Massachusetts Criminal Defense Attorney Blog

Today, in E.C.O. v. Compton, the Massachusetts Supreme Judicial Court published a decision addressing the Massachusetts Restraining Order Law as well as the age of consent for sexual activity in the Commonwealth. The facts of the case are as follows:

About a year and a half ago a sixteen year old girl from Massachusetts was traveling overseas with some family members. She met the defendant who was twenty four at the time. The girl lied about her age. After returning to Massachusetts the girl and the defendant maintained contact through email, texts and social media. The communications revealed a level of intimacy between the parties that contained sexual undertones. The defendant and the girl planned to meet in Massachusetts in October of 2011. There were discussions about sex and an express intention to spend time together in a hotel room. In preparation of that meeting the defendant rented a hotel room. Learning of this plan the girl's father applied for a Restraining Order against the defendant. When the defendant arrived in Massachusetts he was served. The daughter never appeared in court. Her father did. He gave the judge copies of the electronic communications. The father conceded that the defendant never harmed or threatened the girl nor did he in any way coerce her to having sexual relations. The judge sitting in the Salem District Court extended the order for one year. The defendant appealed.

The Massachusetts Supreme Judicial Court reversed the order. In doing so it restated the standard for "abuse", a necessary element for the issuance of a Restraining Order. In Massachusetts, the abuse necessary for a Restraining Order is defined as attempting to cause physical harm, causing physical harm, placing someone in fear of imminent serious physical harm or causing someone to engage in sexual relations. In this case the father agreed that the defendant did not harm his daughter nor did he attempt to do so. Furthermore, at not time did he force the girl to engage in involuntary sexual relations. Consequently the order should not have been extended. The Court reiterated that the age one can consent to having sex in Massachusetts is sixteen, the girl's age at all relevant times.

It is clear that the plaintiff in this case, the girl's father applied for the Restraining Order in an effort to keep his daughter from seeing the defendant. This action constitutes an improper use of the Massachusetts Restraining Order Statute. The statute was designed to prevent abuse, not to put a halt to relationships that parents find inappropriate. As a Massachusetts Criminal Lawyer it surprises me that this order issued in the first place. I imagine that the affidavit supporting the Restraining Order application referenced the intention of the defendant to supply the girl with alcohol, thus prompting the judge to issue the order to protect potential abuse.

Continue reading "Massachusetts Supreme Judicial Court Rules That Parent of Sixteen Year Old Cannot Stop Voluntary Sexual Relationship With an Adult" »

Yesterday a Lawrence, Massachusetts police detective went to Miguel Francisco Acosta's home on Myrtle Street to serve him with a Restraining Order. On the way there the detective was notified that Acosta had an outstanding warrant. When the officer and his backups arrived they were permitted entry by a female. Acosta was present. He was arrested. The police gave him the opportunity to get some pants on. They followed Acosta into the adjoining room and found a significant amount of Marijuana, Heroin, Drug Trafficking Paraphernalia and a Handgun. Acosta has been charged with Trafficking a Class A Substance, Possession With Intent to Distribute Marijuana, a School Zone Violation, Intimidation of a Witness, Unlawful Possession of a Firearm and Assault With a Dangerous Weapon. The case is currently pending in the Lawrence District Court however it is probable that the prosecution will end up in the Essex County Superior Court in Salem.

Read Article:

http://www.eagletribune.com/local/x1758586621/Lawrence-man-arrested-on-drug-assault-charges#

In preparing to defend this case Experienced Massachusetts Drug Defense Attorneys would investigate several facts. Did the woman who allowed the police to enter the home have the authority to do so? Was there a valid outstanding warrant to arrest Acosta? Did Acosta really invite the officer into the bedroom when he was putting on his pants? Who owned or rented the home? Who else stayed in the bedroom where the drugs were located? Did that person or people have a criminal record for drug offenses. Where in particular were the drugs located in the room? In a hidden place or in plain view? What about the Firearm? Where was that located? The answers to these questions might provide the basis for a viable defense to these charges. A proper defense might result in Acosta not having to serve the mandatory jail time associated with these crimes.

Continue reading "Lawrence Massachusetts Man Arrested For Drug Trafficking, Gun Possession After Police Serve Restraining Order" »

David Marchant, a Boston Police Officer living in Dorchester, Massachusetts is facing charges of Domestic Assault and Battery. The alleged victim is his wife. Boston.com reports that Marchant was arrested over the weekend. Marchant's mother-in-law told officers that she witnessed Marchant slap his wife and push her. The mother-in-law tried to intercede. Marchant hit her too. She further stated that her she heard a slapping sound and then saw her daughter fall down some stairs. She then called 911. Marchant is on administrative duty at the police department while an investigation is conducted.

Read Article:

Boston Domestic Assault and Battery Defense Lawyer

Here are some interesting Domestic Violence statistics reported by the American Bar Association. There are about 1.3 million women and two thirds as many men assaulted by an intimate partner in this country each year. About thirty three percent of female murder victims are killed by an intimate partner. 84% of spousal abuse victims are female. These figures are staggering and only slightly representative of the actual incidents of Domestic Violence that occur each year.

Naturally, prosecutors in Massachusetts take these cases quite seriously. All Massachusetts District Attorney's Offices have specially trained attorneys who prosecuted primarily Domestic Violence Cases. Additionally, Restraining Orders are often directly implicated in Domestic Violence prosecutions. This is why it is important that anyone charged with Domestic Assault and Battery in Massachusetts hire an Experienced Massachusetts Criminal Defense Lawyer. Without proper representation you risk a conviction or possible jail sentence.

Continue reading "Boston Police Officer Involved In Incident Of Domestic Violence Charged With Domestic Assault And Battery" »

This past Sunday Angel Ruiz of Lawrence, Massachusetts was arrested in the early morning hours. Authorities allege that Ruiz Raped and beat a woman with whom he had a relationship. Neighbors heard the woman screaming. Officers responding to the scene were informed that cut the woman and left the house. The woman was airlifted to a Boston hospital for treatment. The woman's children were home at the time of the attack. Ruiz has been charged with Violation of a Restraining Order, Aggravated Rape, Assault and Battery, Larceny and Intimidation of a Witness. The case will be prosecuted in the Essex County Superior Court in Salem. The victim was released from the hospital.

Read Article:

http://www.eagletribune.com/local/x1388784548/Man-charged-in-violent-rape

Massachusetts Rape Defense Lawyers

Ruiz is facing a big fight. These charges are severe. The Rape charge carries a maximum sentence of life pursuant to Massachusetts General Laws Chapter 265 Section 22(a). This is the more severe Rape Charge, commonly referred to as Aggravated Rape. The district attorney will have to prove not only non-consensual sex but also that the act resulted in serious bodily injury. That aspect of the law might appear satisfied by the fact that the victim was cut and that her injuries necessitated hospitalization. If the prosecutor cannot meet its burden as to the aggravated portion of the offense then there is a maximum twenty year sentence for a conviction of this crime. Either way, if this article is factually accurate Ruiz is facing a lengthy state prison sentence if his is convicted. As with any serious case in this jurisdiction, Ruiz needs to Hire an Experienced Massachusetts Rape Defense Lawyer.

Continue reading "Lawrence Man Arrested For Rape, Violating Restraining Order Against Former Girlfriend" »

Michael Holyoke of Bridgewater, Massachusetts is facing several charges involving an alleged incident of Domestic Violence against his former girlfriend. The Lynn Item reports that the woman's neighbor contacted police after hearing a man and woman fighting with one another. The woman also asked the neighbor for help. When the police arrived the two were still verbally fighting. The woman reported to the police that Holyoke punched her in the head several times and threw her into glass shower doors in the bathroom. He then blocked her escape route and smashed her cell phone after she tried to call the police. It was also reported that the victim stabbed Holyoke in the face and neck with a steak knife. Holyoke has been charged with Kidnapping, Intimidation of a Witness, Domestic Assault and Battery and Possession of a Class C Drug. The case is pending in the Lynn District Court. The case might be prosecuted in Salem in the Essex County Superior Court. The woman had previously taken a Restraining Order out against Holyoke.

Read Article:

Massachusetts Domestic Violence Defense Lawyer

This appears to be one of those cases that will remain in the District Court. Even though the charges are serious cases of this nature only get prosecuted in the Supeior Court if there was substantial physical harm to the victim or if the defendant has a lengthy criminal record and presents a serious danger to the victim or the community. The bail in this case, five hundred dollars suggests the strong possibility that the prosecution will continue in the Lynn District Court. Stab wounds suffered by the defendant might have an impact on Holyoke's Massachusetts Criminal Lawyer's approach to defending this case. That evidence might also be indicative of who actually was the first aggressor.

Continue reading "Bridgewater Man Charged In Lynn With Domestic Assault On Ex Girlfriend" »

Sean Dodd of Taunton, Massachusetts has been arrested and charged with Rape of a Child By Force. The victim is the daughter of his girlfriend with whom he lived. The prosecution alleges that the thirty one year old Dodd sexually abused and raped the girl over a three year period, beginning when she was twelve years old. When the victim was fifteen her boyfriend convinced her that what Dodd was doing was wrong. She then confronted him in an effort to end the abuse. She claimed that while doing so she was struck by Dodd. The police investigated the assault but were never informed about the sexual abuse. One of the victim's friends' apparenty told her the victim's mother about the Rapes at which point Dodd was kicked out of the house. The victim's mother has recently taken out a Restraining Order against Dodd. The case in now pending in the Taunton District Court but will probably be prosecuted for Rape in the Bristol County Superior Court in New Bedford.

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Taunton, Massachusetts Man Charged With Raping Girl Over Three Year Period

These cases are difficult to defend even under the best circumstances. A likely scenario is that there is no physical evidence linking Dodd to the crimes and that there are no eyewitnesses. The case will rest solely on the complaining witnesses' testimony. How then can Dodd effectively rebut these accusations? It is tough because jurors often ask: "Why would the girl lie about something as heinous as this?" Perhaps Dodd will be able to show that the girl had a reason for lying. Maybe she sought attention from her mother or her boyfriend. Maybe she hated Dodd for reasons that do not implicate criminal conduct on his part. You can explore many of the reasons for false sexual abuse allegations by reading the Nichols Consulting Blog or Website. For Dodd the battle is just beginning.

Continue reading "Massachusetts Man Charged With Rape Of A Child After Abusing Girlfriend's Daughter For Three Years" »

Just a couple of days ago a Lynn, Massachusetts woman was arrested and charged with threatening to commit a crime, assault and battery by means of a dangerous weapon and trespassing. The victims are her former husband and his friend. According to reports Janice Bolen-Kavanaugh and co-defendant Zlatan Sarajlic encountered the ex-husband's friend. Sarajlic had a handgun. Bolen-Kavanaugh asked where he lived and he gave a fake address. He went home. Bolen-Kavanaugh then appeared tried to enter his home by pushing in a window screen. The victim went into the next room to warn Bolen-Kavanaugh's ex-husband Steven Kavanaugh. Bolen-Kavanaugh then swore at the victims and told them that Sarajlic was going to kill them. Sarajlic then manipulated the slide on the gun and held it in the air. When the defendants heard sirens they fled. Both were arrested. Sarajlic has also been charged with assault and battery by means of a dangerous weapon and trespassing. Bail for Bolen-Kavanaugh was set at three thousand dollars. Bail for Sarajlic was set at two thousand dollars. The report disclosed that Steven Kavanaugh was charged with violating a restraining order against his ex-wife.

Read Article:

Massachusetts Woman Charged In Case Of Domestic Violence

Fortunately for the defendants in this case the police never found the firearm. Possession of a gun in Massachusetts carries a mandatory minimum eighteen months sentence to the house of correction. The defendants now have to defend against the assault and battery by means of a dangerous weapon case and the trespassing case. The assault and battery by means of a dangerous weapon carries a potential two and one half year jail sentence if the case is prosecuted in district court or up to ten years in state prison if the district attorney indicts the case. This case will likely remain in district court. The absence of a weapon makes this case difficult to prosecute. Where there are multiple victims rarely is there a consistent description of the weapon, or for that matter the circumstance surrounding the incident. Jurors like physical evidence. It makes them feel more comfortable about their decision to convict. The absence of the weapon and the allegation that one of the victims violated a restraining order against one of the defendants weakens the prosecutor's case.

Continue reading "Criminal Charges Filed Against Lynn Massachusetts Woman Accused Of Domestic Violence" »

In a unanimous decision five justices on the Massachusetts Supreme Judicial Court reversed an Appeals Court decision pertaining to probation violaton/revocation matters. See Commonwealth v. Ruiz, Slip Opinion March 31, 2009. In Ruiz the Court found the following facts:

Stemming from two incidents of domestic violence Ruiz pleaded guilty to seven separate crimes in the Superior Court. One count required that Ruiz serve five to five and one half years in state prison. On the remaining cases Ruiz was sentenced to probation to commence from and after (consecutive) the period of incarceration. The probationary period was for three years with one of the conditions being that Ruiz not contact the victim either directly or indirectly. The sentence imposed was at the request of both the district attorney and the defense. During the period of incarceration Ruiz wrote letters to the victim. A probation surrender hearing was scheduled. The judge found that Ruiz had violated the terms of his probation by contacting the victim through the letters. He imposed and additional sentence of one year to one year. Ruiz appealed from the ruling. The Appeals Court affirmed and the Supreme Judicial Court accepted review of the case and reversed.

Typically probation commences once the defendant is released from incarceration. A defendant can be sentenced to probation concurrent with his committed sentence. However a sentence imposing both incarceration and probation concurrent with the incarceration is not common. Such a sentence might be imposed where there is a concern that the defendant will cause trouble during the period of incarceration. This case makes clear however that any condition of probation imposed concurrently with a committed sentence must be clear on the record and the defendant must have notice of that condition.

Continue reading "Massachusetts SJC Reverses Appeals Court In Probation Violation Case" »

Stephanie Lighten and Jennifer Lighten are married. They live in Pittsfield, Massachusetts. Last Tuesday in the late afternoon police responded to a call at the couple's home. Jennifer Lighten told police that her wife Stephanie tried to forcibly inseminate her with a turkey baster and her brother's semen. According to reports Stephanie threw Jennifer on the couch, grabbed at her clothing and threatened to impregnate her. Jennifer broke free and sought shelter in a bathroom. Stephanie broke down the bathroom door. Jennifer the fled the home followed by Stephanie. Witnesses saw the incident continue down the street. Domestic violence related charges have been brought against Stephanie. Right now charges of assault with the intent to commit rape have issued. Police seized the container of semen. The defendant was released on her own recognizance. a "refrain from abuse" order has issued as well. \

Read Article: Domestic Violence Charges For Woman Who Tried To Inseminate Wife

The Massachusetts Abuse and Prevention Act is codified under Massachusetts General Laws Chapter 209A. The act defines abuse as causing harm, attempting to cause harm, threatening to cause harm or forcing someone into sexual relations. The act applies to family or household members; people who are related to one another by blood or marriage, or who reside together, or who have been in a substantive dating relationship. Acts of violence against people falling within this definition are commonly categorized as domestic violence. The underlying act can be a criminal act such as an assault and battery, with or without a dangerous weapon, rape, murder and more. This statute sets out the criteria for obtaining restraining orders in Massachusetts as well.

Here, the article is unclear as to what charges were brought against the defendant. Most likely she was charged with assault and battery. The maximum sentence for a conviction of this crime is 2 1/2 years in jail.

Continue reading "Massachusetts Woman Charged In Domestic Violence Incident" »

The New York Daily News reports that former Boston College Basketball player Sean Williams has been arrested and charged with violating a restraining order and trespassing.  Williams has had problems in this area in the past.  He was thrown off of the Boston College basketball team in his junior year for smoking marijuana and has been banned from entering the Boston College campus.  Prior to his expulsion Williams had been suspended for marijuana use. 

Read Article:  http://www.nydailynews.com/sports/basketball/nets/2009/02/16/2009-02-16_nets_sean_williams_arrested_at_bc_over_r.html

The article's reference to a restraining order violation is somewhat sketchy.  Restraining orders in Massachusetts are governed by Massachusetts General Laws Chapter 209A.  Restraining orders protect family or household members in Massachusetts.  Those individuals are defined as people who 1) are or were married to one another, 2) reside or had resided in the same household, 3) are or were related by blood, 4) have a child together or 5) are in or have been in a substantive dating relationship.  There is no indication that anyone fitting that definition was involved in this incident.

Trespassing in Massachusetts is prohibited by Massachusetts General Laws Chapter 266 Section 120.  The law states that anyone who without authority enters or remains in or on property another, or does so in violation of a restraining order is guilty of trespassing.  A conviction of this offense carries a potential 30 day jail sentence. 

This case will likely be prosecuted in the Brighton District Court. 

Continue reading "Former Boston College Basketball Player Sean Williams Charged With Restraining Order Violation" »

On New Years' Eve a Framingham woman contacted the police to report that her former boyfriend, Josue Gonzalez telephonically threatened her and her and her three children.  Specifically, he told her that if she did not give him money he would burn her house down.  A restraining order was in existence at that time.  A police officer told Gonzalez to stop calling. Gonzalez ignored the request and the victim again sought out police assistance.  Police again tried to intercede to no avail.  Four days later Gonzalez called the police to report that the victim was neglecting her children and asked that the children be taken away and placed into state custody.  Gonzalez added that one of the children was being raped.  Officers investigated the complaint and found no evidence of neglect and made Gonzalez aware of their findings.  Gonzalez then threatened to blow up the Framingham Police station.  Police then obtained a warrant for Gonzalez's arrest.  He was located and apprehended last week. 

Gonzalez was charged with stalking, threatening to commit a crime, making annoying phone calls, violating a restraining order and making a false police report.  All charges are pending in the Framingham District Court.  Gonzalez is being held without bail pending a dangerousness hearing. 

Let's take a look at some of the more serious charges; violating a restraining order and stalking.

1.  Violating a restraining order.  This is a crime in accordance with Massachusetts General Laws Chapter 209 Section 7.  The law specifically states that"[a]ny violation of such order or a protection order issued by another jurisdiction shall be punishable by a fine of not more than five thousand dollars, or by imprisonment for not more than two and one-half years in a house of correction, or by both such fine and imprisonment." 

2.  Stalking.  This is proscribed by Massachusetts General Laws Chapter 265 Section 43.  The Massachusetts stalking law states that anyone who willfully and maliciously engages in a pattern or series of acts directed towards someone which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress and threatens that person with the intention of placing them in immediate fear of bodily injury or death is guilty of stalking.  There is a possible 5 year prison sentence.  If the case is handled in a Massachusetts district court the maximum sentence is 2 1/2 years in jail.  If this crimes is committed in violation of a restraining order there is a mandatory minimum 1 year jail sentence you must serve if convicted. 

Continue reading "Framingham Police Charge Man With Violating Restraining Order, Stalking" »

On January 12, 2007 a college student applied ex parte for and obtained a restraining order pursuant to G.L. c. 209A.  Her supporting affidavit stated that earlier that day the defendant, also a college student verbally harrassed her, calling her names and using profanities.  Her affidavit further stated that the two had dated for two and one half years and broken up on two occasions.  The complainant had not seen the defendant in over 5 months.  He had however been contacting her electronically. 

The judge scheduled a date for the defendant to be heard and to defend against the allegations.  At the time the defendant was represented by an excellent well respected Boston lawyer.  Through cross-examination the lawyer clarified that there had been no contact between the parties for 6 months.  Significantly, in response to a voicemail the complainant called the defendant herself.  Three times he hung up on her endeavoring to avoid any contact.  The defendant's lawyer presented cell phone records to confirm this fact.  Nevertheless, the judge extended the restraining order.

The defendant called our office seeking to reverse the order and clear his name.  Attorney Neyman appealed the ruling and on July 17, 2008 the Massachusetts Appeals Court reversed the lower court's order.  Slip Opinion July 17, 2008, WL 2756567.  It further ordered that all records of the erroneous order be destroyed.

In its opinion the Appeals Court reiterated two salient points.  First, even if a restraining order has expired your appeal will not be moot.  Future legal proceedings could be adversely impacted by a record showing that a restraining order issued against you in the past.  Second, the complainant in this case failed to establish a necessary element of the restraining order statute; specifically that there existed a substantial likelihood of immediate danger of abuse. 

All too often Massachusetts judges issue restraining orders that are not supported by adequate facts.  Rather than applying the law to the facts of the case the the judges "err on the side of caution" and rubber stamp the requested order.  Rarely are these orders appealed.  The consequences can be devastating.  There is a record showing that a restraining order was issued against you.  Any violation of the order can result in the issuance of a criminal complaint.  Lawfully possessed firearms must be surrendered.  Your liberty can be greatly restricted.  The restraining order statute is often abused by persons scorned in a relationship. 

There are legal actions available to you if someone is seeking or has obtained a restraining order against you.  You can try to vacate the order, have the order modified or appeal the issuance of the order.  Our office has handled restraining order cases with great success.  Conctact us anytime to discuss your restraining order concerns. 

Related Web Resources:

Massachusetts Criminal Defense Lawyers.

Massachusetts Restraining Orders are governed by G.L. c. 209A.