Simple Assault and Assault and Battery vs. Domestic Assault and Battert (M.G.L. c. 265, §§ 13A, 13M)

Simple Assault vs. Assault and Battery: The Distinction

Assault under M.G.L. c. 265, § 13A. An assault is an intentional act that places another person in reasonable apprehension of an imminent battery, without any actual physical contact. The offense requires no touching.

Assault and battery under M.G.L. c. 265, § 13A. Assault and battery requires actual physical contact. an intentional, unconsented touching accomplished without legal justification. The touching does not need to cause injury.

Simple assault and assault and battery are misdemeanors under Section 13A, each punishable by up to two and one-half years in a house of correction. When the alleged victim is a family or household member, the charge is elevated to assault and battery on a family or household member under M.G.L. c. 265, § 13M, carrying additional mandatory consequences upon conviction including Batterer’s Intervention Program completion and collateral consequences that do not apply to the base offense.

The Domestic Violence Designation

In domestic violence cases, the Commonwealth typically charges assault alongside Section 13M charges based on physical contact that occurred during the same incident. The assault count covers threatening conduct. The Section 13M count covers any touching. The Commonwealth can proceed on an assault count even when the physical evidence is insufficient to establish a touching.

Reckless Assault and Battery

Massachusetts also recognizes reckless assault and battery, which does not require specific intent to touch the alleged victim. A defendant who creates a substantial and unjustifiable risk of physical harm through reckless conduct, and whose conduct results in contact with another person, can be convicted of assault and battery even without an intention to touch that specific person. Reckless assault and battery carries the same penalties as intentional assault and battery under Section 13A.

Reducing a Domestic Assault and Battery to Simple Assault and Battery

In some Massachusetts domestic violence cases, negotiating a reduction of the charge from assault and battery on a family or household member under M.G.L. c. 265, § 13M to simple assault and battery under M.G.L. c. 265, § 13A can be significant for non-citizen defendants. A conviction or CWOF under Section 13M qualifies as a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i) and renders a non-citizen deportable. A conviction under Section 13A for simple assault and battery, without the domestic relationship element, does not trigger the domestic violence deportation ground under that provision. A reduction also eliminates the separate deportation ground under 8 U.S.C. § 1227(a)(2)(E)(ii) that attaches to 209A restraining order violations arising from the same incident.

The Lautenberg Amendment firearms disability under 18 U.S.C. § 922(g)(9) similarly applies only to misdemeanor crimes of domestic violence, and a Section 13A disposition without the domestic relationship element does not qualify. Whether a reduction is available depends on the specific facts, the DA’s office, and the strength of the defense, and any proposed disposition must be reviewed by an immigration attorney before acceptance, because other immigration consequences — including crimes involving moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i) — may still apply depending on the circumstances of the offense. See: Immigration Consequences of Massachusetts Criminal Charges and CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs.

Penalties

• Simple assault (M.G.L. c. 265, § 13A): up to two and one-half years in a house of correction, fine of up to $1,000.
• Assault and battery (M.G.L. c. 265, § 13A): up to two and one-half years in a house of correction, fine of up to $1,000.
• Assault and battery on a family or household member, first offense (M.G.L. c. 265, § 13M): up to two and one-half years in a house of correction, fine of up to $5,000, mandatory Batterer’s Intervention Program. See: ABFHM full analysis.
• Assault and battery on a family or household member, second or subsequent offense: felony, up to five years in state prison. See: Domestic Violence Sentencing Enhancements.

Collateral Consequences of the Domestic Violence Designation

• Mandatory firearms surrender and LTC revocation at arraignment under M.G.L. c. 209A, § 3B.
• Federal Lautenberg Amendment firearms disability (18 U.S.C. § 922(g)(9)) on conviction or CWOF.
• Mandatory Batterer’s Intervention Program completion as a condition of probation.
• Immigration deportation ground under 8 U.S.C. § 1227(a)(2)(E)(i) on conviction or CWOF. See: Immigration Consequences of Massachusetts Criminal Charges.
• Licensing board reporting obligations for most Massachusetts licensed professionals.

Excited Utterances and the 911 Call

When a complainant does not appear at trial, the Commonwealth frequently moves to introduce the 911 call and statements to the first responding officer as excited utterances under Massachusetts Guide to Evidence § 803(2). Defense counsel challenges the foundation by examining whether the complainant was still under the stress of excitement caused by the startling event when the statement was made, and whether the statement was genuinely spontaneous or was made in response to structured police questioning. A statement taken after the incident has ended and the defendant has been removed may not qualify as an excited utterance. See: Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause.

Forfeiture by Wrongdoing

A defendant who contacts the complainant after arraignment to discourage testimony forfeits the Confrontation Clause right under the forfeiture by wrongdoing doctrine recognized in Giles v. California (554 U.S. 353, 2008). The same contact generates an independent witness intimidation charge under M.G.L. c. 268, § 13B. That charge carries a felony conviction that can never be sealed. All contact with the complainant must go through counsel.

Defense

Absence of intent. Accidental contact during an argument does not constitute intentional assault and battery.

Self-defense. A defendant who used force to defend against an attack by the complainant may raise self-defense. The Commonwealth bears the burden of disproving self-defense beyond a reasonable doubt once the issue is raised.

Marital privilege. Under M.G.L. c. 233, § 20, a legally married spouse cannot be compelled to testify against the other spouse. When the Commonwealth’s case rests on the complainant’s testimony and the complainant invokes the privilege, the case is typically dismissed. See: Massachusetts Domestic Violence FAQs.

Challenging the domestic relationship element. If the parties do not satisfy the family or household member definition under M.G.L. c. 209A, § 1, the Section 13M charge fails.

Challenging the excited utterance foundation. Defense counsel files motions in limine challenging the timing, the complainant’s demeanor, and whether police questioning transformed a potentially spontaneous statement into testimonial hearsay under Davis v. Washington (547 U.S. 813, 2006).

Related Pages

• Boston Domestic Violence Defense Lawyer. Practice Area Hub
• Assault and Battery on a Family or Household Member (M.G.L. c. 265, § 13M)
• Assault and Battery with a Dangerous Weapon (M.G.L. c. 265, § 15A)
• Strangulation or Suffocation (M.G.L. c. 265, § 15D)
• Domestic Violence Sentencing Enhancements
• Massachusetts 209A Restraining Orders
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Massachusetts Domestic Violence FAQs
• Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause

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