Massachusetts G.L. c. 265, § 43A: Criminal Harassment; Punishment

Massachusetts General Laws Chapter 265, section 43A, makes it a crime to criminally harass another person. To convict a defendant of the offense of criminal harassment, the Commonwealth must prove, beyond a reasonable doubt, that the following is true:

1. Over a period of time, the defendant engaged in a knowing pattern of conduct or series of acts;
2. The defendant directed his or her pattern of conduct or series of acts at a specific person (the victim);
3. The defendant acted willfully and maliciously in engaging in that pattern of conduct or series of acts;
4. The defendant’s pattern of conduct or series of acts causes serious alarm to the victim; and
5. The defendant’s pattern of conduct or series of acts would cause a reasonable person to suffer substantial emotional distress.

The criminal conduct or acts could occur via mail, e-mail, internet communications, text messages, or instant messages. The defendant might also engage in conduct or acts in person or over the telephone. The conduct or series of acts must have occurred on at least three separate occasions, and the defendant must have intended that the victim know that each incident was directed at him or her.

• G.L. c. 265, § 43 (stalking)
• G.L. c. 209A, § 7 (abuse prevention orders)

A defendant may defend charges of criminal harassment by showing that he did not intend to direct his conduct at the victim, or that he did not intend for the victim to know that the conduct was directed at him or her. For example, if the defendant and the victim happen to shop at the same supermarket, and happen to see each other while they are both shopping, the contact would more likely be merely incidental or accidental than willful and malicious. Additionally, the defendant may use the statute’s requirement of objectivity to show that, even if the victim claimed to be seriously alarmed by the alleged conduct, no reasonable person would react similarly, or would suffer substantial emotional distress, if that reasonable person had been in the victim’s shoes. It may also be a defense to show that the separate alleged incidents were so remote in time from one another that they cannot be considered as part of a “pattern of conduct” or “series of actions.” Finally, if one of the incidents includes the defendant’s constitutionally or statutorily protected speech, that incident cannot be grounds for conviction of criminal harassment. The only speech that G.L. c. 265, § 43A criminalizes is “fighting words.”

For a first-time conviction of criminal harassment, a defendant will face up to two and one-half years in a house of correction, or a fine up to $1,000, or both imprisonment and a fine. Each subsequent conviction of criminal harassment carries a sentence of up to two and one-half years in a house of correction, or up to ten years in state prison.

The facts used to support a charge of criminal harassment are sometimes nothing more than a misunderstanding, and cannot support a conviction for the crime. However, a defendant facing these charges will require a skilled and competent defense lawyer to highlight the deficiencies in the prosecution’s case. Depending on the specific facts, Attorney Stephen Neyman may be able to force the dismissal of the criminal charges early on in the case. Please contact Attorney Neyman today at 617-263-6800 to discuss your case.