Indecent Assault and Battery

A charge of indecent assault and battery under G. L. c. 265, § 13H involves the following four elements:

1. That the alleged victim was at least fourteen years of age at the time of the alleged offense;
2. That the defendant committed an assault and battery on the alleged victim;
3. That the assault and battery was “indecent,” as that word is commonly understood, measured by common understanding and practices;
4. That the alleged victim did not consent to the touching.

As to the second element, an assault and battery is essentially the intentional touching of another person, without legal justification or excuse.

As to the third element, the precise term of “indecent” has not been specifically defined by the Massachusetts legislature. The courts, however, have developed a broadly accepted definition: Massachusetts courts have ruled that “indecency” is to be defined by “contemporary moral values and common understanding and practices.” This essentially means than an indecent assault and battery is any type of physical contact that a reasonable person would consider offensive or immoral. An assault and battery may be indecent if it involves touching portions of the anatomy commonly thought to be private, such as a person’s genital area, buttocks, or the breasts of a female, but this list is not exhaustive and may include other parts of the body. It is important to remember that this offense can be charged regardless of whether the touching involved an area of the alleged victim’s body that was clothed or unclothed, as long as the touching would violate society’s contemporary views of personal integrity and privacy. Essentially, exactly what constitutes “indecency” is determined by both the body part that was touched, in conjunction with the overall context in which the touching or physical contact occurred.

As to the fourth element, an alleged victim must be able to consent. If an alleged victim is impaired in some way – perhaps because of the consumption of drugs or alcohol, lack of consciousness, developmental disability, or some other reason, the alleged victim may be incapable of consenting. Therefore, it would automatically follow that he or she did not consent. The Commonwealth may try and establish this lack of consent by proving beyond a reasonable doubt that alleged victim was so impaired by one of the above referenced circumstances that he or she was incapable of freely giving consent, and second, that the defendant knew, or reasonably should have known, that the alleged victim’s condition rendered him or her incapable of consenting.

Charges of indecent assault and battery are unquestionably serious and may result in imprisonment. Someone convicted of indecent assault and battery faces up to five years in state prison, or up to two and a half years in jail. Further, if certain aggravating circumstances are present, the potential punishment increases as well. Specifically, if the defendant was aware that the alleged victim was mentally challenged or intellectually lacking in any way, the punishment increases to a potential penalty of ten years in state prison, with a mandatory minimum sentence of five years. This means that if the defendant were convicted under these circumstances, a judge would have no choice but to sentence the defendant to at least five years in state prison, with the possibility of sentencing him or her to up to ten years. If a defendant is convicted a second time of this type of the offense (i.e., against an alleged victim who is mentally challenged,) the mandatory minimum sentence increases to ten years in state prison.

If the defendant is convicted of committing this offense against a person with a disability, or against an elderly person, a judge may sentence the defendant to up to ten years in state prison, or up to two and a half years in jail. If a defendant is convicted a second time involving a victim who is disabled or elderly, the mandatory minimum sentence is increased to ten years in state prison.

In addition to these potential penalties, a conviction for this offense results in substantial collateral consequences, namely: registration with the state as a sex offender and potential commitment as a sexually dangerous person.

Anyone who has been accused of this offense needs a skilled attorney who has experience handling allegations of sexual assault. As with most cases, the best defense strategy will depend on the individual circumstances of the case. Potential defenses include 1) consent – i.e., that the touching was consensual; (2) accident – i.e., that there was a touching but that the defendant did not intend to commit the touching; or (3) that there was no actual touching – i.e., that the offense was not committed because the defendant did not actually come in contact with the alleged victim.

Regardless of which defense may be the most effective, the value of a skilled attorney with experience handling allegations of sexual assault cases cannot be underestimated given the potential penalties and collateral consequences. Attorney Daniel Cappetta is such an attorney and is fiercely dedicated to determining and presenting the best possible defense for all his clients. Attorney Cappetta understands that swift and thorough investigation, expert consultation, and persuasive presentation and argument to a jury are all crucial pieces of a defense. He undertakes each of these responsibilities for all his clients. If you or a loved one is facing the above referenced charges, contact Massachusetts criminal defense attorney Daniel Cappetta today for a free consultation and put his extensive experience to work for you.