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

1.4.BACKGROUND INFORMATION ON NON-CRIMINAL LEGAL OPTIONS FOR VICTIMS

Prosecutors are statutorily obliged under the Victim’s Bill of Rights, Mass. Gen. Laws ch. 258B, § 3(u), to inform victims of their right to pursue a civil action for damages relating to a crime (regardless of whether there is a court order for restitution). Also, during interviews, and throughout the progression of a case, victims and witnesses may ask for legal advice outside the scope of the criminal prosecution. The following summarized information is provided to assist in these regards. The summaries may also help in responding to requests from civil attorneys, as a victim/witness may engage private counsel to pursue separation, divorce, or custody issues, to litigate torts claims, or to protect the right to keep information private.

When answering a victim’s questions and providing referral information, care should be taken not to overstep and provide inappropriate legal opinions or legal advice. The obligation to inform victims that it may be possible to pursue a civil action does not entail evaluating the merits or benefits of such an action or rendering any other legal opinion outside the scope of the criminal prosecution.

Carefully explain the difference between civil and criminal actions, and emphasize that a prosecutor represents the Commonwealth, not an individual party. For example, if a victim asks how to divorce her abusive husband, and what the process will entail, you may give her routine information about a divorce proceeding but make sure you emphasize that she must get -- and rely on -- her own civil attorney.

Legal Services Eligibility: Persons qualify for legal services assistance if their income is below 125% of the poverty rate, based on the Office of Management and Budget’s Federal Poverty Income Guidelines, which are updated annually. Each legal services center sets its own priorities, so nothing is uniform, but probate court cases involving domestic violence victims are usually considered to be high priority cases. Legal Services do not handle fee generating cases, so indigent persons’ tort claims are usually handled by law firms doing pro bono work (or private counsel on a contingency fee basis). The Legal Services Centers are now divided between those who accept federal L.S.C. money, and who therefore must adhere to its guidelines, and those who do not. (The guidelines include: no services for undocumented persons, no class actions against the government, no welfare reform work, and no lobbying.)
Pro Bono Programs: Pro bono attorneys often work in collaboration with agencies serving domestic violence and/or sexual assault survivors. For example, Pro Bono Attorneys work in collaboration with the Rape Survivors Law Project connected to the Boston Area Rape Crisis Center (BARC). People whose incomes and financial resources are above the guidelines for publicly-funded legal service programs, but who, nevertheless, cannot afford counsel, are served.
Private Referrals: Referral services are available through the Mass. Bar Association (617-654-0400) and local bar associations. Explain the process of making an appointment for a consultation, and explain that while some attorneys offer free consultations, others charge fees. In addition, it may be advisable to emphasize that a number of attorneys now specialize in addressing the needs of victims of sexual assault and domestic violence when handling probate and tort matters.

1.4.1.Mass. Gen. Laws ch. 208: Divorce

s. 1: General Provisions; Grounds (“Fault”)

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  adultery
  
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  impotency
  
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  utter desertion (one year)
  
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  gross and confirmed habits of voluntary intoxication
  
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  cruel and abusive treatment
  

(evidence of: defendant hitting plaintiff; marks or bruises, or defendant throwing things at plaintiff; or negative changes in plaintiff’s health together with defendant swearing at plaintiff and/or defendant threatening bodily harm or injury to plaintiff)

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  prison sentence ( 5 years or more)
  
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  failure to support
  

s. 1A: Joint Petition, Irretrievable Breakdown (“Uncontested No-Fault”)

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  30 days after the court approves the agreement, judgment nisi enters;
  
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  90 days after the 30 days, judgment absolute enters unless objections filed.
  

s. 1B: No Agreement, Irretrievable Breakdown (“Contested No-Fault”)

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  must wait six months for hearing;
  
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  court must make finding as to continued irretrievable breakdown from date of filing to date of hearing;
  
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  court can consolidate if one party files fault and one files 1B;
  
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  court can make temporary orders and referrals to counseling.
  

s. 18 Restraining Order

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  forbids the defendant from interfering with the personal liberty of the plaintiff;
  
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  further orders may be issued as necessary to protect a party or their children, and preserve peace.
  

1.4.2.Civil Litigation: Torts, Interspousal Torts, Third Party Liability, the Mass. Commission Against Discrimination, and the Civil Rights Act

Torts

Victims of domestic violence or sexual abuse may maintain actions against their assailants in District or Superior Courts on several theories, including:

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   injuries to the person (assault and battery, rape);
   
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   intentional infliction of emotional distress;
   
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   false imprisonment; and
   
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   tortious interference in child custodial relations.
   

The same conduct may be both a criminal offense and a tort. Both actions can be brought simultaneously or sequentially, although issues of timing can be important. Remedies for such actions are compensatory and in some cases punitive damages are allowed by law. The statute of limitations for tort claims is three years. On average, completing a Massachusetts civil case takes approximately two years from the time the complaint is filed.

Interspousal Torts

The traditional common law doctrine of interspousal tort immunity prevented one spouse from bringing a tort action to recover for personal injuries caused by the other spouse. The law in most states now permits abused spouses to seek tort remedies in cases involving domestic violence. Beginning in1976 in Massachusetts, the SJC began to roll back the common law doctrine of interspousal immunity to allow liability for personal injury in 1976, in automobile accidents, Lewis v. Lewis, 370 Mass. 619 (1976), and eventually, in interspousal abuse cases, Heacock v. Heacock, 402 Mass. 21 (1988).

Interspousal torts present difficult strategy questions because victims often wish to pursue both damages and divorce, and the possibility of issue preclusion / collateral estoppel must be considered. Probate and Family Courts have no jurisdiction to adjudicate tort claims; jurisdiction lies with the District and Superior Courts. Neither Superior nor District Courts have jurisdiction over divorce or separate support actions; jurisdiction lies with the Probate and Family Courts. Thus, there is no single court that can simultaneously resolve interspousal tort claims and issues arising from a divorce. While the issue of tort damages cannot be precluded in a divorce trial, where there are clear fact findings in a divorce proceeding regarding the alleged abuse, relitigation of the question of liability may be precluded and summary judgment granted to the defendant in a subsequent action for tort. Furthermore, Heacock requires that parties reveal tort claims in financial statements filed in divorce actions. Id. at 25 n.3.


Third Party Liability

Victims of abuse may maintain actions against third parties who owe a duty to the victim and who are partially responsible for failing to prevent or deter the crimes due to their negligence. These cases typically involve claims of inadequate security brought against the owners and/or managers of buildings occupied by the victims. A landlord may be responsible to a tenant because the landlord owes a legal duty to maintain adequate locks on the doors pursuant to the Massachusetts Sanitary Code, 105 C.M.R. 410.480. These cases are generally referred to as “negligent security / premises liability” cases. Other examples include claims against schools for failing to protect students from assaults on campuses, or claims against storeowners for failing to protect patrons from receiving injuries during robberies (or other crimes) committed at the owner’s store.

Courts have recognized liability when the provider or server of alcoholic beverages serves a minor, or a person visibly intoxicated, who then commits a violent assault. Tobin v. Norwood Country Club Inc., 422 Mass. 126 (1996). Liability has also been imposed for the criminal acts of drunken individuals in which visibly intoxicated persons were served alcoholic beverages at a bar or other commercial establishment. Carey v. New Yorker of Worcester Inc., 355 Mass. 450 (1969).
On August 4, 2000, the Massachusetts Legislature passed a law which provides for criminal penalties where a homeowner – known as the “social host” – knowingly or intentionally supplies, gives, provides or allows a person under 21 to possess alcoholic beverages on property owned or controlled by them. Mass. Gen. Laws ch. 138, § 34. Before this law was enacted, illegal consumption or possession of alcohol by a minor at a private residence was not a violation of either the civil or criminal laws. Now a social host may be held criminally or civilly liable for serving or allowing a minor to drink on the premises and for injuries caused by those intoxicated persons. Violation of the new law can be used as evidence of negligence against a social host. This new law represents a major change in social host liability. Under prior law, even when a homeowner supplied alcohol, liability was rarely found against the social host. Wallace v. Wilson, 411 Mass. 8 (1991).

The Massachusetts Commission Against Discrimination

In some instances, e.g., a sexual assault in a workplace, claims for sexual harassment may be filed with the Mass. Commission Against Discrimination. Most often, the claim must be filed within six months, but once filed, the claimant has three years to elect a judicial remedy. In certain circumstances where the workplace doesn’t fit within the parameters of Mass. Gen. Laws ch. 151(B) (e.g., an independent contractor, or fewer than six employees) there is an independent statutory remedy, without the six month filing requirement.

Sexual harassment is defined as unwelcome sexual advances, requests for sexual favors and other conduct of a sexual nature. Not all acts of violence in the workplace are necessarily defined as sexual harassment as the law requires that the offending acts be of a sexual nature. There are two types of sexual harassment. “Quid Pro Quo Harassment” occurs where submission to or rejection of the advance, request or conduct is used as a basis for employment decisions affecting the individual. “Hostile Environment Harassment” occurs where the conduct has the purpose or effect or unreasonably interfering with an individual’s job performance by creating an intimidating, hostile, humiliating or offensive work environment. 29 C.F.R. 1604.11 (EEOC Guidelines) and Mass. Gen. Laws ch. 151B, § 1(18).
Some of the more common types of conduct which have been ruled as being sexual harassment include: offensive sexual advances, flirtations, or propositions that occur on more than one occasion; verbal comments of a sexual nature or dialogue relating to sexual topics; repeated unwelcome touching, such as hugging, patting or pinching; displaying objects or pictures of a sexual nature; obscene gestures; and demands or requests for sex.


The Massachusetts Civil Rights Act

The Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11H, authorizes the Attorney General to bring a civil action in the Superior Court for injunctive relief against any person who by threats, intimidation, or coercion, interferes or attempts to interfere with any other person’s exercise or enjoyment of rights secured by the constitution or laws of the Commonwealth or of the United States. Section 11I creates a private right of action with injunctive and compensatory remedies, including attorney’s fees. Section 11J imposes criminal penalties for violations of preliminary or permanent orders issued pursuant to sections 11H and 11I and authorizes the warrantless arrest of a violator.

The purpose of the Civil Rights Act is to provide under state law a remedy “coextensive with 42 U.S.C §1983 ... except that the Federal statute requires State action whereas its State counterpart does not.” Batchelder v. Allied Stores Corp., 393 Mass. 819, 822-823 (1985). It does not create “a vast constitutional tort,” but is limited to situations “where the derogation of secured rights occurs by threats, intimidation or coercion” involving a physical confrontation accompanied by a specific threat of harm “directed toward a particular individual or class of persons.” Bally v. Northeastern University, 403 Mass. 713, 718-720 (1989). A specific intent to cause a deprivation of another’s civil rights is not required. See Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 99 (1987).