Instruction 6.205, Criminal Model Jury Instructions for Use in the District Court

ASSAULT AND BATTERY TO INTIMIDATE

BASED ON RACE, COLOR, RELIGION, NATIONAL ORIGIN, SEXUAL

ORIENTATION, GENDER IDENTITY, OR DISABILITY

G.L. c. 265, § 39(a)

The defendant is charged with having committed an assault and

battery with the intent to intimidate a person because of that person’s

(read all that apply based on prosecution’s theory of the case: [race] [color]

[national origin] [sexual orientation] [gender identity] [disability]

[religion]).

To prove the defendant guilty, the Commonwealth must prove

four (five) things beyond a reasonable doubt:

First: That the defendant touched the person of [the alleged victim];

Second: That the defendant intended to touch [the alleged victim];

and,

Third: That the touching was either likely to cause bodily harm

to [the alleged victim], or was offensive; and

Fourth: That the defendant intended to intimidate [the alleged victim]

because of that person’s [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion].

Fifth element: If a bodily injury is charged:

And Fifth: That the defendant’s actions resulted in a

bodily injury to [the alleged victim].

To prove the first element, the Commonwealth must prove the

defendant touched [the alleged victim]. A touching is any physical

contact, however slight.

If the touching was indirect. A touching may be direct as when a

person strikes another, or it may be indirect as when a

person sets in motion some force or instrumentality that

strikes another.

To prove the second element, the Commonwealth must prove

that the defendant intended to touch [the alleged victim] in the sense that

the defendant consciously and deliberately intended the touching to

occur, and that the touching was not merely accidental or negligent.

If additional language on intent is appropriate. The Commonwealth

is not required to prove that the defendant specifically

intended to cause injury to [the alleged victim] .

Where there is evidence that the touching may be justified by a legally recognized “right”

or “excuse,” the jury should be instructed with the specific “right” or “excuse” instructions

(e.g., accident (9.100); necessity (9.240); self-defense (9.260). See Commonwealth v.

Wood, 90 Mass. App. Ct. 271, 286-86 (2016) (where evidence did not raise a claim of

right or excuse, the jury need not consider whether the touching was without right or

excuse); Commonwealth v. Conley, 34 Mass. App. Ct. 50, 58 (1993) (where no evidence

of self-defense, jury need not be instructed that right or excuse may justify the touching).

To prove the third element, the Commonwealth must prove

that the touching was either likely to cause bodily harm to [the

alleged victim] , or was offensive. A touching is offensive when it

is without consent.

Commonwealth v. Burke, 390 Mass. 480, 484 (1983) (in a prosecution for a nonharmful

battery, the Commonwealth must prove that the touching was nonconsensual);

Commonwealth v. Colon, 81 Mass. App. Ct. 8, 20-21 (2011) (offensive battery requires

proof that the defendant intentionally touched the victim and that the touching, however

slight, occurred without the victim’s consent); Commonwealth v. Hartnett, 72 Mass. App.

Ct. 467, 477 (2008) (“what makes the touching offensive is not that it is an affront to the

victim's personal integrity as the defendant posits, but only that the victim did not consent

to it. Nothing more is required.”)

To prove the fourth element, the Commonwealth must prove

that, at the time of the assault and battery, the defendant intended to

intimidate [the alleged victim] because of that person’s perceived or

actual [race] [color] [national origin] [sexual orientation] [gender

identity] [disability] [religion]. To intimidate means to make timid or

fearful with acts or words that would instill fear in a reasonable

person. While the Commonwealth must prove the defendant intended

to intimidate [the alleged victim] because of that person’s perceived or

actual [race] [color] [national origin] [sexual orientation] [gender

identity] [disability] [religion], it is not required to prove that the

defendant was successful in intimidating [the alleged victim].

See Commonwealth v. Perez, 460 Mass. 683, 703 (2011); Commonwealth v. Rivera, 76

Mass. App. Ct. 530, 535 (2010); Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 490-

491 (1998).

The perceived or actual [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion] of [the alleged victim]

need not be the only motivating factor, but it must be one of the

factors that led to the commission of the crime. In other words, the

assault and battery must be motivated at least in part by hatred, bias,

or prejudice due to the [race] [color] [national origin] [sexual

orientation] [gender identity] [disability] [religion] of [the alleged victim].

See Commonwealth v. Kelly, 470 Mass. 682, 690-691 (2015).

[The judge may continue here or choose to use the extended instruction on specific intent

in model instruction 3.120. If the Commonwealth is pursuing both theories, the judge

may avoid repetition by reminding jurors that the instruction on intent just given applies

equally here.]

The allegation that the defendant intended to intimidate [the

alleged victim] on this basis requires you to make a decision about the

defendant’s state of mind at that time. You may consider any

evidence about the actions or words of the defendant, and all of the

surrounding circumstances, to help you determine whether the

defendant intended to intimidate [the alleged victim] due to their [race]

[color] [national origin] [sexual orientation] [gender identity]

[disability] [religion].

Commonwealth v. Barnette, 45 Mass. App. Ct. 486, 490 (1998).

Fifth element: If a bodily injury is charged:

To prove the fifth element, the Commonwealth must

prove beyond a reasonable doubt that the defendant’s

actions resulted in a bodily injury to [the alleged victim]. Under

the law, a bodily injury is a substantial impairment of the

physical condition. It is an injury to any body part that

considerably or significantly compromises its usual bodily

function such as, but not limited to: (a burn) (a fracture of

any bone) (a subdural hematoma) (injury to any internal

organ) (any injury which occurs as a result of repeated

harm to any bodily function or organ, including human

skin).

SUPPLEMENTAL INSTRUCTIONS

1. Disability. The term “disability” means (a) a physical or

mental impairment which substantially limits one or more

major life activities of a person; (b) a record of having such

impairment; or (c) being regarded as having such

impairment.

The term “impairment” does not include current, illegal use of alcohol or a controlled

substance as defined in section one of chapter ninety-four C. See G.L. c. 265, § 39(a),

referring to G.L. c. 151B, § 1(17).

2. Gender identity. The term “gender identity” means a

person's gender-related identity, appearance or behavior,

whether or not that gender-related identity, appearance or

behavior is different from that traditionally associated with

the person's physiology or assigned sex at birth.

See G.L. c. 4, § 7 ¶ 59.

3. Sexual orientation. The term “sexual orientation” means

having an orientation for or being identified as having an

orientation for heterosexuality, bisexuality or

homosexuality.

See G.L. c. 112, § 275.

4. Race. Under the law, in the context of racial

discrimination, the term race refers to traits historically

associated with race, including, but not limited to, hair

texture, hair type, hair length and protective hairstyles,

such as braids, locks, twists, Bantu knots, hair coverings

and other formations.

See G.L. c. 4, § 7 ¶ 62, 63.

Conclusion

If the Commonwealth has proved all of the elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of these elements

beyond a reasonable doubt, you must find the defendant not guilty.