Criminal Defense Attorney

Assault on Family/Household Member – Dismissed

JZ, a 45-year-old computer programmer, was charged with “assaulting” his wife. Under Massachusetts law, “Assault” can be proven in two ways: 1) An attempt to use some degree of physical force on another person, without the other person’s consent; and/or 2) A demonstration of an attempt to use immediate force on another person, without the other person’s consent. Assault differs from Assault and Battery (A&B) in that an A&B requires an accusation that the defendant actually touched the body of another person.

Mr. Z was accused of raising his fist in front of his wife’s face. His wife called the police. The police responded to the home. Mr. Z told the police that he did not raise his fist to his wife’s face. He was arrested and charged with the specific crime of Assault on a Family or Household Member, under M.G.L.c. 265, s.13A. This charge is also know as “Domestic Assault.”

JZ hired Henry Fasoldt. Upon reviewing the evidence, Henry determined that the Commonwealth would be unable to prove the case without the testimony of JZ’s wife. There were no independent witnesses. JZ’s wife expressed a disinterest in testifying.

Henry scheduled the case for trial. On the date of trial, JZ’s wife invoked her “marital privilege,” under M.G.L.c. 233, s. 20. Massachusetts law allows for one spouse to decline to testify against his/her partner (with some exceptions). Though the law does not permit for the accused spouse to prohibit the non-accused spouse to testify, the law does allow for the non-accused spouse to decline to testify against the accused spouse. In other words, the decision to testify belongs to the non-accused spouse – in this case, Mr. Z’s wife.

With no independent evidence, the Commonwealth could not prove its case. The case was dismissed.