When Does Unwanted Contact Become Harassment Under Massachusetts Law?

By Attorney Joe Serpa | Georgetown University Law Center | Massachusetts Criminal Defense Since 1995

August 2026

A judge issues a harassment prevention order under G.L. c. 258E only on proof of a specific statutory definition of harassment. The Appeals Court has said outright that the statutory definition is much more exacting than the everyday meaning of the word. Unwelcome, uncomfortable, or offensive conduct is not enough. For anyone who has been served with a 258E application in a Massachusetts District Court, the defense begins with holding the plaintiff to every element of that definition.

The Statutory Standard: What “Harassment” Means Under G.L. c. 258E

G.L. c. 258E, § 1 gives harassment two alternative definitions. The first requires a pattern: three or more acts of willful and malicious conduct aimed at a specific person, committed with the intent to cause fear, intimidation, abuse or damage to property. The acts as a whole must also in fact cause one of those harms. The second requires a single act. It covers an act that by force, threat or duress causes another person to involuntarily engage in sexual relations, and an act that violates one of the criminal statutes listed in the definition.

The listed offenses are the indecent assault and battery offenses, the rape offenses, assault with intent to commit rape, enticement of a child under 16, drugging for sexual intercourse, stalking under G.L. c. 265, § 43, and criminal harassment under G.L. c. 265, § 43A. Simple assault and simple assault and battery are not on the list.

In the vast majority of civil 258E cases, the plaintiff proceeds under the three-act definition. That definition imposes independent requirements on each alleged act.

• The act must have been willful, meaning intentional rather than accidental
• The act must have been malicious, which the statute defines as “characterized by cruelty, hostility or revenge”
• The act must have been aimed at the plaintiff specifically. An act routed through other people can qualify where its object was the plaintiff
• The act must have been committed with the intent to cause fear, intimidation, abuse or damage to property
• The course of conduct as a whole must in fact have caused fear, intimidation, abuse or damage to property

The Supreme Judicial Court has narrowed the fear element even further. The word “fear” in the statute means fear of physical harm or fear of physical damage to property. O’Brien v. Borowski, 461 Mass. 415, 427 (2012), abrogated on other grounds by Seney v. Morhy, 467 Mass. 58 (2014). Fear of embarrassment, economic loss, or unfavorable publicity falls outside the statute. A plaintiff who can identify three unwelcome interactions but cannot establish every element for each one cannot obtain a 258E order under the three-act definition.

A G.L. c. 209A abuse prevention order requires a family, household, or dating relationship and is the order judges issue in domestic violence matters. The Legislature enacted c. 258E in 2010 to cover everyone else, so neighbors, coworkers, strangers, and social media followers can all be 258E defendants. That breadth is exactly why the courts police the elements so carefully.

The Controlling Cases: O’Brien, Gassman, Seney, and Van Liew

O’Brien v. Borowski, 461 Mass. 415 (2012): Malice Means Cruelty, Hostility, or Revenge, Not Just Unwelcomeness

The Supreme Judicial Court’s 2012 decision in O’Brien v. Borowski is the foundational 258E decision. The SJC explained that the three-act definition contains two layers of intent. The acts must be willful and malicious, with malicious defined by the statute as characterized by cruelty, hostility or revenge. The acts must also be committed with the intent to cause fear, intimidation, abuse or damage to property. Conduct that is merely unwelcome or offensive satisfies neither layer. On the record before it, the Court directed that the order be vacated.

O’Brien also explained how the proof works. The plaintiff must prove the intent elements for each of the three acts, one act at a time. The effect element works differently: the fact finder measures fear, intimidation, abuse, or property damage from the cumulative pattern of harassment rather than act by act. A course of conduct can cause a fear that no single act would cause on its own.

O’Brien then gave the statute a constitutional limiting construction. Where the alleged acts are speech rather than physical conduct, the meaning of harassment is confined to constitutionally unprotected speech, principally fighting words and true threats. O’Brien, 461 Mass. at 425. Fighting words are direct personal insults addressed to a person that are inherently likely to provoke violence. O’Brien, 461 Mass. at 423. The Supreme Judicial Court has also applied a third unprotected category, speech integral to criminal conduct, in the harassment context. Commonwealth v. Johnson, 470 Mass. 300 (2014).

The practical implication of O’Brien is significant. A neighbor who files a noise complaint, a landlord who pursues eviction, and a business competitor who sends aggressive but lawful correspondence may all be engaging in conduct the other party finds unwelcome. None of that is malicious conduct under O’Brien unless it is characterized by cruelty, hostility, or revenge and is intended to place the person in fear of physical harm or property damage.

Unwelcomeness, standing alone, is not malice, and annoyance, standing alone, is not fear. The Appeals Court has held that persistence alone does not establish harassment either. R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019).

What a True Threat Requires After Counterman

In Counterman v. Colorado, 600 U.S. 66 (2023), the United States Supreme Court held that the First Amendment requires proof of the speaker’s mental state in a true threats case. The speaker must have had some subjective understanding of the statements’ threatening nature. Recklessness is the minimum: the speaker was aware that others could regard the statements as threatening violence and delivered them anyway. Whether a statement is a threat at all is still judged by what it conveys to the person on the receiving end.

Counterman decided a criminal case. The Supreme Judicial Court applied its recklessness requirement to a prosecution for threatening to commit a crime in Commonwealth v. Cruz, 495 Mass. 110, 111 (2024). Whether the same requirement governs a civil 258E hearing is an open question in the published Massachusetts decisions. A defendant whose alleged acts are speech should argue that it does, because O’Brien confined civil harassment to constitutionally unprotected speech, and the constitutional definition of a true threat now includes the speaker’s mental state.

The threat must also be the right kind of threat. A true threat under c. 258E must be intended to cause fear of physical harm or fear of physical damage to property, and it must in fact cause that fear. Kareem K. v. Ida I., 100 Mass. App. Ct. 902 (2022). A promise to inflict reputational damage is a different thing from a threat of physical harm, and the statute addresses the second.

Gassman v. Reason, 90 Mass. App. Ct. 1 (2016): An Exacting Definition, and Fear Measured Subjectively

The Appeals Court’s decision in Gassman v. Reason involved feuding neighbors and complaints about piano playing. The court vacated the extension of a 258E order and restated how demanding the statute is: the term has “a definition much more exacting than common usage.” Gassman, 90 Mass. App. Ct. at 8. The plaintiff bears the burden of proving that each of the three qualifying acts was maliciously intended, a rule that comes from O’Brien itself. O’Brien, 461 Mass. at 427.

Under the three-act definition there is no reasonable person test for the plaintiff’s fear. The question is whether this plaintiff was in fact placed in fear. Gassman, 90 Mass. App. Ct. at 7. That rule belongs to the three-act definition alone. A petition that proceeds under the single-act definition through criminal harassment imports an objective element, because G.L. c. 265, § 43A requires conduct that would cause a reasonable person to suffer substantial emotional distress. A.S.R. v. A.K.A., 92 Mass. App. Ct. 270 (2017).

Subjective fear cannot substitute for proof of the defendant’s intent, however, so a plaintiff who genuinely feels afraid still loses without evidence that the defendant intended to cause fear, intimidation, abuse, or property damage. In Gassman itself, repeated noise complaints to the police and one unsuccessful application for an assault and battery complaint at a clerk-magistrate hearing were not acts of harassment. The court found no evidence of any intent to harm.

Seney v. Morhy, 467 Mass. 58 (2014): Each Act Must Be Aimed at the Plaintiff, and Three Acts Means Three

In Seney v. Morhy, a dispute between a youth baseball parent and an assistant coach, the SJC vacated a 258E order for insufficient evidence. The defendant’s email to the head coach, which described the plaintiff in unflattering terms, failed on two independent grounds: it was not directed at the plaintiff, and it was not motivated by cruelty, hostility, or revenge. Even accepting that a telephone threat relayed through the head coach could qualify, the plaintiff could not assemble three qualifying acts.

Seney depended on its record. The controlling question in these cases is the defendant’s object. In Commonwealth v. Johnson, 470 Mass. 300 (2014), false Craigslist postings that sent strangers to the victims’ home at all hours counted as acts directed at the victims, because the sole immediate object of the postings was to produce exactly that harassment. An act routed through other people can therefore be aimed at the plaintiff. An act whose object was the third party, like the email in Seney, is not.

The count matters as well. A plaintiff who fears more unwelcome interactions must still prove three completed qualifying acts, and generalized worry about what a defendant might do next cannot substitute for past conduct that caused fear or intimidation.

Seney also confirmed that an appeal is decided on its merits even after the order expires, because a wrongly issued order continues to stigmatize the person named in it. Vacatur has a further consequence. Where a judge vacates a harassment prevention order, G.L. c. 258E, § 9 requires law enforcement to destroy all record of the order, a subject covered in the post on the record treatment of 209A and 258E protective orders.

Van Liew v. Stansfield, 474 Mass. 31 (2016): Speech on Matters of Public Concern Is Not Harassment

Van Liew arose out of a municipal election dispute, and it came to the SJC on a special motion to dismiss under the anti-SLAPP statute, G.L. c. 231, § 59H, after a local official sought a 258E order against a political critic. The Court held that the challenged statements were political speech at the core of the First Amendment’s protection.

They were neither fighting words nor true threats, and at most amounted to political hyperbole. The Court assumed without deciding that one statement, “I’m coming after you,” could have qualified, and the application still described no valid basis for an order.

Even a phone call in which the critic loudly called the official wrong, uneducated, or stupid did not qualify. Insults of that kind are not inherently likely to provoke violence, and they threaten nothing. Van Liew adds one more point for a person wrongly named in a 258E application: where the application was improper petitioning, the costs of defending against it, once proved, are evidence of recoverable damages in an anti-SLAPP action.

The One Year Limit and the Extension Hearing

G.L. c. 258E, § 3 limits any relief granted by the court to one year. Section 3 requires every order to state, on its face, the time and date it expires and the date and time the matter will be heard again. If the plaintiff appears at the expiration date, the judge determines whether to extend the order for any additional time reasonably necessary to protect the plaintiff, or to enter a permanent order.

The extension hearing has its own standard. The plaintiff must prove, by a preponderance of the evidence, that an extension is reasonably necessary to protect the plaintiff from further harassment. Danny D. v. Eli E., 102 Mass. App. Ct. 901 (2023).

The plaintiff does not prove the original three acts a second time. Where the original order issued after a hearing with notice, the defendant may not challenge the evidence underlying it either. Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252, 259 (2022). An ex parte order has no such effect, so the first hearing after notice remains the place to contest the underlying allegations.

Section 3 also provides that the absence of harassment while an order was in effect is not, by itself, sufficient ground to deny an extension. A defendant cannot rely on a quiet year alone. The plaintiff’s burden remains real all the same. A judge’s discretion to extend is not so broad as to eliminate the plaintiff’s evidentiary burden, and arguments of counsel are not evidence. Danny D., 102 Mass. App. Ct. 901 (2023).

The evidence that bears on continued need includes prior violations of protective orders, ongoing litigation likely to engender hostility, and the parties’ demeanor in court. It also includes the likelihood that the parties will encounter one another in their usual activities, and significant changes in their circumstances. Yasmin Y., 101 Mass. App. Ct. 252 (2022). The Appeals Court reviews an extension for abuse of discretion or other error of law. Wilhelmina W. v. Uri U., 102 Mass. App. Ct. 634, 637 (2023).

A defendant who did not appeal the original order keeps the right to appeal an extension. Gassman, 90 Mass. App. Ct. 1 (2016). The extension hearing is nevertheless not a second chance to try the original case. The defense at an extension hearing is directed at continued need: what has happened since the order issued, what has changed, and whether the plaintiff’s evidence establishes a present need for protection from harassment.

Public Figures and Public Criticism

The protection for critics, commentators, and audiences of public people comes from two doctrines that apply in every case and do the most work when the plaintiff lives a public life.

The first is the constitutional limit from O’Brien and Van Liew. Speech about a person, however harsh, is an act of harassment only if it is constitutionally unprotected, principally a true threat or fighting words. Commentary, criticism, and accusations on matters of public concern are protected.

The second is the narrowed fear element. The statute addresses fear of physical harm or physical damage to property, and the SJC has said that fear of economic loss, of unfavorable publicity, or of defeat at the ballot box falls outside it. O’Brien, 461 Mass. at 427.

A public figure who is stalked, physically threatened, or subjected to a campaign of true threats is entitled to the same protection as any other plaintiff, on the same proof. The elements do not change in either direction.

What Crosses the Line

The analysis above is not an argument that 258E orders should never issue. The statute addresses genuine harm. Conduct that satisfies the standard under O’Brien, Seney, and Gassman includes the following.

• Repeated threatening communications, meaning emails, texts, or messages that convey explicit or implied threats of physical harm. True threats are exactly what the statute covers
• Showing up at the plaintiff’s home or workplace uninvited after being told to stop, in circumstances that communicate a threat of harm
• Targeted online campaigns built on threats or menace, designed to place the plaintiff in fear for personal safety
• Following or surveilling the plaintiff in physical space over time, conduct that also risks a stalking charge under G.L. c. 265, § 43
• Contacting the plaintiff’s family members, friends, or employer in a manner intended to intimidate the plaintiff or place the plaintiff in fear
• Any single enumerated offense, most commonly criminal harassment under G.L. c. 265, § 43A or stalking under G.L. c. 265, § 43

The criminal harassment statute was amended in 2024. Chapter 118 of the Acts of 2024 amended G.L. c. 265, § 43A to address abuse accomplished through digitization, including computer-generated deepfake imagery. I covered that amendment in my post on the Massachusetts revenge porn law. A single act violating § 43A can support a 258E order under the single-act definition.

The distinguishing feature of all of these is the combination of cruelty, hostility, or revenge, an intent to place a specific person in fear, and conduct that causes fear of physical harm or property damage. Attention, however intense or unwelcome, is different from targeted harassment.

The Criminal Statute Behind the Civil Standard

The three-act architecture of 258E has a criminal counterpart. Criminal harassment under G.L. c. 265, § 43A(a) requires proof beyond a reasonable doubt of a knowing pattern of conduct or series of acts on at least three separate occasions. The defendant must have intended to target the victim on each occasion.

The conduct must have seriously alarmed the victim, and it must have been of a kind that would cause a reasonable person to suffer substantial emotional distress. The defendant must have acted willfully and maliciously. Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). Commonwealth v. Welch, 444 Mass. 80 (2005), fixed the three-incident minimum.

The penalties are set by the statute. A first offense is punishable by up to two and one half years in a house of correction, a fine of up to $5,000, or both. G.L. c. 265, § 43A(a). A second or subsequent offense is punishable by up to two and one half years in a house of correction or up to ten years in state prison, by a fine of up to $15,000, or by both. G.L. c. 265, § 43A(c). The same penalties apply to a § 43A offense committed after a stalking conviction.

The complete treatment, from the statute through the defenses, is on our page on criminal harassment defense in Massachusetts, with short answers in our criminal harassment FAQs.

The constitutional limits described above apply with at least equal force to the crime. Commonwealth v. Bigelow, 475 Mass. 554 (2016), was a prosecution built on letters about a town selectman’s performance. The Supreme Judicial Court held that where the charged acts are pure speech, the jury must find the speech constitutionally unprotected as a true threat. The Court reversed a conviction where the jury received no such instruction.

The pattern can also be assembled online. In Commonwealth v. Johnson, 470 Mass. 300 (2014), false internet postings that sent strangers to the victims’ home counted as acts of harassment committed through third parties. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), the charged pattern consisted largely of social media postings about the complainant rather than messages to him.

For a person served with a 258E order, the criminal statutes continue to matter after service. Conduct after service can be charged as a criminal violation of the order under G.L. c. 258E, § 9 and as criminal harassment at the same time, and where a threat is added, the conduct can be charged as stalking under G.L. c. 265, § 43. The moment an application is filed is therefore the moment to stop all contact and speak with counsel, before three acts exist.

If You Have Been Served With a 258E Order

If you have been served with a 258E harassment prevention order application and your first court date is approaching, you have the right to appear at the hearing after notice and contest the order. The hearing is civil, not criminal, so there is no right to a court-appointed attorney. You do have the right to retain counsel, to present evidence, and to challenge the plaintiff’s account. At the end of the order’s term, the plaintiff must prove that an extension is reasonably necessary to protect them from further harassment, under the rules described above.

The most important things to do immediately after service are these.

• Do not contact the plaintiff in any way, not directly, not through a mutual friend, not on social media. The order is enforceable against you once you have been served or otherwise have knowledge of it. Any contact is a criminal violation under G.L. c. 258E, § 9, punishable by up to two and one half years in a house of correction, a fine of up to $5,000, or both, and the violation case moves through the ordinary Massachusetts criminal process
• Preserve all evidence, including every social media communication, every email, every text, and every record of the interactions the plaintiff has characterized as harassment
• Write down your account of every alleged interaction in as much factual detail as possible, while the events are fresh
• Retain counsel before the hearing date

Related Serpa Law Office Resources: Massachusetts 258E Harassment Prevention Orders, Defense and Plaintiff Representation, Defending 209A and 258E Violations in Massachusetts, and Massachusetts 209A Abuse Prevention Orders.

Key Takeaways

• Under G.L. c. 258E, § 1, the three-act definition requires three or more willful and malicious acts aimed at a specific person, each committed with the intent to cause fear, intimidation, abuse or damage to property, and the course of conduct must in fact cause one of those harms
• Malice under the statute and O’Brien v. Borowski, 461 Mass. 415 (2012) means conduct characterized by cruelty, hostility, or revenge. Unwelcomeness, even genuine unwelcomeness, is not malice, and persistence alone is not harassment. R.S. v. A.P.B., 95 Mass. App. Ct. 372, 376 (2019)
• Where the alleged acts are speech, they must be constitutionally unprotected, principally true threats or fighting words. After Counterman v. Colorado, 600 U.S. 66 (2023), a true threat requires at a minimum the speaker’s recklessness about how the statement would be received
• The fear the statute addresses is fear of physical harm or physical damage to property. Under the three-act definition the fear is measured subjectively, with no reasonable person test, but a petition routed through G.L. c. 265, § 43A is subject to that statute’s objective element. Gassman v. Reason, 90 Mass. App. Ct. 1, 7 (2016); A.S.R. v. A.K.A., 92 Mass. App. Ct. 270 (2017)
• Each act must be aimed at the plaintiff. Acts routed through third parties count where their object was the plaintiff, and three acts means three. Seney v. Morhy, 467 Mass. 58 (2014); Commonwealth v. Johnson, 470 Mass. 300 (2014)
• An extension requires proof that it is reasonably necessary to protect the plaintiff from further harassment. Neither side retries the original order, and a quiet year alone is not sufficient ground to deny the extension. Danny D. v. Eli E., 102 Mass. App. Ct. 901 (2023); Yasmin Y. v. Queshon Q., 101 Mass. App. Ct. 252 (2022); G.L. c. 258E, § 3.

Contact Serpa Law Office at 617.936.0201 for a free consultation on a 258E matter. The Boston office is at 20 Park Plaza #400A. The Quincy Office is at 500 Victory Road, Suite 400A.