An assault and battery on a family or household member is the technical name of what is commonly known as “domestic violence” in Massachusetts. When a person has been charged with domestic violence, the crime alleged is usually violation of G.L. c. 265, §13M, which is assault and battery on a family or household member. This crime comes in two varieties: the first is an intentional assault and battery on a family or household member and the second is a reckless assault and battery on a family or household member.

Type 1: An Intentional and Unjustifiable Touch of Another Person Who is a Family or Household Member

The first type of assault and battery on a family or household member occurs when the defendant intended to commit a battery.

To be found guilty of this form of assault and battery, the Commonwealth must prove beyond a reasonable doubt that that the defendant:

1. Touched the alleged victim (a touching is any physical contact, however slight);

2. Intended to touch the alleged victim (that it was not merely accidental or negligent);

3. That the touching was either likely to cause bodily harm to the alleged victim, or was offensive; and

3. That the alleged victim were family or household members at the time of the offense.

To prove its case, the Commonwealth must prove beyond a reasonable doubt that the defendant touched the alleged victim. Even the most minimal of “touches” count. And a touching may be direct as when a person strikes another. Or, it may be indirect, as when one person sets in motion some force that strikes another person. The defendant must have intended the touch.  That is, the defendant must have consciously intended the touching to occur.  An accident does not count. But importantly, the Commonwealth is not required to prove that the defendant intended to cause an injury to the alleged victim. The Commonwealth must also prove that the touching was likely to cause harm or was offensive—and a touching is offensive when it is done without consent. Lastly, the Commonwealth must prove that the defendant and the alleged victim were family or household members at the time of the offense.

Family or household members means that the defendant and the alleged victim were either: married, have a child together, or have been in a substantive dating relationship.

Type 2: Reckless Assault and Battery on Family or Household Member

The second type of assault and battery on a family our household member occurs when the defendant committed a reckless act causing physical injury to another.  

To prove this type of assault and battery the Commonwealth must prove, beyond a reasonable doubt, that the defendant: 

1. Intentionally engaged in actions which caused bodily injury to the alleged victim;

2. That the defendant’s actions amounted to reckless conduct; and

3. And the alleged victim were family or household members at the time of the offense.

In this type of assault and battery, the Commonwealth must prove that the bodily injury was so serious that it interfered with the alleged victim’s health or comfort. For example, an injury that causes momentary discomfort would not be sufficient.

Can I be arrested for an assault and battery on a family or household member? 

Yes.  Although assault and battery on a family or household member is a misdemeanor, a statute specifically authorizes warrantless arrest.  In these types of cases, an arrest warrant is not required if police believe that there is probable cause that a crime has been committed. Indeed, the Massachusetts Executive Office of Public Safety and Security guidelines suggest that arrest is the “preferred response” for domestic violence incidents.  That is why it is typical for someone to get arrested when the police respond to a call for domestic violence.

Am I going to jail for assault and battery on family or household member?

Assault and battery on family or household member is a misdemeanor and carries potential jail time. The maximum penalty for a conviction is not more than 2.5 years in the House of Correction or by a fine of not more than $5,000, or both such fine and imprisonment. Importantly, if this is a second or subsequent conviction, the crime turns into a felony and state prison may be part of the punishment.