Massachusetts District Attorneys Association

MDAA

Massachusetts District Attorneys Association

THE MASSACHUSETTS

PROSECUTORS’ MANUAL:

DOMESTIC VIOLENCE

& SEXUAL ASSAULT

THIRD EDITION

(Original Edition 1997)

(Includes Updates Through July, 2010)

Writtenby

Lisa S. McGovern

Third Edition: Updated and Revised by

Kim Aliprantis

Staff Attorney, Domestic Violence/Sexual Assault

The Massachusetts District Attorneys Association

One Bulfinch Place, Suite 202

Boston, Massachusetts02114

THE MASSACHUSETTS

PROSECUTORS’ MANUAL:

DOMESTIC VIOLENCE

& SEXUAL ASSAULT

THIRD EDITION

(Original Edition 1997)

(Includes Updates Through July, 2010)

Written by

Lisa S. McGovern

Third Edition: Updated and Revised by

Kim Aliprantis

Staff Attorney, Domestic Violence/Sexual Assault

Purpose & Scope

In 1996 several Massachusetts agencies received funding under the federal Violence Against Women Act after having outlined in their grant proposals plans to develop a training manual for the prosecution of domestic violence and sexual assault cases. The Massachusetts District Attorneys Association proposed that a collaborative effort, including all Massachusetts District Attorneys offices and the Attorney General’s Office, combine resources and produce a single manual for statewide application. The original manual was funded by the Offices of former Attorney General Scott Harshbarger, former Norfolk District Attorney Jeffrey Locke, and former Norfolk District Attorney William Delahunt. The manual was written by Lisa McGovern, formerly an Assistant District Attorney in MiddlesexCounty, and was reviewed by an editorial board comprised of representatives from the offices of Massachusetts’ eleven District Attorneys and the Attorney General. The manual was distributed in November 1997 to all Massachusetts prosecutors handling domestic violence and sexual assault cases.

In 2000 the Violence Against Women Grant Office awarded the Massachusetts District Attorneys Association a grant to update the manual in 2001. The manual was significantly expanded and revised, and supplanted the original edition. In 2005 and 2006 the VAWA STOP Grant program again awarded the Massachusetts District Attorneys Association with grant funding to update the manual. The manual has again been significantly revised and replaces the second edition.

The manual covers domestic violence and sexual assault cases simultaneously because they involve similar victim dynamics, and present prosecutors with similar complex challenges. The crimes of domestic violence and sexual assault are also all too often inextricably intertwined.

Cases involving child abuse, including child victims of sexual assault are not within the scope of this work.

A Note On Language

Throughout the manual, victims are often, though not exclusively, referred to in the feminine gender. This reflects the fact that in the overwhelming majority of domestic violence cases and sexual assault cases, the victim is female and the offender male. However, where applicable, the contents are intended to pertain equally to male victims, and/or to victims who are the same gender as their assailants or abusers.

In the past decade rape crisis center advocates have deliberately adapted use of the term “survivor” in place of “victim,” particularly with respect to the crime of rape. Due to the statutes, cases and legal authorities that use and define the term “victim,” the manual introduces “survivor” but also retains “victim.”

Acknowledgements

Without the support of the Executive Office of Public Safety, and the VAWA STOP Grant program, this 3rdedition of the Massachusetts Prosecutors’ Manual: Domestic Violence & Sexual Assault would not have been produced. The Massachusetts District Attorneys Association especially thanks Diane DeAngelis, Grant Administrator for the VAWA STOP Grant Program, for her steadfast support.

All of the District Attorney’s offices and many in the criminal justice community contributed to this new edition, and we especially thank:

Janet Berkenfield, Director, MA EMSC Project, MA Department of Public Health
Maryann Brennan, Disabled Persons Protection Commission (DPPC)
Courtney Cahill, Assistant District Attorney, Plymouth County District Attorney’s Office
Jeanmarie Carroll, Assistant District Attorney, Norfolk County District Attorney’s Office
Diane Coffey, SAFEPLAN Program Manager, Massachusetts Office for Victim Assistance
Layla D’Emilia-Shepherd, Senior Policy Analyst, Jane Doe Inc.
Janet Fine, Executive Director, Massachusetts Office for Victim Assistance
Deborah Fogarty, Director, Victim Compensation Division of the Office of the Attorney General
Gregory Giuliano, Director of Elder Protective Services, Massachusetts Executive Office of Elder Affairs
Susan Goldfarb, Executive Director, Children’s Advocacy Center of SuffolkCounty
Marguerite Grant, Senior Appellate Counsel, Middlesex District Attorney’s Office
Betsy Groves, LICSW, Director, Child Witness to Violence Project
Rev. Dr. Anne Marie Hunter, Safe Havens Interfaith Partnership Against Domestic Violence
Elizabeth Katz, District Court Chief, Northwestern District Attorney’s Office
Dee Kennedy, Site Operations Director, Family Justice Center of Boston
Brooke Kinniburgh, Division of Violence and Injury Prevention, Massachusetts Department of Public Health
J. Thomas Kirkman, Director of the Domestic Violence Prosecution Unit, Cape & Islands District Attorney’s Office
Mary Kociela, Director, Domestic Violence Projects, Northwestern District Attorney’s Office
Suzanne Kontz, Assistant District Attorney, Middlesex County District Attorney’s Office
Dana Leccese, Assistant Attorney General, Office of the Attorney General
Daniel Less, General Counsel, Sex Offense Registry Board
Susan Loehn, Chief, Domestic Violence Unit, Northwestern District Attorney’s Office
Kate MacDougall, Director, Family Crimes and Sexual Assault Unit, Essex County District Attorney’s Office
Jennifer Meade, Research and Evaluation Manager, Jane Doe, Inc.
Erin Miller, SAFEPLAN Program Coordinator, Massachusetts Office for Victim Assistance
Sgt. Thomas Neff, Massachusetts State Police, Essex County District Attorney’s Office
Kristen Palma, Director of Public Affairs and Field Services, Massachusetts Office for Victim Assistance
Gwen Pino, Forensic Case Manager, MassachusettsState Police Crime Lab
Gina Rippel, Chief of the Domestic Violence Unit, San Diego District Attorney’s Office
Curt Rogers, Gay Men’s Domestic Violence Project
Hema Sarangapani, Staff Attorney, Immigration Unit, Greater Boston Legal Services
Afton Templin, Deputy GeneralCounsel, Massachusetts Parole Board
Cheryl Watson, Chief, Victim Witness Services, Essex County District Attorney’s Office
Lucia Zuniga, Director, Adult and Pediatric SANE

(These titles reflect positions held at the time of the publication of the 3rd edition.)

A number of people were generous in sharing their expert advice with the author for the second edition, including:

Esther Bixler, Assistant District Attorney, Middlesex District Attorney’s Office
Marci Diamond, Director, Sexual Assault Prevention and Survivor Services, Massachusetts Department of Public Health
John Grossman, Chief, and Julie Ross, Assistant Attorney General, of the High Tech and Computer Crimes Division of the Office of the Attorney General
J. Thomas Kirkman, Director of the Domestic Violence Prosecution Unit, Cape & Islands District Attorney’s Office
Mary Lee, Deputy Chief of Appeals and Legal Adviser to the High Tech Unit, Plymouth County District Attorney’s Office
Sgt. John J. McLean, of the Medford Police Dept. and NEMLEC
Thomas O’Reilly, Assistant District Attorney, Middlesex District Attorney’s Office
Judy Norton Senfleben, Deputy Director, and Karen Dempsey, Community Education Coordinator, Massachusetts Office for Victim Assistance
Susan H. Vickers, Esq., VictimsRightsLawCenter, BostonAreaRapeCrisis Center
Jay Wallace, Chief Executive Officer, The Developers Collaborative, Inc.

(These titles reflect positions held at the time of the publication of the 2nd edition.)

Editorial Board for the Original 1997 Edition

(These titles reflect positions held at the time of the original publication.)

Office of the United States Attorney

District of Massachusetts:

Marianne Hinkle

Assistant United States Attorney

(formerly Chief, Domestic Violence Unit, Norfolk District Attorney’s Office)

Office of the Attorney General

Commonwealth of Massachusetts:

Joseph F. Whalen

Assistant Attorney General

Amy Sharff

Assistant Attorney General

Kathy Morrissey

Victim-Witness Advocate

Janine Gannon

Project Coordinator, Child Witness to Violence

(formerly Victim Witness Advocate,

Norfolk District Attorney’s Office)

Berkshire County District Attorney’s Office

Pittsfield, Massachusetts:

Anne M. Kendall

Second Assistant District Attorney

Elizabeth A. Keegan

Director, Victim-Witness Assistance Program

Bristol County District Attorney’s Office

New Bedford, Massachusetts:

Michele Stanton

Director, Victim-Witness Assistance Program

District Attorney for the Cape & Islands

Barnstable, Massachusetts:

J. Thomas Kirkman

Chief, Domestic Violence Unit

Essex County District Attorney’s Office

Salem, Massachusetts:

Mary Alice Doyle

Assistant District Attorney

Hampden County District Attorney’s Office

Springfield, Massachusetts:

Maria F. Rodriguez

Assistant District Attorney

Chief, Family Protection Bureau

Middlesex County District Attorney’s Office

Cambridge, Massachusetts:

Beth Merachnik

Director, Domestic Violence Unit

Norfolk County District Attorney’s Office

Dedham, Massachusetts:

Jeanmarie Carroll

Chief, Domestic Violence Unit

Northwestern District Attorney’s Office

Greenfield, Massachusetts:

Laurie McLeod

Assistant District Attorney

Plymouth County District Attorney’s Office

Brockton, Massachusetts:

Sheila M. Calkins

Chief, Family Protection Unit

Suffolk County District Attorney’s Office

Boston, Massachusetts:

Andrea Cabral

Chief, Domestic Violence Unit

Worcester County District Attorney’s Office

Worcester, Massachusetts:

Anthony J. Pellegrini

Director, Victim-Witness Assistance Program

MDAA PROSECUTORS’ MANUAL: DOMESTIC VIOLENCE & SEXUAL ASSAULT, THIRD EDITION1

1.FOUNDATIONS

1.1.BACKGROUND INFORMATION ON DOMESTIC VIOLENCE & SEXUAL ASSAULT

1.1.1.A Brief History of Rape Law

1.1.2.A Brief History of Domestic Violence Law

1.1.2.1.Early History

1.1.2.2.Modern Reform Efforts

1.1.3.The Scope and Impact of Domestic Violence

1.1.4.The Scope and Impact of Sexual Assault

1.1.5.The Dynamics of Abusive Relationships

1.1.5.1.The Backgrounds of Abusers

1.1.5.2.Behavior Patterns of Abusers and Victims

1.1.6.The Cycle of Violence Theory and the Power and Control Wheel

1.2.BACKGROUND INFORMATION ON RESTRAINING ORDERS

1.2.1.The Nature and Purpose of Restraining Orders

1.2.2.Standards Governing c. 209A Hearings

1.2.2.1.Due Process Considerations: The Rights of the Defendant

1.2.2.2.Assistance and Support for Plaintiffs and Advocates

1.2.2.3.Procedural Rules

1.2.3.Emergency Orders

1.2.4.Ex Parte Hearings

1.2.5.Ex Parte Orders

1.2.6.Hearings After Notice (“10 Day Hearings”)

1.2.7.Orders After Notice

1.2.8.Violations of 209(A): Criminal Proceedings

1.2.9.Violations of 209(A): Civil Contempt

1.2.10.Related Court Proceedings

1.2.11.Summary of the Ten Sections of ch.209A

1.3.BACKGROUND INFORMATION ON STALKING AND CRIMINAL HARASSMENT

1.3.1.Stalking

1.3.1.1.The Nature, Scope, and Impact of Stalking

1.3.1.2.Stalking Typologies and Pathologies

1.3.1.3.Lethality Assessment in Stalking Cases

1.3.1.4.Stalking Offender Information Form and Incident Log

1.3.1.5.Proving a Stalking Case

1.3.2.Criminal Harassment

1.3.3.An Act Relative to Harassment Prevention Orders

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

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

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

1.5.DOMESTIC VIOLENCE & SEXUAL ASSAULT STATUTES: ELEMENTS, PENALTIES, and SELECTED ANNOTATIONS

1.6.PROCEDURAL STATUTES AND ISSUES

1.6.1.Jurisdiction

1.6.2.Statutes of Limitation

1.6.3.Venue

1.6.4.Related Federal Statutes

1.6.4.1.Federal Domestic Violence Offenses

1.6.4.2.Federal Firearms Disability Provisions

1.6.4.3.Federal Offense of Kidnapping

2.VICTIM ADVOCACY

2.1.YOUR RELATIONSHIP WITH THE ADVOCATE

2.1.1.Developing the Partnership

2.1.2.Preventing Discovery Conflicts

2.2.YOUR RELATIONSHIP WITH THE VICTIM

2.3.VICTIM RIGHTS

2.3.1.Victim Compensation

2.3.2.The Victim Bill of Rights

2.3.3.Summary for Victims and Witnesses

2.4.ADDRESSING VICTIMS’ RELUCTANCE TO PROSECUTE

2.5.RAPE CRISIS CENTERS AND DOMESTIC VIOLENCE SHELTERS

2.5.1.Rape Crisis Centers and Counselors

2.5.2.Domestic Violence Shelters and Advocates

2.6.FACTUALLY SPECIFIC VICTIM ISSUES

2.6.1.The Abuser is Employed in the Criminal Justice System

2.6.2.Children as Witnesses

2.6.2.1.The Impact on Children of Witnessing Violence

2.6.2.2.Interviewing Child Witnesses

2.6.2.3.Assessing Whether to Ask a Child Witness to Testify

2.6.3.Cross Cultural Issues: Race, Ethnicity, and Class

2.6.4.Victims with Disabilities

2.6.5.Elderly Victims

2.6.6.Gay/Lesbian/Bisexual/Transgender Issues (GLBT): GLBT Battering and Rape

2.6.7.Immigrant Victims and/or Abusers and U Visas for Victims

2.6.8.Incest

2.6.9.Marital Rape/ Partner Rape

2.6.10.Religion and Faith Issues for Victims

2.6.11.Teenage/Youth Victims

2.7.SAFETY PLANNING

2.7.1.Introduction

2.7.2.Risk Assessment

2.7.3.Safety Planning

3.ASSESSMENT & INVESTIGATION

3.1.OVERALL STRATEGY

3.2.INITIAL REVIEW AND ACTION

3.2.1.Urgent Tasks to be Done Immediately

3.2.2.Assess if Additional Police Work is Needed

3.3.INTERVIEW THE VICTIM

3.3.1.Establish a rapport

3.3.2.Gather information

3.3.3.Stress the Need for Candor and Clarity

3.3.4.View the Scene Together

3.3.5.Inform the Victim About the Process and Assess her Safety

3.4.REVIEW THE PERPETRATOR’S STATEMENT

3.5.ASSESS TECHNICAL AND SCIENTIFIC EVIDENCE

3.5.1.Electronic Evidence (computers, voice mail, pagers)

3.5.1.1.Background Information

3.5.1.2.The Prosecutor’s Initial (Timely) Responsibilities

3.5.1.3.Obtaining Computers and Records Stored by the Computer’s Owner

3.5.1.4.Compelling Records from Electronic Communication Service Providers (ISPs, Telephone Companies, and Paging Services)

3.5.1.5.Compelling Records from Cable Companies

3.5.1.6.Summary of Processes to Compel Disclosure

3.5.1.7.Getting Electronic Records Admitted in Court

3.5.1.8.Sample Language for Subpoenas, Orders and Search Warrants

3.5.1.9.Where to Go For Further Assistance

3.5.2.Sexual Assault Evidence Collection Kits (“Rape Kits”) and the SANE (Sexual Assault Nurse Examiner) Program

3.5.2.1.The Development and Purpose of the Kits

3.5.2.2.The Kit Exam Protocol

3.5.2.3.Using the Kit in Court

3.5.3.Toxicology Testing for Drug Facilitated Sexual Assaults

3.5.3.1.Background Information

3.5.3.2.Investigation Issues

3.5.3.3.Trial Issues

3.5.3.4.Where to go for Further Assistance

3.6.ASSESS ALL OTHER PHYSICAL EVIDENCE

3.7.ASSESS ALL POTENTIAL WITNESSES

3.7.1.Who to Look For

3.7.2.Experts

3.7.2.1.Admissibility of Expert Testimony

3.7.2.2.Expert Testimony on Rape Trauma Syndrome

3.7.2.3.Expert Testimony on Battered Women Syndrome

3.8.ASSESS THE BASIS FOR ADMISSIBILITY OF ALL TESTIMONY

3.8.1.Admissions and Implied Admissions

3.8.2.Business Records

3.8.3.Confessions

3.8.4.Consciousness of Guilt Evidence

3.8.5.Certification of Out-of-State Court Orders (e.g. Restraining Orders)

3.8.6.Declarations (by the Victim) of Physical Condition

3.8.7.Declarations as to Mental Condition: “State of Mind”

3.8.8.Descriptions of the Victim’s Appearance and Demeanor

3.8.9.First Complaint

3.8.10.Hostile Relationship Evidence

3.8.11.“Intimidating” Evidence

3.8.12.Learned Treatises

3.8.13.Medical Records/ Medical Opinion

3.8.14.Past Recollection Recorded/ Present Recollection Revived

3.8.15.Present Sense Impression

3.8.16.Prior Bad Acts by the Defendant

3.8.17.Prior Bad Acts by the Victim

3.8.18.Prior Consistent Statements: “Rehabilitation”

3.8.19.Prior Criminal Convictions

3.8.20.Prior Inconsistent Statements: “Impeachment”

3.8.21.Prior Reported Testimony, Declarant Unavailable

3.8.22.Public Records (“Official Written Statements”)

3.8.23.Res Gestae

3.8.24.Spontaneous Utterances (“Excited Utterances/ Exclamations”)

3.8.25.Voice Identification Testimony

3.8.26.Forfeiture By Wrongdoing Doctrine

4.INITIATING THE PROSECUTION

4.1.RESOLVE DUAL ARRESTS AND DUAL RESTRAINING ORDERS

4.1.1.Standards for Mutual Restraining Orders

4.1.2.Discerning the Dominant Aggressor

4.1.3.Legal Standards Regarding Self-Defense

4.1.4.If Necessary, Nolle Pros

4.2.THE CHARGING DECISION

4.2.1.Scrutinize the complaint for errors.

4.2.2.Check for the defendant’s status as a juvenile or potential “youthful offender.”

4.2.3.Charge all Prior Violence Within the Statute of Limitation

4.3.BAIL/ PRETRIAL DETENTION

4.3.1.Arguments for Bail

4.3.2.Dangerousness Hearings Pursuant to Chapter 276 § 58A

4.3.3.Revocation of Defendant’s Bail if Arrested While on Release

4.3.4.Insure the Defendant is Given Written Notices

4.3.5.Insure the Victim is Informed of Bail/ Detention/Conditions

4.4.PROBABLE CAUSE HEARING and GRAND JURY PRACTICE

4.5.NO DISMISSAL OVER COMMONWEALTH’S OBJECTION

5.DISCOVERY

5.1.WHAT YOU ARE ENTITLED TO FROM THE DEFENSE

5.1.1.Rules Regarding Reciprocity and Notice Requirements

5.1.2.File the Certificate of Compliance

5.2.WHAT TO PROVIDE THE DEFENSE AS A MATTER OF ROUTINE

5.3.POTENTIALLY CONTESTED DISCOVERY ISSUES

5.3.1.Lost or Destroyed Evidence

5.3.2.Notes of Interviews

5.3.3.“Prior False Allegations:” Bohannon

5.3.4.Victim’s Sexual Conduct (Rape Shield Law)

5.4.ACCESS TO PRIVILEGED RECORDS AND COMMUNICATIONS

5.4.1.Spousal Privilege

5.4.2.Spousal Disqualification (Private Conversations)

5.4.3.Professional Privileges

5.4.4.Judicial Clarification of the Statutory Confidential Communication Privileges

5.4.4.1.The Past: A Brief History of the Bishop - Fuller Process

5.4.4.2.The Present: Bishop-Fuller Replaced with the Dwyer Protocol

6.MOTIONS

6.1.TACTICS

6.2.MOTIONS REGARDING BAIL OR PRE-TRIAL DETENTION

6.2.1.Motion for Order of c. 276 s. 58A Pretrial Detention

6.2.2.Motion to Continue c. 276 s. 58A Pre-trial Detention Hearing

6.2.3.Motion to Continue Defendant’s Detention Under c. 276 §58A Pre-trial Detention Hearing

6.2.4.Motion for Proposed Conditions of Release under M.G.L. c. 276, §42A

6.2.5.Motion to Revoke Bail

6.2.6.Motion to Exclude Time from that Attributed to the c. 276, §58A Pretrial Detention Order

6.2.7.Motion to Revoke Defendant’s c.276,§58A Release

6.3.MOTIONS REGARDING DISCOVERY

6.3.1.Notice to Defense to Provide Automatic Reciprocal Discovery

6.3.2.Certificate of Compliance

6.3.3.Motion for Reciprocal Discovery of Material and Relevant Evidence

6.3.4.Motion for Protective Order

6.4.OTHER PROCEDURAL MOTIONS

6.4.1.Motion for Joinder (and Accompanying Memorandum of Law)

6.4.2.Motion for Victim and/or Witness Confidentiality (and Accompanying Affidavit)

6.4.3.Motion to Conduct a Voir Dire Regarding Defendant’s Character/Reputation Evidence

6.5.MOTIONS TO ADMIT EVIDENCE

6.5.1.Motion to Admit Evidence of Defendant’s Prior Bad Acts and Hostile Relationship (and Accompanying Memorandum of Law)

6.5.2.Motion to Admit Expert Witness Testimony of Battered Woman Syndrome

6.5.3.Motion to Admit Expert Witness Testimony of Rape Trauma Syndrome