Falsely Accused of Domestic Violence in Massachusetts

A person falsely accused of domestic violence in Massachusetts is arrested, charged with a crime, and ordered by a judge to stay away from home and away from the alleged victim, usually within one day of the accusation. The alleged victim often also obtains a 209A restraining order (abuse prevention order) against the accused person. The police usually file a report with the Department of Children and Families if a child lives in the home. The criminal case, the restraining order case, and the DCF process all begin before any court decides whether the accusation is true.

The accused person has to defend the criminal case, the 209A restraining order case, and the DCF investigation at the same time. The prosecutor can use what the accused person says at the restraining order hearing or to a DCF investigator as evidence in the criminal case.

This page explains what happens to the accused person after a false accusation, what the accused person should do and should not do while the cases are pending, and how the defense proves that the accusation is false. Attorney Joe Serpa defends these cases in the Boston Municipal Court and the District Courts of eastern Massachusetts. The firm’s domestic violence defense page explains the offenses, the court process, and the penalties.

The Arrest, the Conditions of Release, and the 209A Restraining Order

The police respond to a call and take a statement from the caller. Under G.L. c. 209A, § 6, arrest is the preferred response when an officer has probable cause to believe that a person committed an assault and battery on a family or household member or another act of abuse. The officer makes the arrest based on the accuser’s account. At the scene, the officer decides only whether there is probable cause. A judge or a jury decides later whether the accusation is true.

After the arrest, the police hold the arrested person for six hours before a bail commissioner may release the person on bail. G.L. c. 276, § 42A. A judge in open court may order release sooner. The bail commissioner sets conditions of release at the police station. At the arraignment on the next court day, the judge sets conditions of release again.

In nearly every case the judge orders the defendant to stay away from the alleged victim and to have no contact with the alleged victim. The alleged victim usually lives in the home, so the stay away no contact order usually prohibits the defendant from returning home while the criminal case is pending.

The firm’s page on no contact orders in Massachusetts criminal cases explains those conditions and explains how a defendant asks the judge to change them. In a felony or misdemeanor case involving abuse as G.L. c. 209A, § 1 defines it, the prosecutor may also ask the judge to hold the defendant without bail after a dangerousness hearing.

The alleged victim may also apply for a 209A abuse prevention order, often on the day of the arrest. A judge may issue a temporary order without the defendant present. The temporary order can require the defendant to leave the home, to stay away from the alleged victim, to surrender all firearms and firearms licenses, and to follow temporary custody terms. The court holds a hearing after notice within ten court business days. The hearing after notice is the defendant’s first chance to answer the accusation in court.

The responding officers usually file a report under G.L. c. 119, § 51A if a child was present during the incident or lives in the home. DCF then decides whether to investigate. The firm’s page on DCF 51A investigations after a domestic violence arrest explains that process. The accused person can also be charged with reckless endangerment of a child under G.L. c. 265, § 13L when the police allege that a child faced a serious risk of injury during the incident.

The accused person can be charged with assault and battery on a child under G.L. c. 265, § 13J when the police allege that a child was injured during the incident. The Massachusetts domestic violence arrest FAQs answer the common questions about the first days after an arrest.

What the Accused Person Should Do While the Cases Are Pending

The accused person should hire a lawyer before speaking to the police, to DCF, or to anyone else about the accusation. Many people want to explain what really happened. A statement the accused person gives to explain what happened becomes evidence in the criminal case. The prosecutor can use that statement whether or not it helps the defendant.

The accused person must obey every court order exactly as it is written, including a no contact condition and a 209A restraining order. The prosecutor can charge the defendant with a new crime if the defendant calls the alleged victim, sends a text message, sends a message through a friend, or replies to a message the alleged victim sent first.

The new charge can include a violation of the 209A restraining order. The alleged victim’s invitation to talk does not change the order. Only a judge can change the order. The 209A restraining order and 258E harassment prevention order violation FAQs explain which contacts the Commonwealth prosecutes.

The accused person should not ask the alleged victim to drop the charge, to change the story, or to stay away from court. The prosecutor can charge that request as intimidation of a witness under G.L. c. 268, § 13B, which is a felony. That request also helps the prosecutor in the original case.

Under the forfeiture by wrongdoing rule, a judge who finds that the defendant caused the alleged victim to stay away from court admits the alleged victim’s earlier statements into evidence even though the alleged victim never testifies. The witness intimidation FAQs answer the questions that arise when the prosecutor adds a witness intimidation charge.

The accused person should preserve every text message, email, call log, photograph, video, and social media message exchanged with the accuser before and after the accusation. The accused person should photograph their own injuries the same day. People replace phones and close accounts. The messages on the old phone or the closed account are then lost. The accused person must gather that evidence lawfully. Reading a former partner’s private account, installing tracking software on a former partner’s phone, or secretly recording a conversation violates Massachusetts law and gives the prosecutor a new charge.

The Alleged Victim Cannot Drop the Charge

The district attorney controls the prosecution once the police bring the case to court. The alleged victim can tell the prosecutor that the accusation was false, can refuse to cooperate, and can decline to testify. The alleged victim cannot dismiss the charge. The prosecutor does not have to dismiss the charge. The firm’s page on how Massachusetts criminal cases get dismissed explains the prosecutor’s control of the charge and the narrow grounds on which a judge dismisses a case over the prosecutor’s objection.

The prosecutor can try to prove the case without the alleged victim. The prosecutor plays the 911 recording, plays the body camera footage, and calls the officer to repeat what the alleged victim said at the scene. The judge’s decision whether to admit the alleged victim’s statements depends on the excited utterance rule and on the Confrontation Clause. The firm’s page on what happens when the alleged victim will not testify explains those rules, and the companion FAQs answer the common questions. A married alleged victim may refuse to testify under the spousal privilege.

A recantation gives the jury a reason to doubt the alleged victim. A recantation does not, by itself, end the case. The firm’s article on recantation in a Massachusetts domestic violence case explains what a changed account does and does not accomplish, and the article on how Massachusetts domestic violence charges are prosecuted and resolved explains each stage of the case.

How the Defense Proves the Accusation Is False

Counsel proves that an accusation is false with records and testimony. A general argument that accusations made during a divorce are unreliable is not evidence and does not persuade a judge. Counsel builds a record of the disputes pending between the parties, the relief the accuser sought from the family court, and the timing of the accusation in relation to those disputes. That record is the evidence of bias and motive.

Counsel establishes the chronology of the dispute and the accusation

Counsel assembles the sequence of events before and after the accusation. The sequence includes the family court filings, the requests for temporary orders, the communications about the home or the children, and the alleged incident. The sequence also includes the first report to anyone, the police report, the affidavit for the 209A restraining order, and the later statements to DCF.

Counsel presents the chronology as evidence of bias and motive when the records show that the accuser sought custody, exclusive use of the home, or a support order shortly before the report to the police. Counsel offers the chronology to the jury at trial and to the judge at the restraining order hearing.

Counsel cross-examines the accuser on bias and motive

A criminal defendant has the right to cross-examine the accuser about bias and about a motive to fabricate. Under Section 611 of the Massachusetts Guide to Evidence, reasonable inquiry into bias and prejudice is a right. Commonwealth v. Joyce, 382 Mass. 222 (1981), recognizes the probative value of evidence that gives a witness a motive to lie.

A pending divorce alone is not a sufficient basis for questions about a motive to fabricate. Counsel needs a good-faith basis for the questions. A good-faith basis can be a motion for temporary orders, a dispute over occupancy of the home, a scheduled custody hearing, or a communication showing the relief the accuser sought before the report to the police.

Counsel compares every version of the accusation

Counsel compares each version of the accusation. The versions are the 911 call, the statement to the officer at the scene, the emergency room history, the affidavit for the 209A restraining order, the statement to DCF, and the testimony at the hearing on the order. A false account usually changes from one version to the next.

The body camera footage shows what the alleged victim actually said at the scene, how the alleged victim looked, and what the room looked like. The police report is the officer’s summary of the statements and the scene, written afterward. Counsel uses the footage, not the summary.

Counsel presents evidence of self-defense and of who started the fight

The evidence may raise self-defense when both people have injuries and each blames the other. The Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense once the evidence raises self-defense. Commonwealth v. Adjutant, 443 Mass. 649 (2005), permits the judge to admit evidence of specific violent acts the alleged victim committed in the past when the identity of the first aggressor is disputed. The defense must first give the notice that the rules require.

The Commonwealth may answer with evidence of the defendant’s own violent acts. Counsel therefore reviews the defendant’s record before offering Adjutant evidence. The firm’s page on self-defense and mutual combat in domestic violence cases explains how these cases are tried.

Counsel may use an earlier false accusation by the same accuser

The defense may be able to use an earlier false accusation by the same accuser, but only after a separate showing. Commonwealth v. Bohannon, 376 Mass. 90 (1978), requires the defense to show a reasonable basis for concluding that the earlier accusation was false.

A dismissal, a decision not to prosecute, or a later change in the story may support that showing. None of those events proves falsity by itself. Counsel raises the issue by a pretrial motion that identifies the earlier accusation, the evidence that the earlier accusation was false, and how the earlier false accusation relates to the present case.

Counsel uses the communications the alleged victim sent after the accusation

A message the alleged victim sent to the defendant after the accusation does not by itself refute the accusation. The messages can contradict a specific statement that the alleged victim made under oath. The alleged victim may have sworn in the affidavit for the 209A restraining order that the alleged victim feared the defendant and avoided all contact with the defendant, and then sent the defendant friendly messages for weeks. In that situation, the complete message thread contradicts the affidavit.

Counsel cross-examines the alleged victim on the contradiction. A screenshot by itself does not prove who sent a message or when the message was sent. Section 901 of the Massachusetts Guide to Evidence requires enough proof that a message is what the defense says it is. Counsel therefore preserves the sender, the date, and the surrounding messages. The firm’s page on admitting and objecting to digital evidence explains how a judge decides whether a text message or a screenshot comes into evidence, and the text message and phone evidence FAQs answer the common questions.

The Defendant Must Decide Whether to Testify at the 209A Restraining Order Hearing

The hearing on the 209A restraining order usually comes first, within ten court business days of the temporary order. The plaintiff must prove abuse by a preponderance of the evidence. The defendant may cross-examine the plaintiff and may present evidence.

The defendant has to decide whether to testify. Testimony at the hearing on the 209A restraining order creates a sworn transcript. The prosecutor can obtain that transcript and use it in the criminal case. A defendant who stays silent leaves the plaintiff’s allegations unanswered.

The judge at a restraining order hearing may hold the defendant’s silence against the defendant. The defendant decides before the hearing, with the advice of counsel, whether to testify. The decision whether to testify depends on what the plaintiff can prove without the defendant’s testimony. The firm’s page on the Fifth Amendment at the 209A restraining order hearing and in civil cases explains the choice. The article on pleading the Fifth in civil cases describes a hearing on a 209A restraining order held while an assault charge is pending.

Every term of a 209A restraining order stays in force until a judge changes the order. A knowing violation of the order is a separate crime under G.L. c. 209A, § 7.

How a Domestic Violence Accusation Affects a Divorce or Custody Case

A domestic violence accusation made during a divorce or custody dispute can change where a parent lives and how the parent communicates with the children before either court holds a trial. Under G.L. c. 208, § 31A, a Probate and Family Court finding of a pattern or serious incident of abuse creates a rebuttable presumption against awarding custody to the parent who committed the abuse. The statute also states that a 209A restraining order does not by itself establish a pattern or serious incident of abuse.

Under the same statute, an ex parte 209A restraining order is not admissible to show that a pattern or serious incident of abuse occurred. The Probate and Family Court judge may still find a pattern or serious incident of abuse based on the facts underlying the restraining order.

Attorney Serpa handles the criminal case, the 209A restraining order proceeding, and the DCF response. He does not appear in the Probate and Family Court. He coordinates with the client’s family law counsel so that the client takes one consistent position in every proceeding. The firm’s separate page explains the reporting and licensing questions that a false accusation also raises for licensed professionals, students, and non-citizens.

The Records That Remain After the Case Is Dismissed

The criminal case ends in a dismissal or a not guilty finding when the accusation fails. The arraignment created a CORI entry. The CORI entry stays until a judge seals it under G.L. c. 276, § 100C. The police report stays in the police department’s confidential file.

The abuse designation entered under G.L. c. 276, § 56A stays in the statewide domestic violence record keeping system after a dismissal. The court removes that designation only after a not guilty finding, a no bill, or a finding of no probable cause. The firm’s page on domestic violence records, CORI, and the DVRS explains each record system and explains what sealing removes, and the domestic violence records FAQs answer the common questions.

How Attorney Serpa Defends a False Accusation

Attorney Serpa’s review begins with the criminal complaint, the police report, the 911 recording, the body camera footage, the photographs, the medical records, the 209A restraining order file, and any family court docket. Attorney Serpa then establishes the chronology, identifies the evidence of bias and the inconsistent accounts, evaluates self-defense, and decides which evidence problems to raise by pretrial motion. The firm’s case results page lists representative outcomes in domestic violence cases.

Attorney Serpa represents people accused of domestic violence in the Boston Municipal Court and the District Courts of eastern Massachusetts. Call 617.936.0201 or use the contact form to request a confidential consultation.

Frequently Asked Questions About False Domestic Violence Accusations

Related Serpa Law Office Resources

• Boston Domestic Violence Defense
• No Contact Orders in Massachusetts Criminal Cases
• When the Alleged Victim Will Not Testify in a Massachusetts Domestic Violence Case
• Can a Victim Drop Domestic Charges in Massachusetts?
• Massachusetts 209A Restraining Orders
• The Fifth Amendment at the 209A Restraining Order Hearing and in Civil Cases
• Self-Defense in Massachusetts Criminal Cases
• Assault and Battery on a Family or Household Member
• DCF 51A Investigations After a Massachusetts Domestic Arrest
• Domestic Violence Records: CORI and the DVRS
• Massachusetts Domestic Violence Law FAQs