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

Criminal harassment under M.G.L. c. 265, § 43A is one of the few Massachusetts crimes that is built entirely out of repetition. No single act needs to be illegal on its own. The Commonwealth instead assembles at least three acts, argues that they form a willful and malicious pattern aimed at one person, and asks a judge or jury to find that the pattern seriously alarmed that person. The charge is prosecuted in the District Court and the Boston Municipal Court, it reaches conduct and speech alike, and since 2024 the statute has carried heavier fines and a companion offense for distributing intimate images. Many of these cases do not begin with an arrest. They begin when the accuser files an application for a criminal complaint and the case is scheduled for a clerk-magistrate hearing, which is the single best opportunity to end the matter before any record exists.

Serpa Law Office defends criminal harassment charges and the proceedings that travel with them: stalking charges, 258E harassment prevention orders, 209A abuse prevention orders, and witness intimidation allegations. This page states the statute, the elements, the leading cases, and the defenses. Short answers to the most common questions are collected in our criminal harassment FAQs.

The Statute After the 2024 Amendments

Section 43A now contains three distinct provisions. Subsection (a) defines the core crime: whoever 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 reaches conduct, acts, and threats conducted by mail or by use of a telephonic or telecommunication device or electronic communication device, including electronic mail, internet communications, instant messages, and facsimile communications. A first offense is punished by up to two and one half years in the house of correction, a fine of up to $5,000, or both.

Subsection (b) is new. The Act to Prevent Abuse and Exploitation, Chapter 118 of the Acts of 2024, inserted the Commonwealth’s nonconsensual intimate image offense into the same section. Knowingly distributing intimate visual material of another person without consent, with the intent to harm or with reckless disregard for the person’s objection, is punished by up to two and one half years in the house of correction, a fine of up to $10,000, or both. The same 2024 act raised the harassment fines throughout the section.

Subsection (c) is the recidivist provision. A second or subsequent criminal harassment conviction, or a criminal harassment conviction entered after a prior conviction for stalking under M.G.L. c. 265, § 43, is punished by up to two and one half years in the house of correction or up to ten years in the state prison, with a fine of up to $15,000. The subsection converts a misdemeanor into a potential state prison felony, which is why the disposition of a first charge matters far beyond the immediate case.

The Elements the Commonwealth Must Prove

District Court Model Jury Instruction 6.640 (revised February 2026) states the five elements. The Commonwealth must prove, beyond a reasonable doubt, that the defendant committed at least three separate acts; that the defendant intended to target the alleged victim with each act; that each act was committed willfully and maliciously; that the acts, taken as a whole, seriously alarmed the alleged victim; and that the acts, taken as a whole, would cause a reasonable person to suffer substantial emotional distress. The elements come in pairs of perspectives. The third element examines the defendant’s state of mind, the fourth examines the actual effect on the complainant, and the fifth measures the conduct against an objective standard. A failure of proof on any one of the five defeats the charge.

The Supreme Judicial Court set the foundation in Commonwealth v. Welch, 444 Mass. 80 (2005). The statute’s phrase “pattern of conduct or series of acts” requires the Commonwealth to prove three or more incidents of harassment, and the requirement that the pattern be directed at a specific person obligates the Commonwealth to establish that the defendant intended to target the victim with the harassing conduct on at least three occasions. Incidents that occurred before the statute took effect could not be counted, and because the remaining incidents did not satisfy every element, the convictions were reversed. The decision remains the controlling construction of the pattern element.

The Three Acts Requirement

The three acts must be three genuinely separate incidents, divided by some interval of time, and each must independently qualify. A single continuous episode cannot be subdivided into three acts to satisfy the statute. The acts also need not be of the same kind: a message, a visit, and a posting can each supply an act, and the pattern is assessed as a whole.

Commonwealth v. McDonald, 462 Mass. 236 (2012), shows how strictly the counting works in practice. The defendant had driven past the complainant’s neighborhood and photographed the area, and the complaint charged a pattern of conduct occurring on a single day. The Supreme Judicial Court reversed the conviction because the evidence was insufficient to establish each element of the crime. The decision also restates the meaning of willfulness: willful conduct is intentional rather than accidental, and it requires no ill will or malevolence toward the target. What it requires, three times over, is an act intended to reach the specific person charged in the complaint.

Acts committed through other people count. In Commonwealth v. Johnson, 470 Mass. 300 (2014), the defendants posted false online advertisements that caused strangers to appear at the victims’ home. The Supreme Judicial Court held that the pattern element may be satisfied by communications made directly to the targets and by acts accomplished through third parties serving as unwitting instruments, and it affirmed the convictions. A person who never sends a single message to the complainant can still accumulate three qualifying acts.

Willfulness, Malice, and Legitimate Purpose

Instruction 6.640 defines the two mental states separately. An act is willful when it is intentional and deliberate, done by design rather than by accident or mistake. An act is malicious when it is intentional, without justification or mitigation, and its harmful consequences were reasonably foreseeable. Malice in this criminal sense does not require hatred or a motive of revenge, but it does require the absence of justification, and that is where many prosecutions fail.

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 fight in a large share of these cases, and it is litigated through the surrounding circumstances: what each communication said, what prompted it, what the parties’ history was, and what the defendant stood to gain other than the complainant’s distress.

Serious Alarm and Substantial Emotional Distress

The fourth and fifth elements are distinct and both are required. The Commonwealth must prove that the complainant was in fact seriously alarmed by the acts taken as a whole, and separately that a reasonable person in the complainant’s position would suffer substantial emotional distress. Annoyance is not alarm, and offense is not substantial distress. In Commonwealth v. Bigelow, 475 Mass. 554 (2016), the Supreme Judicial Court reversed a criminal harassment conviction in part because the complainant’s own testimony did not establish that he was seriously alarmed by the letters he received. Cross-examination on what the complainant did after each act, who they told, what they wrote, and how their routines changed is often the most productive work in the case, and it is the kind of examination this office builds every trial around: the approach is described on our page on 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. Welch construed § 43A to reach fighting words, meaning face-to-face insults so personally abusive that they tend to provoke immediate violence. Commonwealth v. Johnson and O’Brien v. Borowski, 461 Mass. 415 (2012), extended the analysis: speech-based acts may be punished when the speech falls within any constitutionally unprotected category, including true threats, and speech integral to criminal conduct receives no protection at all. A true threat is a serious expression of intent to commit unlawful violence against a specific person, and after Counterman v. Colorado, 600 U.S. 66 (2023), the Commonwealth must also show that the speaker was at least reckless about how the statements would be understood. Instruction 6.640 now incorporates these limits directly.

Bigelow shows the limits enforced. The defendant sent five letters to a newly elected town selectman and his wife. The Supreme Judicial Court reversed the convictions, holding that where the charged acts are speech about a public official’s conduct in office, the speech is political expression at the core of the First Amendment, and it cannot support a criminal harassment conviction unless it falls within an unprotected category. Angry, vulgar, offensive, and even bigoted speech is not enough by itself. The same principles govern the civil side: the Supreme Judicial Court held in Van Liew v. Stansfield, 474 Mass. 31 (2016), that speech on matters of public concern cannot count as an act of harassment under c. 258E, a rule discussed at length in our post 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 posts. The statute reaches all of them by its terms, and Johnson settled that online acts, including postings that recruit strangers as instruments, can supply the pattern. The Appeals Court’s decision in Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), is a current example of the charged conduct: repeated public postings about the complainant on social media, statements describing the complainant in demeaning terms, and postings signaling the defendant’s physical presence in the complainant’s new town.

The digital record cuts both ways, and it raises its own defenses. Screenshots must be authenticated, accounts must be attributed to a specific author, and metadata must survive scrutiny; the attribution problem, familiar from our nonconsensual intimate image FAQs, applies with equal force here, because shared devices, shared accounts, and fabricated screenshots appear regularly in contested breakups. Evidence extracted from a phone or computer must also survive the warrant requirements described on our page on phone, computer, and digital device searches. A complainant who records calls or conversations to document claimed harassment creates a separate problem entirely: secretly recording a conversation is a felony under the Massachusetts wiretap statute, as explained on our page on secret recordings and G.L. c. 272, § 99.

Criminal Harassment and Stalking Compared

Stalking under M.G.L. c. 265, § 43 contains every element of criminal harassment plus one more: a threat made with the intent to place the person in imminent fear of death or bodily injury. That single element changes the grade of the crime. Stalking is a felony punished by up to five years in state prison. Stalking committed in violation of certain protective orders carries a mandatory minimum of one year under § 43(b), and the statute lists the qualifying orders: vacate, restraining, and no-contact orders under c. 208, c. 209, c. 209A, and c. 209C, superior court restraining orders and injunctions, and protection orders issued by other jurisdictions. A second or subsequent stalking conviction carries a mandatory minimum of two years and up to ten under § 43(c).

The threat element does not require an explicit statement. In Commonwealth v. Walters, 472 Mass. 680 (2015), the Supreme Judicial Court held that content posted to Facebook may qualify as a threat under the stalking statute, while vacating the conviction in that case because no reasonable jury could have found that the defendant’s profile page was such a threat. Prosecutors routinely charge both crimes from the same facts, treating the harassment count as the fallback if the threat fails. The full treatment of the felony, including the pattern cases and the electronic tracking decisions, is on our page on stalking and criminal harassment in Massachusetts. The comparison also matters at sentencing: a prior stalking conviction elevates a later criminal harassment charge into the ten-year provision of § 43A(c).

Criminal Harassment and the 258E Order

The same three-act vocabulary appears in G.L. c. 258E, and the two proceedings are constantly confused. A 258E harassment prevention order is a civil order issued on a preponderance of the evidence, often at an ex parte hearing. A § 43A charge is a crime proved beyond a reasonable doubt. The definitions differ as well: under O’Brien v. Borowski, the civil statute requires three or more acts committed with malice in the sense of cruelty, hostility, or revenge, each intended to cause fear, intimidation, abuse, or damage to property, while the criminal instruction defines malice through the absence of justification and the foreseeability of harm. An issued 258E order is not a finding of criminal conduct, and a denied 258E application is not an acquittal. What the order does create is criminal exposure going forward: violating it is a separate crime under c. 258E, § 9, covered on our page on criminal violation of a 258E order, and continued conduct after service frequently produces a § 43A charge alongside the violation count. The questions the two proceedings raise together are answered in our 209A and 258E violation FAQs and in our post on when unwanted contact becomes harassment under Massachusetts law.

Related Charges in the Same Complaint

Criminal harassment is rarely charged alone. The same accusation commonly produces a count of threats to commit a crime under c. 275, § 2; a count of annoying or harassing electronic communication under c. 269, § 14A, the single-act misdemeanor that requires no pattern; a count of intimidation of a witness under c. 268, § 13B when the complainant is connected to any pending proceeding; a count under § 43A(b) when images are involved; and violation counts under c. 209A, § 7 or c. 258E, § 9 when an order was in place. In a household or dating context the charge often lands inside a broader domestic violence prosecution. Each companion charge has its own elements and its own defenses, and the combinations are deliberate: the Commonwealth builds redundancy so that one count survives if another fails. The defense answers by litigating each count on its own terms.

How These Cases Begin: The Clerk-Magistrate Stage

Because criminal harassment is a misdemeanor and the accused is rarely arrested, most cases start with an application for a criminal complaint under G.L. c. 218, § 35A, frequently filed by the complainant personally rather than by police. That procedural posture is an opportunity. At the clerk-magistrate hearing the defense can contest probable cause, expose the dispute’s history, and resolve the matter before any complaint issues and before any CORI entry is created. The stakes of that stage were on display in Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), where the complainant’s application alone did not establish probable cause but his testimony at the show cause hearing did, and the Appeals Court held that a judge reviewing the complaint must consider the hearing testimony as well as the application. The decision cuts in both directions: what is said at the hearing can rescue a weak application, and it can also be the record that a later motion to dismiss under Commonwealth v. DiBennadetto, 436 Mass. 310 (2002), takes apart. Preparation for the hearing, not improvisation at it, is the difference, and the practical playbook is in our clerk-magistrate hearing FAQs.

Defense

The defense of a criminal harassment charge is organized around the elements. Counting the acts comes first: the Commonwealth must identify three separate qualifying incidents, and patterns assembled from one continuous episode, from acts aimed at someone else, or from acts that occurred outside the charged period fail under Welch and McDonald. Targeting comes second: conduct directed at a group, a neighborhood, an employer, or the public is not directed at a specific person. The constitutional screen comes third: where the acts are speech, each act must fall within an unprotected category, and letters, posts, reviews, and petitions about matters of public concern are protected under Bigelow and Van Liew however unwelcome they are.

Malice and alarm carry the rest. A documented legitimate purpose, whether litigation, collection, co-parenting, or complaint to authorities, negates malice. The complainant’s actual response, measured against the serious alarm element, is tested through records and cross-examination, and the objective element asks whether a reasonable person would suffer substantial distress, not whether this complainant says so. In digital cases the defense adds attribution and forensics: who controlled the account, who had the password, what the full thread shows once the complainant’s side is included, and whether the extraction complied with the warrant requirements discussed on our digital searches page. Motions practice runs alongside: a motion to dismiss the complaint for lack of probable cause, motions to suppress unlawfully obtained messages and devices, and, where the complainant recorded conversations secretly, exclusion and referral questions under the wiretap statute. Outcomes from this work, including harassment-adjacent charges ended at the clerk-magistrate stage, are collected on the results page.

Who Faces These Charges

The people charged under § 43A are rarely strangers to the complainant. They are former partners after a breakup, where the accusation often arrives together with a 258E or 209A application and the real dispute is the separation itself. They are parties to custody and divorce litigation, where every text 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 students, for whom the same messages that generate a criminal complaint also trigger a Title IX or student conduct proceeding with a lower standard of proof. They are licensed professionals, for whom an arraignment alone raises board reporting questions, and they are noncitizens, for whom a harassment disposition can carry immigration consequences that outlast the case. For each of these clients the first objective is the same: keep the case from becoming a case, at the clerk-magistrate stage, before arraignment creates a record.

Records and Collateral Consequences

A complaint that issues creates a CORI entry at arraignment, regardless of the eventual outcome. A dismissal or a continuance without a finding can later be sealed after the statutory waiting periods, but the entry exists until then, and licensing boards, immigration authorities, and many employers ask about charges rather than convictions. A conviction under § 43A(a) is a misdemeanor conviction with a $5,000 fine ceiling; a conviction under § 43A(c) is a felony-grade disposition with state prison exposure. The distance between those outcomes, and between either of them and a complaint denied at a clerk’s hearing, is the measure of what early, prepared defense is worth in these cases.

The Bottom Line for a Pending Charge

Criminal harassment is a charge about patterns, and patterns are built from interpretation. Three acts must exist, each must have been aimed at the complainant, each must have been malicious, the alarm must have been real, and the distress must have been objectively reasonable, and where words are the acts, the Constitution demands more still. Every one of those requirements is a place where a prepared defense wins. Do not contact the complainant, do not post about the dispute, do not record anyone, and do not attend a clerk-magistrate hearing without counsel. Attorney Serpa defends these cases in the district courts across Greater Boston and has ended many of them before a complaint ever issued. Call 617.936.0201 for a free, confidential consultation.