What is the primary factor that differentiates indecent assault and battery under age 14?

The primary factor that differentiates indecent assault and battery involving a child under age 14 is that the child cannot consent. In criminal law, particularly in sexual offenses involving minors, the law recognizes that individuals below a certain age lack the legal capacity to provide consent to sexual acts. This principle is grounded in the need to protect children from exploitation and abuse. Thus, if an act is performed on a child under 14, it is inherently deemed unlawful and non-consensual, regardless of the circumstances surrounding the act.

This factor is critical in establishing the nature of the offense and influences how the law treats the actions of the perpetrator. The inability to consent speaks directly to the exploitation of a minor's vulnerability and the responsibility of adults to safeguard their well-being. Other factors like the age of the suspect, the presence of nudity, or the presence of witnesses do not fundamentally change the nature of the offense in terms of consent and victim protection.