Stalking and Criminal Harassment in Massachusetts (M.G.L. c. 265, §§ 43, 43A)

The Two Statutes

Massachusetts criminalizes two related but distinct forms of repeated threatening conduct: stalking under M.G.L. c. 265, § 43 and criminal harassment under M.G.L. c. 265, § 43A. Both require a knowing pattern of conduct directed at a specific person. Stalking is a felony. Criminal harassment is a misdemeanor. The distinction turns on whether the defendant made a threat placing the complainant in imminent fear of death or bodily injury. Both charges frequently arise alongside applications for 258E civil harassment prevention orders and require defense of the criminal charge and the civil order proceeding simultaneously. Criminal harassment under § 43A is more commonly charged than stalking. The felony threat requirement under § 43 is a higher bar, and most conduct that generates a criminal charge does not include an explicit or implied threat of death or serious injury.

Criminal Harassment: M.G.L. c. 265, § 43A

Under Section 43A, criminal harassment requires proof beyond a reasonable doubt that the defendant:

• Willfully and maliciously engaged in a knowing pattern of conduct or series of acts over a period of time directed at a specific person.
• The conduct seriously alarmed or annoyed that specific person.
• The conduct would cause a reasonable person to suffer substantial emotional distress.

Criminal harassment is a misdemeanor carrying up to two and one-half years in a house of correction and a fine of up to $1,000. A second or subsequent conviction carries up to ten years in state prison. Three or more acts of willful and malicious conduct satisfy the pattern requirement. Under Commonwealth v. Wotan (422 Mass. 740, 1996), the specific acts must be sufficiently connected to constitute a knowing pattern rather than isolated incidents.

How Criminal Harassment Differs from the 258E Civil Standard

Criminal harassment under § 43A and the 258E civil standard use similar language but are separate proceedings with different consequences. A 258E civil harassment prevention order can issue on a showing by a preponderance of the evidence. The criminal charge requires proof beyond a reasonable doubt. A 258E order that issues at the civil standard does not establish that criminal harassment has been committed. A defendant who is subject to a 258E order and who continues the pattern of conduct can be charged under § 43A for the conduct that continued after the order issued, charged separately with a criminal violation of the 258E order under M.G.L. c. 258E, § 9, or both.

The practical difference matters for defendants: losing a 258E civil hearing does not mean a criminal harassment conviction is automatic or even likely. The standard of proof is different, the evidence at a criminal trial is subject to different rules of admissibility, and the defendant has the right to a jury trial on the criminal charge. See: When Does Unwanted Contact Become Harassment Under Massachusetts Law?.

Stalking: M.G.L. c. 265, § 43

Stalking under Section 43 requires the same pattern of conduct as criminal harassment plus proof that the defendant made a threat with the intent to place the person in imminent fear of death or bodily injury. The threat need not be explicit. An implied threat arising from the context of the conduct, prior threatening communications, the nature of the relationship, or conduct that a reasonable person would understand as threatening, can satisfy the element.

Stalking is a felony carrying up to five years in state prison. A second or subsequent conviction carries a mandatory minimum sentence of two years in a house of correction or state prison. A conviction for stalking while subject to a court order, including a 258E harassment prevention order or a 209A abuse prevention order, carries a mandatory minimum of one year.

The Pattern Requirement

Both statutes require a knowing pattern of conduct or series of acts. A single act, however threatening, does not satisfy the statutory elements. The pattern requirement is the most commonly litigated element in stalking and harassment cases. Defense counsel examines each alleged act individually and argues that the acts, taken together, do not constitute a knowing pattern directed at the specific person.

The pattern must be directed at a specific person. Conduct that affects a person incidentally, or that was directed at a third party, does not satisfy the element. Under Commonwealth v. Welch (444 Mass. 80, 2005), the conduct must have been directed at the alleged victim specifically. An employer who fires an employee, a landlord who pursues an eviction, and a business competitor who sends aggressive correspondence, each of these persons may be causing distress to the other party without directing conduct at that person with intent to harm them. The distinction between aggressive lawful conduct and criminal harassment turns on the malice and intent elements, not on how much distress the conduct causes.

Willfulness and Malice

The willfulness and malice elements of Section 43A require more than conduct that is merely unwelcome or offensive. Under Commonwealth v. Kwiatkowski (418 Mass. 543, 1994), malicious conduct is conduct that is without legal justification and with intent to harm the specific person. Conduct undertaken for a legitimate purpose, even if that purpose causes distress, is not malicious.

A parent who contacts a school repeatedly about their child’s treatment. A tenant who documents a landlord’s code violations. A consumer who posts negative reviews about a business. Each of these persons is engaging in conduct that may seriously annoy the recipient. None of them is engaging in malicious conduct within the meaning of Section 43A, because each has a legitimate purpose for the conduct. The absence of legitimate purpose is what distinguishes harassment from aggressive but lawful behavior.

The First Amendment and Protected Speech

The most significant constitutional limitation on Massachusetts criminal harassment and stalking prosecutions is the First Amendment to the United States Constitution and Article 16 of the Massachusetts Declaration of Rights. Both protect freedom of speech, freedom of expression, and the right to petition the government for redress of grievances. Not all speech that causes distress is criminal. A stalking or harassment prosecution based solely on protected expression violates the First Amendment.

The Supreme Judicial Court addressed the intersection of § 43A and the First Amendment in Commonwealth v. Kwiatkowski (418 Mass. 543, 1994) and has consistently held that the criminal harassment statute must be applied in a manner that does not reach protected speech. Speech is protected unless it falls within a recognized exception: true threats, incitement to imminent lawless action, obscenity, or speech that is integral to criminal conduct.

A true threat is a statement where the speaker means to communicate a serious expression of an intent to commit unlawful violence against a specific person. Under Virginia v. Black (538 U.S. 343, 2003), a true threat does not require proof that the speaker intended to carry it out, only that a reasonable person would understand the statement as a serious expression of violent intent. The line between angry speech and a true threat is contested in many harassment prosecutions. Hyperbolic statements made in the heat of an argument, statements that a reasonable person would understand as venting rather than threatening, and statements that lack any specific indication of violent intent are candidates for a First Amendment challenge.

Public commentary, criticism, satire, and protest are fully protected under the First Amendment even when the target of the expression finds them deeply distressing. A campaign of public criticism targeting a public official, a business owner, or a public figure does not become criminal harassment because the target is alarmed by it. The First Amendment analysis requires defense counsel to distinguish between content that is protected expression, however harsh, and conduct that has crossed into genuine threat or intimidation outside the protection of the First Amendment.

Online and social media conduct presents recurring First Amendment issues in harassment prosecutions. Comments on a public figure’s public social media posts, public reviews of a business, and critical commentary in online forums are all presumptively protected speech. A prosecution based on social media conduct must establish that the specific statements were true threats, not mere offensive or unwelcome expression. See: Criminal Harassment, 258E Orders, and the First Amendment in Massachusetts.

The Relationship Between Stalking Charges and 258E Orders

A 258E harassment prevention order requires proof of three or more acts of willful and malicious conduct that seriously alarmed the plaintiff and would cause a reasonable person substantial emotional distress. The civil standard for a 258E order essentially tracks the criminal standard for harassment under Section 43A at a lower burden of proof. When a 258E order issues and the defendant continues the pattern of conduct, a criminal harassment charge under Section 43A frequently follows.

A defendant who violates a 258E order faces a separate criminal charge under M.G.L. c. 258E, § 9 in addition to any stalking or harassment charge arising from the conduct that violated the order. Stalking charges also arise in connection with 209A abuse prevention orders when the defendant continues to contact or approach the complainant after the order issues. In that situation the defendant may face a Section 43 stalking charge, a Section 43A harassment charge, and a criminal violation of the 209A order under M.G.L. c. 209A, § 7 arising from the same course of conduct.

Electronic Stalking and Harassment

Section 43 expressly covers electronic communication. A pattern of harassing emails, text messages, social media posts directed at a specific person, or contact through third parties can satisfy the statutory elements when the conduct is willful, malicious, and would cause a reasonable person substantial emotional distress. Saved text threads, email records, and social media logs are the primary evidence in these cases and are subject to Fourth Amendment challenges when obtained through a device search under Riley v. California (573 U.S. 373, 2014). See: Illegal Searches and Seizures in Massachusetts.

The First Amendment analysis is particularly important in electronic harassment cases. A social media comment on a public post, a critical review posted to a public platform, and a message sent through an application’s public messaging feature are all forms of communication that occur in or adjacent to public forums. The public nature of the forum affects the constitutional analysis. See: Criminal Harassment, 258E Orders, and the First Amendment in Massachusetts.

CORI and Collateral Consequences

CORI sealing. A criminal harassment conviction under M.G.L. c. 265, § 43A that arose from conduct related to a 209A or 258E order violation cannot be sealed under M.G.L. c. 276, § 100A. A stalking conviction under M.G.L. c. 265, § 43 cannot be sealed. See: Massachusetts CORI Sealing and Expungement.

Professional licensing. A felony stalking conviction is reportable to most Massachusetts professional licensing boards. See: Criminal Defense for Licensed Professionals in Massachusetts.

Immigration. Stalking is a crime of domestic violence under 8 U.S.C. § 1227(a)(2)(E)(i) when committed against a family or household member. See: Immigration Consequences of Massachusetts Criminal Charges.

The Clerk-Magistrate Hearing

When a stalking or harassment charge arises from a summons rather than a warrantless arrest, the defendant has the right to a clerk-magistrate hearing before any formal complaint issues and before any CORI entry is created. A denial at the clerk-magistrate stage eliminates the criminal charge entirely. For licensed professionals and non-citizens, stopping the case at this stage eliminates the licensing and immigration consequences that arraignment triggers. See: I Received a Show Cause Notice in Massachusetts. What Do I Do?.

Defense

Insufficient pattern. Three or more acts are required. Acts that are isolated, unconnected, or not directed at the specific person with intent to harm do not satisfy the pattern requirement.

Absence of malice. Conduct undertaken for a legitimate purpose is not malicious under Kwiatkowski. The absence of legitimate purpose is what distinguishes criminal harassment from aggressive but lawful conduct.

First Amendment. Speech and expression that do not constitute true threats, incitement, or obscenity are protected regardless of how much distress they cause the recipient. A harassment prosecution based on protected expression is subject to a First Amendment challenge. See: Criminal Harassment, 258E Orders, and the First Amendment in Massachusetts.

The threat element in stalking. The Commonwealth must prove an actual threat with intent to place the person in imminent fear of death or bodily injury. Angry words or heated exchanges without a genuine threat of violence do not satisfy Section 43.

Credibility of the complainant. Stalking and harassment charges frequently arise in the context of acrimonious separations, divorce proceedings, and custody disputes. Prior communications between the parties, conduct by the complainant, and inconsistencies in the complainant’s account are available for cross-examination and argument.

Constitutional challenges to electronic evidence. Evidence obtained from a device search without a warrant is subject to suppression under Riley v. California (573 U.S. 373, 2014). See: Illegal Searches and Seizures in Massachusetts.

Related Pages

• Massachusetts 258E Harassment Prevention Orders
• Violation of a 258E Civil Harassment Prevention Order
• Massachusetts 209A Abuse Prevention Orders
• Violation of a 209A Abuse Prevention Order (M.G.L. c. 209A, § 7)
• Intimidation of a Witness (M.G.L. c. 268, § 13B)
• Clerk-Magistrate Hearings in Massachusetts
• Arraignment in the Massachusetts Trial Court
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• Massachusetts CORI Sealing and Expungement
• Illegal Searches and Seizures in Massachusetts
• When Does Unwanted Contact Become Harassment Under Massachusetts Law?
• Criminal Harassment, 258E Orders, and the First Amendment in Massachusetts
• Defending 209A and 258E Violations in Massachusetts

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