Articles Posted in Domestic Violence Crimes

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music-1453613According to an article in the MetroWest Daily News, Worcester police recently arrested a Framingham High School music teacher on domestic violence charges. According to a second article, the court also issued a restraining order against the defendant under G. L. c. 209A, § 7. The articles state that the defendant and the alleged victim became romantically involved in 2011, shortly after the alleged victim graduated from the high school, where she was one of the defendant’s students. The relationship last approximately five years. The incident in question reportedly occurred when the alleged victim went to the defendant’s home in Worcester to discuss their relationship. Specifically, the alleged victim confronted the defendant about being in a relationship with another woman. An argument ensued, during which the defendant allegedly refused to let the alleged victim leave. The alleged victim also claimed that during the argument, the defendant pushed her into a wall, cabinets, and a door, slammed a door on her arm, and pushed her child, whom she apparently brought with her, into a bush. The alleged victim also showed police bruises, which she claims were the result of the defendant’s assault.

The defendant testified at the restraining order hearing in his defense, stating that he and the alleged victim had already broken up and that he was in the process of moving in with a new girlfriend. The defendant was ultimately charged with one count of kidnapping, two counts of assault and battery on a family or household member, two counts of assault and battery with a dangerous weapon, one count of witness intimidation and one count of assault and battery. Continue reading →

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broom-shadow-1490808According to an article in the MetroWest Daily News, a Framingham man was recently arrested for assaulting his eight year old son.  The article states that the son had apparently gotten into a physical fight with another boy at the bus stop.  During the fight, the other boy apparently touched the son’s buttocks.  The son reported the incident to his mother and his father.  After the son told his parents what had happened, his father (the defendant) reportedly spanked the son and hit him on his backside with a broom handle.  According to the son, the defendant also slapped him in the face and neck.  The article indicates that the defendant was upset about the fact that the son had failed to report the other child’s inappropriate conduct to school officials – namely that the other child had touched the son’s backside.  The son did have visible injuries on his shoulders and neck as a result of the incident.  The son’s school principal reported the defendant’s conduct to the authorities and the police responded and photographed the son’s injuries.  As a result of the incident, the defendant was charged with domestic assault and battery with a dangerous weapon and domestic assault and battery.

Although the charges are serious, the defendant does appear to have a legitimate defense.  Specifically, the defendant can argue that he was simply using reasonable physical force to discipline his child.  Although the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, case law appears to indicate that a parent is authorized to use physical force to discipline a child under certain circumstances.  For example, in Commonwealth v. Rubeck, the Supreme Judicial Court seemed to recognize the parental right to discipline as a legitimate defense to the use of physical force against a child as long as the physical force was for the specific purpose of discipline, was conducted in a controlled manner rather than the result of an emotional outburst, and did not result in significant injury.  Since it is arguably inappropriate for an eight year old child to get into a physical altercation with another child, the defendant can argue that he was within his rights to put his hands on his child for the purpose of disciplining him. Continue reading →

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questions-1151886According to an article in the MetroWest Daily News, a Framingham man was recently arrested on domestic violence charges.  The article states that the police responded to the defendant’s apartment at approximately 3pm last Sunday after receiving a call for a “possible domestic dispute.”  When they arrived, the police spoke to both the defendant and his girlfriend.  The girlfriend told police that she was afraid of the defendant and that the two of them had gotten into an argument.  She further stated that during the argument, the defendant had thrown a coffee mug at her, but missed.

The girlfriend also claimed that the defendant had assaulted her nearly a month prior while she was giving the defendant a ride to work.  On that occasion, the defendant allegedly grabbed a travel mug and threw it at the girlfriend and it hit her in the face.  The cup reportedly left a bruise, which the girlfriend later photographed.  During that earlier incident, the girlfriend reportedly tried to drive to the police station, but the defendant told her not to do so.  The girlfriend apparently did not make any further attempts to report the incident. As a result of the girlfriend’s allegations, the defendant was charged with assault and battery with a dangerous weapon in relation to the earlier alleged incident, and assault with a dangerous weapon in relation to the more recent one.  The defendant was also charged with two counts of witness intimidation – one because he reportedly called the girlfriend’s daughter from jail even though he had been ordered not to do so, and the second because of his alleged statement telling the girlfriend not to go to the police.

At the defendant’s arraignment, his attorney indicated that the defendant was about to break up with the girlfriend because she had taken a debit card from him and withdrawn money without his permission.  The attorney further stated that the allegations were fabricated to get the defendant in trouble.  Continue reading →

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bed-1230897According to an article in the MetroWest Daily News, a teenager from Framingham allegedly assaulted his girlfriend this past week. The article states that the alleged victim accused the defendant of cheating on her at approximately 4am. After the accusation was made, the defendant reportedly began hitting and kicking the alleged victim, who claimed that she did not recall the number of punches and/or kicks because there were “too many” to count. The couple reportedly went back to bed after the defendant apologized. When they woke up again, the conversation resumed and the defendant allegedly dragged the alleged victim by the hair and spat in her face. The defendant also allegedly put his hands around the alleged victim’s neck and applied “slight pressure.” At some point after this second alleged assault, the alleged victim called the police and made a report. She claims that she was too afraid to call the police immediately. The defendant was charged with two domestic violence offenses: one count of assault and battery on a household or family member and one count of strangulation.

To convict the defendant of assault and battery on a household or family member under G. L. c. 265, § 13M, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant touched the alleged victim, without having any right or excuse for doing so; (2) that the defendant intended to touch the alleged victim; (3) that the touching was either likely to cause bodily harm to the alleged victim, or was done without her consent; and (4) that the defendant and the alleged victim are “household members.” Under the law, people are household members if they are or were married, they have a child in common, and/or they have been in a substantive dating or engagement relationship.

To convict the defendant of strangulation under G. L. c. 265, § 15D, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the defendant applied substantial pressure on the throat or neck of the alleged victim; (2) that he interfered with the alleged victim’s normal breathing and/or circulation without having any right or excuse for doing so; and (3) that he did so intentionally. Continue reading →

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fist-1488296According to an article in the MetroWest Daily News, a thirty-two year old Milford man got into a physical altercation with his eighteen year old niece earlier this week. The article states that the niece had been kicked out of her mother’s house and was staying at her grandmother’s house. At some point during her stay, the niece began yelling at her grandmother and her uncle, who was present during the argument, stepped between the two in an attempt to diffuse the situation. According to the uncle, the niece punched him twice in the face and he then reportedly punched her once. The niece allegedly had a broken nose as a result of the incident. It’s not clear whether the uncle had any injuries. Police arrived on scene and arrested the uncle, charging him with domestic assault and battery. The niece was summonsed to court on the same charges that same day.   Continue reading →

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mouth-1437756According to an article in the MetroWest Daily News, a Framingham man allegedly attacked his ex-girlfriend after he found out that she was dating someone new. The article states that the man and the alleged victim were romantically involved but that the relationship had ended. According to the article, the man reportedly appeared at the alleged victim’s workplace (Shopper’s World) and asked to speak with her. They then drove away in the alleged victim’s car. After some period of time, the alleged victim dropped the man off and went to the police station. Once there, she claimed that she was the victim of a domestic assault. Specifically, the alleged victim told the police that she and her ex-boyfriend had gotten into an argument when he found out that she was dating someone else. The alleged victim claimed that the man grabbed her by the throat and choked her. The police then approached the man, who was outside a convenience store, and arrested him based on the alleged victim’s allegations. The man was subsequently charged with strangulation.

To convict the man of strangulation, the Commonwealth would have to prove the following beyond a reasonable doubt: (1) that the man applied substantial pressure to the alleged victim’s throat or neck; (2) that he interfered with the alleged victim’s normal breathing or circulation of blood without having any right or excuse for doing so; and (3) that the man did so intentionally. Continue reading →

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text-message-1472714In Commonwealth v. Mulgrave, the Supreme Judicial Court held for the first time that a text message could constitute an excited utterance under Massachusetts law. An excited utterance is an exception to the rule prohibiting the admission of hearsay. A statement qualifies as an excited utterance if it: (1) follows an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of the observer; and (2) the statement was a spontaneous reaction to the occurrence or event and not the result of reflective thought. The rationale that justifies this hearsay exception is that a person who has witnessed a shocking or traumatic event tends to speak what comes spontaneously to mind, without energy or disposition to invent lies so the statement may be deemed trustworthy for as long as the stress of the startling event continues. The court considers the following factors in determining the admissibility of a statement as an excited utterance: (1) the degree of excitement displayed by the declarant; (2) whether the statements are made at the scene of the traumatic event or elsewhere; (3) the temporal closeness of the statement to the act it explains; and (4) the degree of spontaneity, including whether the statements was volunteered by the declarant without the prompting of a question. Although the SJC has routinely ruled that written statements do no qualify as excited utterances given the fact that a written statement is generally not “spontaneous,” as it requires at least some reflective thought, the Court chipped away at this rule in the Mulgrave decision.

The facts of the case are as follows: the defendant and the victim in the case were married, but their relationship was deteriorating. During a heated argument between the two, the victim sent a text message to her son stating that “[the defendant] is threatening to kill me I am scared he said if I pick up the phone he will kill me.’” Six minutes after the victim sent the text message, she telephoned 911 and reported that the defendant was stabbing her. A few minutes after that, she was found barely breathing and lying in a pool of blood. She ultimately succumbed to her injuries. At trial, the Commonwealth sought to introduce the victim’s text message as evidence against the defendant. Continue reading →

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fist-1488296In August of 2014, the Massachusetts state legislature passed An Act Relative to Domestic Violence, which was signed into law by then Governor Deval Patrick shortly thereafter. The Act made various changes to the state’s domestic violence laws. Among other modifications, the Act created a first offense domestic violence assault and battery charge, established a domestic violence offender registry, and provided education for judges and prosecutors about cycles of abuse. As to the domestic violence offender registry, the law states that, pursuant to G.L. c.276, §56A, “every case in which a person is arrested and charged with a crime against the person or property, if the Commonwealth alleges that domestic abuse occurred ‘immediately prior to or in conjunction with’ the charged crime, the Commonwealth is to file a written statement that it does so allege, the judge is to make a written ruling that the Commonwealth does so allege, and the Commonwealth’s written statement is then to be entered into the Statewide domestic violence record keeping system (DVRS).” The law states that the “DVRS is a registry of sorts, established by the commissioner of probation …, [which] includes … [computerized] records of the issuance of and any violations of criminal or civil restraining or protective orders…. Records in the DVRS are available only to law enforcement and ‘judges considering petitions or complaints’ for restraining and protective orders.” The new law does not, however, lay out the legal requirements for a judge to issue such written ruling; the statute is silent as to the standard of proof, evidentiary standard, and/or factors the court should consider when making its decision. In light of the lack of clarity, there have been questions as to how to implement this portion of the statute.

In a recent decision issued by the Supreme Judicial Court: Commonwealth v. Dos Santos, the trial judge grappled with the domestic violence offender registry requirements and ultimately asked the Appeals Court for guidance. Specifically, under the Massachusetts Rules of Criminal Procedure Rule 34, a trial court judge may report a question of law to the Appeals Court if the trial judge determines the issue so important or doubtful as to require the decision of the Appeals Court.

In the Dos Santos case, the defendant was arrested for pushing his wife in the context of their marital difficulties. The defendant was charged with assault and battery on a family member. At his arraignment, prior to his release on conditions, “the Commonwealth submitted a preliminary written statement pursuant to §56A, alleging that domestic abuse occurred immediately prior to or in conjunction with the defendant’s charged offense.” The judge, however, declined to make a written ruling that domestic abuse was alleged out of concern that the statutory language violated constitutional principles of due process and separation of powers and instead reported the question pursuant to Rule 34. Continue reading →

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sad-snot-nosed-kid-1062449-mAccording to an article in the MetroWest Daily News, a Framingham man, was arrested after physically disciplining his son. The child, who is seven years old, bit one his teachers at his school. Following the incident, the defendant, the child’s father, reportedly destroyed the child’s video game system. The child’s mother tried to intervene and prevent the defendant from breaking the system. When she did so, however, the defendant reportedly hit her and shoved her away. He then reportedly hit his son and kicked him twice in his buttocks. Approximately two hours after the alleged incident, the defendant presented himself at the police station. While there, he acknowledged that he had hit his son twice in the rear, but denied kicking him. As a result of the incident, the defendant was charged with (1) assault and battery with a dangerous weapon (shod foot); (2) assault and battery on a child; (3) domestic assault and battery; and (4) malicious destruction of property over $250.

Despite the fact that the defendant was charged with these offenses, he does appear to have a legitimate defense. In relation to the charges in which the defendant’s son is the alleged victim, the defendant can argue that he was simply using reasonable physical force to discipline his child. While the Massachusetts legislature does not specifically allow for the use of physical discipline by a parent, Massachusetts case law alludes to the ability of a parent, or one acting in position of a parent, to use physical force to discipline a child. For example, in Commonwealth v. Rubeck, the Supreme Judicial Court appears to recognize the parental right to discipline as a legitimate defense to the use of physical force against a child as long as the physical force is for the specific purpose of discipline, is conducted in a controlled manner rather than the result of an emotional outburst, and does not result in bruising or significant injury. Given the fact that it is undeniably inappropriate for a seven year old child to bite a teacher, the defendant can argue that he was within his rights to put his hands on his child for the purpose of disciplining him. Continue reading →

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to-sign-a-contract-3-1221952-mThis past April, domestic violence legislation was proposed at the statehouse. Both the House and the Senate proposed somewhat different versions of the law, and this past week, a conference committee reconciled the two versions of the bill (SB1892 and H4037). Both the House and the Senate then passed the reconciled version – S2334 – into law. While the bill must still be signed by the governor before it actually becomes law, he is apparently expected to approve it shortly.

The legislation, formally named An Act Relative to Domestic Violence – creates a first offense domestic violence assault and battery charge, establishes a domestic violence offender registry, and provides education for judges and prosecutors about cycles of abuse. Though not every proposed new domestic violence offense, nor all suggested increases in fines/assessments for abuse victims or programs, were included in this compromised bill, most of the significant provisions of each version were incorporated.

Specifically, the bill includes the following changes to current law:

  • Amends the bail statute to require that persons charged with a variety of enumerated domestic abuse offenses may not be admitted to bail for six hours after arrest and before a written determination has been made with respect to conditions of release to reasonably assure the safety of the alleged victim;
  • Amends G. L. c. 276, § 58A dangerousness hearings to allow the hearings to be re-opened upon changed circumstances;
  • Requires a reasonable attempt be made to notify abuse victims of a defendant’s release from detention on bail;
  • Requires that police recruits, medical professionals, court personnel, district attorneys and assistant district attorneys all receive training relative to domestic and sexual violence;
  • Expands the amount of CORI information that may be disseminated to include dangerousness hearings, requests for dangerousness hearings, and determinations of dangerousness;
  • Establishes a Domestic Violence Fatality Review Team within the Executive Office of Public Safety (EOPS);
  • Requires that the Probation Department maintain a Domestic Violence Record Keeping System and requires that EOPS, in coordination with the Community Justice and Mediation Center (CJAM), adopt regulations for the standardization of rules relative to disseminating an individual’s criminal and civil court history to district attorneys, assistant district attorneys, defense attorneys, and judges in certain proceedings;
  • Authorizes eligible adults to possess self-defense (pepper) spray without a firearm identification card (which was previously required);
  • Makes communications between police and alleged victims of domestic violence confidential;
  • Prohibits visitation rights with a child for a parent who committed a rape, which resulted in the conception of that child, unless the child is old enough to choose to have contact with that parent;
  • Establishes a separate Domestic and Sexual Violence Prevention and Victim Assistance Fund;
  • Creates certain new offenses relative to assault and batteries on household and family members, and batteries involving suffocation/strangulation, as well as increasing certain domestic abuse penalties;
  • Establishes domestic violence leave pursuant to which an employee may take 15 days of leave a year from work if the employee suffers from domestic violence.

Continue reading →