Massachusetts Criminal Harassment Defense (M.G.L. c. 265, § 43A)

The core criminal-harassment offense under M.G.L. c. 265, § 43A(a) is a course-of-conduct crime. The Commonwealth must prove a knowing pattern of conduct or series of acts on at least three separate occasions, that the defendant intended to target the person named in the complaint on each occasion, that the pattern seriously alarmed that person, that it would cause a reasonable person substantial emotional distress, and that the defendant acted willfully and maliciously. No single act must be a crime by itself. A first offense is a misdemeanor heard in the District Court or the Boston Municipal Court.

Section 43A covers words, messages, social-media posts, tracking, and other conduct, subject to the First Amendment and the rules governing digital evidence. Many cases begin when a private person applies for a criminal complaint and the court schedules a clerk-magistrate hearing before any complaint or arraignment. This page addresses the § 43A elements, the three-act requirement, malice, serious alarm, constitutional limits, digital evidence, and defense at that hearing. The separate Massachusetts stalking defense page addresses M.G.L. c. 265, § 43, and the criminal harassment FAQs provide shorter answers.

The Statute and the 2024 Amendments

Section 43A contains three lettered subsections.

Subsection (a) defines the core offense. A person who willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress, is guilty of criminal harassment. The subsection expressly covers conduct or acts carried out by mail or by use of a telephonic, telecommunication, or electronic communication device, including electronic mail, internet communications, instant messages, and facsimile communications. A first offense under subsection (a) is punished by imprisonment in a house of correction for not more than two and one half years, a fine of not more than $5,000, or both.

Subsection (b) contains a separate offense for nonconsensual intimate-image distribution, added by 2024 legislation. It does not use the three-act criminal-harassment elements in subsection (a). It applies to knowing distribution of qualifying visual material depicting an identifiable person, without consent to distribution, where the distribution causes the injury or distress specified in the statute and the defendant acted with the required intent or reckless disregard. A first offense is punishable by up to two and one half years in a house of correction, a fine of up to $10,000, or both. Consent to creation of the image is not consent to distribution. The definitions, exemptions, deepfake questions, and victim remedies are treated on the Massachusetts nonconsensual intimate image and revenge porn page and the deepfake and AI-generated intimate image page.

Subsection (c) is the recidivist provision. A person who commits a second or subsequent offense under section 43A, or who commits an offense under section 43A after a prior conviction of stalking under section 43, is punished by imprisonment in a house of correction for not more than two and one half years or in a state prison for not more than 10 years, a fine of not more than $15,000, or both. Subsection (c) converts a misdemeanor into a felony carrying state prison exposure, which is why the disposition of a first charge matters well beyond the immediate case. Jurisdiction follows the maximum punishment the charged offense authorizes rather than the sentence a judge ultimately imposes, so a subsequent offense charged under subsection (c) may be prosecuted in the Superior Court. Commonwealth v. Graham, 388 Mass. 115 (1983).

The Elements the Commonwealth Must Prove

The Supreme Judicial Court has stated the elements of subsection (a) in the same five parts since Commonwealth v. Kulesa, 455 Mass. 447, 452 (2009). The Commonwealth must prove beyond a reasonable doubt that the defendant engaged in a knowing pattern of conduct or speech, or series of acts, on at least three separate occasions; that the defendant intended to target the victim with that conduct on each occasion; that the conduct was of such a nature that it seriously alarmed the victim; that the conduct was of such a nature that it would cause a reasonable person to suffer substantial emotional distress; and that the defendant acted willfully and maliciously. The Court restated the same five elements in Commonwealth v. McDonald, 462 Mass. 236, 240 (2012), and again, at the probable cause stage, in Commonwealth v. Brennan, 481 Mass. 146 (2018). District Court Model Jury Instruction 6.640 (revised February 2026) states them for the jury.

The elements measure different things. The second examines what the defendant intended on each occasion. The third examines the actual effect on the complainant. The fourth measures the same conduct against an objective standard that does not depend on the complainant’s own sensitivity. The fifth examines the defendant’s state of mind across the pattern. A failure of evidence on any one of the five defeats the charge.

The foundation is Commonwealth v. Welch, 444 Mass. 80 (2005). The Court held there that the statutory phrase “pattern of conduct or series of acts” requires the Commonwealth to prove three or more incidents of harassment, and that the requirement that the pattern be directed at a specific person obligates the Commonwealth to establish that the defendant intended to target the victim on at least three occasions. Welch also held that incidents occurring before the statute took effect on October 30, 2000 could not be counted toward the three, although they remained admissible to show intent or motive and to show whether the later incidents caused serious alarm. The convictions in that case were reversed and the complaints ordered dismissed. On a separate point, Welch was later corrected: it had excluded true threats from the constitutional analysis, and O’Brien v. Borowski, 461 Mass. 415, 425 (2012), abrogated that part of the opinion.

The Three Act Requirement

The three acts must be three genuinely separate occasions, and the defendant must have intended to target the complainant on each of them. A single continuous episode does not become three acts by being divided into its parts. The acts need not be of the same kind. A message, a visit, and a posting can each supply an act, and the effect on the complainant is assessed across the pattern as a whole rather than incident by incident. That last point is settled: in Commonwealth v. Johnson, 470 Mass. 300, 314 (2014), the Court held that the statutory wording ties the serious alarm requirement to the overall pattern of conduct, and Brennan applied the same rule at the complaint stage.

Individually lawful conduct can still count. Brennan, 481 Mass. 146, held that concealing a global positioning system device on a person’s vehicle qualifies as an act within section 43A when it is considered together with the other evidence, and that the complainants did not have to know they were being tracked at the time for the conduct to count. The Court reversed an order dismissing the complaint.

The requirement also defeats charges. In Commonwealth v. McDonald, 462 Mass. 236 (2012), the evidence was that the defendant regularly drove a loop on a public street past the complainant’s house, looked at people in their driveways and on their porches, and photographed dogs. The Supreme Judicial Court reversed the conviction and set aside the finding, holding that regularly driving on a public street and looking at people, their dogs, and their gardens cannot by itself support a conviction of a willful and malicious act directed at a specific person. The Court declined to give the word “staring” a sinister meaning without an objective basis in the evidence, such as a description of something particular in the defendant’s facial expression, words, or body language.

Willfulness, Malice, and Legitimate Purpose

The two mental states are defined separately, and the difference decides many of these cases. Willful conduct is conduct that is intentional rather than accidental, and it requires no evil intent, ill will, or malevolence. McDonald, 462 Mass. at 242. A malicious act is an intentional, wrongful act done willfully or intentionally against another without legal justification or excuse. Id. The Appeals Court put the same rule more plainly in Commonwealth v. Lehan, 100 Mass. App. Ct. 246 (2021): malice in this setting need not include hatred, spite, grudge, or ill will, but the acts must have been intentional and without justification or mitigation.

Conduct undertaken for a legitimate purpose is not malicious even when the other person finds it distressing. Serving legal papers, pursuing a lawful debt, reporting suspected code violations, supervising an employee, documenting a boundary dispute, and communicating about shared children are recurring examples. The line between persistence with a lawful purpose and a malicious pattern is the central factual dispute in a large share of these cases, and it is litigated through the surrounding circumstances: what each communication said, what prompted it, what the history between the parties was, and what the defendant stood to gain other than the complainant’s distress.

Serious Alarm and Substantial Emotional Distress

The third and fourth elements are distinct and both are required. The Commonwealth must prove that the complainant was in fact seriously alarmed by the pattern, and separately that a reasonable person in the complainant’s position would suffer substantial emotional distress. Annoyance is not serious alarm, and offense is not substantial distress.

The alarm must also be the complainant’s own. In Commonwealth v. Bigelow, 475 Mass. 554 (2016), one of the two named complainants testified that he was upset by what his wife experienced on receiving anonymous letters. The Supreme Judicial Court held that distress derivative of another person’s distress does not satisfy the statute, because nothing the defendant did appeared to have seriously alarmed that complainant directly. Cross-examination on what the complainant did after each act, whom they told, what they wrote afterward, and how their routine changed is frequently the most productive work in the case, and the method is described on the page devoted to cross-examination in Massachusetts criminal trials.

Harassment by Speech and the First Amendment

When the three acts consist of words rather than conduct, the Constitution narrows the statute considerably. In Welch, 444 Mass. at 99, the Court held that the Legislature intended section 43A to apply solely to constitutionally unprotected speech, and said it would read a narrowing construction into the statute if the Commonwealth ever attempted to prosecute protected speech. O’Brien v. Borowski, 461 Mass. 415, 425 (2012), corrected Welch on one point and confirmed that true threats, and not fighting words alone, may support a section 43A prosecution. Commonwealth v. Johnson, 470 Mass. 300 (2014), added a further category: speech used as an integral part of conduct violating a valid criminal statute receives no First Amendment protection at all.

Two definitions do most of the work. Fighting words are direct personal insults addressed to a person that are inherently likely to provoke violence, and the exception is an extremely narrow one. O’Brien, 461 Mass. at 423. A true threat is a serious expression of an intent to commit an act of unlawful violence against a particular person or group, and the speaker need not intend to carry it out. Virginia v. Black, 538 U.S. 343, 359 (2003). Since Counterman v. Colorado, 600 U.S. 66 (2023), a true threats prosecution also requires the State to prove that the defendant had some subjective understanding of the threatening nature of the statements, and the Supreme Court held that recklessness, meaning conscious disregard of a substantial risk that the words would be viewed as threatening violence, is the standard the First Amendment requires.

Bigelow shows the limits enforced. The defendant sent anonymous letters to a newly elected town selectman and to the selectman’s wife. As to the letters directed at the selectman, the Supreme Judicial Court held that criticism of an elected official’s qualifications for and performance in office is political speech at the core of the First Amendment, reversed that conviction, and ordered the complaint dismissed. As to the letters received by the wife, the Court held that a fact finder could find them to be true threats given their anonymity, their regular intervals, and their delivery to her home, vacated that conviction on other grounds, and remanded for a new trial. The Court stated the general rule in the same opinion: where a section 43A prosecution rests solely on speech, and the speech cannot be held protected as a matter of law, whether it falls within an unprotected category is a question of fact for the fact finder. Bigelow, 475 Mass. at 570 to 571.

The same principles govern the civil side. In Van Liew v. Stansfield, 474 Mass. 31 (2016), the Court held that public accusations that a local planning board member was corrupt and a liar were political speech and could not be acts of harassment under c. 258E. The interaction of the criminal statute, the civil order, and the First Amendment is examined further in the firm’s article on criminal harassment, 258E orders, and the First Amendment.

Online and Electronic Harassment

Most criminal harassment cases now arrive with a digital record: text messages, direct messages, comment threads, reviews, group chats, and public posts. Section 43A(a) covers all of them by its terms.

Johnson settled the harder question. The defendants there posted false online advertisements offering items the complainants supposedly had for sale, which caused strangers to telephone the complainants at all hours and to appear at their home. The Supreme Judicial Court held that the directed at element was satisfied even though the postings were addressed to the public, because the false information existed solely to ensure that the complainants would be harassed by unwitting third parties, and it affirmed the convictions. A person who never sends a single message to the complainant can still accumulate three qualifying acts.

The Appeals Court’s decision in Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), is a current example of the charged conduct: standing in front of the complainant’s car, repeated public social media postings describing the complainant as a child abuser, and postings indicating the defendant’s physical presence in the complainant’s town.

The digital record cuts both ways, and it carries its own defenses. Screenshots must be authenticated, accounts must be attributed to a specific author, and metadata must survive scrutiny. Authentication may rest on circumstantial evidence, including appearance, contents, substance, internal patterns, and other distinctive characteristics, which is how the e-mails in Johnson were admitted, and which is also where shared devices, shared passwords, and edited screenshots are contested. The firm’s guide to admitting and objecting to digital evidence treats authorship, screenshots, group threads, phone extractions, hearsay, and completeness. Evidence taken from a device or an account must also satisfy the warrant rules described on the page covering phone, computer, and digital device searches.

A complainant who records conversations to document claimed harassment creates a separate problem. Secretly recording a conversation is a felony under M.G.L. c. 272, § 99, and the consequences for the recording and for the person who made it are set out on the page covering Massachusetts wiretap law and secret recordings.

Tracking Evidence and Its Foundation

Location evidence now appears in these cases routinely, and it carries requirements of its own. Brennan established that concealing a tracking device can be one of the three acts. Lehan, 100 Mass. App. Ct. 246, established what the Commonwealth must do to prove such evidence. The Appeals Court vacated the judgments there and set the verdicts aside because global positioning system records and the charts drawn from them were admitted without the business records foundation required by M.G.L. c. 233, § 78: no witness had personal knowledge of how the records were generated, and no witness explained how, when, or for what purpose the charts and their annotations were created. A certification under M.G.L. c. 233, § 79J answered the authenticity objection but not the hearsay objection. The officer who described the charts had not created them, did not know how they were created, was not offered as an expert, and should not have been permitted to state the conclusion he drew from them. The Commonwealth must authenticate the records, satisfy the applicable hearsay exception, and provide a qualified witness for any interpretation that requires specialized knowledge.

Criminal Harassment Is Not Stalking

Criminal harassment under § 43A does not require a threat. Stalking under M.G.L. c. 265, § 43 requires a threat intended to place the person in imminent fear of death or bodily injury and is a felony. A first § 43A(a) offense is a misdemeanor. The Commonwealth may charge both offenses from the same facts, and the criminal-harassment count can remain if the threat element fails. This page covers § 43A; the stalking page covers the threat element, the three stalking subsections, and the mandatory minimum sentences that apply in specified cases.

The Criminal Charge and the Civil 258E Order

Section 43A and M.G.L. c. 258E use some similar language, but they create different proceedings. A § 43A charge is a criminal case that the Commonwealth must prove beyond a reasonable doubt. A 258E harassment prevention order is civil. A temporary order may issue ex parte under the statute’s emergency provisions; at the hearing after notice, the plaintiff must establish a statutory ground for relief by a preponderance of the evidence.

The standards also differ in substance. Under the three-act harassment ground, O’Brien v. Borowski, 461 Mass. 415, 427 (2012), requires three willful and malicious acts, each committed with the intent to cause fear, intimidation, abuse, or damage to property. Fear under that ground means fear of physical harm or physical damage to property, not fear of economic loss or unfavorable publicity. Chapter 258E also authorizes relief on separate statutory grounds that do not require three acts. The criminal statute contains no equivalent intent-to-cause-fear element. An issued 258E order is therefore not a criminal conviction, and a denied application is not an acquittal.

What an order does create is exposure going forward. Violating one is a separate crime under M.G.L. c. 258E, § 9, treated on the page covering criminal violation of a 258E order, and continued conduct after service frequently produces a section 43A charge alongside the violation count. Questions that arise in both proceedings at once are answered in the 209A and 258E violation FAQs and in the discussion of when unwanted contact becomes harassment.

Related Charges in the Same Complaint

Prosecutors may charge several offenses from the same alleged communications or conduct. The complaint may include threats to commit a crime under M.G.L. c. 275, § 2; annoying telephone calls or electronic communication under M.G.L. c. 269, § 14A; intimidation of a witness under M.G.L. c. 268, § 13B; the image offense in § 43A(b); or violation of M.G.L. c. 209A, § 7 or M.G.L. c. 258E, § 9 where an order was in force. In a household or dating context, the case may also be treated as a domestic violence prosecution. Each count has its own elements and defenses, and the failure of one count does not resolve the others.

The section 14A count is narrower than it appears. The statute requires contact made repeatedly, and the Supreme Judicial Court has construed that word to require three or more communications, so a single message does not support the charge. Commonwealth v. Wotan, 422 Mass. 740 (1996). The statute also requires that the contact have been made for the sole purpose of harassing, annoying, or molesting the person or that person’s family, which means the count fails where the contact had any other genuine purpose. Commonwealth v. Strahan, 30 Mass. App. Ct. 947 (1991).

How These Cases Begin: The Application and the Clerk-Magistrate Hearing

Because a first offense under § 43A(a) is a misdemeanor and the accused is rarely arrested, many cases start with an application for a criminal complaint under M.G.L. c. 218, § 35A, often filed by the complainant personally. When no statutory exception applies, § 35A gives a person who was not arrested notice and an opportunity to be heard before process issues. The clerk-magistrate hears the application before any criminal complaint or arraignment.

That posture matters. If the clerk-magistrate denies the application, no criminal complaint issues, no arraignment occurs, and no CORI entry results from that application. Other police or agency records may still exist. What a denial does not do is resolve any related civil order, and it does not by itself answer a licensing, school, or immigration question, each of which turns on the exact question asked and the exact record that remains.

The hearing also creates an evidentiary record. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), the Appeals Court held that where a clerk-magistrate found probable cause after hearing the complainant’s testimony, a later motion to dismiss ordinarily should be decided on a record that includes that testimony. The defendant, as the moving party, was responsible for placing the transcript or recording before the judge. Testimony at the hearing can supply facts missing from a thin written application, and it can also provide the basis for a later challenge. Commonwealth v. DiBennadetto, 436 Mass. 310 (2002), does not permit the judge deciding the motion to conduct a second evidentiary hearing to review the clerk-magistrate’s probable-cause determination. Counsel should investigate the incidents, obtain the complete communications, and prepare the factual and legal opposition before the hearing. The clerk-magistrate hearing FAQs and clerk-magistrate hearing page explain that work.

Defense

The defense of a section 43A charge is organized around the elements.

Counting the acts. The Commonwealth must identify three separate qualifying occasions. Patterns assembled from a single continuous episode, from acts aimed at someone else, or from acts outside the charged period fail under Welch and McDonald.

Targeting. Conduct directed at a group, a neighborhood, an employer, or the public is not directed at a specific person. Johnson marks the boundary: indirect conduct counts when the object was to have third parties harass the named complainant, and does not count when the complainant merely happened to be affected.

The constitutional screen. Where the acts are speech, the speech must fall within an unprotected category. Letters, posts, reviews, and petitions about matters of public concern are protected under Bigelow and Van Liew however unwelcome they are, and after Counterman a true threats theory carries a subjective mental state the Commonwealth must prove.

Malice. A documented legitimate purpose, whether litigation, collection, co-parenting, or complaint to authorities, negates malice. So does evidence that the conduct was accidental or that the defendant did not know the conduct was directed where the complainant would receive it.

Alarm and distress. The complainant’s actual response is tested through records and cross-examination, and the objective element asks whether a reasonable person in that position would suffer substantial distress, not whether this complainant says so.

Attribution and forensics. In digital cases the defense adds who controlled the account, who had the password, what the full thread shows once the complainant’s own messages are included, and whether the extraction complied with the warrant requirements governing illegal searches and seizures.

Motions. Depending on the procedural record, counsel may move to dismiss because the complaint lacks probable cause, because a required clerk-magistrate hearing was denied, or because the established hearing record does not support the complaint. Each ground has its own standard and remedy. Counsel may also move to suppress unlawfully obtained messages, devices, or account records and, where a complainant recorded conversations secretly, raise exclusion and referral issues under the wiretap statute. Representative outcomes, including related charges ended at the clerk-magistrate stage, appear on the results page.

Who Faces These Charges

The people charged under section 43A are rarely strangers to the complainant. They are former partners after a separation, where the accusation frequently arrives with a 258E or 209A application and the underlying dispute is the separation itself. They are parties to custody and divorce litigation, where every message about the children can be recast as an act in a pattern. They are neighbors in property disputes, coworkers after workplace conflicts, and roommates after a falling out. They are college and graduate students, for whom the same messages that generate a criminal complaint also start a Title IX or student conduct proceeding decided on a lower standard. They are licensed professionals, for whom an arraignment alone can raise a reporting question depending on the board and the language of its rule. They are noncitizens, for whom the disposition may carry immigration consequences that outlast the case and that immigration counsel must assess against the actual record of conviction.

Records and Collateral Consequences

A complaint that issues creates a CORI entry at arraignment, whatever the eventual outcome, and the entry exists whether the case ends in a dismissal, a continuance without a finding, or a conviction. Licensing boards, immigration authorities, and many employers ask about charges rather than convictions.

Sealing. Under M.G.L. c. 276, § 100C, a not guilty finding, no bill, or finding of no probable cause is sealed on request. A dismissal or nolle prosequi requires a judicial sealing petition and a finding that substantial justice would best be served. Section 100C sets no waiting period for either route. A conviction may be sealed under M.G.L. c. 276, § 100A once the court appearance and court disposition, including any period of incarceration or custody, occurred not less than three years earlier for a misdemeanor or not less than seven years earlier for a felony, and the other statutory conditions are met. Section 100A treats a violation of M.G.L. c. 209A, § 7 or M.G.L. c. 258E, § 9 as a felony for this purpose, so a companion violation count carries the seven-year period even where the first-offense harassment count does not. The rules are set out on the pages covering sealing and expungement and the sealing and expungement standards.

The grades differ sharply. A conviction under § 43A(a) is a misdemeanor with a $5,000 fine ceiling. A conviction under § 43A(c) is a felony with state-prison exposure and a $15,000 fine ceiling. An application denied at a clerk-magistrate hearing produces no criminal complaint, no arraignment, and no CORI entry from that application. Those are materially different outcomes for employment, licensing, immigration, and future criminal exposure.

The Bottom Line for a Pending Charge

A § 43A(a) charge requires at least three separate acts, intentional targeting on each occasion, willfulness, malice, actual serious alarm, and objectively substantial emotional distress. When speech supplies the acts, the Commonwealth must also satisfy the First Amendment. Defense counsel tests each requirement against the complete communications and the circumstances surrounding every alleged incident. While the matter is pending, the accused should stop all contact with the complainant, make no public posts about the dispute, preserve existing evidence, and obtain advice before attending a clerk-magistrate hearing or speaking with police.

Who Attorney Serpa Represents

Joe Serpa represents people accused of criminal harassment across Greater Boston, including people who received notice of a clerk-magistrate hearing after a former partner, neighbor, or coworker reported repeated unwanted contact; students and professionals whose messages, emails, and social-media posts are read together as a course of conduct; and people already involved in a 258E proceeding whose dispute has moved into criminal court. If you have been charged with criminal harassment or received notice of a clerk-magistrate hearing, contact Serpa Law Office at 617.936.0201 for a confidential consultation.

Massachusetts Courts Where Attorney Serpa Tries These Cases

Criminal harassment complaints are heard in the Boston Municipal Court and in the district courts across Eastern Massachusetts, including the courts serving Cambridge, Somerville, Woburn, Newton, Framingham, Quincy, and Dedham. Attorney Serpa has practiced Massachusetts criminal defense since 1995.

Related Serpa Law Office Resources

The other counts brought in the same complaint are collected on the Massachusetts criminal charges page, and the civil orders that arrive alongside a harassment accusation are treated on the restraining and harassment order pages. What a person questioned by the police is and is not required to say is set out at your right to remain silent in Massachusetts. The stages a case moves through once a complaint issues are described at Massachusetts criminal process and at arraignment in the Massachusetts Trial Court, and whether counsel is needed at the first hearing is answered at do I need a lawyer for a clerk-magistrate hearing.