Charged With Indecent Assault and Battery in Massachusetts: Defenses, Penalties, and the Sex Offender Registry

A person charged with indecent assault and battery in Massachusetts usually learns of the accusation in one of three ways. Police arrest the person after a complaint at a bar, a party, a workplace, a school, or a home. A summons arrives for a clerk-magistrate hearing or an arraignment. A detective calls and asks the person to come in for an interview.

The charge means that the Commonwealth claims the person intentionally touched a private part of another person’s body, such as the breasts, the buttocks, the genital area, or the inner thigh, without that person’s consent. People describe the accusation in plainer words, such as groping, grabbing, an unwanted touch at a bar or a concert, a hand under clothing, or a touch during a massage or a ride home.

Indecent assault and battery is a felony in Massachusetts. A person convicted of indecent assault and battery can be sentenced to state prison and must register as a sex offender. This page explains the three statutes the Commonwealth charges under, what the Commonwealth must prove, the defenses, the penalties, and what a conviction means for the sex offender registry.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995. He defends indecent assault and battery charges in the district courts, the Boston Municipal Court, and the Superior Court, from the first police contact through trial. The firm’s sexual assault and rape defense page covers rape, assault with intent to rape, child pornography, and the other sex offenses, together with the time limits on prosecution under G.L. c. 277, § 63.

Indecent Assault and Battery on a Person Fourteen or Older Under Section 13H

The Commonwealth charges most indecent assault and battery cases under G.L. c. 265, § 13H. To convict, the Commonwealth must prove beyond a reasonable doubt that the defendant touched the complainant, that the touching was intentional, that the touching was indecent, that the complainant did not consent, and that the defendant had no legal justification or excuse.

The statute refers to a person “who has attained age fourteen,” but the Commonwealth need not prove the complainant’s age as a separate element. The Appeals Court held in Commonwealth v. Dobbins, 96 Mass. App. Ct. 593, 595-597 (2019), that the age language separates § 13H from the child statute and is not an element the Commonwealth must prove.

A person convicted under the ordinary § 13H paragraph faces up to five years in state prison or up to two and one-half years in a jail or house of correction.

The statute’s second paragraph covers indecent assault and battery on an elder or a person with a disability, as G.L. c. 265, § 13K defines those terms. A person convicted under that paragraph faces up to ten years in state prison or two and one-half years in a house of correction, and up to twenty years in state prison for a second or subsequent offense. A judge may not continue a case under the elder and disability paragraph without a finding and may not place it on file.

Two newer statutes, § 13H½ and § 13H¾, cover indecent assault and battery on a person in police custody and on a patient or client by a health care provider. Counsel reads the complaint to identify which paragraph and which statute the Commonwealth has charged, because the penalties differ and the dispositions a judge may order differ.

Indecent Assault and Battery on a Child Under Fourteen Under Section 13B

Under G.L. c. 265, § 13B, the Commonwealth must prove that the child was under fourteen at the time of the alleged touching, that the defendant touched the child intentionally, that the touching was indecent, and that the defendant had no legal justification or excuse. The statute provides that a child under fourteen is incapable of consenting to the conduct charged, so consent is not a defense to a § 13B charge.

A person convicted under § 13B faces up to ten years in state prison or up to two and one-half years in a house of correction. A judge may not continue a § 13B case without a finding and may not place it on file.

Two companion statutes provide far longer sentences. Section 13B½ applies where the touching occurred during a burglary, a breaking and entering, a kidnapping, a robbery, a home invasion, an assault with a dangerous weapon, or the posing of a child in a state of nudity, or where the defendant was a mandated reporter such as a teacher, a physician, a nurse, or a child care worker. A person convicted under § 13B½ must serve at least ten years in state prison before becoming eligible for probation, parole, work release, or furlough.

Section 13B¾ applies to a person with a prior conviction or juvenile adjudication for a listed sex offense, and a person convicted under it must serve at least fifteen years. Neither companion statute allows a continuance without a finding.

An accusation about events years in the past requires attention to the statute that was in force when the touching allegedly occurred, because the Legislature has amended these statutes several times. Counsel also examines the time limit on prosecution, which G.L. c. 277, § 63 extends for offenses against children.

Indecent Assault and Battery on a Person With an Intellectual Disability Under Section 13F

G.L. c. 265, § 13F applies where the complainant has an intellectual disability and the defendant knew it. Lack of consent remains an element, and the Commonwealth must prove it. In Commonwealth v. St. Louis, 473 Mass. 350, 358-362 (2015), the Supreme Judicial Court held that an intellectual disability does not by itself prove that the person could not consent. The jury decides consent from all of the circumstances, including the disability.

The Supreme Judicial Court also held that the broader definition of “person with a disability” in § 13K does not define the intellectual disability that § 13F requires the Commonwealth to prove.

For a first conviction under § 13F, the statute provides a state prison sentence of five to ten years. The judge may suspend that sentence or impose probation on a first conviction, because the statute’s restriction on suspension, probation, and parole expressly excepts a first offense. For a second or subsequent conviction, the judge must impose at least ten years in state prison, and the person serves that minimum before becoming eligible for probation or parole.

Indecent Touching, Intent, and Consent

A touching is indecent when it offends contemporary standards of decency and the common understanding of what is immodest and improper. The Appeals Court applied that standard in Commonwealth v. Lavigne, 42 Mass. App. Ct. 313, 314-316 (1997), and upheld a conviction for a deliberate touching of a boy’s inner thigh, over his clothing, within a few inches of his genitals, accompanied by sexual remarks. A touching over clothing can be indecent. The Commonwealth need not prove penetration, injury, or skin-to-skin contact.

The defense examines what contact occurred, whether the defendant acted intentionally, whether the contact was indecent in its setting, and whether the charge requires the Commonwealth to prove that the complainant did not consent. The Commonwealth must prove that the touching was intentional, so an accidental brush in a crowded bar, a packed train, or a dance floor is a defense. Consent is a complete defense to a § 13H charge, but consent to some contact does not establish consent to a later, different act.

Where the Commonwealth claims that the complainant was too intoxicated to consent, the Commonwealth must prove that alcohol or drugs left the complainant unable to give or refuse consent, and that the defendant knew or reasonably should have known of that condition. Intoxication by itself proves neither the incapacity nor the defendant’s knowledge of it.

The Supreme Judicial Court set that rule in a rape case, Commonwealth v. Blache, 450 Mass. 583 (2008), and the model jury instruction for indecent assault and battery applies the same rule. Counsel examines the complainant’s own account of the evening, the bar tab, the video, and the messages sent before and after the alleged touching.

Falsely Accused of Indecent Assault and Battery

Many indecent assault and battery cases begin with an accusation that the accused person says is false or mistaken. A complainant in a crowded bar may identify the wrong person. A touch that the complainant experienced as a grab may have been a stumble in a crowd. A dispute between coworkers, roommates, former partners, or family members sometimes produces an accusation after the dispute, and the timing of the accusation is evidence of bias and motive.

Counsel compares the accusation with the witness statements, the complete message history, any video, the location records, and the sequence in which the complainant reported the events. A person accused of indecent assault and battery should retain counsel before giving any statement to the police, because the police record the interview and the Commonwealth may play the recording at trial. The firm’s page on criminal investigations before charges explains interview requests and the right to remain silent.

The Evidence at Trial

The Commonwealth’s case in an indecent assault and battery trial usually rests on the complainant’s testimony. Massachusetts law allows the Commonwealth to call one additional witness, the person to whom the complainant first reported the touching, to testify about that first report. The jury may use the first complaint testimony only to decide whether the complainant is credible, and the judge instructs the jury that the first report is not independent evidence that the touching occurred. Massachusetts Guide to Evidence § 413.

Counsel examines whether the witness the Commonwealth calls was in fact the first person told, what the complainant said, and how that account compares with the testimony at trial.

The rape shield statute, G.L. c. 233, § 21B, bars evidence of the complainant’s sexual reputation and bars evidence of the complainant’s other sexual conduct except for conduct with the defendant or recent conduct that explains a physical condition. A defendant who seeks to offer that evidence must file a written motion and an offer of proof, and the judge decides the motion at a hearing outside the jury’s presence.

The complainant’s counseling, medical, and school records are confidential, and counsel obtains them, where the law allows it, through the court’s Rule 17 and privilege procedures, under which the records go to the court before counsel may inspect them.

Text messages, social media posts, and surveillance video are often the evidence on which the jury decides these cases. A single screenshot omits the messages around it, so counsel obtains the complete thread. The firm’s page on digital evidence in Massachusetts criminal cases explains how the Commonwealth and the defense authenticate messages and recordings.

Counsel also reviews the authority for any search of the defendant’s phone or computer, because an unlawful search supports a motion to suppress. At trial, cross-examination of the complainant and the first complaint witness tests the account against the messages, the video, and the prior statements.

Clerk-Magistrate Hearings, Bail, No-Contact Orders, and Dangerousness Hearings

Because indecent assault and battery is a felony, a clerk-magistrate holds a clerk-magistrate hearing on a police application only when the officer requests one, and decides whether to hold one on an application filed by a private citizen. G.L. c. 218, § 35A. Where the clerk-magistrate holds a hearing, counsel presents the evidence and the argument against the complaint, and a denial means that no complaint issues, no arraignment occurs, and no entry appears on the person’s criminal record from that application.

At arraignment, the judge admits the defendant to bail under G.L. c. 276, § 58, releases the defendant on personal recognizance, or imposes conditions of release. In Attorney Serpa’s experience, the judge in an indecent assault and battery case ordinarily orders the defendant to stay away from and have no contact with the complainant.

The firm’s pages on bail and conditions of release and on stay away no contact orders explain those conditions and the motion to modify them. A complainant may also obtain a civil restraining order or harassment prevention order, which the defendant must obey while counsel seeks any modification.

The Commonwealth may move to hold a defendant without bail as dangerous under G.L. c. 276, § 58A only for the offenses that statute lists. Indecent assault and battery is not on the list by name. In Commonwealth v. Vieira, 483 Mass. 417, 424-427 (2019), the Supreme Judicial Court held that indecent assault and battery on a child under § 13B does not qualify under the statute’s force clause, because the crime can be committed by an offensive touching without physical force.

The Commonwealth can still move for a dangerousness hearing where the complaint also charges a qualifying offense, or where the charge involves abuse of a family or household member as G.L. c. 209A, § 1 defines abuse.

Dispositions, the Sex Offender Registry, and Other Consequences

A judge may continue an ordinary § 13H case without a finding, because § 13H bars a continuance without a finding only under its elder and disability paragraph. A judge may not continue a § 13B, § 13B½, or § 13B¾ case without a finding. The judge may order only the dispositions that the statute and the paragraph on the complaint allow.

The firm’s page on continuances without a finding, pretrial probation, and diversion explains the differences among those dispositions. Counsel addresses the registry, licensing, immigration, and record consequences of every proposed plea, admission, or continuance without a finding before the client admits to anything.

G.L. c. 6, § 178C lists indecent assault and battery under §§ 13B, 13B½, 13B¾, 13F, and 13H as sex offenses. A person convicted of one of those offenses, or adjudicated delinquent or a youthful offender for one, must register with the Sex Offender Registry Board. An accusation, an arraignment, or a dismissal does not require registration.

After registration, the Board classifies the person as Level 1, Level 2, or Level 3. The Board publishes the registration information of Level 3 offenders, and of most Level 2 offenders, on its public website, and keeps Level 1 information out of public view.

The duty to register lasts twenty years from the conviction or the release from custody or supervision, whichever is later, unless the statute requires lifetime registration or the Board terminates the duty earlier. G.L. c. 6, § 178G. A person who must register cannot seal the conviction under G.L. c. 276, §§ 100A or 100B while the duty to register continues.

A conviction or a continuance without a finding for indecent assault and battery can make a noncitizen deportable or inadmissible, and disclosure of the arrest or of the conduct described in the police report at an immigration interview can create obstacles of its own, so an immigration lawyer should review the exact charge, the client’s status, and the court record before the client files a petition or sits for an interview.

A college or university may open a student conduct proceeding over the same accusation, which the firm’s student defense FAQ explains. A nurse, a teacher, a physician, or another licensed professional must address the disclosure and discipline rules of the licensing board, and a teacher or school employee accused of touching a student faces the separate proceedings described on the firm’s page on teachers and school staff accused of assault or sexual assault. The firm’s sealing and expungement page explains what can be sealed after a dismissal or an acquittal.

Where the accused person was under eighteen at the time of the alleged touching, the Juvenile Court hears the case under the delinquency and youthful offender rules, which the firm’s juvenile defense page explains. Which court hears the case depends on the accused person’s age. Which statute the Commonwealth charges depends on the complainant’s age.

Speaking With an Indecent Assault and Battery Lawyer in Boston

At a first consultation, Attorney Serpa reviews the exact charge on the complaint or the summons, the court, the next date, the conditions of release, and any school, employment, or licensing proceeding that has begun. Serpa Law Office defends indecent assault and battery cases in Boston, Quincy, Cambridge, and the district courts of eastern Massachusetts. Request a free, confidential consultation before speaking with the police or the complainant.

Frequently Asked Questions

Related Serpa Law Office Resources

• Sexual Assault and Rape Defense in Massachusetts
• Assault and Battery Charges in Massachusetts Under G.L. c. 265, § 13A
• Teachers and School Staff Accused of Assault, Threats, or Sexual Assault Against a Student in Massachusetts
• What to Do When Under Criminal Investigation in Massachusetts Before Charges Are Filed
• Massachusetts Clerk-Magistrate Hearing Lawyer
• Massachusetts Bail: Release, Conditions, and Review
• No Contact Orders in Massachusetts Criminal Cases
• Massachusetts Dangerousness Hearings Under M.G.L. c. 276, § 58A
• Digital Evidence in Massachusetts Criminal Cases
• Cross-Examination in Massachusetts Criminal Trials
• Continuances Without a Finding, Pretrial Probation, and Diversion
• Sealing and Expunging a Massachusetts Criminal Record
• Juvenile Delinquency and Youthful Offender Defense in Massachusetts