Massachusetts G.L.c. 265, § 13H: Indecent Assault and Battery Upon a Person Fourteen or Older

Massachusetts General Laws chapter 265, section 13H governs the crime of indecent assault and battery upon a person fourteen or older. It provides as follows:

“Whoever commits an indecent assault and battery on a person who has attained age fourteen shall be punished by imprisonment in the state prison for not more than five years, or by imprisonment for not more than two and one-half years in a jail or house of correction.”

In order to convict a defendant of indecent assault and battery on a person fourteen or older in violation of G.L.c. 265, section 13H, the government is required to prove the following four elements of the crime beyond a reasonable doubt:

1. The victim was at least 14 years old at the time of the offense.
2. The defendant intentionally touched the victim without excuse or justification. Though the touching must be intentional, indecent assault and battery does not require a specific intent. Rather, it only requires general criminal intent.
3. The touching was “indecent.” In this context, “indecent” is defined as “fundamentally offensive to contemporary standards of decency.” Decency is determined by societal mores and common social expectations. Common examples of “indecent” touchings include those involving private parts of the anatomy, such as genitals, buttocks, or female breasts.
4. The victim did not consent to the touching. A factfinder may consider whether the victim was able to consent. For example, a factfinder might consider whether drugs, alcohol, mental disability, injury or sleep deprivation impaired the victim’s ability to consent. If the government attempts to prove lack of ability to consent due to one of these factors or conditions, it must also prove that the defendant knew or reasonably should have known of the condition that rendered the victim unable to consent. A victim’s use of drugs or alcohol does not necessarily render the victim unable to consent, as there are many degrees of intoxication. If the question is one of mental or physical disability, the factfinder may consider experience and maturity levels in determining whether the victim was able to evaluate the situation and make a decision based on his or her understanding. Case law suggests that lack of consent may not be an element of this crime if the touching was physically harmful.

Indecent assault and battery on an elderly or disabled person is an aggravated form of the crime, and the district court has no final jurisdiction over these aggravated forms of indecent assault and battery on a person 14 or older.

Common examples of indecent assault and battery on a person 14 or older involve touchng or groping of buttocks, female breasts, or genital areas, whether clothed or unclothed. As discussed above, often the allegation is that the victim was so impaired by drugs or alcohol that he or she was unable to consent to the touching. Even an unwanted kiss may result in indecent assault and battery charges, particularly if the kiss involves insertion of the tongue, as Massachusetts courts have determined that the mouth is an intimate part of the body.

Offenses that are similar or related to indecent assault and battery, G.L. c. 265, section 13H include:

• G.L. c. 265, § 22, rape. Indecent assault and battery is a lesser included offense of rape.
• G.L. c. 265, § 13A, assault and battery. Assault and battery is a lesser included offense of indecent assault and battery.

One defense to charges of indecent assault and battery on a person 14 or older is that the defendant has been falsely accused. This is an offense that often does not involve injury or other evidence of the touching, so the defense may be able to successfully argue that the encounter never happened. Another defense may be that the touching was accidental. If there is any evidence of an accidental touching, the judge must instruct the jury, on request, that the prosecution has the burden of proving beyond a reasonable doubt that the touching was not accidental.

Indecent assault and battery on a person 14 or older is punishable by up to five years in the state prison or by up to two and one-half years in the house of correction. The offense is punishable by up to 10 years in the state prison if the victim is an elder or person suffering from a disability. A second or subsequent offense is punishable by up to 20 years in the state prison.

Charges of indecent assault and battery are very serious and require aggressive representation by an experienced criminal defense attorney. Stephen Neyman is a Massachusetts criminal lawyer who has decades of experience defending those accused of indecent assault and battery in the Commonwealth. Attorney Neyman works tirelessly to protect the rights of his clients. If you or someone you know has been charged with indecent assault and battery on a person 14 or older, contact the Law Offices of Stephen Neyman, P.C. by calling 617-263-6800 or by sending an email. Attorney Neyman will promptly schedule your initial consultation. When charged with a crime with serious lasting consequences, it is critical to contact a lawyer right away. Call Attorney Neyman today to discuss your option and protect your future.