Assault & Battery with a Dangerous Weapon
Massachusetts General Laws Chapter 265, section 15A lays out the crime of assault and battery with a dangerous weapon, and provides varying degrees of severity, with corresponding penalties, depending on the vulnerability of the victim or the injury caused to the victim. A standard assault and battery with a dangerous weapon, often called an “ABDW” carries a penalty of up to 2.5 years in the house of correction, and a fine of up to $1,000.
However, if the victim is sixty years old or older, the penalty rises to up to 10 years in state prison, and a fine of up to $1,000. Likewise, If the ABDW is committed in a way that causes serious bodily injury, or if the defendant knows or he has reason to know the victim is pregnant, or if the defendant knows that the victim has an outstanding restraining order against the defendant, or if the victim is a child under 14 years old, the penalty increases to up to 15 years in state prison and a fine of up to $10,000. These versions are often referred to as aggravated ABDW.
To convict an individual of simple ABDW, the prosecutor must prove three elements beyond a reasonable doubt:
First, the prosecutor must establish that the defendant touched the victim without permission or justification. Even a very minor touch that causes no injury is sufficient for this element.
Second, the prosecutor must prove that the defendant intended to touch the victim. This means that the touching was not accidental or negligent.
Finally, the prosecutor must prove that the touching was done with a dangerous weapon. Although a dangerous weapon includes items one would normally think of as weapons, for example guns and knives, it also includes any item that is not inherently dangerous but is used in a dangerous manner. Thus, a pen can be considered a dangerous weapon if it is thrown at someone’s face. Or a lit cigarette can be a dangerous weapon if it is used to burn someone. The jury decides if the item in question qualifies as a dangerous weapon based on the item itself, including its size, shape, and features, and based on the way in which the item was used by the defendant. Of course, if the item is an inherently dangerous weapon, the jury does not have to determine whether it constitutes a dangerous weapon, regardless of how the item was actually used. Moreover, even if a weapon is not actually dangerous but appears to be, for example a toy gun, or a plastic knife, it still qualifies as a dangerous weapon if it reasonably appeared capable of inflicting bodily harm at the time the offense occurred. Thus, if a defendant attacked an individual with an unloaded gun, he could still be convicted of ABDW even though the gun was not capable of being deployed.
In a commonly charged scenario, a defendant’s foot can be considered a dangerous weapon if used to kick or otherwise inflict injury on the victim. This is generally referred to as “shod foot” ABDW, meaning that the defendant’s foot is shod in footwear making it capable of inflicting a greater injury than an unshod foot. The reasoning behind this charge is that a defendant wearing a heavy boot can inflict a much greater injury by kicking than a defendant wearing regular footwear or no footwear. Thus, depending on the circumstances, a jury can find that a defendant’s shod foot constitutes a dangerous weapon.
If an aggravated form of ABDW is charged, the prosecutor must prove the additional facts that warrant the heightened charge beyond a reasonable doubt as well.
If you have been charged with an ABDW, you should immediately contact the expert criminal defense team at the law firm of Altman & Altman as soon as possible. Our ABDW defense attorneys have over 40 years of experience successfully resolving these cases in courts throughout the Commonwealth of Massachusetts. We investigate each case meticulously, ensure that our clients’ rights are protected at every stage in the criminal process, and advocate zealously for our clients in court. Most importantly, we are committed to client service. Your case will be managed by a senior member of our criminal defense trial team, who will be available at all hours to answer your questions and address your concerns.
Contact our office today to schedule a free case consultation to learn more about your rights and options, and how Altman & Altman can help you resolve your case.