Indecent Assault and Battery on a Person Aged 14 or Older

What is Indecent assault and battery on a person 14 or older in Massachusetts?

It is a Massachusetts sex offense under G.L. c. 265 §13H. A conviction can result in jail or state prison time and sex offender registration. Massachusetts defines the crime as an intentional and unjustified use of force upon another’s person, however slight. Since violent force is not usually involved in this offense, “force” in this context is usually no more than a touch. An indecent assault and battery is an intentional and unjustified touching of a private area, including, but not limited to, the breast, abdomen, thigh, buttocks, genital or pubic areas of a female or the buttocks, genital or pubic areas of a male. Whether the body part is a “private area” is determined in the context in which the touching occurred. This crime is a general intent crime as opposed to a specific intent crime in Massachusetts. Regardless of how the law reads, we view many general intent crimes as crimes that lower the district attorney’s burden of proof. In some sense, it undermines any defense that centers on accident or an absence of intent. This unfortunate nuance to this law makes it necessary for you to hire someone who has practiced criminal defense law in Massachusetts for decades. There is no substitute for experience.

Indecent Assault and Battery Over 14 at a Glance

• Charge: M.G.L. c.265 §13H
• Crime Level: Felony
• Maximum Prison: 5 years
• Maximum House of Correction: 2.5 years
• Registration: Usually required
• Common defenses:
  • False accusation
  • Lack of evidence
  • Lack of touching
  • Mistaken identity
  • Consent

What are the Elements of Indecent Assault and Battery on a Person Fourteen or Older in Massachusetts?

To be convicted of indecent assault and battery on a person aged fourteen or older, the prosecutor must prove all of the following six elements beyond a reasonable doubt:

1. The alleged victim was over the age of fourteen.
2. The defendant intended to engage in the touching;
3. The defendant committed the touching;
4. The touching was harmful or offensive;
5. The touching was indecent.A touching is indecent when it is contrary to societal norms and is offensive to current moral values in that would be considered “immodest, immoral and improper.” Indecency is measured by “common understanding and practice.” This definition gives persons of normal intelligence an opportunity to know what is proscribed. And;
6. There was no justification or excuse for the touching.

What Are the Penalties for a Conviction of Indecent Assault and Battery on a Person Fourteen or Older?

• Jail or House of Corrections
  If you are convicted of this crime, you face imprisonment in the state prison for up to five years or imprisonment in a jail or house of correction for up to two and one-half years.
  
• Sex Offender Registration
  You may have to register as a sex offender. You will probably have to fight the offender level you get assigned, as the Massachusetts Sex Offender Registry Board initially assigns levels that we believe are higher than the person deserves.
  
• Probation
  Probation is a common penalty for this crime, particularly if you have no criminal record. Probation, however, can result in Sex Offender Registry Board consequences.
  
• Continuance Without a Finding
  A continuance without a finding is available for someone charged with this crime. The judge might require a sex offender evaluation from a forensic psychologist and order counseling as deemed necessary by the practitioner.
  
• Pretrial Probation Pursuant to G.L. c. 276 §87
  Pretrial probation can only be obtained with the agreement of the district attorney. To convince them that this is a fair resolution of the case, a “breakdown letter” is required. A breakdown letter is a written request listing reasons why the prosecutor should agree to this disposition. The letter contains biographical information about the defendant: family history, employment history, educational accomplishments, and criminal history. An evaluation from a forensic psychologist indicating that the defendant does not present a risk of reoffending and is not a threat to the public can be persuasive. Character letters are important to convince the prosecutor to agree to pretrial probation. Any programs or counseling that the defendant entered or completed can be convincing that pretrial probation is a just resolution to the case.

What Are the Defenses to a Charge of Indecent Assault and Battery on a Person Fourteen or Older?

• False accusation
  A false accusation is a claim that a person committed a crime when they did not. The defense argues that the allegation arises from deliberate fabrication or inaccurate recollections. A defense attorney may challenge the credibility of the accusation by examining witness statements, text messages, surveillance video, electronic communications, forensic evidence, and other information that contradicts the allegation or creates reasonable doubt. False accusations can occur in sexual assault cases.
  
• Consent
  Consent occurs where the alleged touching was voluntary and mutually agreed upon. Consent is one of the most frequently disputed issues in indecent assault and battery cases. The existence of consent depends on the specific facts, including the words and actions of the individuals involved, the surrounding circumstances, and any other evidence presented in court. Witness testimony concerning the interactions before, during, and after the alleged incident can create reasonable doubt as to the non-consensual requirement of the law.
  
• Mistaken identity
  Mistaken identity is a defense in which the defendant argues that the prosecution has identified the wrong person as the individual who committed the alleged offense. There are times when witnesses may honestly but incorrectly identify a suspect because of limited opportunity to observe the incident, poor lighting, stress, the passage of time, or similarities in appearance. Suggestive photographic arrays can contribute to mistaken identity. Alibis will cast doubt on the accuracy of an identification. On several occasions, our office has secured dismissals or acquittals in cases where a mistaken identity was exposed.
  
• Witness credibility
  Witness credibility is a defense strategy that challenges the reliability and accuracy of a witness’s testimony. It refers to whether the jury believes that the witness is being truthful and reliable. Indecent assault and battery cases rely heavily on the statements of the alleged victim and other witnesses. Defense attorneys in Massachusetts seek to demonstrate inconsistencies, bias, and motive to attack the credibility of witnesses in sexual assault cases. Oftentimes, this evidence can be found in medical records, DCF records, electronic communications, social media posts, or videos demonstrating the witness lacks credibility. This shows the jury that the district attorney has not met its burden of proof beyond a reasonable doubt.
  
• Police investigation errors
  Police investigations are supposed to be thorough, conducted fairly, and objective. The job of a defense attorney is to scrutinize the investigation to ensure that the evidence is reliable and consonant with the defendant’s constitutional rights. Police do not always interview key witnesses. They overlook exculpatory evidence. They violate the defendant’s rights by conducting suggestive identification procedures, failing to preserve evidence, and ignoring evidence helpful to the defense. Exposing these errors can result in dismissals, suppression of illegally obtained evidence, create reasonable doubt, and not guilty verdicts.
  
• Lack of touching
  Lack of touching is a defense that argues the unlawful physical contact did not occur. Criminal accusations do not establish that a crime occurred. The prosecution must prove beyond a reasonable doubt that the touching involved intimate body parts (buttocks, genitals, breasts), that it was intentional and without justification or excuse. Lack of touching defenses involve witness credibility. Attacking the credibility of a witness, particularly the alleged victim, can prevent the Commonwealth from proving an essential element, an intentional offense touching, beyond a reasonable doubt.

Indecent Assault and Battery FAQ

Accused of Indecent Assault and Battery in Massachusetts? Get Experienced Legal Help Immediately

If you are charged with indecent assault and battery, or if you have learned that you are under investigation, the decisions you make in the first few days can significantly affect the outcome of your case. Retaining the services of a practiced and dedicated attorney like Stephen Neyman is of critical importance.

The attorneys at our office are well-informed of the Massachusetts laws and court systems and use our knowledge, talent, and experience to build strong defenses on our clients’ behalf. We have successfully defended this and other sex crimes in Massachusetts and throughout the country countless times in our 38 years of practice. To discuss your case or learn more about this crime, call our office at 617-263-6800 or contact us online.