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Indecent Assault and Battery

If you’ve been accused of or charged with Indecent Assault and Battery, the State believes that you intentionally touched someone in a sexual way, without their permission. This crime is a lesser included offense of forceable rape. That means that a person who’s been charged with rape, even if a jury finds them not guilty, could still be found guilty of indecent assault and battery.

Under M.G.L. chapter 265 section 13H:

A person can be charged with indecent assault and battery if they touch, grope, grab or otherwise molest a person who’s over 14 (Under 14 changes the charge to Indecent Assault and Battery on a Minor). Indecent touching is defined as: fundamentally offensive to normal standards and rules of decency. The area touched could be among other things, the buttocks, breast, genital area.  Because intent is required, one can’t be guilty of an accidental touching.

This crime also requires a lack of consent, meaning it is not a crime to touch someone in a sexual manner if that’s what they want you to do. Keep in mind that the Commonwealth often pitches the theory to the jury that the “victim” was unable to consent. This is possible if they consumed enough drugs or alcohol to impair their ability to make rational decisions but there are other reasons. Someone might be unable to consent because they are asleep, unconscious, helpless or even mentally retarded. In these types of cases, the accused must know, or reasonably know of the impairment. This means knowledge and common sense. Many factors can be considered when analyzing impairment. A “victim’s” age, physique, intelligence and maturity is considered. Was that person aware enough at the time of the alleged conduct to understand, evaluate and finally make a decision as to whether or not he or she wanted to proceed with the sexual conduct is the question at the core of this impaired consent evaluation. Judges often tell jurors that when considering intoxication as it relates to consent, the level of intoxication must be extreme before it can render one incapable of consent. If the accused reasonably believed that the complaining witness or “victim” was capable of consent, that is a defense that a judge and jury must consider.

-Important Considerations when accused of Indecent Assault and Battery

-If there is evidence that the touching was accidental, even if only some evidence, the Commonwealth or State bears the burden of proving that the conduct was no accident.

-The penalties can increase greatly if one is charged with AggravatedIndecent Assault and Battery:

This occurs when the victim is 60 or older, or disabled. This also occurs when the accused has prior convictions for sexual offenses.

-Regardless of truth, fiction, actual innocence or fabrication, in the case of indecent assault and battery as well as other sexual offenses the first person the accuser told the story to can testify as a “FIRST COMPLAINT WITNESS” bolstering the story and adding validity to what the jury hears.

-Can a Kiss qualify as indecent Assault and Battery?

Yes, but usually when the kiss involves insertion of the tongue.

-What if you have previously had sexual relations with the accuser?

If you have had previous, unwanted, but unreported sexual relations with your accuser, evidence of those acts may be introduced to help prove you guilty.