placed on ones devices. Also, an attorney can investigate whether you or your computer were the object of an illegal search where then the entire case might have to be dismissed.
For these reasons, it is important that one contact an attorney skilled in the defense of these kinds of charges immediately upon learning that an investigation has commenced.
This is how these cases frequently unfold. Usually, unknown to the suspect, law enforcement personnel are monitoring illegal websites including file-sharing sites or perhaps someone has tipped them off. Once they identify users of the site, they get a search warrant, show up at the suspect’s home, and then seize every suspected computer or electronic device. The police very often do not arrest on the spot but rather wait until their forensic staff has examined the devices for illegal material back at the lab. This may very well take a number of months. At that point, if one hasn’t been arrested yet, they will either be arrested at that time or summoned into court.
It is difficult to determine in advance where one will be prosecuted. Some cases are prosecuted in the District Court of Massachusetts while others are indicted to the Superior Court. Still others are prosecuted in federal court.
The three most common charges in Massachusetts state courts concerning such pornography are:
- Possession of child pornography
- Dissemination of child pornography
- Posing a child in a state of nudity
In state court, there is an increasing number of prosecutions for dissemination rather than just mere possession. Some defendants are surprised when they are charged with dissemination because they insist that they never shared their photos with anyone. However, since large numbers no longer find this illegal material on regular websites, but rather on file-sharing sites, they are charged with dissemination. This is because the nature of file-sharing sites is that you can take whatever material you want off of another person’s files and anyone else can take material off of yours. So, even if one is unaware that someone has ever taken files off their site and even if no one ever has, they can still be charged with the more serious charge of dissemination just for having been a member of a file-sharing site.
Concerning the charge of possession of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant purchased or possessed pornographic material of a person under the age of eighteen.
- Pornographic material means visual material of almost any medium that, either actually or by simulation, exhibits: (a) sexual intercourse with a person or animal; (b) sexual contact; (c) masturbation; (d) lewd touching; (e) excretion or urination in a sexual context; (f) sexually sadistic, masochistic or sadomasochistic acts; (g) lewd display of genitals, buttocks, pubic area or female breast(s);
- The defendant purchased or possessed such material knowingly;
- The defendant had knowledge of the nature or content of that material; and
- The defendant knew or reasonably should have known that the child shown in that material was under the age of eighteen.
Concerning the even more serious charge of dissemination of child pornography, the prosecutor must prove beyond a reasonable doubt that:
- The defendant disseminated pornography.
- That pornography exhibited a person under eighteen years old in a state of nudity or sexual conduct;
- The defendant knew or should have known the contents of that material.
- The defendant disseminated that material with lascivious intent. Lack of lascivious intent can be proven through evidence of a scientific, educational or medical purpose for a school, library or museum.
- The defendant intended to disseminate that material.
The most serious of all child pornography charges — posing or exhibiting a child in a state of nudity or sexual conduct is a serious charge contains the following elements:
- The defendant: hired; coerced; solicited; enticed; employed; procured; used; caused; encouraged; or knowingly permitted a child under aged eighteen to pose or be exhibited in a state of nudity or sexual conduct.
- The defendant knew or should have known that the defendant was under the age of 18.
- The defendant had lascivious intent.
- The purpose of the defendant’s actions was representation or reproduction in any visual material. Free legal consult
If the case goes to federal court rather than state court, the consequences can often be even more serious. If one is charged with receiving child pornography rather than just possessing child pornography (even though there may seem to be little difference), one will face a mandatory minimum sentence in the federal penitentiary of 5 years. For producing child pornography, one is facing a mandatory minimum sentence of 15 years.
There are two types of indecent exposure charges in Massachusetts. One is a misdemeanor and the other is a felony.
The more minor offense (though still serious) is called indecent exposure and has to do with the actual conduct or behavior. One is charged with the more serious crime of open and gross lewdness and lascivious behavior when one, through that behavior, intentionally attempts to shock and alarm others.
Examples of the misdemeanor of indecent exposure might include urinating in public; more minor public sexual acts; masturbation in a public setting even if one is in their own home or car; having exposed genitalia; or wearing little or no clothing in a setting where the public can see even if it is on private property.
To be convicted beyond a reasonable doubt of this offense, there are three elements that have to be met:
- Exposure of genitals
- Being seen by at least one other person who consider it offensive
- Having it be an intentional act
It has been defined as “an intentional act of lewd exposure, offensive to one or more persons.”
The punishment under Massachusetts General Laws Chapter 272, Section 53 can be a period of incarceration up to 6 months; a $200 fine; probation; an a criminal record.
Although the crime of indecent exposure may be a misdemeanor and would not generally fall under the category of major crimes, it must be challenged aggressively. This is because there is such a serious stigma to being charged with any crime that is considered sexual that it can have severe consequences to one’s reputation and standing in the community. This is aside from the legal consequences. In many ways, a conviction for this misdemeanor can have a more negative impact than a number of more serious felonies because there is such a social taint to being deemed a sex offender.
There can be other repercussions to such a conviction such as the loss of employment, housing or educational opportunities.
If the crime is aggravated, the more serious offense of open and gross lewdness and lascivious behavior can be charged. Although the crime of indecent exposure applies to just the exposure of the genitals, the other crime of open and gross lewdness and lascivious behavior may include not only the genitals, but also the buttocks or female breasts. The key to an open and gross charge is that it must be proved beyond a reasonable doubt that the act was done with the intention to cause shock and alarm in the other person or persons. A victim must testify that he or she experienced shock and alarm and that is not always the case.
A person did not have to set out with the intent to try to knowingly break any law, just that they intended to do the act to cause shock and alarm in another person.
The distinction between the charges of indecent exposure and open and gross lewdness and lascivious conduct is that an indecent exposure case is about the behavior one is committing. An open and gross lewdness and lascivious conduct case is additionally about the impact this behavior has on others.
The maximum penalty for the charge of open and gross lewdness and lascivious behavior is three years in state prison; a $300 fine; probation; and a criminal record.
Even though it is, in effect, a sex offense, someone who is convicted of indecent exposure is not required to sign up for the sex offender registry. Neither does one for a conviction on a first offense charge of open and gross lewdness and lascivious conduct. However, if there is ever a second conviction of open and gross lewdness and lascivious conduct, then registration on the sex offender registry is mandatory.
There are a variety of defenses such as whether the accused person was actually exposed; whether the person charged with the offense was actually in a place where they had an expectation of privacy; and whether the person reporting an incident that resulted in an open and gross charge was actually shocked and alarmed as required particularly if they made no such mention when they first told the police.
If it is eventually determined that the case cannot be dismissed nor is it likely that it can be won at trial, then your attorney can pursue another approach to avoid a more severe sentence or even incarceration. In lieu of such greater punishments, the alternative can be for the accused to be evaluated by experts in the field and then begin a course of treatment that will work on whatever problems or issues the accused might have that resulted in such an offense. Treatment rather than punishment makes a great deal of sense not only to help the accused person, but also to help to keep the public from being subjected to such behavior.
Again, even if one avoids incarceration on either one of these charges, the impact to one’s reputation and the damage to one’s social status within the community on these shunned charges in particular is so disproportionately outsized that it is imperative to leave no stone unturned in trying to avoid a conviction with the best assistance from a veteran attorney with exceptional experience in the defense of sex offense charges such as indecent exposure.