Massachusetts Sexual Assault on a Child Defense Lawyer

Searching “child rape lawyer near me” in the Lowell or Boston areas? Massachusetts child rape indecent assault and battery lawyers from The Law Offices of Keren Goldenberg can help you

Sexual assault on a child can be charged under two statutes: rape of a child in violation of Massachusetts General Law chapter 265 section 23 and indecent assault and battery in violation of chapter 265 section 13B. A young person who may otherwise appear to fully consent to a sexual act with another person may be legally incapable of consenting. Whether the other person is unaware, mistaken, or tricked into believing that the young person is above the age of consent is irrelevant; the law holds people criminally liable for sexual acts with an underage person even if that underage person looks older and/or lied about their age.

If a person is accused of having sexual intercourse with a person under 16, they will face the charge of rape of a child. Sexual intercourse is defined as penetration of the victim, no matter how slight, and such penetration can done with one’s penis, tongue, fingers, or with an object. If the alleged rape involves oral sex, the underage person has been raped by law regardless of whether he or she performed the sexual act or was the recipient. When the alleged rape involves the stimulation of the vagina, no penetration into the vaginal opening is necessary; touching the labia or vulva of the vagina is rape under Massachusetts law.

Rape of a Child; Aggravated Rape of a Child

A person charged with rape of a child under Mass. General Law chapter 265 section 22A faces up to life in prison. There is no mandatory minimum sentence.

There are aggravating factors that if found, can resulted in convictions for various forms of aggravated rape of a child. Aggravating factors under chapter 265 section 23A involve age difference between the accused and the child or if the rape was committed by a mandated reporter. A conviction for aggravated rape under 23A carries a 10 year mandatory minimum and can be proven if:

  • there exists more than a 5 year age difference between the accused and the child and the child is under 12 years old; or
  • there exists more than a 10 year age difference between the defendant and the child where the child is between the age of 12 and 16 years of age; or
  • at the time of such intercourse, the accused was a mandated reporter.

Aggravating factors under chapter 265 section 22B carry a 15 year mandatory minimum sentence and a person can be convicted if the prosecution proves that:

  • The child rape was committed by multiple people together;
  • The child was secretly drugged or given alcohol;
  • The child was gagged or bound;
  • The rape was committed during the commission of certain offenses (such a burglary, kidnapping, or assault with a dangerous weapon);
  • The accused committing rape without protection knowing that they may transmit an STD to the child;

Indecent Assault and Battery; Aggravating Factors

Any unconsented touching that does not have penetration (even slight penetration) would constitute an “indecent assault and battery.” The age of consent for non-penetrative sexualized touching is 14. There is no list of the types of acts that could be considered criminal under the indecent assault and battery statute; the act must be a touching that was “fundamentally offensive to contemporary moral values.” Examples of touching that may lead to an indecent assault and battery charge include a “hand job”, touching another person’s genitals over his/her underwear or clothes, fondling of breasts, or grabbing of buttocks (although if the grabbing is underneath the underwear and in close proximity to the anus, the perpetrator could be charged with rape). Like with the rape statute, an indecent assault and battery can occur regardless of whether the alleged victim was given, for example, a “hand job” or if he performed a “hand job.” The touching does not need to be of a body part that is considered “private,” as long as the touching is “morally offensive.”

A person convicted of indecent assault and battery on a person under 14 pursuant to Mass. General Law chapter 265 section 13A faces up to 2.5 years in the House of Correction or up to 10 years in state prison. There is no mandatory minimum sentence. There is a 10 year mandatory minimum sentence if the offender was a mandated reporter or if the assault occurred during the commission of certain criminal offenses (such as kidnapping, burglary, or assault with a dangerous weapon.)

If the young person is over 14, the conviction would be for indecent assault and battery pursuant to Mass. General Law chapter 265 section 13H and the prosecution would need to prove that the alleged victim did not consent. That charge carries up to 2.5 years in the House of Correction or up to 5 years in state prison. There is no mandatory minimum sentence.

A person convicted of rape of a child or indecent assault and battery on a person under 14 will be required to register as a sex offender. The circumstances behind the conviction might help with the sex offender level designation but the person convicted still must register. A judge can waive registration requirement for a conviction of indecent assault and battery (over 14).

If you are charged with sexual assault on a child you need a lawyer with experience defending people accused of child rape or indecent assault and battery in Massachusetts.

In a case several years ago my client was accused of indecent assault and battery on a young child. The police failed to investigate another adult male living in the household. I learned that this other man was a registered sex offender and highlighted the police’s failure to investigate him as a possible suspect to the crime. As the trial developed the jury started to suspect that the child’s mother was covering up for this man who was the father of her youngest children. The jury found my client not guilty.

A consideration in many sex assault cases involving children, especially when the child is young, is susceptible children are to improper questioning or suggestions by the adults in their lives. It has been well-established through psychological research that children as a class are more susceptible to suggestion than adults. It is generally accepted in the scientific community that an investigatory interview can be suggestive and impact the child witness’s recollection. In a case charging my client with aggravated rape of a child, I pursued a defense theory that the young child’s parents were confused an distraught by their son’s ambiguous statements about a family member that they questioned him in a way that eventually led him to accuse the family member of rape. In that case I convinced the Court to hold a “taint hearing” before the trial that allowed me to explore the details of the parents’ questioning of the child outside the presence of the jury which allowed me to develop a more effective cross examination at trial.

Some sexual assault prosecutions rely heavily on forensic evidence presented by a trained sex crime prosecutor. The alleged victim may have submitted to a medical examination and specimen collection by a trained nurse.  Samples from the complainant, the defendant, and from clothing, bedding or other materials would be analyzed by the crime lab. In order to effectively challenge forensic evidence in sexual assault cases, I have familiarized myself with proper collection and examination techniques, as well as with the power and limitations of DNA evidence.

If you or a loved one is charged with a sexual assault of a child, please contact me, your Lowell and Boston, Massachusetts sex crimes lawyer, for a free consultation.

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