Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

1.6. PROCEDURAL STATUTES AND ISSUES

1.6.1.Jurisdiction

The jurisdiction of a court is the power the court possesses to adjudicate cases. A court has no more power than the legislature grants it, with the exception of the Supreme Judicial Court, which was created by the constitution. The judgment of a court which lacks criminal jurisdiction is a nullity and is no bar to a subsequent criminal action against the defendant.

 The Appeals Court and the Supreme Judicial Court: appellate criminal jurisdiction. Mass. Gen. Laws ch. 211, § 211A (2004).
 Superior Court: jurisdiction of all crimes. Mass. Gen. Laws ch. 212, § 6.
 District Courts: jurisdiction, pursuant to Mass. Gen. Laws ch. 218, § 26, concurrent with the Superior Court, over:

1) all violations of by-laws, orders, ordinances, rules and regulations made by cities towns, and public officers;

2) all misdemeanors except libels;

3) all felonies punishable by imprisonment in the state prison for not more than five years; and

4) felonies specifically enumerated in ch. 218, § 26 --

those enumerated which pertain to domestic violence and adult sexual abuse:

ch. 265, § 15A Assault & Battery / Dangerous Weapon

ch. 265, § 13K Assault & Battery of Elderly Person

ch. 266, §§ 16, 17, 18 Breaking & Entering, etc.

ch. 266, § 127 Malicious Destruction of Property

ch. 268, § 13B Intimidation of Witness or Juror.
 All courts, including the Probate Court and the Land Court, have inherent power to punish criminally for contempt of their judgments and decrees.

1.6.2.Statutes of Limitation

Mass. Gen. Laws ch. 277, § 63 determines the statutes of limitations for all crimes.

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  No time-bar: Murder
  

“found and filed any time after the death of the person alleged to have been murdered”

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  [Effective Dec. 20, 2006] No time-bar: ch. 265, §§ 13B, 13F, 13L, 22A, 23, 24B
  

or conspiracy to commit

or accessory thereto

BUT if more than 27 years has passed, then Commonwealth needs independent evidence corroborating victim’s allegation(s), and that evidence cannot be exclusively the opinion of mental health professionals

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  Within 15 years of the date of the crime:
  

Ch. 265, §§ 22 (Rape), 24 (Assault w/Intent Rape),

or conspiracy to commit

or accessory thereto

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  Within 10 years of the date of the crime:
  

ch. 272, §§ 17, 18, 19, 21 (Certain Crimes against Morality, etc.)

or conspiracy to commit

or accessory thereto

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  Within 6 years of the date of the crime: All other crimes.
  

Note: the statute provides that any period during which the defendant is not “usually and publicly” a resident of the Commonwealth shall be excluded from this time period.

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  Extension if victim is under age sixteen:
  

If the victim of the following enumerated offenses is under sixteen at the time of the crime, the period of limitation does not begin to run until her sixteenth birthday, or the date on which the offense is first reported to law enforcement authorities, whichever comes first:

ch. 265, §§ 13B, 13F, 13H, 22 (rape), 22A, 23, 24B, 26A (parental kidnapping); and

ch. 272, §§ 1-8, 12, 13, 17, 26, 28, 29A, 29B, 33, 34, 35 (lewd & lascivious), 35A.
The extension for victims under the age of sixteen was effected by a 1988 amendment. The extension of the statute of limitations for rape and assault with intent to rape to fifteen years resulted from an amendment adopted February 23, 1996. Extending the statute of limitations on offenses that are not time-barred as of the amendment’s effective date does not run afoul of the constitutional prohibition against ex post facto laws, nor offend due process. Commonwealth v. Bargeron, 402 Mass. 589, 591 (1988). However, an amendment cannot resurrect offenses that are otherwise time-barred. Commonwealth v. Rocheleau, 404 Mass. 129, 130 (1989).

1.6.3.Venue

Venue defines the particular county or territorial area within the Commonwealth or judicial district in which the prosecution must be brought or tried. The general rule is that indictments must be brought in the county where the alleged crime occurred and the issue must be tried by a jury of that county, unless the case is removed for trial to another county for purposes of an impartial trial. Complaints must be brought in the Division of the District Court or the B.M.C. Department within whose judicial district the offense was allegedly committed or is otherwise made punishable.

A crime committed in (or within one hundred rods of the boundaries of) two counties may be alleged to have been committed, and may be prosecuted and punished, in either county. A crime committed in (or within fifty rods of the territorial districts of) two District Courts may be alleged to have been committed, and may be prosecuted and punished, in either District Court. Mass. Gen. Laws ch. 277, § 57. (A rod measures 51/2 yards or 161/2 feet, and is otherwise called a “perch.”)
If you are in doubt whether or not the crime was committed within the county or the territorial jurisdiction of the court, you should file a petition to the trial judge before the trial, requesting leave to proceed. Mass. Gen. Laws ch. 277, § 57A.

Venue of Domestic Violence and/or Sexual Assault Crimes

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  Homicide: As a general rule, homicide is prosecuted and punished in the county in which the crime occurred. If the death occurs in one county as a result of a criminal act in another county, the homicide may be prosecuted and punished in either county. Mass. Gen. Laws ch. 277, § 60. If the death occurs outside of Massachusetts as a result of a criminal act within the Commonwealth, the homicide may be prosecuted and punished in the county in which the wound was inflicted or the poison administered. Mass. Gen. Laws ch. 277, § 62.
  

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  Kidnapping: A kidnapping case may be tried in the county where it was committed or in any county in or to which the person is held, carried or brought. Mass. Gen. Laws ch. 265, § 27.
  

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  Rape, Assault with Intent to Rape, Indecent Assault and Battery: Ordinarily these cases are tried in the county in which the crime occurred. However, if in the commission of these crimes the alleged victim is taken from one county to another, then either county may prosecute. Mass. Gen. Laws ch. 265, § 24A.
  

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  Stalking: The crime of stalking (Mass. Gen. Laws ch. 265, § 43) may be prosecuted and punished in any territorial jurisdiction of the Commonwealth wherein an act constituting an element of the crime was committed. Mass. Gen. Laws ch. 277, § 62B.
  

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  Violations of Restraining Orders: Subsequent to the amendment of Mass. Gen. Laws ch. 277, § 62A, effective January 8, 1995, venue for trial of alleged violations of restraining orders pursuant to Chapter 209A lies with the court that issued the restraining order, as well as the court within whose jurisdiction the violation was committed.
  

1.6.4.Related Federal Statutes

If the facts of your case appear to include the elements of related federal statutes, questions should be referred to an Assistant U.S. Attorney at an office of the United States Attorney, and/or to a federal investigative agency.

The FBI investigates interstate domestic violence, interstate violation of protective orders and interstate stalking; ATF investigates all firearms offenses.
The number of the Boston office of the United States Attorney is [phone].

The number of the Springfield office of the United States Attorney is [phone].

The number of the Boston office of the ATF Bureau is [phone].

The number of the Boston office of the FBI is [phone].

1.6.4.1. Federal Domestic Violence Offenses

1. Interstate Travel to Commit Domestic Violence, 18 U.S.C. § 2261 (2000)

a.) 18 U.S.C. § 2261(a)(1)

It is a federal crime for a person to travel interstate (or leave or enter Indian country) with the intent to injure, harass or intimidate that person’s intimate partner when in the course of or as a result of such travel the defendant intentionally commits a violent crime and thereby causes bodily injury. The law requires specific intent to commit domestic violence at the time of interstate travel. The term “intimate partner” includes a spouse, former spouse, past or present cohabitant, and those who share a child, but may not include a girlfriend or boyfriend with whom the defendant has not resided. There must be bodily injury for prosecution under this statute.
b.) 18 U.S.C. § 2261(a)(2)

It is also a federal crime to cause an intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress or fraud, during which or as a result of which there is bodily harm to the victim. Proof is required that the interstate travel resulted from force, coercion, duress or fraud. As in subsection 2261(a)(1), the defendant must intentionally commit a crime of violence during the course of or as a result of the travel and there must be bodily injury.

2. Interstate Stalking, 18 U.S.C. § 2261A

As of September 23, 1996, it is a federal crime to cross a state line with the intent to injure or harass another person, if in the course of or as a result of such travel, the defendant places such person in reasonable fear of the death of, or serious bodily injury to, that person or a member of that person’s immediate family. The law requires specific intent to violate this subsection at the time of interstate travel. “Immediate family” includes a spouse, parent, sibling, child or any other person living in the same household and related by blood or marriage. It is also a federal crime to “stalk,” as it is defined in § 2261A, within the special or maritime jurisdiction of the United States.

3. Interstate Travel to Violate an Order of Protection, 18 U.S.C. § 2262

a.) 18 U.S.C. § 2262(a)(1)

This law prohibits interstate travel with intent to violate a valid protection order that forbids credible threats of violence, repeated harassment, or bodily injury. To establish a violation of this statute, the Government must demonstrate that a person had the specific intent to violate the protection order at the time of interstate travel and that a violation actually occurred.
b.) 18 U.S.C. § 2262(a)(2)

It is also a federal crime to cause a spouse or intimate partner to cross state lines (or leave or enter Indian country) by force, coercion, duress or fraud, during which or as a result of which there is bodily harm to the victim in violation of a valid order of protection. The law requires that that interstate travel resulted from force, coercion, duress, or fraud. The Government must also prove that a person intentionally injured an intimate partner in violation of a protection order during the course of or as a result of the forced or coercive travel.

4. Penalties

Penalties for violations of §§ 2261, 2261A and 2262 hinge on the extent of the bodily injury to the victim. Terms of imprisonment range from five years for bodily injury to life if the crime of violence results in the victim’s death.

1.6.4.2. Federal Firearms Disability Provisions

The Gun Control Act of 1968 prohibits certain classes of people (such as felons, fugitives, addicts, illegal aliens, and others) from possessing or receiving firearms. One of the provisions of the Violent Crime Control and Law Enforcement Act of 1994 amended the Gun Control Act to make it a federal offense for persons who have been convicted of certain domestic violence crimes, or who are subject to certain restraining orders, to possess or receive firearms.

1. Possession of Firearm While Subject to Order of Protection, 18 U.S.C. § 922(g)(8)

It is illegal for a person to possess a firearm while subject to a restraining order. The restraining order must have been issued following an evidentiary hearing as to which the defendant had notice and an opportunity to be heard. Therefore, ex parte orders are not covered under this statute. The restraining order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury.

2. Transfer of Firearm to Person Subject to Order of Protection, 18 U.S.C. § 922(d)(8)

It is also illegal to transfer a firearm to a person subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. A violation of § 922(d)(8) must be knowing.

3. Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(g)(9)

As of September 30, 1996, it is illegal to possess a firearm after conviction for a misdemeanor crime of domestic violence. This law is retroactive and applies to convictions both before and after September 30, 1996. A qualifying misdemeanor domestic violence crime must have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon. In Massachusetts, for example, violation of a Temporary Restraining Order is not a qualifying misdemeanor because it lacks the defined elements. However, the misdemeanor crimes of Assault, and Assault and Battery, may qualify.

In addition, the statute contains due process requirements to ensure that the qualifying conviction was obtained with advice of counsel and with notice of a right to jury trial. Absent compliance with these due process requirements, the misdemeanor conviction will not qualify as a domestic violence conviction for purposes of § 922(g)(9).

4. Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(d)(9)

It is also illegal to transfer a firearm to a person convicted of a misdemeanor crime of domestic violence. A violation of § 922(d)(8) must be knowing.

5. Law Enforcement Exemptions, 18 U.S.C. § 925

Law enforcement officers are not subject to §§ 922(d)(8) and (g)(8). However, the exemption does NOT apply to §§ 922(d)(9) and 922(g)(9). This means that law enforcement officers who have been convicted of a qualifying domestic violence misdemeanor will not be able to possess or receive firearms for any purpose, including the performance of official duties. “If such person refuses to relinquish the firearm or ammunition, and your agency is without authority to retain or seize the firearm or ammunition, you should contact the local ATF office.” “Open Letter to All State and Local Law Enforcement Officials,” John W. Magaw, Director, Bureau of Alcohol, Tobacco and Firearms, Dec. 6, 1996, pp. 2-3.

6. Penalties

The maximum penalty for a violation of §§ 922(d)(8), 922(g)(8), 922(d)(9), or 922(g)(9) is a ten year term of imprisonment.

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  Definitions are included in 18 U.S.C. § 921:
  
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  “Intimate partner” means the spouse, former spouse, parent of a common child, or person who has cohabitated or cohabitates with the person in question.
  
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  To be considered “to have been convicted,” a person must have been represented by counsel or knowingly and intelligently waived counsel, and if entitled to a jury trial must have had the case tried by a jury or must have knowingly and intelligently waived the jury right.
  
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  A “misdemeanor crime of domestic violence” means an offense that: (1) is a misdemeanor under Federal or State law; and (2) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. Thus, any misdemeanor which involves the use or attempted use of physical force, committed by one of the defined parties, would constitute a “crime of domestic violence” under the statute, whether or not a state statute or local ordinance defines it as domestic violence; e.g., a conviction for an assault against a spouse prohibits the offender from receiving or possessing firearms or ammunition.
  
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  The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law’s effective date of Sept. 30, 1996.
  
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  A conviction is not disabling if it has been expunged, set aside, pardoned, or if the person has had his or her civil rights restored, and the person is not otherwise prohibited from possessing firearms and ammunition.
  
  
  

1.6.4.3. Federal Offense of Kidnapping

18 U.S.C. § 1201 Kidnapping



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  Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when --
  
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  the person is willfully transported in interstate or foreign commerce;
  
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  any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
  
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  any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49;
  
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  the person is a foreign official, an internationally protected person, or an official guest as those terms are defined in section 1116(b) of this title; or
  
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  the person is among those officers and employees designated in section 1114 of this title and any such act against the person is done while the person is engaged in, or on account of, the performance of official duties,
  
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  shall be punished by imprisonment for any term of years or for life, and, if the death of any person results, shall be punished by death or life imprisonment.
  
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  With respect to subsection (a)(1) above, the failure to release the victim within twenty-four hours after he shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away shall create a rebuttable presumption that such person has been transported in interstate or foreign commerce.
  
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  If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.
  
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  Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than 20 years.