Massachusetts Stalking Defense (M.G.L. c. 265, § 43)

Stalking under M.G.L. c. 265, § 43 is a felony. The Commonwealth must prove a knowing pattern of at least three willful and malicious acts directed at a specific person. The Commonwealth must also prove serious alarm or annoyance that would cause a reasonable person substantial emotional distress, and a threat intended to place that specific person in imminent fear of death or bodily injury.

The threat distinguishes stalking from criminal harassment under M.G.L. c. 265, § 43A. A person convicted of stalking can be sentenced to state prison and, in the circumstances specified in subsections (b) and (c), must receive a mandatory minimum sentence.

Stalking allegations often arise after a relationship ends, during a dispute between neighbors or coworkers, or alongside a 209A restraining order or 258E harassment prevention order proceeding. The criminal complaint may also charge criminal harassment, violation of a protective order, threats to commit a crime, or witness intimidation. This page addresses the felony stalking charge, including its threat element, subsection-specific penalties, digital and location evidence, and defenses. The separate Massachusetts criminal harassment defense page addresses the § 43A misdemeanor. The criminal harassment FAQs provide shorter answers about both charges.

Stalking and Criminal Harassment Are Different Charges

Stalking and criminal harassment both require a pattern of more than two incidents. Criminal harassment under § 43A does not require a threat. Stalking under § 43 requires a threat. A first criminal-harassment offense is a misdemeanor, but stalking is a felony. Specified stalking cases are also punishable by mandatory minimum sentences.

This page covers § 43, the threat element, and stalking penalties. The criminal-harassment defense page covers § 43A, including the three-act course of conduct, malice, serious alarm, First Amendment limits, and the clerk-magistrate stage.

The Commonwealth may charge both stalking and criminal harassment from the same facts. The criminal-harassment count can remain if the Commonwealth fails to prove the threat element. In Commonwealth v. Walters, 472 Mass. 680 (2015), the Supreme Judicial Court vacated the stalking conviction for want of a threat and left the criminal-harassment conviction standing.

The Statute: Subsections (a), (b), and (c)

Subsection (a) defines the crime. A person is guilty of stalking who, first, willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person. The pattern or series must seriously alarm or annoy that specific person and must be one that would cause a reasonable person to suffer substantial emotional distress. Second, the accused must make a threat with the intent to place that specific person in imminent fear of death or bodily injury.

The penalty is imprisonment in the state prison for not more than five years or in a house of correction for not more than two and one half years. A judge may instead impose a fine of not more than $1,000, or may impose both a fine and imprisonment. The subsection expressly covers conduct, acts, or threats 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.

Subsection (b) applies where the stalking is committed in violation of a listed order. The statute names temporary or permanent vacate, restraining, or no-contact orders or judgments issued under M.G.L. c. 208, §§ 18, 34B, or 34C, or under M.G.L. c. 209, § 32.

The statute names the same kinds of orders or judgments issued under M.G.L. c. 209A, §§ 3, 4, or 5, or under M.G.L. c. 209C, §§ 15 or 20. The statute also names a protection order issued by another jurisdiction and a temporary restraining order or preliminary or permanent injunction issued by the Superior Court. The penalty is imprisonment in a jail or the state prison for not less than one year and not more than five years. No sentence under subsection (b) may be less than a mandatory minimum term of one year.

Subsection (b) does not list a harassment prevention order under M.G.L. c. 258E. Subsection (a) therefore applies to stalking committed while a 258E harassment prevention order is in force. The Commonwealth prosecutes the order violation separately under M.G.L. c. 258E, § 9. Subsection (b), with its mandatory minimum, applies to stalking committed while a 209A abuse prevention order is in force.

Subsection (c) applies to a repeat offense. A person who commits stalking after a prior stalking conviction is punished by imprisonment in a jail or the state prison for not less than two years and not more than 10 years. No sentence under subsection (c) may be less than a mandatory minimum term of two years.

The Commonwealth can prosecute stalking in the Superior Court as well as in the District Court and the Boston Municipal Court. Jurisdiction depends on the maximum punishment that the charged subsection authorizes rather than on the sentence imposed. The Commonwealth may therefore prosecute a charge under subsection (c), which authorizes a state prison term of two to 10 years, in the Superior Court. Commonwealth v. Graham, 388 Mass. 115 (1983).

The Threat Element

The threat element distinguishes stalking from criminal harassment. The result on the stalking count often depends on whether the Commonwealth can prove the threat.

The standard for the threat element comes from Commonwealth v. Matsos, 421 Mass. 391, 394 to 395 (1995). The Commonwealth must prove that the defendant made a threat with the intent to place the complainant in imminent fear of death or bodily injury. The Supreme Judicial Court held that the threat element closely approximates the common law definition of assault. As in a simple assault case, the Commonwealth need not prove that the defendant intended to carry the threat out.

The Commonwealth must prove that the threat was reasonably calculated to place the complainant in imminent fear of bodily injury. Under Walters, 472 Mass. at 693 to 694, the defendant must intend to place the complainant in immediate fear that physical harm is likely. The complainant’s fear must also be objectively reasonable.

The threat need not be spoken. In Commonwealth v. Lehan, 100 Mass. App. Ct. 246, 254 (2021), the Appeals Court held that vandalism of the complainant’s car could reasonably be interpreted as a threat. The Appeals Court relied on the fact that the act itself was violent and criminal and was directed at her property. The threat also need not be delivered face to face. For a threat communicated indirectly, however, Walters requires the Commonwealth to prove beyond a reasonable doubt that the defendant intended the threat to reach the complainant.

The threat must also be a true threat within the meaning of the First Amendment. A true threat is a serious expression of an intent to commit an act of unlawful violence against a particular person or group. Virginia v. Black, 538 U.S. 343, 359 (2003). In Counterman v. Colorado, 600 U.S. 66 (2023), the Supreme Court held that the State must also prove that the speaker had some subjective understanding of the threatening nature of the statements.

The Supreme Court also held that recklessness, meaning conscious disregard of a substantial risk that the words would be viewed as threatening violence, is the mental state the First Amendment requires. Hyperbole in the middle of an argument, ambiguous imagery, and statements a reasonable person would read as venting are the ordinary subjects of a defense motion and cross-examination on the true-threat requirement.

Walters shows how the Supreme Judicial Court applied the threat element to content posted on Facebook. The defendant’s Facebook profile page showed him holding a firearm across his lap, with a quotation about justice. The Supreme Judicial Court held that content posted to Facebook may qualify as a threat within the meaning of section 43(a). The Court then held that no reasonable jury could have found that the defendant’s profile page was such a threat. The Court noted that the photograph contained nothing menacing in the defendant’s expression or in the way the firearm was held and that no caption suggested violence.

The Court also noted that the defendant had never pointed a firearm at the complainant or threatened her physically. Moreover, the photograph had been posted roughly three years after the last occasion on which the complainant had seen the defendant with a firearm. The Court vacated the stalking conviction. The Court affirmed the convictions of criminal harassment, of two counts of violating an abuse prevention order, and of two counts of perjury.

The Pattern Element in a Stalking Case

The stalking statute and the criminal harassment statute both require a knowing pattern of conduct or series of acts. A single act, however alarming, does not satisfy the pattern element.

The rule on the pattern element originates in Commonwealth v. Kwiatkowski, 418 Mass. 543 (1994). The Supreme Judicial Court held the original stalking statute unconstitutionally vague, because the interplay between the definition of stalking and the definition of harasses could be read to require repeated patterns or repeated series rather than one of each.

To cure the vagueness, the Court construed the offense prospectively into the two part form the Legislature later adopted. The Court also held that a pattern or a series in the statute involves more than two incidents. Kwiatkowski, 418 Mass. at 548. The Court removed the word “repeatedly” from the harassment portion of the crime, because repetition is already contained in the words pattern of conduct and series of acts.

The pattern must be directed at a specific person. Conduct that affects someone incidentally, or that was aimed at a third party, does not satisfy the element. An employer conducting a termination, a landlord pursuing an eviction, and a competitor sending aggressive correspondence may each cause real distress without directing conduct at the other person for the purpose of causing it.

The distinction between aggressive lawful conduct and a criminal pattern depends on willfulness, malice, and targeting, not on how much distress the conduct produced. The elements of willfulness, malice, and targeting, and the cases construing them, are set out in full on the criminal harassment page.

Electronic Communication and Location Evidence

Section 43(a) expressly covers electronic communication. Most stalking cases include a digital record. Message threads, account logs, and social media posts are the primary evidence. Each message, log, or post raises questions of authorship and authentication before it raises any question of meaning. The firm’s guide to admitting and objecting to digital evidence addresses screenshots, group threads, hearsay, completeness, and phone extractions. The page on phone, computer, and digital device searches explains how police may obtain messages and accounts and how the defense challenges that evidence. The page covering illegal searches and seizures explains the constitutional framework.

Location evidence has its own foundation requirements, which the Appeals Court addressed in Lehan. In that case, the Appeals Court held that the harassment element was amply proved by vandalism of the complainant’s car, an incident in which the defendant grabbed her arm, and years of encounters that continued despite her changes of schedule.

The Appeals Court also held that the vandalism was sufficient to prove the threat element. The Appeals Court nonetheless vacated the judgments 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 did not answer the hearsay objection. The affidavit reciting the section 78 elements was itself hearsay.

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 allowed 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.

Stalking and Protective Orders

A person accused of stalking may face both a criminal prosecution and a civil proceeding for a 209A restraining order or a 258E harassment prevention order. Each court applies a different standard and can enter a separate order or judgment.

A restraining order (abuse prevention order) under M.G.L. c. 209A is available where the parties are family or household members. A harassment prevention order under M.G.L. c. 258E requires no qualifying relationship. Under the three-act harassment ground, a plaintiff seeking a 258E harassment prevention order must prove three willful and malicious acts by a preponderance of the evidence at the hearing after notice. The plaintiff must also prove that the acts were committed with the intent and effect required by the statute.

Chapter 258E also authorizes relief on separate statutory grounds that do not require three acts. Neither civil order is a criminal conviction. O’Brien v. Borowski, 461 Mass. 415, 427 (2012), holds that fear under the three-act ground means fear of physical harm or physical damage to property rather than fear of economic loss or unfavorable publicity. The civil intent requirement has no counterpart in § 43 or § 43A, so a 258E harassment prevention order is not simply the criminal charge under a lower burden of proof.

Under M.G.L. c. 209A, § 7, violation of a 209A restraining order is a separate crime. Under M.G.L. c. 258E, § 9, violation of a 258E harassment prevention order is also a separate crime. The Commonwealth can therefore charge a single course of conduct after an order issues as stalking, criminal harassment, and an order violation at the same time.

The stalking count is subject to the one year mandatory minimum if the order is one of those listed in section 43(b). Questions arising in both proceedings at once are answered on the firm’s pages on violating a 209A restraining order and violating a 258E harassment prevention order. A noncitizen convicted of stalking a family or household member also faces the deportation questions explained on the firm’s page on domestic violence and deportation risk. The Massachusetts domestic violence law FAQs answer the common questions about 209A restraining orders and companion charges.

The Model Jury Instructions

Three District Court model jury instructions apply to stalking and criminal harassment. Instruction 6.680 covers stalking and was revised in July 2024. Instruction 6.690 covers stalking in violation of a protection order and was issued in July 2024. Instruction 6.640 covers the companion misdemeanor of criminal harassment and was revised in February 2026. The model instructions state the elements and distinctions that the trial judge ordinarily uses in instructing the jury. A defendant should read the model instructions before making any decision about trial.

The Clerk-Magistrate Stage

The availability of a clerk-magistrate hearing depends on how the application began and on M.G.L. c. 218, § 35A. A person who was not arrested and faces a misdemeanor application ordinarily receives notice and an opportunity to be heard before process issues. The clerk-magistrate holds a hearing on a felony stalking application in the circumstances the statute specifies, including when a law-enforcement officer submits the application and requests the hearing. The clerk-magistrate has discretion to hold a hearing on some other felony applications. Section 35A permits process to issue without a hearing in the exceptions it identifies.

Stalking is a felony, so a stalking case begins by arrest more often than a criminal-harassment case. No criminal complaint issues and no arraignment occurs if the clerk-magistrate denies the application after a hearing. No CORI entry is created for the denied application. Other police or agency records may still exist. A clerk-magistrate who denies the criminal application does not decide any civil protective-order case. The clerk-magistrate hearing page and clerk-magistrate hearing FAQs explain how counsel prepares the factual record and the legal opposition before the hearing.

Records and Collateral Consequences

CORI and sealing. A complaint that issues creates a CORI entry at arraignment whatever the outcome. 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 type of sealing. Under M.G.L. c. 276, § 100A, a misdemeanor conviction may be sealed once the court appearance and court disposition, including any period of incarceration or custody, occurred not less than three years earlier. For a felony conviction, the court appearance and court disposition, including any period of incarceration or custody, must have occurred not less than seven years earlier. The other statutory conditions must also be satisfied.

A stalking conviction is a felony, so the seven-year period applies. Section 100A also provides that a violation of M.G.L. c. 209A, § 7 or of M.G.L. c. 258E, § 9 is treated as a felony for sealing purposes. The seven-year period therefore applies to a companion violation count even where the other count on the record is not subject to that period. The standards are set out on the pages covering sealing and expungement and sealing and expungement standards.

Professional licensing. The question whether a stalking charge or conviction must be reported, and what a board may do with it, depends on the board, on the wording of its reporting rule, and on the stage of the case. Some boards ask about charges as well as convictions, some ask only about convictions, and some ask only at renewal. The rules by profession are collected on the page covering criminal charges and professional licenses. A licensed person facing a stalking charge should have the exact question in front of them before answering it.

Immigration. Under 8 U.S.C. § 1227(a)(2)(E)(i), a noncitizen convicted after admission of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable. The crime of domestic violence, the crime of stalking, and the crime of child abuse, child neglect, or child abandonment are three separate deportation grounds.

The stalking ground is not limited by the relationship between the parties. The domestic violence ground, however, is defined by reference to a crime of violence committed against a spouse, a cohabitant, a person with whom the defendant shares a child, or a person protected under domestic violence law.

The question whether a particular Massachusetts conviction under section 43 satisfies the federal stalking ground depends on a comparison of the elements of the state offense with the federal generic definition. The answer does not depend on the name of the charge. A noncitizen facing a stalking charge needs immigration counsel to assess the actual record of conviction. The immigration framework is described on the immigration consequences page.

Firearms. A protective order entered alongside a stalking case can require surrender of firearms and suspension of a license independently of the criminal charge. The firm’s page on firearm surrender under a 258E harassment prevention order explains the surrender and suspension requirements. The separate rules on firearms after a domestic violence charge also apply where the parties are family or household members.

Defense

The threat element. The Commonwealth must prove a threat made with the intent to place the complainant in imminent fear of death or bodily injury. The threat must have been communicated to the complainant directly or with the intent that it reach the complainant. The threat must be objectively capable of producing reasonable fear. A threat made in speech must also be a true threat that the defendant was at least reckless about. In Walters, the Supreme Judicial Court vacated the stalking conviction for lack of proof on the threat element alone.

The pattern. Three or more incidents are required, each aimed at the complainant. Isolated acts, acts aimed at someone else, and acts outside the charged period do not count.

Malice and legitimate purpose. Malice in this setting requires an intentional act without justification or mitigation, not hatred or spite. Lehan, 100 Mass. App. Ct. at 251. Conduct with a documented lawful purpose is not malicious even where the other person finds it distressing.

The First Amendment. For charged acts that consist of speech, the Commonwealth must prove that the speech falls outside constitutional protection. The separate article on criminal harassment, 258E orders, and the First Amendment addresses true threats, fighting words, speech integral to criminal conduct, and speech concerning public issues.

Foundation of the electronic evidence. Under Lehan, the Commonwealth must establish a proper business records foundation of the location data. An officer also may not state conclusions drawn from records they did not create and do not understand. The Commonwealth must meet the same requirements for account records, extraction reports, and annotated exhibits.

Credibility. Stalking allegations frequently arise from acrimonious separations, divorce proceedings, and custody disputes. On cross-examination, defense counsel uses prior communications between the parties, the complainant’s own conduct, and inconsistencies in the complainant’s account.

Motions. Depending on the record, counsel may move to dismiss because the complaint lacks the required legal foundation or because the court issued it without a hearing required by M.G.L. c. 218, § 35A. A dismissal for denial of a required hearing is without prejudice under Commonwealth v. DiBennadetto, 436 Mass. 310, 313 to 314 (2002). Counsel may also move to suppress unlawfully obtained device or account evidence and file motions in limine directed to message and location exhibits. Each motion requires its own factual and legal basis.

Frequently Asked Questions About Stalking Charges in Massachusetts

Who Attorney Serpa Represents

Attorney Joe Serpa defends stalking charges in the District Courts and the Boston Municipal Court across Greater Boston, and in the Superior Court where the charge is indicted. Attorney Serpa’s stalking cases include allegations after a separation and conduct while a 209A restraining order or 258E harassment prevention order was in force.

The cases also include messages or social-media posts read together as a pattern, and complaints charging both stalking and criminal harassment from the same facts. A person who has been charged with stalking or has received notice of a clerk-magistrate hearing on a stalking application should contact Serpa Law Office at 617.936.0201 for a confidential consultation. Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995.

Related Serpa Law Office Resources

Where the parties are family or household members, the charge sits inside the statutes covered on the domestic violence defense page, and the other counts brought in the same complaint are collected on the Massachusetts criminal charges page. The civil orders that arrive with these cases are treated on the restraining and harassment order pages, the way those orders are recorded and later removed is covered at expunging a 209A restraining order or 258E harassment prevention order from the statewide registry, and contact with a complainant during a pending case raises the questions answered in the witness intimidation questions and answers.