Chapter 4. Criminal Complaints

1. Is what happened to me a crime?

It may be. It is a crime to touch or threaten to touch another person without that person's permission. Many other things that may have happened in your abusive relationship may be a crime as well. It is really up to the police and the prosecutors to determine if what has happened to you is a crime, but it is something you have the right to pursue. If you have any questions about what behavior may be a crime, you can contact your local police or district attorney’s office.
If you do not want to involve the police or prosecutors but you want to try to stop the abuse, you can get a 209A protective order. (See Chapter 5 for details.) This does not involve the criminal courts and does not involve your abuser going to jail. It can, however, become a criminal matter if the 209A protective order is violated.

2. My partner has not hit me, but he says awful things to me, calls me names, puts me down, etc. Is this a crime?

While "emotional" abuse can be just as, or even more, damaging than physical abuse, emotional abuse is not a crime. Physical abuse, however, is a crime. If you have been the victim of physical abuse, you have the right to have criminal charges brought against your batterer. To pursue criminal charges you can call your local police or district attorney’s office or go to the district court and file a complaint yourself.

Sometimes verbal abuse is a crime. If the things your partner says or does are threats against you, this is probably a crime. For example, if your partner threatens to hurt you and has the apparent ability to cause you harm, that would be a crime. But, if your partner threatens to report you to the Department of Social Services, that would not be a crime. Some threats that may not rise to the level of a crime may still be enough to allow you to get a 209A protective order, especially if you are in fear.

3. What types of things would be crimes in an abusive situation?

The laws of the state of Massachusetts are contained in the "Massachusetts General Laws." This is also referred to as "M.G.L." You may often see references to the M.G.L. showing the chapter ("ch.") and section number ("§") where the law can be found, such as "M.G.L. ch. 209A § 3."  You can access these laws online by going to: www.mass.gov/legis/laws/mgl
Here are the most common crimes in abuse situations:

• Threats/Threat to Commit a Crime: The other person said words to cause you fear and had the apparent ability to cause you physical harm. M.G.L. ch. 275 § 2.
• Assault: The other person threatened you with bodily injury and you believed you would be hurt. This includes throwing objects at you. M.G.L. ch. 265 § 13A.
• Assault and Battery: The other person touched you without your permission. Battery can be anything from a slap with an open hand to punching, kicking, choking, etc. M.G.L. ch 265 §13A.
• Assault and Battery with a Dangerous Weapon: If a person intentionally and without your permission touches you with a weapon and causes you to be in fear for your safety, the crime may be charged as a felony. This also applies, if you already have an 209A Abuse prevention order. Among other things, this would include kicking you with a boot, hitting you with a car, burning you with cigarettes, or using some other heavy object. M.G.L. ch. 265 §15A
• Assault with the Intent to Rape: The other person assaults you with the intent to commit a rape. M.G.L. ch. 265 § 24.
• Rape: The other person compels you by force, or threat of force, to have sex against your will. M.G.L. ch. 265 § 22. The fact that the perpetrator is your spouse does not preclude him from being guilty of raping you.
• Stalking: The other person willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at you which would cause a reasonable person to suffer substantial emotional abuse and the person makes a threat with the intent to place you in immediate fear of being hurt. M.G.L. ch. 265 § 43.
• Criminal Harassment: Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at you, which seriously alarms you and would cause a reasonable person to suffer substantial emotional distress shall be guilty of criminal harassment. Conduct or acts include but are not limited to sending mail, email, facsimile or internet communications. M.G.L. ch 265 §43A.
• Violation of a 209A Protection Order: The other person violates an Abuse Prevention Protective Order which has been issued against them. Violations may include calling the victim, coming to her house, sending her mail, etc. M.G.L. ch. 209A § 7.

Other crimes which may occur in domestic violence cases include:

Kidnaping; Intimidation of a Witness; Annoying Telephone Calls; Attempt to Commit a Crime; Disorderly Conduct; Disturbing the Peace; Criminal Trespass; Breaking and Entering; and Willful and Malicious Destruction of Property.
It is a crime to abuse an elder or child. (See Chapter 1 for more information.)

4. I have been abused. How do I report it?

You can ask the police to make a report. While the abusive incident is occurring, or as soon as you can safely get to a phone, you may call 911 for immediate, emergency assistance from the police. Even if your batterer is not still hurting you, or is not there by the time the police arrive, the police still should make a report. You may need that report in the future so ask for a copy.

If the incident already happened and is over before you could call 911 you can still call the police non-emergency number or go to the police station. The police can make a police or incident report based on your statements.

5. Do I have to call the police?

No. It is up to you whether or not you want help from the police. But remember that sometimes other people, like neighbors, may call the police. Also, keep in mind that the police are “mandated reporters” of child abuse or neglect. This means that the police are required to make a “51A” report to the Department of Social Services if they have a concern about the well-being of your children. (See Chapter 10).

6. What type of information will the police want?

When making a police report, the police may record the following types of information on their report:

• statements from you;
• statements from your abuser (if he is still there);
• statements from other people who may have seen or heard the abuse;
• location of where the incident occurred and where the report is made;
• their own observations, such as seeing you and/or the children visibly upset, seeing furniture turned over or broken objects in the home, seeing red marks, bruises or other injuries on you;
• photographs may be useful if you were visibly injured (you can ask the police to photograph your injuries or have them taken yourself);
• the time the call to them came in, the time they responded, and the name of the officers who responded; and
• any other information they think is relevant, such as noticing that your abuser was drunk, any referrals they made to hospitals or shelter, etc.

7. Can I get a copy of the police report?

Yes. If you would like a copy of your police report, you can request one from the police department, usually within the next day or so. Victims of domestic violence are entitled to a copy of police reports about domestic violence incidents at no cost. If you have difficulty getting a copy, you should ask to speak to a supervisor, or get assistance from the District Attorney's (DA's) office.

8. How do the police file charges against my abuser?

While the police are making out their report about the abuse, they may decide to file a criminal complaint against your abuser, or arrest your abuser on the scene.

9. Do the police always file charges if they have been called?

No. Only if the police feel they have "reasonable cause to believe" a crime has occurred will they file a criminal complaint or make an arrest.

10. If I want criminal charges brought against my abuser, what can I do if the police were not called? What if the police did not file a complaint?

Do not be discouraged. You can file a criminal complaint yourself against your abuser at the District Court in the district where the abuse occurred.

11. Why should I file criminal charges against my abuser?

Here are some of the reasons why you may want to consider going forward on a criminal action:

• Following through on a criminal complaint may tell the abuser you are serious about stopping the abuse.
• You will make the court aware of the situation. This intervention could help you to stay safe, and the court may be more likely to take serious action if the abuse happens again.
• Your abuser may be found guilty, and be held accountable for his crimes against you.
• Your abuser may be ordered to attend a batterers intervention program.
• There may be a time in the future when you will want to show proof that you were abused, for example if you get a divorce, or if you have to flee and you have no money and apply for public benefits or need priority public housing. A criminal conviction of your abuser for crimes against you is good proof of the abuse.

Many people decide not to take criminal action against their abusers. Perhaps they believe the court will not do anything, or perhaps they are afraid of what the abuser will do to them if they decide to go forward on a criminal action. These are valid concerns. It is true that the courts do not necessarily send a person to jail for a first time misdemeanor offense. A decision whether to go forward on a criminal action should be part of your safety plan. It is always a good idea to call a battered women's program and speak to an advocate. They can help you weigh some of these decisions and assist you with developing a safety plan.

12. How and where do I file a criminal complaint against my abuser?

You can make a criminal complaint against someone, even your spouse, for any crime, including all of those listed in Question 3 of this Chapter. You can file a criminal complaint yourself at the District Court in the district where the abuse occurred. If you are filing a criminal complaint for a Violation of a 209A Protective Order and your order is from a district court, you should be able to file a criminal complaint in either (1) the District Court in the district where the crime occurred or (2) the District Court which issued the 209A protective order. For example:

You live in Ware. You have a 209A protective order from Ware District Court. The order was violated while you were shopping in Pittsfield. A criminal complaint could be made in Ware District Court or Pittsfield District Court.

If your 209A protective order is from a Probate and Family Court, you probably would have to file the criminal complaint in the District Court in the district where the crime occurred. If filing in the District Court in the district where the crime occurred presents a problem for you, for example, because of distance, you should talk with the Victim/Witness Advocate in that area. You can work with them to see if they will assist you in filing in the court where you originally received the 209A protective order. They may be able to call the Victim/Witness Advocate in that court to assist you.

There may be some advantage to filing where the crime occurred, for example:

• possible witnesses are there;
• the police report is from there;
• the arresting police (where applicable) are there; or
• there may have been another crime (such as assault and battery) which must be prosecuted where the crime occurred.

You should go to the clerk's office in the District Court and ask for a Criminal Complaint form. Part of the form will ask you what happened. You should fill this out carefully because that will be part of your statement. If you have trouble filling out this form, or understanding what will happen, you can ask for help from the Victim/ Witness Advocate or another advocate. Ask the clerk at the desk how to find an advocate who can assist you with the paperwork.

13. What will happen after I file a criminal complaint?

The clerk-magistrate will schedule a "show cause" hearing. The purpose of this hearing is to see if there are enough facts to show that a crime has been committed. You have a right to make a statement and will be asked to testify about what happened and your abuser will be asked to be present. He can make a statement as well. He may have a lawyer there. That lawyer may ask you questions. You can bring any witnesses with you and they can make statements, too. This hearing will not necessarily be in a courtroom. It may actually be in a very small room with your abuser present.
The clerk-magistrate may issue a criminal complaint but she does not have to. She will decide based on the facts. Your testimony should be truthful and consistent with any prior statements you may have made, such as statements to police officers or statements in your complaint form. Show the clerk-magistrate any photographs, police records, hospital reports, or property damage bills you may have. If you do not have any of these documents, don't feel like you have no "evidence" of the crime; your statements made under oath are evidence.

14. How is this different from the police arresting him right when I called them?

If the police make an arrest then the case goes right to the "arraignment," which is discussed later and there will not be a show cause hearing.

15. What happens after the clerk-magistrate issues the complaint?

If the clerk-magistrate does issue the complaint, he will then issue either a "summons" for the defendant to appear in court for an "arraignment" on a certain date, or a "warrant" for his arrest.

16. How will they actually arrest my abuser and how will I know about it?

If the clerk-magistrate issues an arrest warrant, then the Police Department will locate your abuser, who will then be brought to District Court for arraignment. If the court is closed when the abuser is arrested, he may be held prior to the arraignment. He could post bond and be released. Though the police should keep you informed of when he was arrested and when or if he is released, you cannot be certain of this and should not rely on this. You can contact the Victim/Witness Advocate in the District Attorney's Office for help.

17. If he is arrested, will I have to go in front of a judge and talk about the crimes right then?

No. You will not be asked to speak about the crime at the arraignment. But eventually you may be asked to tell the court what happened.

18. What happens at the arraignment?

At the arraignment several things will happen resulting in your abuser being formally charged with the crime:

• the defendant will be told what crimes he is being charged with;
• the defendant will be told that he has a right to a lawyer;
• the defendant will enter his plea (for example, not guilty or guilty); and
• the judge will set bail and any conditions of bail.

19. How does the judge determine the bail?

In setting bail, usually the judge will only consider whether or not the defendant will show up for trial. The courts believe that the higher the bail, the more likely the defendant will be to show up again in court. But in some cases, the judge can consider the safety of the victim or others in the community when making her decision to grant bail. This is called a "dangerousness hearing." The more danger the defendant poses, the higher the bail will be. If you think your batterer poses a danger to you or someone else, you should ask the DA's office if they can have a dangerousness hearing. Be prepared that you will probably have to testify in court if there is a dangerousness hearing. You should talk about that, too, with the DA's office.
In many cases, the defendant does not have to pay any bail. The court says that the defendant is "released on personal recognizance," meaning that the court trusts he will show up for the next hearings.

20. Will my abuser have to go to jail after the arraignment?

Maybe, but maybe not. The judge could release your abuser without requiring him to post any bail. Or, the judge could require that your abuser pay some amount of money as bail. If some amount is set as bail, your abuser would stay in jail until he pays the bail.

21. Will I be told if he makes bail?
The police should notify you if he makes bail and is released, but sometimes this does not happen. You could call the courthouse to check, or contact the Victim/Witness Advocate. You should also make plans to insure your safety.

22. Do I have to go to the arraignment?

You do not have to be present at the arraignment, but you may attend.

23. Will there be anyone in the courts to help me through this?

If your case does go forward in the criminal court, you can expect to have some involvement with the DA's office. Two people in the DA's office you will probably have contact with are:

• The Assistant District Attorney (ADA): ADAs are the lawyers who prosecute crimes. You will see them handle the arraignments, the trials, and any other hearings during the criminal cases. They should talk to you about the case and prepare you for testifying.
• The Victim/Witness Advocate (VWA): Each DA's office has a Victim/Witness Assistance Program. Through this program, advocates assist victims and witnesses of crimes. You will probably meet the VWA right at the start of the case, at the arraignment, if you attend. You should write down the name of the VWA who is assigned to your case, and call them whenever you have questions or concerns about the case. The VWA often has a hotline telephone number. The VWA can help you with many things. He can give you information about filing your own criminal complaint, about the court proceedings, about victims' compensation, and about victims' rights. The VWA can prepare you for court and help you to find out if and when your abuser is going to be released. He can help you with your application for a 209A protective order, and provide referrals to community services. Lastly, the VWA can help you write a "Victim Impact Statement" for the court.

24. Am I going to have any say in how the case goes?

The decision to start a criminal case is not always yours to make. If the police are involved and an arrest is made, then the process will start regardless of whether you are ready for it.

Once your abuser is brought into the criminal justice system, either by you or by the police, it is up to the DA's office to prosecute the case. They may ask you what you would like to see happen in the case, but it is their case, not yours. It is the Commonwealth of Massachusetts v. John Doe, not Jane Doe v. John Doe. If you change your mind and no longer want your abuser prosecuted, the DA's office might "drop" the charges. But they are not likely to drop the case if they feel they have enough independent evidence to go forward without your cooperation. And remember, they can always subpoena you. The DA's office does this because criminals pose a risk to all people, not just to the victim of a specific crime. The Assistant DA may talk to you about what you would like to see happen in this case. That may include the types of plea negotiations that sound fair to you, sentencing of the offender, and terms of the offender's probation, including certified batterers intervention. In the end, it is up to the judge or the jury to find your abuser guilty or not guilty. If he is found guilty, it is up to the Assistant DA to make recommendations to the judge about what should happen to him. You may get a chance to give your opinion on what should happen, but in the end, it will not be your decision. The judge will decide the sentence.

25. How will I know when I have to be in court?

At the start of the case, the Assistant DA will send you a witness summons telling you the date to appear and testify about the abuse. You may or may not be contacted by a Victim/Witness Advocate prior to receiving this notice. The Assistant DA may tell you to report to the VWA on the day of court.

26. What happens after the arraignment?

Some time after the arraignment, the defendant will have to come in for a pre-trial conference. At that conference, he may enter a plea which would settle the case, or a trial date will then be set. You should be notified of these various dates by the Victim/Witness Advocate.

27. Do I have to go to court for the pre-trial conference?

Maybe and maybe not. This differs from court to court and from DA's office to DA's office. If the prosecutor’s office is considering a plea bargain, the ADA might like to talk to you about the facts of the case and what you would like to see happen. Note that in some DA's offices, your case will not be handled by only one ADA. You may end up talking with lots of ADAs. But, sometimes, nothing much happens at the pre-trial conference except a trial date is set. Then, it would be a waste of your time to be there. You should find out from the ADA or your Victim/Witness Advocate if you need to come to the pre-trial conference. The ADA can't be sure the defendant won't plead. To be sure you know what is happening and to have your input considered, you should consider going to the pre-trial conference.

28. Do I have to talk in court at the pre-trial conference?

No. You will not have to testify in court at this time, though you may be asked for your opinion.

29. What happens if my abuser pleads guilty at the pre-trial conference?

The case will be settled that day. If you are present, the ADA will probably ask you what you would like to see happen. He may or may not follow your wishes. Then the judge will sentence your abuser. The ADA can tell the judge what he thinks the sentence should be, but it is up to the judge to decide. You should ask the ADA what types of sentences are possible in your case.

30. What happens if my abuser pleads not guilty at the pre-trial conference?

The case will be set for trial. If it is a complicated case, another pre-trial conference or motion date may come up before a trial. The DA's office should send you notice about these dates and should tell you if you need to be in court those days.
Your abuser could change his plea to guilty at any of these hearings. He could even change his plea to guilty on the day of trial!

31. If a trial is set, what does that mean for me?

Before trial, the DA's office is likely to call or write to you. They will probably want to interview you. If you have names of witnesses, medical records, tape recordings, photographs, property damage bills, etc., you should let the DA's office know as soon as you can. It will help them prepare their case. You need not tell everything to the DA or the Victim Witness Advocate. While cooperating with the DA’s office is really important, cooperation does not mean you have to tell them everything about your life. For example, if the DA wants you to sign a release so they can talk to your therapist, you can refuse to sign it. It’s okay to say no to some things without being uncooperative.

32. What do I do if my abuser contacts me or wants to talk to me?

If you have a 209A protective order, or if he was told at his arraignment not to contact you while released, then he should not be contacting you (remember you should not contact him either). He would be violating his court order and you can report it to the ADA, the Victim/Witness Advocate, or to the police. If he wants to talk to you about the case he should do it through his lawyer.

33. What if his lawyer contacts me or wants to talk to me?

Before the trial you do not have to speak to the defendant's lawyer, although you can if you want. He is not doing anything wrong if he tries to talk to you. But if he wants to try to settle the case with you in some way, he should do it with the ADA, not you. If the abuser's lawyer wants to ask you questions, he can do that during the trial, while you are in court testifying.

34. What if I get confused about who is who?

It is fine to ask some official looking court people, "Who are you; what do you do here?" It is hard to keep all these new people straight, like the ADA and the Victim/Witness Advocate. It is especially important to know who the defense attorney is. You always want to be careful when you speak to that person because she is there to represent your abuser. She may try to confuse you, and may use whatever you tell her to confuse your testimony in court. Remember, you do not have to talk to the defense attorney anytime except for when you are on the witness stand in a trial in court.

35. When do I get to tell what happened?

If there is a trial, you will be asked to tell the court what happened. You will do this on the witness stand, in front of the judge and maybe a jury. Your abuser and his attorney will be there, and there may be other people sitting around the courtroom. The ADA and the defense attorney will ask you questions about what happened. If there is no trial (for example, there is a plea bargain) then you may not get to tell a judge or jury what happened.

36. What else happens at the trial?

If there were other witnesses, including the police, they will also be asked to testify. Your abuser may testify, too, but he does not have to. Once everyone has testified, either the judge or a jury will make a decision.

37. What happens if my abuser is found not guilty?

He would be free to leave the court after the trial. You could never take out a criminal complaint based on that incident again, although you could take out a criminal complaint if another incident occurs. If he is walking out of the court after the trial, keep your safety in mind. Hopefully, you have already done some safety planning, not only for getting home safely that day, but for safety in the days to come. (See our sample safety plan.)

38. What happens if my abuser is found guilty?

Many different things could happen if your abuser is found guilty. It depends on a lot of things, like his prior criminal record, the type of crime he committed, etc. The best thing to do would be to talk to the Assistant DA about the types of sentences or conditions on his sentence your abuser could get based on this case, such as jail time, probation, counseling, etc.

39. I am still confused about how this works; who can I talk to about it?

You can call the DA's office and ask to speak to a Victim/Witness Advocate. Tell them you are not sure if you should get involved in the criminal system and that you are not sure what to expect. They can explain it more fully to you. Many Victim/Witness Advocates may feel compelled to have you proceed with the criminal process. It is their job, after all, to guide victims of crime through the criminal justice system. You may want to talk to a battered women's counselor before speaking with a Victim/Witness Advocate. Also, some private attorneys do not charge for a first visit or initial consultation, so you may want to call a private attorney.

The criminal system is confusing and this manual cannot answer all of your questions. But it is a start!

40. Do I have any rights in the criminal system?

In Massachusetts, we have a "Victim Bill of Rights." M.G.L. ch. 258B. As the victim of a crime, you have many rights in the criminal justice system. These rights and services are "provided to the greatest extent possible, but are subject to and depend on public funding and available resources." Below is an outline of these rights. For more information on these rights you should speak to the Victim/Witness Advocate.

• The right to information on the Criminal Justice System.
• The right to information on the criminal case involving you.
• The right to be heard and present at court proceedings, including presenting a "Victim Impact Statement."
• The right to confer with the District Attorney's Office at key stages in the court process.
• The right to financial assistance for certain limited items and costs through Victim Compensation, witness fees, and restitution.
• The right to be notified of an offender's release status, such as: if he moves to a less secure facility; if he is on temporary, provisional, or final release; if he escapes; or information on his parole eligibility and status.
• You may have a right to get additional information on an offender's criminal record and his compliance with the terms of his sentence.
• The right to other various protections in the Criminal Justice System.

41. My abuser is in jail, but not for a crime against me. He abused me while we were together, and I am afraid of him. How can I find out when he is getting out of jail?

You can use the same form or application that a person would use if she was a victim of a crime. You can get this application from the Victim/Witness Advocate or directly from the Criminal History Systems Board ("CHSB") in Boston. They have Victim Services Advocates at the CHSB, also. CHSB can be reached at (617) 727-1950, or at www.mass.gov/chsb/.