Assault and Battery with a Dangerous Weapon in Massachusetts Domestic Violence Cases (M.G.L. c. 265, § 15A)

The Statute: M.G.L. c. 265, § 15A

Assault and battery with a dangerous weapon (ABDW) is a felony under Massachusetts General Laws Chapter 265, Section 15A. In domestic violence cases it is frequently charged alongside assault and battery on a family or household member under M.G.L. c. 265, § 13M when the Commonwealth alleges that a weapon or object was used during the incident.

Even if not charged separately, assault and battery is always a “lesser included offense” of assault and battery with a dangerous weapon. This means the felony charge can be reduced to the misdemeanor charge. It also means that a jury can convict a defendant of the misdemeanor charge if the dangerous weapon element is not proven even if the only charge was felony assault and battery with a dangerous weapon.

A conviction carries up to five years in state prison. Aggravated ABDW, which applies when the offense results in serious bodily injury, carries up to fifteen years. See: Domestic Violence Sentencing Enhancements.

What Is a Dangerous Weapon

Per se dangerous weapons. Objects designed and intended to cause death or serious bodily harm, including firearms, knives, and other weapons by design. The Commonwealth does not need to prove how the object was used.

Dangerous weapons by use. Ordinary objects used in a manner likely to cause serious bodily harm. A kitchen knife, a bottle, a car, a piece of furniture, or a shod foot can constitute a dangerous weapon depending on how it was used. The Commonwealth must prove both that the object was used and that it was used in a manner likely to cause serious harm. The characterization of an object as dangerous is a question of fact for the jury.

Elements the Commonwealth Must Prove

• The defendant touched the alleged victim without consent.
• The touching was intentional.
• The touching was accomplished by means of a dangerous weapon, either per se or by use.

When the parties are family or household members, ABDW is typically charged alongside M.G.L. c. 265, § 13M. The same evidence typically supports both charges.

Aggravated ABDW: Serious Bodily Injury (M.G.L. c. 265, § 15A(b))

The aggravated form of ABDW is punishable by up to fifteen years in state prison when the Commonwealth proves that the offense resulted in serious bodily injury, defined as permanent disfigurement, loss or impairment of a body part or organ, or a substantial risk of death. This is a separate element the Commonwealth must prove beyond a reasonable doubt. See: Domestic Violence Sentencing Enhancements.

The Six-Hour Hold and Dangerousness Hearing

When ABDW is charged alongside M.G.L. c. 265, § 13M as a domestic violence offense, the six-hour mandatory holding period under M.G.L. c. 276, § 42A applies. A dangerousness hearing under M.G.L. c. 276, § 58A is common in ABDW cases, particularly when a weapon was involved or the complainant sustained visible injuries.

Excited Utterances in ABDW Cases

Assault and battery with a dangerous weapon cases frequently involve injuries severe enough that the Commonwealth has multiple potential excited utterance arguments: the 911 call, statements to EMTs en route to the hospital, and statements to police in the emergency room. Each has a separate foundation the Commonwealth must establish and each requires a separate analysis.

The EMT statement is subject to a dual foundation requirement. The Commonwealth must satisfy both the excited utterance foundation under Massachusetts Guide to Evidence § 803(2) and, if the statement was made for purposes of medical diagnosis or treatment, the medical records exception under Massachusetts Guide to Evidence § 803(4). Statements identifying the person who caused the injury and describing the mechanism of injury are commonly offered under the medical records exception. Under Michigan v. Bryant (562 U.S. 344, 2011), statements made to first responders during an ongoing emergency may be non-testimonial and therefore outside Crawford v. Washington (541 U.S. 36, 2004). Defense counsel must examine each statement separately, determine which exception the Commonwealth is invoking, and challenge the foundation of each exception before trial. A successful motion in limine excluding the emergency room statement, combined with a marital privilege invocation, can leave the Commonwealth without sufficient admissible evidence to proceed. See: Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause.

Collateral Consequences

Felony record. An ABDW conviction is a felony that cannot be sealed for seven years after the end of probation or release.

Firearms and Lautenberg. When charged as a domestic violence offense, a conviction or CWOF on ABDW triggers the federal Lautenberg Amendment (18 U.S.C. § 922(g)(9)), permanently prohibiting firearm possession.

Professional licensing. A felony conviction triggers mandatory reporting to most Massachusetts professional licensing boards. See: Criminal Defense for Licensed Professionals in Massachusetts.

Immigration. An ABDW conviction constitutes a crime of violence under 18 U.S.C. § 16 and may constitute an aggravated felony under 8 U.S.C. § 1101(a)(43) depending on the sentence imposed. See: Immigration Consequences of Massachusetts Criminal Charges.

Forfeiture by Wrongdoing

A defendant who contacts or influences the complainant to avoid testifying forfeits the Confrontation Clause right under the forfeiture by wrongdoing doctrine recognized in Giles v. California (554 U.S. 353, 2008). Post-arraignment contact with the complainant also 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

The object was not a dangerous weapon. When the Commonwealth charges ABDW based on an ordinary object, defense counsel contests whether the specific object, as used in the specific circumstances, meets the standard of likely to cause serious bodily harm. The characterization is a question of fact for the jury.

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 Commonwealth may lack sufficient evidence to proceed. See: Massachusetts Domestic Violence FAQs.

Challenging the excited utterance and medical records foundations separately. Defense counsel must examine each statement. the 911 call, the EMT statement, and the emergency room statement. and challenge the foundational requirements of the applicable exception for each independently before trial.

Contesting serious bodily injury. The Commonwealth must prove serious bodily injury as a separate element for aggravated ABDW. Medical records are the primary evidence on this element. See: Domestic Violence Sentencing Enhancements.

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)
• Strangulation or Suffocation (M.G.L. c. 265, § 15D)
• Intimidation of a Witness (M.G.L. c. 268, § 13B)
• Domestic Violence Sentencing Enhancements
• Arraignment in the Massachusetts Trial Court
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Massachusetts Domestic Violence FAQs
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• Massachusetts Firearms and Gun Crimes
• Excited Utterances, Forfeiture by Wrongdoing, and the Confrontation Clause

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