Massachusetts Domestic Violence Enhancements: Charges and Defenses

Assault and battery on a family or household member under G.L. c. 265, § 13M is a misdemeanor in Massachusetts. The Commonwealth can charge the same alleged conduct as a felony with state prison exposure when it alleges and proves one additional fact. The additional fact can be serious bodily injury, a pregnant complainant, a restraining order that the defendant knew about, a prior conviction, or a complainant who is an elder or a person with a disability.

That additional fact is called an enhancement. The Commonwealth must charge the enhancement and must prove it beyond a reasonable doubt. A defendant convicted of the enhanced crime faces a different sentencing range, a different federal firearms disability, and different immigration and licensing consequences than a defendant convicted of the base offense. This page sets out the enhanced offenses under M.G.L. c. 265, §§ 13A, 13K, 13M, 15A, and 15D, what the Commonwealth must establish for each aggravating fact, and how the defense contests each one.

The Enhanced Offenses and Their Elements

The relevant provisions appear in M.G.L. c. 265, §§ 13A, 13K, 13M, 15A, and 15D. The provisions define the following enhanced offenses.

• Section 13A(b) covers assault and battery causing serious bodily injury, assault and battery upon a pregnant victim, and assault or assault and battery upon a person protected by a vacate, restraining, or no-contact order.
• Section 13K covers assault and battery upon an elder or person with a disability, the same offense causing bodily injury, and the same offense causing serious bodily injury.
• Section 13M(b) covers a second or subsequent offense of assault or assault and battery on a family or household member.
• Section 15A(c) covers assault and battery by means of a dangerous weapon causing serious bodily injury, against a pregnant victim, or against a person protected by an order. Section 15A(c) also covers the same offense against a child under age 14 by a person age 18 or older.
• Section 15D(c) covers strangulation or suffocation causing serious bodily injury, against a pregnant victim, after a prior conviction for the same offense, or against a person protected by an order.

The firm’s pages on assault and battery on a family or household member under M.G.L. c. 265, § 13M and strangulation or suffocation under M.G.L. c. 265, § 15D explain two of the three base offenses. The firm’s page on assault and battery by means of a dangerous weapon under M.G.L. c. 265, § 15A explains the third base offense.

The word enhancement can suggest a sentencing rule in which a judge finds a fact after conviction and adjusts a federal Guidelines range. Under Massachusetts law, by contrast, each provision discussed on this page defines a distinct crime.

The aggravating fact, whether serious bodily injury, pregnancy, or a known outstanding order, is an element of the aggravated crime. The Commonwealth must allege the aggravating fact in the complaint or indictment and prove it to the factfinder beyond a reasonable doubt. Under Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), the Commonwealth must prove to the factfinder beyond a reasonable doubt any fact that increases the statutory maximum or the mandatory minimum. That requirement does not apply to the fact of a prior conviction.

The base offense is a lesser included offense of the aggravated crime. The Commonwealth can also charge the base offense on its own. The factfinder can convict the defendant of the lesser offense instead of acquitting the defendant if the Commonwealth proves the assault and battery but fails to prove the aggravating element.

Enrollment for a college or university student, a license for a licensed professional, or the ability of a noncitizen to remain in the country can depend on whether the conviction is for the base misdemeanor or the aggravated felony.

Defense counsel often seeks an outright dismissal. The firm explains when a Massachusetts criminal case can be dismissed or stopped before trial and publishes representative dismissal results. Serpa Law Office defends these charges in the district courts and the Boston Municipal Court throughout Eastern Massachusetts.

Self-Defense and an Enhanced Charge

Self-defense remains a complete defense to a charge of assault and battery on a family or household member. Self-defense is equally available when the Commonwealth alleges serious bodily injury, a pregnant complainant, a known restraining order, a prior conviction, or an elderly or disabled complainant. The aggravating allegation changes the potential penalty but does not change the defense. The Commonwealth must prove beyond a reasonable doubt that the defendant did not act in self-defense once the evidence properly raises the issue, on the enhanced charge exactly as on the simple charge.

A defendant convicted of an enhanced charge faces greater consequences than a defendant convicted of the base offense. The Commonwealth can also use evidence of injury against a defendant who acted in self-defense. A complainant who was the first aggressor may still have the visible injuries. The firm’s page on self-defense in Massachusetts explains the elements of the defense, the reasonable-concern standard for non-deadly force, the duty to retreat outside the home, and the admissibility of the complainant’s history of violence.

Enhancement 1: Serious Bodily Injury

Each of the three base crimes is punishable by a higher maximum penalty when the offense causes serious bodily injury. Under M.G.L. c. 265, § 13A(b)(i), an assault and battery that causes serious bodily injury is a felony.

The offense is punishable by up to five years in state prison or up to two and one-half years in a house of correction, a fine of up to $5,000, or both. The base offense, assault and battery under § 13A(a), is punishable by up to two and one half years in a house of correction or a fine of up to $1,000.

Under § 15A(c)(i), an ABDW causing serious bodily injury is punishable by up to fifteen years in state prison or up to two and one-half years in a house of correction, a fine of up to $10,000, or both. The maximum state prison term for the base offense is ten years. Under § 15D(c)(i), a strangulation causing serious bodily injury is punishable by up to ten years in state prison or up to two and one-half years in a house of correction, and by a fine of up to $10,000. The maximum state prison term for the base offense is five years.

The statutes define serious bodily injury as bodily injury that results in permanent disfigurement, loss or impairment of a bodily function, limb or organ, or a substantial risk of death. An injury that requires emergency room treatment or causes temporary impairment does not necessarily meet the statutory definition. Defense counsel compares the medical records with the statutory definition and challenges the Commonwealth’s characterization of the injury at trial.

Enhancement 2: A Pregnant Victim

Each of the same three crimes is punishable by a higher maximum penalty when the victim is pregnant. Under M.G.L. c. 265, § 13A(b)(ii), an assault and battery on a person who is pregnant is a felony. The offense is punishable by up to five years in state prison or up to two and one-half years in a house of correction, a fine of up to $5,000, or both.

Under § 15A(c)(ii), the ABDW version is punishable by up to fifteen years in state prison or up to two and one-half years in a house of correction, a fine of up to $10,000, or both. Under § 15D(c)(ii), the strangulation version is punishable by up to ten years in state prison or up to two and one-half years in a house of correction, and by a fine of up to $10,000.

Each pregnancy provision contains a knowledge element. The Commonwealth must prove that the defendant knew or had reason to know that the person was pregnant at the time of the offense. The defense may therefore contest both the fact of the pregnancy at the time alleged, through the medical evidence and timeline, and the defendant’s knowledge or reason to know of it.

Enhancement 3: A Restraining Order Known to the Defendant

An assault on a person protected by a known restraining order is a separate aggravated crime. The restraining-order provisions do not require a family or household relationship. Under M.G.L. c. 265, § 13A(b)(iii), an assault or assault and battery on any person the defendant knows has an outstanding temporary or permanent vacate, restraining, or no contact order against the defendant is a felony.

The offense is punishable by up to five years in state prison or up to two and one-half years in a house of correction, a fine of up to $5,000, or both.

Under § 15A(c)(iii), the ABDW version is punishable by up to fifteen years in state prison or up to two and one-half years in a house of correction, a fine of up to $10,000, or both. Under § 15D(c)(iv), the strangulation version is punishable by up to ten years in state prison or up to two and one-half years in a house of correction, and by a fine of up to $10,000.

The restraining-order provisions contain two limits. First, the qualifying orders are those issued under chapter 208, chapter 209, chapter 209A, and chapter 209C. The qualifying orders include 209A restraining orders (abuse prevention orders) and the restraining and no contact orders authorized by the divorce, separate support, and paternity statutes. The statutes do not list a harassment prevention order under chapter 258E. The Commonwealth therefore charges an assault on a person protected only by a 258E harassment prevention order without this enhancement. The distinction arises in harassment cases between neighbors or coworkers.

Violating the 258E harassment prevention order itself remains a separate crime under M.G.L. c. 258E, § 9. Second, the statutes require actual knowledge. The Commonwealth must prove beyond a reasonable doubt that the defendant knew the order was outstanding. In practice, the Commonwealth proves that knowledge through service of the order or the defendant’s presence in court when the order issued.

The Commonwealth can charge the aggravated assault separately from the 209A restraining order violation charge under Section 7. A defendant who commits an assault and battery on a protected person can face both the aggravated assault charge and a separate § 7 violation charge from the same incident.

Enhancement 4: Prior Convictions

A defendant with a prior conviction faces a higher penalty for two of the base crimes but not for violating a 209A restraining order or a 258E harassment prevention order.

Under M.G.L. c. 265, § 13M(b), a person convicted of a second or subsequent offense of assault and battery on a family or household member faces up to five years in state prison. The court may instead impose up to two and one-half years in a house of correction. A second or subsequent offense is a felony, but the base offense is a misdemeanor. Section 13M(b) expressly requires a prior conviction.

A prior case resolved by a continuance without a finding and dismissed is not a conviction under Massachusetts law. A defendant and defense counsel should analyze whether a prior continuance without a finding can support the subsequent-offense provision before any plea in either case, rather than assume the answer in the Commonwealth’s favor.

Under M.G.L. c. 265, § 15D(c)(iii), a person convicted of strangulation or suffocation who has a prior strangulation or suffocation conviction faces up to ten years in state prison and a fine of up to $10,000. The court may instead impose up to two and one-half years in a house of correction and a fine of up to $10,000. The prior conviction may be in Massachusetts or under the like law of another jurisdiction.

A defendant convicted a second or subsequent time of violating a 209A restraining order faces no enhanced penalty. M.G.L. c. 209A, § 7 sets a single penalty for any violation. M.G.L. c. 258E, § 9 also sets a single penalty for any 258E harassment prevention order violation. A repeat defendant can face bail revocation, probation surrender, and a separate charge for any new abusive conduct, rather than a higher penalty under the penalty clause.

Massachusetts courts try prior-offense allegations differently from the other aggravating facts discussed on this page. Under the prior-conviction exception described earlier on this page, the federal Constitution does not require proof of a prior conviction to a jury beyond a reasonable doubt. Massachusetts law nonetheless gives a defendant who pleads not guilty to a prior-offense allegation the right to a jury trial on that allegation.

Under M.G.L. c. 278, § 11A, the portion of a complaint or indictment alleging a prior offense is not read in open court and is withheld from the jury during the trial of the underlying charge. The court then conducts a separate trial on the prior-offense allegation if the defendant is convicted of the underlying charge. A jury decides the prior-offense allegation unless the defendant waives a jury. The Commonwealth must prove the prior conviction beyond a reasonable doubt. The court imposes sentence after the verdict in the second trial.

Enhancement 5: Elders and Persons With Disabilities (M.G.L. c. 265, § 13K)

Assault and battery on an elder or a person with a disability is a separate crime under M.G.L. c. 265, § 13K. The statute defines an elder as a person sixty years of age or older. The statute defines a person with a disability as a person with a permanent or long-term physical or mental impairment that prevents or restricts the ability to provide for their own care or protection.

In domestic violence cases, the Commonwealth can charge under § 13K when the complainant is an elderly parent, grandparent, or other elderly family member. The Boston Domestic Violence Defense Hub addresses the broader defense of domestic violence charges.

The penalties depend on the injury. The base offense is punishable by up to three years in state prison or up to two and one-half years in a house of correction, a fine of up to $1,000, or both. An assault and battery that causes bodily injury is punishable by up to five years in state prison or up to two and one-half years in a house of correction, a fine of up to $1,000, or both.

An assault and battery that causes serious bodily injury is punishable by up to ten years in state prison or up to two and one-half years in a house of correction, a fine of up to $5,000, or both. Section 13K contains no second or subsequent offense provision.

The section separately punishes a caretaker who wantonly or recklessly permits an elder or person with a disability to suffer bodily injury or abuse. In a family caretaking dispute, the Commonwealth can therefore bring charges against people on both sides. A related provision, M.G.L. c. 265, § 15A(a), punishes an ABDW on a person sixty or older by up to ten years in state prison, up to two and one-half years in jail, or a fine of up to $1,000. A second conviction under § 15A(a) is punishable by a minimum term of two years.

Federal Firearms Consequences of an Enhanced Conviction

The federal Lautenberg Amendment, 18 U.S.C. § 922(g)(9), prohibits firearm possession by any person convicted of a misdemeanor crime of domestic violence. The question whether a person was convicted depends on the law of the jurisdiction where the case was heard. 27 C.F.R. § 478.11.

A Massachusetts continuance without a finding is not a conviction under Massachusetts law, so the § 922(g)(9) prohibition does not apply on the basis of a continuance without a finding alone. A conviction under § 13M(b), § 15D, § 13A(b), or § 15A is a felony conviction. Federal law imposes the firearms disability of 18 U.S.C. § 922(g)(1) on a person with that conviction.

The federal prohibitions apply independently of any state License to Carry suspension or restoration process. The federal prohibitions remain in effect until federal law provides relief. Under 18 U.S.C. § 921(a)(33)(B)(ii), the misdemeanor domestic violence bar does not apply where the conviction has been expunged or set aside, or where the person has been pardoned or has had civil rights restored.

The bar still applies if the expungement, set-aside, pardon, or restoration of civil rights expressly withholds firearms rights. Under 18 U.S.C. § 921(a)(33)(C), a person with a single qualifying conviction involving a dating relationship is no longer disqualified five years after the later of the judgment or the completion of the sentence. The five-year rule applies only if the person has no further qualifying conviction. Massachusetts sealing is neither an expungement nor a set-aside. A person whose record is sealed therefore does not obtain the federal relief that an expungement or set-aside provides. The firm’s page on firearm-possession offenses explains the state licensing consequences.

Defense of an Aggravated Charge

Every aggravating fact discussed on this page is an element and a trial issue. Defense counsel tests the medical records against the statutory definition of serious bodily injury. The Commonwealth must separately prove knowledge of a pregnancy or an outstanding order.

The case proceeds on the base offense where the Commonwealth cannot prove the aggravating fact or the § 13M relationship. The firm’s comparison of simple and domestic assault and battery explains how the consequences of a conviction differ between the two charges. The Commonwealth may separately charge a defendant who contacts the complainant after the arrest with intimidation of a witness.

Defense counsel requests a separate jury instruction on each aggravating element and a verdict form that records the jury’s finding on each one. A jury persuaded that the defendant committed the touching but not the aggravating element can convict only of the base crime. Defense counsel uses the same distinction in plea negotiations. The terms of a negotiated disposition should not depend on an aggravated charge that the Commonwealth cannot prove at trial.

The firm’s domestic violence defense page for professionals, students, and noncitizens explains how enhanced domestic violence charges interact with a pending 209A restraining order, the six hour hold, and the dangerousness statute.

Related Serpa Law Office Resources

• Massachusetts Domestic Violence Defense
• Massachusetts 258E Harassment Prevention Orders
• Criminal Violation of a 258E Harassment Prevention Order
• How a Massachusetts 209A Extension Hearing Is Won
• Firearms After a Domestic Violence Charge
• False Allegations in Divorce and Custody Cases

Serpa Law Office defends assault, domestic violence, and protective order cases in the District Courts, the Boston Municipal Court, and the Superior Courts of Greater Boston. Contact the office at 617.936.0201 for a confidential consultation.