Assault and Battery with a Dangerous Weapon on a Person Protected by an Abuse Prevention Order

G.L. c. 265, § 15A[c][iii]

A person is charged with having committed an intentional assault and battery with a dangerous weapon upon the alleged victim when the person knew at the time that a court had issued an order protecting the alleged victim from him or her.  The Commonwealth must prove six elements, beyond a reasonable doubt:

• (1) That the defendant touched the person of the alleged victim, however slightly, without having any right or excuse for doing so;
• (2) That the defendant intended to touch the alleged victim;
• (3) That the touching was done with a dangerous weapon;
• (4) That a court had issued an order or a judgment against the defendant ordering him or her to:
  • vacate and stay away from particular premises; or
  • to stay a certain distance away from the alleged victim; or
  • not to contact the alleged victim; or
  • not to abuse the alleged victim.
• (5) That the order was in effect at the time of the alleged assault and battery; and
• (6) That the defendant knew that the pertinent terms of the order was/were in effect

• Practice Notes
  • The Commonwealth must prove the defendant had knowledge of the order’s terms, meaning proof that the defendant received a copy of the order or learned of it in some other way.
  • The defendant must have intended his or her acts which resulted in the touching, meaning that the acts did not happen accidentally or as a result of negligence

 

• A person is charged with having committed a reckless assault and battery with a dangerous weapon upon the alleged victim when the person knew at the time that a court had issued an order protecting the alleged victim from him or her.  The Commonwealth must prove six elements, beyond a reasonable doubt:

• (1) That the defendant acted recklessly;
• (2) That the defendant’s reckless conduct included an intentional act which resulted in bodily injury to the alleged victim;
• (3) That the injury was inflicted by a dangerous weapon;
• (4) That a court had issued an order or a judgment against the defendant ordering him or her:
  • to vacate and stay away from particular premises; or
  • to stay a certain distance away from the alleged victim; or
  • not to contact the alleged victim; or
  • not to abuse the alleged victim.
• (5) That the order in effect at the time of the alleged reckless conduct; and
• (6) That the defendant knew that the pertinent terms or the order was/were in effect.

• Practice Notes
  • The Commonwealth must prove that the defendant’s actions went beyond mere negligence and amounted to recklessness, meaning the defendant knew or should have known, that such actions were very likely to cause substantial harm to someone, but he or she ran that risk and went ahead anyway.
  • The defendant must have intended his or her acts which resulted in the touching, meaning that the acts did not happen accidentally
  • It is not necessary that the defendant intended to injure or strike the alleged victim, or that he or she foresaw the harm that result
  • The injury must be sufficiently serious to interfere with the alleged victim’s health or comfort. It does not need to be permanent, but it must be more than trifling.