Domestic violence usually involves physical or emotional violence between husbands and wives, domestic partners, boyfriends and girlfriend, ex-spouses or ex-partners, people who have children together, or family members. Physical assault, stalking, sexual assault, verbal threats or assault, emotional violence, and kidnapping are considered domestic violence crimes if these actions are directed toward intimate partners, household members, or family members. Unless serious bodily harm is involved, domestic violence is considered a misdemeanor, rather than a felony crime. But that does not mean that the Commonwealth of Massachusetts will not take a domestic violence allegation or a conviction seriously—especially if this is not the first offense or a minor was involved. Massachusetts’ mandatory arrest policy obligates an investigating officer to arrest anyone accused of committing domestic violence. Even if the person who filed the complaint recants his or her statement to police or decides not to press charges, the decision is not up to him or her. It is the prosecutor who will decide whether to press charges. Conviction for domestic violence can lead to serious penalties and professional and personal consequences, such as:

• Jail time
• Financial penalty
• Losing temporary child custody or visitation rights
• Jeopardizing his or her immigration status
• Losing the right to own a firearm
• Being eliminated from consideration for certain job and career opportunities.

In addition to the crime of Domestic Violence, often an individual is also facing issuance of a Civil Restraining Order requested by the victim in the case.  In that situation, the Plaintiff, on the application for restraining order, must include an affidavit in support of the request providing ample support for request.  In order for issuance, the Court must find occurrence of one of the following:

1. attempting to cause or causing physical harm;
2. placing another in fear of imminent serious physical harm;
3. causing another to engage involuntarily in sexual relations by force, threat or duress.

“Placing another in fear of imminent serious physical harm” is often misinterpreted as a mere allegation of fear.  Fear, without showing a factual basis for that fear, is enough for a court to issue an order.  Under the second prong the Court must also find imminence, or an immediate threat of serious physical harm.

Serious physical harm, or serious bodily injury, is defined as “injury that results in a permanent disfigurement; long-term loss or impairment of a bodily function, arm, leg, or organ; or substantial risk of death.”  That fear must be of ‘physical’ harm, not emotional harm, psychic harm, hurt feelings, or any number of other non-physical issues.