Angiulo: New MA Domestic Violence Law Changes Process After Arrest for Both Victims and Accused

Monday, August 18, 2014

Leonardo Angiulo, GoLocal Legal Contributor

On August 8, 2014 a new bill focused on domestic violence was signed into law and took immediate effect. The principle behind the bill, protecting victims of abuse, is not one that can be argued with. Certainly, victims of domestic violence and their family members are in a particularly vulnerable situation and sometimes do not have the ability to escape from the abusive cycles that can result in mental or physical injury or worse. However, the way in which this bill works in practice is wide ranging and makes significant changes to how alleged victims, accused, and the court move forward after arrest.

Chapter 260 of the Acts of 2014 addresses topics as varied as training of police and prosecutors, the formation of investigative teams for domestic homicides, creation of assistance funds, and the regulation of documents generated during the investigation of domestic violence crimes. The bill also modified the statutory structure regarding the crimes associated with this type of behavior by, among other things, creating specific offenses for domestic assault and battery and strangulation. One of the unique aspects of the bill is that the legislature chose to make special modifications to the way the criminal justice system operates when initial facts indicate domestic violence is part of a case.

Whenever a person is charged with domestic assault and battery, strangulation, or any offense constituting abuse involving household or family members as defined in MGL c. 209A, sec. 1, a new protocol is triggered that begins at the moment of arrest. The first change is that any investigative materials such as police reports and witness statements are no longer considered public record. Not only are the records to be treated as confidential, but any disclosure of those records to parties unauthorized by the statute is punishable by imprisonment for up to a year. Another change is that persons accused of these crimes cannot be bailed from police stations for at least six hours after the time of arrest. While a court can still impose a bail within the initial six hours, during the first three hours of a complaint being signed only the Commonwealth can move for arraignment on the charge.

The creation of new, mandatory, and specific findings by a court at arraignment whenever a defendant is charged with crimes against a person or the property of another is a dramatic change. If the charged offense includes abuse involving household or family members the prosecutor must file paperwork justifying that finding and a court must make a ruling whether, or not, the claim is supported. If it is determined that kind of abuse has occurred, then an entry is made with the statewide domestic violence record keeping system.

Using Info Moving Forward

The question you might have is: what are they going to do with all that information? The bill itself helps us understand what it cannot be used for. This domestic abuse record cannot be used for things like indictment before a grand jury or in court for the offense a person is charged with. Much like restraining order histories, however, there will be documentary evidence of accusations against a person. This is especially true because the only way an entry of this nature can be removed is if a person is found not guilty, there is a finding of no probable cause, or a grand jury refuses to indict a person on the charge. While a case could also end in a dismissal if an alleged victim does not appear, or chooses to exercise their marital privilege, that initial finding will still be found in the official record.

While there are a number of other changes to record keeping and procedures for various aspects of the court's function in these cases there is one more aspect that most closely relates to the beginning stages for such offenses. Employers with fifty or more employees must provide up to fifteen days of leave in any twelve month period if a person is a victim of abusive behavior and the time off is used to appear in court or is related to “other issues” related to the abusive behavior. While the employer can choose whether this time is paid or unpaid, the Attorney General has the authority to enforce this requirement.

To be sure, this bill represents a new, focused, effort at addressing crimes involving domestic violence. While the changes found in this bill serve their purpose, their practical impact might unintentionally have a negative impact on the principles that make our judicial system the best in the world. For example, if a new database can be created whenever a particular social issue concerns the legislature how often will such a thing occur? What purposes can those databases serve? If police reports can be selectively withheld from public record depending on the subject, how can freedom of the press be preserved?

While these questions are only hypothetical right now, they may become practical questions in the future. And while these issues unfold, if the bill works the way it is intended, alleged victims should find some sense of peace in situations that would otherwise be extremely chaotic and traumatizing. Finding a balance between the interests of victims and accused seems to be at the heart of this legislation; with time the courts will see whether that goal has been met.

Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at [email protected].