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Indecent Assault and Battery

Indecent assault and battery is a serious crime and a conviction carries the possibility of prison time and registration as a sex offender.

Elements of Indecent Assault and Battery

In order to convict a defendant of indecent assault and battery, the Commonwealth must prove beyond a reasonable doubt that:

  1. The alleged victim was at least 14 years old at the time of the alleged offense;
  2. The defendant intentionally touched the alleged victim without legal justification or excuse;
  3. The defendant touched a part of the body that is commonly thought private, such as a person’s genital area or buttocks, or the breasts of a female; and
  4. The alleged victim did not consent to the touching.

There is a separate crime of indecent assault and battery on a person under the age of 14. The remaining elements are identical.

Common Defenses and Defense Strategies

Charges of indecent assault and battery are defended in various ways.

  • Accident - The prosecution bears the burden of proving beyond a reasonable doubt that that the defendant intended to indecently assault the alleged victim. If the defendant touched the alleged victim by accident, he or she is innocent of the crime. An “accident” is an event that happens without the intent of the defendant. It's an unexpected act that nobody planned or intentionally carried out.
  • Self-Defense - A defendant may use reasonable force to defend himself or herself. When a defendant: (1) had reason to believe he or she was being attacked or had reason to believe he or she was about to be attacked, thereby causing his or her personal safety to be in immediate danger; (2) took reasonable steps to avoid physical combat before using force; and (3) used only so much force as was reasonably necessary to eliminate the danger, then the defendant is innocent of the crime. There is a similar privilege if the defendant was defending another person from being attacked.
  • Alleged Victim’s Criminal Record - If the complaining witness has a criminal record or a history of committing violent acts, Attorney Spring will attempt to introduce this evidence at trial. A criminal conviction of a witness is generally admissible within a certain period of time (convictions for misdemeanors happening during the last five years usually are admissible; convictions for felonies happening during the last 10 years usually are admissible). Evidence of the alleged victim's history of violent behavior (sometimes called “prior bad act” evidence) usually is admissible if the defendant is claiming he or she acted in self-defense. Attorney Spring has extensive experience litigating these types of issues.
  • Bias - In many indecent assault and battery cases that go to trial, there is bad blood between the alleged victim and the defendant. The alleged victim often would like to see the defendant found guilty. The alleged victim’s interest in revenge will be explored by Attorney Spring during cross-examination.

Indecent Assault and Battery in the Marriage - Often times, indecent assault and battery cases involve incidents between individuals who are married. In Massachusetts, a prosecutor usually cannot force a person to testify against his or her spouse. Therefore, if the alleged victim is the defendant's spouse and refuses to testify at trial, the prosecutor will need to dismiss the case unless the elements of the crime can be proven without the testimony of the alleged victim.

Even if the defendant and the alleged victim are not married, the alleged victim’s feelings about the case will be considered by the prosecutor. You should hire an attorney who can represent the alleged victim’s feelings to the prosecutor and aggressively argue that the charges should be dismissed.

Sometimes an alleged victim can refuse to testify at trial because he or she has a Fifth Amendment Privilege. The Fifth Amendment to the United States Constitution guarantees that no person is required to give testimony that could incriminate himself or herself in a crime. If an alleged victim fought back during the altercation, or if the alleged victim was not completely truthful with the police about the allegations, then the alleged victim can assert his or her Fifth Amendment privilege and cannot be required to testify at the defendant's trial.

Given the serious consequences that result from a conviction for indecent assault and battery, it is essential that you have an attorney who is experienced in trying these types of cases. Attorney Chris Spring has been litigating these types of cases his entire career.

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