Getting a Domestic Violence Charge Dismissed

by Joseph Simons on Oct. 20, 2016


Summary: Attorney Simons discusses domestic assault and battery charges in Massachusetts state courts.

I get a lot of calls from girlfriends and wives looking to have a case against their boyfriend or husband dismissed. Lots of times it stems from a misunderstanding, or a situation that got blown out of proportion. These frustrated callers often tell me that they’ve already spoken with the police and the district attorney’s office, but the prosecutors refuse to dismiss the charges. No matter what you say, the case will continue. Now you need a criminal defense attorney.

Even today, I had two cases on in the same court, which exemplify the problem. The first case involved a verbal fight between a girlfriend and boyfriend. My client, the girlfriend, was charged with assault and battery after a witness called 911 to report a fight. When police came, they took statements from my client and her boyfriend, separately. According to the police, the boyfriend had a superficial scratch on his face, and he reported that my client pulled his shirt and scratched him. During my investigation, it became clear that the scratch was inadvertent, from inadvertent arm flailing. In other words, there was no intent, and thus, no crime. Even the boyfriend reached out to the prosecutor – multiple times – to ask that the case be dismissed. He even informed them that the police took his statement down wrong, and that he never alleged any intent on the part of his girlfriend. Nonetheless, the case pressed on. Finally, after several months and a lot of hard work, we got the case dismissed on the morning of trial.

The second case is still ongoing. My client is accused of cutting her girlfriend’s face with a knife. Admittedly, a bad allegation. However, my investigation has revealed that the accusation is likely false. Even the alleged victim has come forward and asked that the case be dismissed. Of course, no dismissal (yet – although I am optimistic). However, the court imposed a “no-contact” order on the first court date. The alleged victim filed a motion asking for the order to be lifted; after all, she never even asked for it in the first place. Nonetheless, the judge refused to terminate the order. So now these girlfriends are prohibited from seeing each other, despite the fact that neither one wants the case to even exist.

I represent a lot of clients in domestic violence cases, such as assault and battery on a spouse or girlfriend. And all too often, the charge stems from an argument and the allegations are false. [As a side note, I don’t want to downplay the horrendous and far-reaching impacts of domestic violence. It is a huge problem in our society. This post focuses on the many cases that get caught up in the criminal justice system, but shouldn’t.]

The laws that affect domestic violence charges have increasingly become more significant. Anytime a high-profile domestic case arises [like Jared Remy], defendants’ rights seem to erode. For example, the crimes of assault and battery and domestic violence are the exact same in terms of potential punishment, and in the elements that the prosecution must prove for a conviction. However, the way domestic A&B cases are treated by the criminal justice system are predictably harsh compared with a standard A&B.

Whenever a 911 call is made alleging a domestic A&B, the police have a mandatory obligation to make an arrest – a stark contrast to an identical allegation that doesn’t involve a spouse, family member, or dating partner. After the arrest, only the defendant charged with the domestic version has to wait at least six hours before being eligible for bail.

The biggest issue is the way the prosecuting district attorneys’ offices handle these cases. I go all over the state and it is the same everywhere. Assistant district attorneys are stripped of any discretion, and unequivocally refuse to dismiss domestic cases prior to trial, even in the face of uncontroverted evidence that the allegations were fabricated.

This stems from a reasonable outlook, to protect actual victims who, in the typical cycle of violence, go through a honeymoon phase with their accuser after an assault, and seek to get the charges dismissed. Prosecutors see this happen a lot, and over time, have created a blanket rule not to dismiss any domestic violence charges. Almost every other type of case merits a reasonable look at the evidence by the prosecution, and if it is clear that the crime didn’t occur, there is at least a chance of dismissal. Not true with domestic cases.

The district attorneys have gone so far to try to protect victims and punish actual accusers that their policies have become unfairly harsh to innocent defendants. In one particularly egregious example, a client of mine was charged with domestic assault and battery on his live-in girlfriend. She told police that she woke up to her boyfriend punching her in the chest several times in the middle of the night. By the time police came, she realized that she had actually been dreaming. Nonetheless, the police came – and without any investigation – arrested my client. Notably, the police did not see any injuries. Over the course of the pending case, the girlfriend collected evidence that she had been diagnosed with PTSD and night terrors. Her night terrors caused her to have dreams that were so vivid, they sometimes blended with reality. All evidence pointed to the fact that this did not actually happen, including the alleged victim’s own statements to the prosecutor. Even so, the prosecutor would not – and told me he could not, despite believing that my client was innocent – dismiss the case. Instead, my client was forced to go back and forth to court over the course of several months, and have me prepare for trial. Finally, on the morning of our scheduled trial date, the judge dismissed the case when it was clear that the prosecutor’s case was nonexistent.

Rather than seeking justice, the district attorneys are playing it safe politically. And this is to the detriment of defendants across Massachusetts. If you or a loved one is facing a domestic violence charge in MA, give us a call at (617) 657-4464 for a free phone consultation.

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