Massachusetts Criminal Lawyer Blog
A new bill – S 853 – was unveiled at the statehouse last Tuesday. The bill establishes new crimes related to domestic violence, new legal provisions to protect alleged victims, and new training for judges in relation to domestic violence cases.
Specifically, the bill creates a new charge for a first offense of domestic assault and battery, creating a classification system for criminal conduct that is alleged to have occurred in a domestic context. Such classification means that those involved in the criminal justice system, including judges, prosecutors, and police, would potentially be in a position to track a defendant’s history of domestic charges.
Under the proposed law, a first domestic assault and battery offense would be punishable by up to 2.5 years in the county House of Correction and a $5,000 fine. A second offense would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and a $10,000 fine.
The bill would also create new charges for strangulation and suffocation. Currently, prosecutors classify strangulation as either an assault and battery, or attempted murder. The new offenses would be punishable by up to five years in state prison, or 2.5 years in the county House of Correction, and up to a $5,000 fine. Under special circumstances, the penalties for strangulation and suffocation could increase to up to 10 years in state prison and a $10,000 fine. Examples of such special circumstances include situations in which the alleged victim was pregnant, the alleged victim had a restraining order against the defendant, the alleged assault resulted in significant bodily harm to the alleged victim, or if the charges against the defendant were a second or subsequent offense – meaning that the defendant had been convicted of domestic charges in the past.
Additional proposed provisions of the bill include:
- Exclusion of domestic violence cases from resolution by an “accord and satisfaction,” which is a statutory resolution of a criminal case (laid out under G. L. c. 276, § 55) that allows a defendant who is charged with an assault and battery or other misdemeanor to enter into a settlement (usually financial) with the alleged victim so that the alleged victim is “satisfied.” The defendant can then file the agreement with the court and ask the judge to dismiss the charges.
- Addition of new charges for domestic assault near a courthouse, or with the intent to intimidate or prevent access to courts.
- Increasing the penalties for domestic violence against people who are elderly or disabled.
- Creation of a new state-level review team to investigate domestic violence-related fatalities and to help establish best practices to prevent domestic violence.
- Delaying bail for defendants charged with domestic violence offenses by six hours (to give alleged victims additional time to get assistance if they want it).
- Establishing up to 15 days of employment leave a year for alleged victims of domestic violence to deal with things like obtaining medical attention or attending court.
- Creation of a separate police log for alleged domestic violence complaints.
- Establishing fees for those convicted of domestic violence offenses, with the money going to a victim assistance fund.
- Requiring the trial court’s chief justice to provide bi-annual training to court personnel on domestic violence.
- Prohibiting the court from granting visitation rights to a parent convicted of rape without the child’s consent.
The new bill is reportedly driven by the recently publicized case involving the son of Boston Red Sox broadcaster Jerry Remy, Jared Remy. In that case, Jared Remy was arrested for assaulting his girlfriend, Jennifer Martel. Following his arraignment on the assault charge, he was released from custody. One day after his release, Remy allegedly stabbed Martel to death. In addition to the charges involving Martel, Remy had been arrested in the past on domestic violence related charges. Following Martel’s murder, many people questioned whether Remy had been treated too leniently by the criminal justice system in the past, and whether harsher consequences could have prevented Martel’s death.
While the bill is undeniably well intentioned, tougher domestic violence laws are not necessarily the right answer; perhaps the real focus should be on enforcing existing laws rather than adding new laws. In the words of Elizabeth Lunt, president of Massachusetts Association of Criminal Defense Lawyers, “The problem isn’t that there is a lack of laws applicable to domestic violence situations…the problem in recent cases is the laws that were on the books were not enforced.” The proposed law also seems to ignore the fact that not all domestic violence cases are the same. For example, a fistfight between two brothers would fall under the category of domestic violence. Removing the accord and satisfaction option would prevent more minor cases from being resolved in a way that is often favorable to both parties. Finally, the bill also seems to ignore that domestic violence cases are rarely black and white – not all alleged victims want to come forward or proceed with prosecution. While an alleged victim’s reluctance may absolutely be the result of fear, there are many other reasons why some alleged victims choose not to come forward. As Lunt stated, “the first thing to do is look at the laws that were in existence that apply in a situation and why they weren’t properly enforced.”
If you or a loved one has been charged with domestic violence, you will need an experienced attorney to help you successfully navigate the current environment. Attorney Daniel Cappetta has extensive experience defending allegations of domestic violence and he will make sure your rights are protected. Call him today for a free consultation.