Arrested for Assault and Battery on a Family or Household Member in Massachusetts: Bail, Release Conditions, and Returning Home

Massachusetts police arrest a person for assault and battery on a family or household member when they respond to a reported incident, usually at a residence, and find probable cause that the person committed the offense. The arrested person goes to the police station and is booked and held in a holding cell. G.L. c. 276, § 42A ordinarily prevents release on bail for six hours after the arrest. A judge sitting in open court may order release sooner.

A bail commissioner then sets bail at the police station, and the accused person is ordinarily released. The bail commissioner also orders conditions of release at the station. Those conditions order the accused person to have no contact with the spouse or partner, to stay away from the accused person’s own home, and to commit no further acts of abuse.

Violating those conditions can mean returning to jail before trial, sometimes for the length of the case. Violating them can also produce additional criminal charges where the contact includes conduct that is a new criminal offense.

At the arraignment, the judge releases the defendant on bail under G.L. c. 276, § 58, releases the defendant on personal recognizance, and reviews and orders the conditions of release again, which can include an order to stay away from the complainant and the residence, or, on the Commonwealth’s motion, orders pretrial detention after a hearing under G.L. c. 276, § 58A.

The charge of assault and battery on a family or household member under G.L. c. 265, § 13M is the offense most commonly charged in Massachusetts domestic violence cases. The Commonwealth brings it when the complainant is or was the defendant’s husband or wife, has a child with the defendant, or is or was in a substantive dating or engagement relationship with the defendant.

A first offense is a misdemeanor punishable by up to two and one-half years in the house of correction, a fine of up to $5,000, or both. A second or subsequent offense is a felony punishable by up to five years in state prison. After a conviction or a continuance without a finding, the judge must order the intimate partner abuse education program unless the judge finds good cause in writing.

A Section 13M case also affects release conditions, firearms rights, immigration status, professional licensing, and the domestic violence record. Related conduct is charged under other statutes. A choking allegation is charged as strangulation or suffocation under G.L. c. 265, § 15D. A battery with an object is charged as assault and battery by means of a dangerous weapon under § 15A. Damage to a phone, a door, or a car during the incident is charged as malicious destruction of property under G.L. c. 266, § 127.

The words “family or household member” are narrower in Section 13M than they are under the civil abuse-prevention statute. The Commonwealth must prove both the underlying assault or battery and one of the relationships that Section 13M covers. The charge does not establish guilt, and the label attached to a police report does not replace proof of every element beyond a reasonable doubt.

Conditions of Release and Returning Home With a No Contact Order

A bail commissioner at the police station ordinarily sets the conditions that keep a person out of the home after a Section 13M arrest. G.L. c. 276, § 42A allows any person authorized to take bail to impose conditions on release to ensure the person’s appearance in court and the safety of the alleged victim, any other individual, or the community. The statute provides that those conditions shall include reasonable restrictions on the travel, association, or place of abode of the defendant as will prevent contact with the person abused.

The same section provides that a person who has attained the age of eighteen and is arrested for a violation of Section 13M shall not be released on bail sooner than six hours after the arrest, except by a judge in open court.

Changing those conditions requires a motion at the arraignment. Attorney Serpa appears with the client and asks the judge to modify the conditions the bail commissioner imposed. The judge hears the Commonwealth before ruling on the motion.

The judge and the district attorney’s office give weight to what the alleged victim wants. Under G.L. c. 258B, § 3, a victim may confer with the prosecutor at stated points in the case and may be heard by the court at any other time the court considers appropriate. A spouse or partner who wants the conditions changed can contact the district attorney’s office or appear at the arraignment and say so.

Whatever the alleged victim wants, the district attorney states the Commonwealth’s position on the conditions of release and the judge rules on the motion to modify them. Section 3 of Chapter 258B provides that the right to confer with the prosecutor does not include the authority to direct the prosecution of the case. A complainant who asks the court to lift a stay-away condition is heard, and the judge still decides whether to lift it.

A defendant who contacts the complainant to arrange any of this risks a charge under G.L. c. 268, § 13B. That section punishes a person who willfully misleads, intimidates, or harasses a witness or potential witness, either with the intent to interfere with a criminal investigation or a court proceeding or with reckless disregard for the risk of that interference. A threat is not required, and reckless disregard is enough.

The penalty is imprisonment in state prison for up to ten years, imprisonment in a house of correction for up to two and one-half years, a fine of $1,000 to $5,000, or both a fine and imprisonment. A charge under Section 13B also allows the Commonwealth to move for pretrial detention under G.L. c. 276, § 58A. Contact the no-contact condition prohibits supports revocation of bail under G.L. c. 276, § 58B. Where a 209A order is in place, that contact also supports a new charge under G.L. c. 209A, § 7.

Pressure on a complainant can also cost the defense the confrontation objection at trial. Where the Commonwealth proves by a preponderance of the evidence that the witness is unavailable, that the defendant was involved in causing the unavailability, and that the defendant acted with that result in mind, the judge may admit into evidence the witness’s earlier statements over a hearsay and confrontation objection.

Attorney Serpa contacts the complaining witness directly, ordinarily by text message or email, and provides objective information about whom to contact at the district attorney’s office about the conditions of release. He provides information and not advice, because the complainant’s interests may conflict with the client’s, and where the complainant asks for advice he says to consult a lawyer of the complainant’s own. In Attorney Serpa’s experience, judges routinely modify the conditions so that a client returns home while the case is pending, where the spouse or partner wants that.

What the Commonwealth Must Prove

Section 13M covers assault as well as assault and battery. Those are different theories. A battery involves a completed touching. An assault can occur without contact when the evidence proves either an attempted battery or an immediately threatened battery.

Assault on a Family or Household Member

Under the attempted-battery form of assault, the Commonwealth must prove that the defendant intended to commit a battery, took an overt step toward it, and came reasonably close to completing it. The other person need not have seen the attempt or felt afraid.

Under the threatened-battery form, the Commonwealth must prove conduct that a reasonable person would perceive as an immediate threat of a battery. It must also prove that the defendant intended to place the other person in fear of that immediate contact. A vague statement about possible future harm is not the same as an imminently threatened battery, although it may lead police to investigate a separate threats charge.

For either assault theory, the Commonwealth must also prove that the parties had a qualifying Section 13M relationship. The Massachusetts District Court publishes a separate model jury instruction for assault under Section 13M.

Intentional Assault and Battery

For an intentional assault and battery, the Commonwealth must prove that the defendant touched the other person and intended that touching. It must also prove that the touching was likely to cause bodily harm or was offensive, and that the parties were family or household members under Section 13M at the time.

An offensive battery does not require a visible injury. The issue is whether the intentional touching was offensive, which ordinarily means that it occurred without consent. An accidental or inadvertent contact does not satisfy the intentional-battery theory.

Reckless Assault and Battery

A reckless assault and battery is different. The Commonwealth must prove that the defendant intentionally engaged in conduct that caused bodily injury, that the conduct was reckless, and that the parties had a qualifying relationship. The required injury must be more than fleeting or trifling and must interfere with the other person’s health or comfort.

Recklessness is more serious than carelessness. The evidence must show conduct creating a high degree of likelihood that substantial harm would result. The official Section 13M assault-and-battery instruction explains the intentional and reckless theories separately.

Who Is a Family or Household Member Under Section 13M?

For this criminal charge, Section 13M recognizes three categories.

• people who are or were married to each other;
• people who have a child in common, whether or not they married or lived together; and
• people who are or were in a substantive dating or engagement relationship.

When a dating relationship is disputed, the statute directs the court to consider its length and type, the frequency of interaction, and, if the relationship ended, the time that has passed since it ended. A single casual meeting does not necessarily establish a substantive dating relationship.

This definition is not identical to the broader one used for a civil 209A abuse-prevention order. Section 13M does not list people as family or household members merely because they are related by blood or marriage or because they live, or once lived, in the same household. In that situation the conduct is charged as simple assault and battery under G.L. c. 265, § 13A. The Commonwealth still must prove a Section 13M relationship to obtain a Section 13M conviction.

Penalties and the Required Education Program

A first Section 13M offense is punishable by up to two and one-half years in a house of correction, a fine of up to $5,000, or both. A second or subsequent Section 13M offense may be punished by up to two and one-half years in a house of correction or up to five years in state prison.

The enhanced provision concerns a second or subsequent offense of assault or assault and battery on a family or household member. Whether an earlier case qualifies requires review of the prior charge and disposition. It should not be assumed from the general description “domestic violence.” Aggravating facts such as serious bodily injury, a pregnant complainant, or a known protective order are charged under § 13A(b), § 15A(c), or § 15D(c). The firm’s page on domestic violence enhancements explains each.

Section 13M also addresses treatment. After a conviction or a continuance without a finding, the court must order completion of a certified batterer-intervention program unless the court states good cause in writing or the program determines that the person is unsuitable. Massachusetts now refers to these programs as Intimate Partner Abuse Education Programs, or IPAEPs.

Arrest and the Six-Hour Bail Restriction

An adult arrested for a Section 13M offense ordinarily may not be released on bail until six hours after the arrest. A judge sitting in open court may order release sooner. The restriction appears in G.L. c. 276, § 42A and also applies to several other abuse-related offenses and protective-order violations.

The six-hour period is measured from the arrest. It is not an automatic overnight hold in every case. The timing of the arrest, the court’s hours, and whether a judge considers release all affect when release occurs. Police and court personnel also have statutory duties concerning safety information and notice of release.

Release Conditions and Civil 209A Orders Are Different

At arraignment, a criminal court may impose no-contact, stay-away, residence, or other conditions of release. Violating a release condition can lead to arrest, bail revocation, or detention while the criminal case is pending.

A civil 209A order is separate. It is issued in a civil proceeding after a person applies for protection and the court makes the findings required by Chapter 209A. If a 209A order already exists, the Commonwealth may bring an additional criminal charge for an alleged violation of that order.

Dangerousness Hearings

The prosecution may move for pretrial detention under G.L. c. 276, § 58A in a misdemeanor or felony case that involves abuse as Chapter 209A defines it. The motion is not limited to cases alleging serious physical injury.

To order detention, the judge must find by clear and convincing evidence that no release conditions will reasonably assure the safety of another person or the community. The statutory maximum is generally 120 days in District Court and 180 days in Superior Court, excluding delay attributable to the defendant under the speedy-trial rules.

The normal rules of evidence do not control the hearing, and the judge must consider certain police-report and alleged-victim hearsay. The defense may present information, cross-examine available witnesses, and propose conditions of release. Before the defense summons the alleged victim or a family member, it must show a good-faith basis that the testimony will be material and relevant.

The Complainant Cannot Dismiss the Criminal Charge

After a criminal complaint issues, the Commonwealth, not the complainant, decides whether to prosecute. A complainant may provide information and express a position, but cannot personally withdraw or dismiss the charge. Prosecutors may rely on other admissible evidence, including a 911 recording, photographs, medical evidence, body-camera video, or police observations.

That does not mean every case will go forward. The prosecution must assess whether admissible evidence can prove the charge beyond a reasonable doubt. The result depends on the evidence and the governing rules, not simply on whether a witness wants the case dismissed. The process is explained further on the pages about recantation in Massachusetts domestic-violence cases and criminal dismissals.

Spousal Privilege, Marital Communications, and the Fifth Amendment

Massachusetts law distinguishes between the spousal testimonial privilege and the privilege for private marital conversations. They are not interchangeable.

Under G.L. c. 233, § 20, a spouse generally cannot be compelled to testify against the other spouse in a criminal case, subject to statutory exceptions. This testimonial protection applies only to people who are legally married when the testimony is sought. It does not apply to dating partners merely because they live together or share a child.

The separate marital-communications rule concerns private conversations during the marriage. That rule has its own exceptions, including a criminal proceeding in which one spouse is accused of a crime against the other or of violating a protective order obtained by the other. Marriage therefore does not automatically exclude every statement between the spouses.

The Fifth Amendment privilege against self-incrimination is different again. Married or unmarried witnesses may invoke it only when truthful answers would create a real risk of criminal prosecution. It is not a general right to refuse testimony because the witness does not want the case to continue.

When the Complainant Does Not Testify

An unavailable or nonparticipating complainant does not make every prior statement admissible. The prosecution must identify a hearsay exception, and testimonial statements are also subject to the Confrontation Clause unless a recognized exception applies.

In these cases, courts often examine 911 calls and statements to responding officers under the excited-utterance exception. Timing is one consideration among several. The declarant’s condition, the nature of any questioning, whether an emergency was ongoing, and the statement’s primary purpose can all affect admissibility. The detailed page on excited utterances, police questioning, and the Confrontation Clause addresses those issues without reducing them to a single rule.

Forfeiture by Wrongdoing and Witness Intimidation

The Commonwealth may argue that a defendant forfeited hearsay and confrontation objections by intentionally making a witness unavailable. In Massachusetts, that requires proof by a preponderance of the evidence that the witness is unavailable, that the defendant was involved in causing the unavailability, and that the defendant acted with that result in mind.

Ordinary contact does not automatically establish forfeiture. But attempts to pressure, threaten, mislead, or induce a witness can create serious evidentiary consequences and may support a separate witness-intimidation charge. A defendant should obey every no-contact order and communicate with counsel before taking any action that could affect a witness.

Defenses to a Section 13M Charge

The defense depends on the theory charged and the available evidence. An accidental touching may defeat an intentional-battery theory. A reckless-battery theory requires both reckless conduct and qualifying bodily injury. An assault charge may fail if the conduct did not come close to a battery or did not objectively communicate an immediate threat.

The relationship element is independent. Records, messages, witness testimony, and the history of the relationship bear on whether the Commonwealth can prove a substantive dating relationship. If the parties were only relatives, roommates, or former housemates, another statute might apply to the conduct, but those facts alone do not satisfy Section 13M(c).

Self-defense may apply when the evidence raises a reasonable belief of imminent harm and the use of proportionate force. Once self-defense is properly raised, the Commonwealth must prove beyond a reasonable doubt that there was no self-defense. When the identity of the first aggressor is genuinely disputed, evidence of the complainant’s prior violent conduct may sometimes be admissible under Commonwealth v. Adjutant. That decision is strategic because it can permit responsive evidence about the defendant.

Many cases also depend on credibility and objective evidence. Dispatch audio, body-camera video, and photographs may support or contradict the first version recorded in a police report. Injuries, digital messages, the scene layout, and inconsistent accounts may do the same. The defense should preserve and compare that evidence early.

A CWOF Requires an Individual Consequence Review

A continuance without a finding requires an admission to sufficient facts. The court continues the case without entering a guilty finding; successful completion ordinarily leads to dismissal, while a violation can result in a guilty finding and sentencing.

A CWOF is not simply the same as a conviction for every purpose, nor is it consequence-free. Immigration law and firearms law use their own definitions, as do licensing rules, employment screening, and other systems. A noncitizen should obtain case-specific advice about immigration consequences before admitting to sufficient facts. Firearms consequences likewise depend on the charge, disposition, existing orders, and governing state and federal law. The current Massachusetts firearms guide addresses those separate questions.

CORI and the Domestic Violence Record System

A Section 13M arraignment creates a court record, but public CORI and the confidential statewide domestic-violence record system are not the same. At arraignment, G.L. c. 276, § 56A requires a preliminary judicial determination about whether the alleged conduct involved abuse. That designation is recorded in the confidential Domestic Violence Record Keeping System, often called the DVRS.

The preliminary determination is not a finding of guilt. Section 56A provides for removal of the designation after specified outcomes, including a not-guilty finding, a no-bill, or a finding of no probable cause. A dismissal is not listed as an automatic ground for removal. The distinction and the practical limits of sealing are set out at Massachusetts domestic-violence records, CORI, and the DVRS.

Early Review of the Evidence

The precise charging theory, the statutory relationship, and evidence collected in the first hours after an arrest can determine the outcome of a Section 13M case. Early review can identify available recordings and missing messages. It can also identify inconsistent statements, injuries, witnesses, and release conditions before evidence is lost or a preventable violation occurs.

Section 13M cases are heard in the District Court and the Boston Municipal Court. Attorney Serpa represents defendants in the Boston Municipal Court and in the Quincy, Dedham, Cambridge, Brookline, Hingham, Waltham, Somerville, Malden, Newton, Woburn, and Wrentham District Courts.

Serpa Law Office represents people charged with assault or assault and battery on a family or household member in Boston and courts throughout Massachusetts. To discuss the charge, the evidence, and the next court event, call 617-936-0201 or request a confidential consultation.

Frequently Asked Questions About Section 13M Charges

Related Serpa Law Office Resources

• Boston Domestic Violence Defense
• Simple Assault and Battery vs. Domestic Assault and Battery
• Massachusetts Domestic Violence Enhancements
• Strangulation or Suffocation
• Assault and Battery With a Dangerous Weapon
• Malicious Destruction of Property
• The Intimate Partner Abuse Education Program
• Domestic Violence Records: CORI and the DVRS
• Massachusetts 258E Harassment Prevention Orders
• Massachusetts Domestic Violence Law FAQs