Assault and Battery in Massachusetts: What Must Be Proved, Felony vs. Misdemeanor, and Your Defenses

Assault and battery is one of the most common criminal charges in Massachusetts, and one of the broadest. It does not require an injury or even a punch. Any touching, however slight, can be enough if it was intentional and either harmful or unwanted. But the Commonwealth still has to prove each element, and many cases that look simple on a police report are not.

What the Law Covers

G.L. c. 265, § 13A(a) punishes anyone who “commits an assault or an assault and battery upon another.” The statute does not define the terms; their meaning comes from the case law and the District Court model jury instructions.

• Battery is the touching itself.
• Assault is an attempted battery, or a threat that puts someone in reasonable fear of an immediate battery. Every battery includes an assault (Commonwealth v. Burke, 390 Mass. 480 (1983)).

What the Commonwealth Must Prove

Under Instruction 6.140, there are two ways to commit assault and battery. The Commonwealth must prove one of them beyond a reasonable doubt.

Intentional assault and battery

• You touched the other person;
• You intended to touch them; and
• The touching was either likely to cause bodily harm or was offensive.

A touching is any physical contact, however slight. It can be direct, like a shove, or indirect, like throwing an object that hits someone. “Intended” means you consciously and deliberately meant the touching to occur; an accidental or merely careless touching is not enough. The Commonwealth does not have to prove you meant to cause injury. A touching is offensive when it is without consent.

Reckless assault and battery

• You intentionally did something that caused bodily injury to the other person; and
• Your conduct was reckless.

The injury must be serious enough to interfere with the person’s health or comfort. It need not be permanent, but it must be more than trifling: being shaken up or a few moments of discomfort is not enough (Commonwealth v. Burno, 396 Mass. 622 (1986)). Reckless means more than negligent. You knew, or should have known, that your actions were very likely to cause substantial harm, and went ahead anyway.

Penalties

• Simple assault and battery (§ 13A(a)): up to 2½ years in the house of correction, or a fine of up to $1,000. It is a misdemeanor.
• Aggravated assault and battery (§ 13A(b)): up to 5 years in state prison or 2½ years in the house of correction, a fine of up to $5,000, or both. It applies when the assault and battery causes serious bodily injury; when the victim is pregnant and you knew or had reason to know it; or when you knew the victim had a restraining, vacate, or no-contact order in effect against you.

“Serious bodily injury” means injury that results in permanent disfigurement, loss or impairment of a bodily function, limb, or organ, or a substantial risk of death (§ 13A(c)). See assault and battery causing serious bodily injury.

Assault and Battery on a Family or Household Member

When the alleged victim is a spouse or former spouse, a person you have a child with, or someone you are or were in a substantive dating or engagement relationship with, the charge is usually brought under G.L. c. 265, § 13M instead. A first offense carries up to 2½ years in the house of correction, a fine of up to $5,000, or both; a second or later offense can bring up to 5 years in state prison. The court must order a certified batterer’s intervention program, for a conviction or as a condition of a continuance without a finding, unless it makes specific written findings explaining why not.

Defenses

• Self-defense or defense of another: under the model jury instruction on self-defense (Instruction 9.260), once self-defense is at issue, the Commonwealth must prove beyond a reasonable doubt that you did not act in lawful self-defense. You do not have to prove you were justified.
• Accident: an accidental or merely careless touching is not intentional assault and battery.
• Consent: for an offensive but harmless touching, the Commonwealth must prove the person did not consent. Consent is no defense to a touching likely to cause bodily harm, and mutual consent to fight is no defense.
• No real injury: on the reckless theory, a trifling or momentary injury is not enough.
• Identification and credibility: many cases come down to one person’s word against another’s. Inconsistent statements, missing witnesses, video, and medical records all matter.
• Aggravating facts not proved: serious bodily injury, knowledge of a pregnancy, or knowledge of a court order must each be proved for the felony.

Why a Lawyer Matters

An assault and battery charge can affect your job, your housing, your immigration status, and your access to your children, especially when it is charged as domestic. The difference between a misdemeanor and a felony, or between a conviction and a dismissal, often turns on details: what the touching was, whether there was an injury, and what the witnesses can actually say. Attorney William J. Barabino has defended these cases for 23 years. Call 781-393-5900.

Related Charges

• A&B causing serious bodily injury (G.L. c. 265, § 13A(b)(i)): the felony version when the touching causes serious injury.
• A&B on a police officer or public employee (G.L. c. 265, § 13D): a separate offense with its own penalties.
• A&B on a health care provider (G.L. c. 265, § 13I): a separate offense for nurses, doctors, and other providers.
• Strangulation or suffocation (G.L. c. 265, § 15D): a felony based on impeding breathing or circulation.
• Affray: a fight in a public place that frightens others.

Disclaimer

This article is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws change. For advice about a specific case, speak with a licensed Massachusetts attorney.