Assault and Battery on a Child in Massachusetts Under G.L. c. 265, § 13J

A person accused of injuring a child under fourteen can be charged with assault and battery on a child under G.L. c. 265, § 13J. A parent or other caretaker can also be charged for wantonly or recklessly permitting another person to injure the child. Every § 13J charge requires proof that the child suffered a bodily injury as the statute defines that term. This page explains the offenses in § 13J, the injury the Commonwealth must prove, the parental discipline defense, the medical evidence, and the penalties.

Assault and battery on a child causing bodily injury is a felony. If a defendant is convicted, the maximum sentence is five years in state prison or two and one-half years in the house of correction. When the Commonwealth alleges a substantial bodily injury, the maximum sentence is fifteen years in state prison.

The Offenses in § 13J

Section 13J(b) contains four paragraphs. Each paragraph sets out a separate offense. The first paragraph punishes an assault and battery on a child that causes bodily injury. The second paragraph punishes an assault and battery on a child that causes substantial bodily injury.

The third and fourth paragraphs apply only to a person who has care and custody of the child. The third paragraph punishes that person for wantonly or recklessly permitting bodily injury to the child. The third paragraph also punishes that person for wantonly or recklessly permitting another person to commit an assault and battery that causes bodily injury to the child. The fourth paragraph punishes the same conduct when the child suffers substantial bodily injury.

Under § 13J(a), a child is any person under fourteen years of age. The Commonwealth does not have to prove that the defendant knew the child’s age. Instruction 6.220, Criminal Model Jury Instructions for Use in the District Court (June 2019).

A person having care and custody is a parent, guardian, employee of a home or institution, or any other person with equivalent supervision or care of a child. The supervision can be temporary or permanent. G.L. c. 265, § 13J(a).

The Elements of Assault and Battery on a Child

To convict a defendant under the first or second paragraph of § 13J(b), the Commonwealth must prove three elements. The first element is that the defendant touched the child. The second element is that the touching caused a bodily injury, or a substantial bodily injury under the second paragraph. The third element is that the child was under fourteen. Instruction 6.220.

The Commonwealth can prove the touching under either of two theories. Under the first theory, the Commonwealth proves that the defendant intended the touching and that the touching was not accidental or negligent. The Commonwealth does not have to prove that the defendant intended to injure the child. Under the second theory, the Commonwealth proves that the defendant’s conduct was very likely to cause substantial harm and that the defendant ran that risk and went ahead anyway. Instruction 6.220.

The Commonwealth must also prove that the defendant was the person who touched the child. In Commonwealth v. Garcia, 47 Mass. App. Ct. 419 (1999), several adults had cared for an infant who was injured. The evidence did not show which adult inflicted the injuries. The trial judge entered findings of not guilty for both parents on the assault and battery charges because the evidence did not identify the person who struck the infant.

Bodily Injury and Substantial Bodily Injury

Section 13J(a) defines bodily injury as a “substantial impairment of the physical condition.” The definition names examples, including a burn, a fracture of any bone, a subdural hematoma, and an injury to any internal organ. The definition also covers an injury caused by repeated harm to any bodily function or organ, including the skin. Any physical condition that substantially imperils a child’s health or welfare is also a bodily injury.

A substantial impairment occurs when an injury “considerably or significantly compromises the usual functioning of any part of the victim’s body.” Commonwealth v. Robinson, 103 Mass. App. Ct. 361 (2023), quoting Commonwealth v. Ryan, 93 Mass. App. Ct. 486, 489-490 (2018).

In Robinson, a child’s ear had very extensive bruising. No doctor testified about the effect of the bruise on the child’s bodily functioning or health. The Commonwealth offered no evidence of any earlier injury to the ear. The Appeals Court held that the evidence did not prove a bodily injury under § 13J. The Appeals Court set aside the § 13J conviction for the ear injury and ordered entry of a conviction for assault and battery under G.L. c. 265, § 13A instead.

Substantial bodily injury is a bodily injury that creates a permanent disfigurement or a substantial risk of death. A bodily injury that creates a protracted loss or impairment of a function of a body member, limb, or organ is also a substantial bodily injury. G.L. c. 265, § 13J(a).

In Commonwealth v. Chapman, a ten-month-old infant drowned after being left alone in a bathtub. The Supreme Judicial Court held that asphyxiation is a bodily injury under § 13J, even without visible signs of trauma. 433 Mass. 481, 484 (2001). The court also held that death is not itself a substantial bodily injury. The infant’s death was evidence that the asphyxiation created a substantial risk of death.

Wantonly or Recklessly Permitting Injury to a Child

The third and fourth paragraphs of § 13J(b) punish a caretaker who fails to protect a child. The Commonwealth must prove that the defendant had care and custody of the child and that the child suffered a bodily injury or a substantial bodily injury. The Commonwealth must also prove that the defendant wantonly or recklessly permitted the injury, or wantonly or recklessly permitted the assault and battery that caused the injury. Commonwealth v. Roderiques, 462 Mass. 415, 422-424 (2012).

The Commonwealth does not have to prove which person inflicted the injuries. In Garcia, a thirty-three-day-old infant had bruises. The mother had noticed that the infant was in pain. The injuries had been inflicted on more than one occasion. The mother’s explanations for the injuries were not plausible. The Appeals Court upheld the convictions of both parents for wantonly or recklessly permitting another person to commit an assault and battery on the infant. Garcia, 47 Mass. App. Ct. at 422-423.

For a permitting charge, the Commonwealth can prove that the caretaker realized the danger to the child. The Commonwealth can instead prove that an ordinary person in the caretaker’s circumstances would have realized the danger. Commonwealth v. Dragotta, 476 Mass. 680, 686-689 (2017); Chapman, 433 Mass. 481. The Commonwealth must prove more than a mistake of judgment or even gross negligence.

Reckless endangerment of a child under G.L. c. 265, § 13L requires a different showing. Under § 13L, the Commonwealth must prove that the defendant was personally aware of the risk. Commonwealth v. Coggeshall, 473 Mass. 665, 670 (2016).

In Dragotta, a mother left her infant in the sole care of another adult while she showered. The infant was injured during that time. Before that day, the mother had once seen the other adult use a forceful technique to relieve the infant’s gas. The mother told the other adult to stop using the technique. The mother believed that the other adult had stopped.

The Supreme Judicial Court held that the evidence did not prove that the mother acted wantonly or recklessly. The court reversed her conviction and ordered judgment for her.

In Commonwealth v. Traylor, the Supreme Judicial Court held that several permitting convictions for injuries to one child require proof of separate acts of permitting. The Commonwealth cannot obtain several convictions by proving several injuries to the same child. 472 Mass. 260, 267-273 (2015). The court reversed six of the defendant’s seven convictions. Id. at 273-277.

Reckless endangerment of a child under § 13L is a lesser included offense of the fourth paragraph of § 13J(b). Roderiques, 462 Mass. at 422-424.

The Parental Discipline Defense

A parent or guardian who used force to discipline a child can raise the parental discipline defense. In Commonwealth v. Dorvil, the Supreme Judicial Court recognized a parental discipline privilege. Under Dorvil, a parent or guardian is not criminally liable for force used against a minor child in that parent’s or guardian’s care when three requirements are met. 472 Mass. 1, 12 (2015).

The first requirement is that the force was reasonable. The second requirement is that the force was reasonably related to safeguarding or promoting the child’s welfare, including preventing or punishing the child’s misconduct. The third requirement is that the force did not cause physical harm beyond fleeting pain or minor, transient marks, gross degradation, or severe mental distress. The force also must not have created a substantial risk of causing that harm, degradation, or distress. Id.

When the defense is before the judge or jury, the Commonwealth must prove beyond a reasonable doubt that at least one of the three requirements was not met. Id. at 13. The judge or jury can consider the child’s age, the child’s physical and mental condition, and the nature of the child’s misconduct. Id.

In Dorvil, a father smacked his daughter once on her clothed bottom after she disobeyed his direction and kept playing near the street. The Commonwealth offered no evidence that the smack injured the child. The Supreme Judicial Court held that the evidence did not prove that the father’s force was unreasonable or unrelated to a permissible parental purpose. The court reversed his conviction for assault and battery.

In Commonwealth v. Dobson, a mother struck her five-year-old child in the face with a leather belt, leaving marks. The Appeals Court held that the evidence proved that the force was unreasonable. The Appeals Court upheld her conviction for assault and battery by means of a dangerous weapon. 92 Mass. App. Ct. 355 (2017).

The third requirement of the defense and the § 13J bodily injury element concern the same evidence, which is what the force did to the child’s body. Evidence that the child suffered no more than fleeting pain or a minor, transient mark supports the parental discipline defense. The same evidence shows that the child did not suffer a bodily injury as § 13J defines that term.

Medical Evidence in § 13J Cases

Many § 13J cases involve infants and young children who cannot describe what happened. The Supreme Judicial Court has observed that the proof in these cases often consists of evidence that a child was left with an identified adult. The evidence then shows that the child suffered injuries inconsistent with that adult’s explanation. Traylor, 472 Mass. 260. In a case built on that kind of proof, the testimony of physicians about the cause and timing of the injuries is central evidence.

In Commonwealth v. Millien, the Commonwealth’s physician testified that violent shaking caused an infant’s head injuries. The defense was that the infant had fallen from a couch. Defense counsel did not ask the court for public funds to retain a medical expert, although the defendant was indigent. The Supreme Judicial Court held that counsel was ineffective. The court vacated the defendant’s § 13J convictions and ordered a new trial. 474 Mass. 417 (2016).

The court in Millien described a heated debate in the medical community. The debate concerns whether shaking alone can cause the triad of symptoms of traumatic brain injury, and whether a short accidental fall can sometimes cause those symptoms. An indigent defendant can ask the court for funds to retain an expert under G.L. c. 261, § 27C.

In Commonwealth v. Epps, the Supreme Judicial Court ordered a new trial on a § 13J conviction for substantial bodily injury. The jury at the first trial heard no expert testimony that the child’s injuries might have been caused by her accidental falls. 474 Mass. 743 (2016).

In Commonwealth v. Shu Feng Hsu, SJC-13855 (Mass. Sept. 9, 2026), an involuntary manslaughter case, the Supreme Judicial Court upheld the admission of expert testimony that a child’s injuries were consistent with abusive head trauma. The trial judge had barred testimony that short falls cannot cause abusive head trauma. The firm’s article on the Hsu decision and abusive head trauma testimony explains the ruling. Attorney Serpa’s article on how he uses experts in a criminal case describes the role of a defense expert.

Related Charges

When the police allege that an adult used a dangerous weapon against a child under fourteen, the Commonwealth can charge a separate offense. The offense is assault and battery by means of a dangerous weapon under G.L. c. 265, § 15A(c)(iv). If a defendant is convicted under § 15A(c)(iv), the maximum sentence is fifteen years in state prison. The site’s page on assault and battery with a dangerous weapon explains the dangerous weapon charges.

Assault and battery under G.L. c. 265, § 13A is a lesser included offense of § 13J. When the evidence does not prove a bodily injury, the judge or jury can convict the defendant of assault and battery under § 13A instead. Robinson, 103 Mass. App. Ct. 361. The site’s page on assault and battery under § 13A explains the § 13A charge.

The Court, the Complaint, and the First Hearings

The District Court and the Boston Municipal Court can hear a charge under the first, third, or fourth paragraph of § 13J(b). The District Court and the Boston Municipal Court have jurisdiction over misdemeanors and over felonies punishable by not more than five years in state prison. G.L. c. 218, § 26. A charge under the second paragraph carries up to fifteen years in state prison. The Commonwealth must bring a charge under the second paragraph by indictment in the Superior Court.

Some § 13J cases begin with an arrest. Others begin when the police file an application for a criminal complaint. For the misdemeanor charge in the third paragraph, a person who was not arrested is entitled to notice and a clerk-magistrate hearing before a complaint issues. No hearing is required when there is an imminent threat of bodily injury, of the commission of a crime, or of flight from the Commonwealth.

For a felony charge, the person receives a hearing when the police officer who filed the application asks for a hearing. When a private person files a felony application, the clerk-magistrate decides whether to hold a hearing. G.L. c. 218, § 35A.

The Commonwealth can ask a judge to hold a person charged under § 13J without bail as dangerous under G.L. c. 276, § 58A. The Commonwealth can make a § 58A request when the person charged is the child’s parent, another relative, or a member of the child’s household.

Section 58A covers a misdemeanor or felony involving abuse as G.L. c. 209A, § 1 defines abuse. Under § 1, abuse includes causing physical harm to a family or household member. Family or household members include persons related by blood or marriage and persons who live or lived in the same household. The judge decides whether the § 13J charge involves abuse by looking at the circumstances of the alleged offense. Scione v. Commonwealth, 481 Mass. 225, 234-237 (2019).

For a babysitter or another person outside the child’s family or household, the Commonwealth must rely on a different part of § 58A. The force clause of § 58A covers a felony that has the use of physical force against another person as an element. The appellate courts have not decided whether § 13J has the use of physical force as an element. Judges decide that question from the elements of the offense, not from the facts of the case. Commonwealth v. Vieira, 483 Mass. 417, 422 (2019).

The judge can order the person held before trial only after a hearing. The judge must find by clear and convincing evidence that no conditions of release will reasonably assure the safety of any other person or the community. The site’s page on dangerousness hearings explains the dangerousness hearing.

The Department of Children and Families and Spousal Testimony

Physicians, nurses, hospital personnel, teachers, child care workers, and police officers are mandated reporters under G.L. c. 119, § 21. Mandated reporters must report suspected abuse of a child to the Department of Children and Families under G.L. c. 119, § 51A. The Department’s investigation is separate from the criminal case. The site’s page on DCF 51A investigations explains the DCF investigation. Statements a parent gives to a DCF investigator can later be offered as evidence in the criminal case.

Under G.L. c. 233, § 20, neither spouse can ordinarily be compelled to testify against the other in a criminal case. The statute makes an exception for “any proceeding relating to child abuse, including incest.” A spouse can therefore be compelled to testify in a § 13J prosecution. The site’s page on whether a spouse can refuse to testify explains the privilege and its exceptions.

Penalties and Case Outcomes

If a defendant is convicted under the first paragraph of § 13J(b), the maximum sentence is five years in state prison. The judge can instead impose up to two and one-half years in the house of correction. If a defendant is convicted under the second paragraph, the maximum sentence is fifteen years in state prison or two and one-half years in the house of correction.

If a defendant is convicted under the third paragraph, the maximum sentence is two and one-half years in the house of correction. A charge under the third paragraph is a misdemeanor. If a defendant is convicted under the fourth paragraph, the maximum sentence is five years in state prison or two and one-half years in a jail or house of correction. Section 13J sets no minimum sentence. The judge may instead place the defendant on probation.

In the District Court and the Boston Municipal Court, a judge may continue a § 13J case without a finding under G.L. c. 278, § 18. If the defendant complies with the conditions, the judge dismisses the case. Section 18 does not apply in the Superior Court. The site’s page on continuances without a finding and pretrial probation explains the conditions a judge can impose.

A case can also end with a dismissal, a finding or verdict of not guilty, or a nolle prosequi, which is the prosecutor’s decision to drop the charge.

Section 13J is not among the offenses that G.L. c. 277, § 63 lists for a longer limitation period. The general six-year limitation period in § 63 applies to a § 13J charge.

A person convicted of a § 13J felony can ask the Commissioner of Probation to seal the record under G.L. c. 276, § 100A. The request can be made once seven years have passed since the end of the case and of any time in custody. The person must also have no new conviction during those seven years. For a misdemeanor conviction under the third paragraph, the waiting period is three years.

A person whose case was dismissed can ask a judge to seal the record under G.L. c. 276, § 100C. The site’s page on sealing a Massachusetts criminal record explains sealing under § 100A and § 100C.

Firearms Licenses

A conviction under the first, second, or fourth paragraph of § 13J(b) is a felony conviction. Under G.L. c. 140, § 121F(j), a person ever convicted of a felony is a prohibited person. A licensing authority must deny a license to carry or a firearm identification card to a prohibited person.

A conviction under the third paragraph is a conviction for a misdemeanor punishable by more than two years of imprisonment. A person convicted under the third paragraph cannot hold a license to carry. For a firearm identification card, the prohibition lasts five years after the conviction or the end of any confinement, probation, or parole, whichever is later. G.L. c. 140, § 121F(j).

When a person holding a license to carry or a firearm identification card is convicted under § 13J, the licensing authority must suspend or revoke the license or card. G.L. c. 140, § 121F(u).

The licensing authority can also suspend a license or card while the § 13J case is pending, if the licensing authority determines that the holder is unsuitable. A determination of unsuitability must rest on reliable, articulable, and credible information. The information must suggest that the holder may create a risk to public safety or a risk of danger to themselves or others. G.L. c. 140, § 121F(k).

After a dismissal or an acquittal, the licensing authority can still consider the conduct the police described. The Supreme Judicial Court has held that conduct amounting to an assault and battery can make a person unsuitable even when the conduct was never charged or tried. Chief of Police of Worcester v. Holden, 470 Mass. 845, 858-859 (2015).

A person whose license or card is suspended or revoked must surrender all firearms and ammunition to the licensing authority without delay. G.L. c. 140, § 129D. The site’s page on a criminal record and a firearms license application explains the licensing questions.

Federal law separately prohibits firearm possession by a person convicted of a crime punishable by imprisonment for more than one year. 18 U.S.C. § 922(g)(1). Federal law excludes a state misdemeanor punishable by two years or less. 18 U.S.C. § 921(a)(20). Every paragraph of § 13J(b) sets a maximum sentence longer than two years. Federal law therefore prohibits a person convicted under any paragraph of § 13J(b) from possessing a firearm.

Immigration Consequences

A conviction or a continuance without a finding on a § 13J charge can make a noncitizen deportable. Under 8 U.S.C. § 1227(a)(2)(E)(i), a noncitizen convicted of a crime of child abuse, child neglect, or child abandonment is deportable.

An immigration officer can also ask a noncitizen about the arrest and about the injuries described in the police report or the DCF report, even when the case was dismissed. A noncitizen charged under § 13J should have an immigration lawyer review the exact question, the noncitizen’s status, and the court record. The lawyer should complete that review before the noncitizen files a petition or attends an interview. The site’s page on immigration consequences of Massachusetts criminal charges explains the federal rules.

Defending a § 13J Charge

In many § 13J cases, the defense focuses on the injury element. The Commonwealth must prove a substantial impairment of the child’s physical condition, not only a visible mark. In Robinson, no medical witness described the effect of the bruise on the child. The Appeals Court replaced the § 13J conviction with a conviction for assault and battery under § 13A.

When several adults cared for the child, the defense examines when the injury occurred and who was with the child at that time. For a charge under the first or second paragraph, the Commonwealth must prove that the defendant inflicted the injury. The defense retains its own medical expert to review the imaging, the medical records, and the child’s history.

In a permitting case, the defense examines what the defendant knew and what an ordinary person in the defendant’s position would have recognized. When the force was discipline by a parent or guardian, the defense raises the parental discipline defense under Dorvil.

Attorney Joe Serpa defends people charged under § 13J. A parent or caretaker facing a DCF investigation at the same time should speak with Attorney Serpa before speaking with the police or the DCF investigator.

Frequently Asked Questions

Related Serpa Law Office Resources

• Massachusetts Criminal Charges Defense
• Reckless Endangerment of a Child in Massachusetts Under G.L. c. 265, § 13L
• Medical Expert Testimony in Massachusetts Criminal Cases: The Hsu Decision on Abusive Head Trauma
• Assault and Battery Charges in Massachusetts Under G.L. c. 265, § 13A
• Assault With a Dangerous Weapon and Assault and Battery With a Dangerous Weapon in Massachusetts
• DCF 51A Investigations After a Massachusetts Domestic Arrest
• Disclosing a Criminal Record on a Massachusetts Firearms License Application
• Massachusetts Dangerousness Hearings Under M.G.L. c. 276, § 58A
• CWOF, Pretrial Probation, and Diversion in Massachusetts Criminal Law
• Sealing and Expunging a Massachusetts Criminal Record