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. 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.

A person who violates the conditions of release can be returned to jail before trial, sometimes for the length of the case. The Commonwealth can also bring additional criminal charges when the prohibited contact includes conduct that is a new criminal offense.

At the arraignment, the judge releases the defendant on personal recognizance or on bail under G.L. c. 276, § 58. The judge also reviews the conditions of release and orders them again. The conditions can include an order to stay away from the complainant and the residence. On the Commonwealth’s motion, the judge can instead order 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 the charge 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 or up to two and one-half years in a house of correction. 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 or the program determines that the defendant is unsuitable.

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 a relationship that Section 13M covers. The charge does not establish guilt. The Commonwealth must prove every element beyond a reasonable doubt, whatever label appears on the police report.

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.

G.L. c. 276, § 42A also 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. A judge in open court may release the person sooner.

A defendant who wants to change the bail commissioner’s conditions must file 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 making a decision 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.

The district attorney states the Commonwealth’s position on the conditions of release, whatever the alleged victim wants. The judge then makes the final decision on the motion to modify the conditions. 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. The judge still decides whether to lift the condition.

A defendant who contacts the complainant to arrange a change in the conditions of release risks a charge under G.L. c. 268, § 13B. Section 13B 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. Reckless disregard of the risk of interference is enough to prove the required state of mind.

A violation of Section 13B 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 $1,000 to $5,000, or both. The Commonwealth can also move for pretrial detention under G.L. c. 276, § 58A when the defendant is charged under Section 13B.

A judge can revoke bail under G.L. c. 276, § 58B for contact that the no-contact condition prohibits. The Commonwealth can also bring a new charge under G.L. c. 209A, § 7 for the same contact if a 209A restraining order is in place.

A defendant who pressures a complainant can also lose the confrontation objection at trial. The judge may admit the witness’s earlier statements into evidence over a hearsay and confrontation objection if the Commonwealth proves three facts by a preponderance of the evidence. The Commonwealth must prove that the witness is unavailable, that the defendant was involved in causing the unavailability, and that the defendant acted with that result in mind.

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. He tells a complainant who asks for advice 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 the client home.

What the Commonwealth Must Prove

Section 13M covers assault as well as assault and battery. Assault and assault and battery 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. The Commonwealth 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. The police may still investigate a separate threats charge based on the statement.

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. The Commonwealth must also prove both 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 has different elements. 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
• people who are or were in a substantive dating or engagement relationship.

The page on roommate restraining orders and criminal charges explains how the police charge an assault on a roommate who is not a dating partner.

The statute directs the court to consider the length and type of a disputed dating relationship, 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.

The Section 13M definition is not identical to the broader one used for a civil 209A restraining order (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. Conduct between relatives or household members who do not have a Section 13M relationship 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 penalty provision of Section 13M concerns a second or subsequent offense of assault or assault and battery on a family or household member. The question whether an earlier case qualifies depends on the prior charge and disposition. No one should assume that an earlier case qualifies merely because it was described as “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 refers to certified batterer-intervention 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. The six-hour period 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 Restraining Orders Are Different

At arraignment, a criminal court may impose no-contact, stay-away, residence, or other conditions of release. A defendant who violates a release condition can be arrested, have bail revoked, or be detained while the criminal case is pending.

A civil 209A restraining order is separate from the conditions of release. A judge issues a 209A restraining order in a civil proceeding after a person applies for protection and the judge makes the findings required by Chapter 209A. A defendant who is already subject to a 209A restraining order may face 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 period of detention 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 apply at the hearing. 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. The defense must show a good-faith basis that the testimony will be material and relevant before it may summons the alleged victim or a family member.

The Complainant Cannot Dismiss the Criminal Charge

The Commonwealth, not the complainant, decides whether to prosecute after a criminal complaint issues. 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.

The Commonwealth’s authority to prosecute does not mean that 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. The two privileges 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. The spousal privilege 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. The marital-communications 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. A judge therefore does not automatically exclude every statement between the spouses.

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

Evidence When the Complainant Does Not Testify

A judge does not admit every prior statement merely because the complainant is unavailable or does not participate. The prosecution must identify a hearsay exception. Testimonial statements are also subject to the Confrontation Clause unless a recognized exception applies.

In cases where the complainant does not testify, judges often examine 911 calls and statements to responding officers under the excited-utterance exception. The time between the event and the statement 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, forfeiture by wrongdoing 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. A defendant who attempts to pressure, threaten, mislead, or induce a witness, however, can lose hearsay and confrontation objections and may face 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 Commonwealth must prove the relationship element separately from the assault or battery. Records, messages, witness testimony, and the history of the relationship bear on whether the Commonwealth can prove a substantive dating relationship. Another statute might apply to the conduct if the parties were only relatives, roommates, or former housemates, 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. The Commonwealth must prove beyond a reasonable doubt that there was no self-defense once self-defense is properly raised. Evidence of the complainant’s prior violent conduct may sometimes be admissible under Commonwealth v. Adjutant when the identity of the first aggressor is genuinely disputed.

The defense’s decision to offer evidence of the complainant’s prior violence is strategic because the judge can then permit the Commonwealth to offer responsive evidence about the defendant. The firm’s page on self-defense and mutual combat in domestic violence cases explains how self-defense applies when both partners used force or both were arrested.

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 also support or contradict the first version in the police report. The defense should preserve and compare that evidence early.

Self-Defense Against a Child Who Attacks a Parent

A parent in Massachusetts can use reasonable force in self-defense when their own child attacks them. The same three requirements apply as in any other assault and battery case. The parent must have had a reasonable concern for their own safety. The parent must have used every reasonable means to avoid the fight. The parent must have used no more force than was reasonable in the circumstances. Commonwealth v. King, 460 Mass. 80, 83 (2011).

The police apply for a complaint charging the parent with assault and battery under G.L. c. 265, § 13A, not under Section 13M. Section 13M covers only people who are or were married, people who have a child in common, and dating partners. The police can instead charge assault and battery on a child under § 13J when the child is under fourteen and suffers a bodily injury.

The domestic abuse statutes still apply to the parent. Chapter 209A defines family or household members to include people related by blood and people who live in the same household. G.L. c. 209A, § 1.

Arrest is the preferred police response when an officer has probable cause to believe that a parent committed an assault and battery on their child. G.L. c. 209A, § 6(7). A parent arrested for an assault and battery on a child ordinarily cannot be released on bail for six hours. G.L. c. 276, § 42A. The bail commissioner and then the judge can order the parent to stay away from the child and from the home. The Commonwealth can also move for a dangerousness hearing under G.L. c. 276, § 58A.

The Limits of Self-Defense Against a Child

A parent attacked at home by a child who lives there must try to avoid the fight before using force. Leaving the room, leaving the house, or calling 911 can each be a reasonable way to avoid the fight.

Under the castle law, G.L. c. 278, § 8A, a person defending against someone who is unlawfully in the home has no duty to retreat. A child who lives in the home is lawfully there. The castle law does not remove the duty to avoid a fight with a person who is lawfully in the home. Commonwealth v. Peloquin, 437 Mass. 204, 208 (2002).

The judge or jury compares the size and strength of the parent with the size and strength of the child. The jury may consider the relative physical capabilities of the people involved and the room available to get away when it decides whether the force was reasonable. Commonwealth v. Kendrick, 351 Mass. 203, 212 (1966).

A parent attacked by a large teenager can justify more force than a parent attacked by a small child. A parent who strikes a much smaller child, instead of holding or blocking the child, gives the Commonwealth its argument that the force was disproportionate.

The right to use force ends when the attack ends. Force used after the child stops, backs away, or is held down is retaliation. Self-defense does not cover retaliation. Under the model jury instruction, force used to prevent a future attack is not self-defense either. Criminal Model Jury Instructions for Use in the District Court, Instruction 9.261 (rev. Feb. 2026).

A parent who tells an officer that the child “needed to learn” gives the Commonwealth evidence that the force was punishment, not self-defense. The Commonwealth then argues that the force must meet the requirements of the parental discipline defense.

One requirement of the parental discipline defense is that the force caused no more than fleeting pain or minor, temporary marks. The parental discipline defense also applies only to a minor child. Commonwealth v. Dorvil, 472 Mass. 1, 12 (2015). A parent who uses force against a son or daughter who is eighteen or older can rely on self-defense alone. The page on whether spanking a child is a crime in Massachusetts explains the parental discipline defense.

The judge can admit the child’s 911 call and the child’s statements to the responding officers under the excited utterance rules, even when the child later refuses to testify. The page on when the alleged victim will not testify explains the excited utterance rules.

A police officer who has reasonable cause to believe that a child is suffering physical injury from abuse must report the abuse to the Department of Children and Families. G.L. c. 119, §§ 21, 51A. The Department supports a report when it finds reasonable cause to believe that the child was abused. 110 CMR 4.32. The reasonable cause standard is far lower than proof beyond a reasonable doubt. A jury can find a parent not guilty on self-defense while the Department still supports the report.

The defense can offer evidence of the child’s earlier violent acts when the parent and the child dispute who started the fight. Commonwealth v. Adjutant, 443 Mass. 649 (2005). Offering evidence of the child’s earlier violence is a strategic choice. A parent who used force to stop a child from attacking a brother or sister can also rely on defense of another. Commonwealth v. Martin, 369 Mass. 640, 649 (1976). A parent arrested after a fight with a child should speak with a lawyer before answering police questions about the fight.

A CWOF Requires an Individual Consequence Review

A continuance without a finding requires an admission to sufficient facts. The judge continues the case without entering a guilty finding. The judge ordinarily dismisses the case when the defendant completes the conditions. A judge who finds a violation can enter a guilty finding and impose a sentence.

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. The abuse 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 page on Massachusetts domestic-violence records, CORI, and the DVRS explains the difference between CORI and the DVRS, the grounds for removing the designation, and the practical limits of sealing.

Early Review of the Evidence

The outcome of a Section 13M case can depend on the precise charging theory, the statutory relationship, and evidence collected in the first hours after an arrest. Defense counsel who reviews the case early can identify available recordings and missing messages. Counsel 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
• Assault and Battery Charges in Massachusetts (§ 13A)
• 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