Instruction 6.270, Criminal Model Jury Instructions for Use in the District Court

ASSAULT ON FAMILY OR HOUSEHOLD MEMBER

G.L. c. 265, § 13M

The defendant is charged with having committed an assault upon a

family or household member, namely [alleged victim] . An assault may be

committed in either of two ways. It is either an attempted battery or an

immediately threatened battery. A battery is a harmful or an unpermitted

touching of another person. So an assault can be either an attempt to use

some degree of physical force on another person — for example, by

throwing a punch at someone — or it can be a demonstration of an

apparent intent to use immediate force on another person — for example,

by coming at someone with fists flying. The defendant may be convicted of

assault if the Commonwealth proves either form of assault.

In order to establish the first form of assault — an attempted battery

— the Commonwealth must prove beyond a reasonable doubt that the

defendant intended to commit a battery — that is, a harmful or an

unpermitted touching — upon [alleged victim] , took some overt step

toward accomplishing that intent, and came reasonably close to doing so.

With this form of assault, it is not necessary for the Commonwealth to

show that [alleged victim] was put in fear or was even aware of the

attempted battery.

In order to prove the second form of assault — an imminently

threatened battery — the Commonwealth must prove beyond a reasonable

doubt that the defendant intended to put [alleged victim] in fear of an

imminent battery, and engaged in some conduct toward [alleged victim]

which [alleged victim] reasonably perceived as imminently threatening a

battery.

In either case, the Commonwealth must prove that the defendant and

[alleged victim] were family or household members.

Under the law, two persons are “family or household members” if

(they are or were married to each other)

(they have a child in common)

(they are or have been in a “substantive dating relationship.” To

determine whether they were in a “substantive dating relationship,” you

should consider (1) the length of time of the relationship; (2) the type of

relationship; (3) the frequency of interaction between the defendant and;

[alleged victim] ; and [if applicable] (4) the length of time that has elapsed since

the termination of the relationship. A relationship need not be exclusive or

committed to be a substantive dating relationship.)

“The existence of a ‘substantive dating relationship’ is to be determ ined as a case-by-case basis.”

C.O. v. M.M., 442 Mass. 648, 651 (2004). Especially where m inors are involved, a “substantive dating

relationship” m ay be conducted electronically. E.C.O. v. Compton, 464 Mass. 558, 564-565 (2013).

Accordingly, three m onths of regular electronic com m unication between a m inor and an adult that

included intim ate conversation and a m utual desire to engage in sexual relations could constitute a

“substantive dating relationship.” Id. at 564. By contrast, the statute does not “apply to acquaintance

or stranger violence,” and a single date at the cinem a is insufficient to support a finding of a

“substantive dating relationship.” C.O., 442 Mass. at 653-654. A relationship need not be exclusive

or “com m itted” to be a “substantive dating relationship.” Brossard v. W est Roxbury Div. of the Dist.

Ct. Dep’t, 417 Mass. 183, 185 (1994). Ultim ately, the courts “recognize[] the need for flexibility” in

applying the definition. C.O., 442 Mass. at 652.

Here instruct on Intent (Instruction 3.120), since both branches of assault are specific intent offenses.

If additional language on the first branch of assault is appropriate, see Instruction 4.120 (Attempt).

Commonwealth v. Barbosa, 399 Mass. 841, 845 n.7 (1987) (an assault is “any m anifestation, by a

person, of that person’s present intention to do another im m ediate bodily harm ”); Commonwealth v.

Delgado, 367 Mass. 432, 435-437 & n.3 (1975) (“an act placing another in reasonable apprehension

that force m ay be used is sufficient for the offense of crim inal assault”; words threatening future harm

are insufficient to constitute an assault unless “they put the other in reasonable apprehension of an

im m inent harm ful or offensive contact with his person”) (italics om itted); Commonwealth v. Chambers,

57 Mass. App. Ct. 47, 49 (2003) (threatened-battery branch “requires proof that the defendant has

engaged in objectively m enacing conduct with the intent of causing apprehension of im m ediate bodily

harm on the part of the target”); Commonwealth v. Musgrave, 38 M ass. App. Ct. 519, 524 (1995)

(threatened-battery branch of assault requires specific intent to put victim in fear or apprehension of

im m ediate physical harm ), aff’d, 421 Mass. 610 (1996); Commonwealth v. Spencer, 40 Mass. App.

Ct. 919, 922 (1996) (sam e); Commonwealth v. Enos, 26 M ass. App. Ct. 1006, 1008 (1988)

(necessary intent inferable from defendant’s overt act putting another in reasonable fear, irrespective

of whether defendant intended actual injury); Commonwealth v. Domingue, 18 Mass. App. Ct. 987,

990 (1984) (assault is “an overt act undertaken with the intention of putting another person in fear of

bodily harm and reasonably calculated to do so, whether or not the defendant actually intended to

harm the victim ”). See Commonwealth v. Hurley, 99 Mass. 433, 434 (1868) (assault by joint venture

by intentionally inciting assault by others); Commonwealth v. Joyce, 18 Mass. App. Ct. 417, 421-422,

426-430 (1984) (assault by joint venture).