Massachusetts Criminal Harassment FAQs

A first offense under M.G.L. c. 265, § 43A(a) is a misdemeanor punished by up to two and one half years in a house of correction, a fine of not more than $5,000, or both. A second or subsequent offense, or an offense committed after a prior stalking conviction, falls under § 43A(c). An offense under § 43A(c) is punished by up to two and one half years in a house of correction or up to 10 years in state prison, a fine of not more than $15,000, or both.

At least three separate occasions. In Commonwealth v. Welch, 444 Mass. 80 (2005), the Supreme Judicial Court held that the phrase “pattern of conduct or series of acts” requires three or more incidents. The Court also held that the defendant must have intended to target the complainant on each occasion. The acts must be genuinely separate. One continuous argument, however unpleasant, is not three acts.

Conduct that is legal by itself can count as an act. In Commonwealth v. Brennan, 481 Mass. 146 (2018), the Supreme Judicial Court held that concealing a global positioning system device on a person’s vehicle qualifies as an act under § 43A when considered with the other evidence. The Court also held that the people tracked did not have to know about the device at the time. In Commonwealth v. McDonald, 462 Mass. 236 (2012), by contrast, the Court reversed a conviction based on driving a public street, looking at people and their dogs, and photographing dogs. The Court held that such conduct alone cannot establish a willful and malicious act directed at a specific person.

Yes. Section 43A expressly covers conduct by mail, telephone, and electronic communication devices, including electronic mail, internet communications, instant messages, and facsimile communications. Defense counsel can challenge digital evidence on two separate grounds. The firm’s guide to admitting and objecting to digital evidence addresses screenshots, authorship, hearsay, and completeness. The page on phone and digital device searches addresses whether police lawfully obtained the device or the data.

Yes. In Commonwealth v. Johnson, 470 Mass. 300 (2014), the Supreme Judicial Court held that acts accomplished through unwitting third parties satisfy the pattern element where the object was to have those third parties harass the complainant. In Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), the charged pattern consisted largely of public postings about the complainant. A central contested issue is whether a posting was directed at the specific person, or was commentary that person happened to see.

Speech about a public official’s conduct in office is political expression. In Commonwealth v. Bigelow, 475 Mass. 554 (2016), the Supreme Judicial Court reversed a criminal harassment conviction based on letters to a town selectman and ordered that complaint dismissed. Charged acts that consist of speech can support a conviction only if the speech falls within an unprotected category, such as a true threat or fighting words. The same limits apply to 258E harassment prevention orders under Van Liew v. Stansfield, 474 Mass. 31 (2016). The firm’s article on First Amendment limits in criminal harassment and 258E harassment prevention order cases explains the difference between protected speech and harassment.

Stalking under M.G.L. c. 265, § 43 requires the same pattern plus a threat made with the intent to place the person in imminent fear of death or bodily injury. Stalking is a felony punishable by up to five years in state prison. A defendant convicted of stalking in violation of certain protective orders faces a mandatory minimum sentence of one year. A defendant convicted of a second stalking offense faces a mandatory minimum sentence of two years. The ten year provision of § 43A(c) also applies to a criminal harassment charge against a defendant with a prior stalking conviction. The felony, its subsections, and the cases construing the threat element are set out in full on the stalking page.

The threat element is the element of stalking that the Commonwealth most often fails to prove. The Commonwealth must prove a threat made with the intent to place the complainant in imminent fear of death or bodily injury. The complainant’s fear must also be objectively reasonable. In Commonwealth v. Walters, 472 Mass. 680 (2015), the Supreme Judicial Court held that a Facebook post can qualify as a threat. The Court then vacated the stalking conviction because no reasonable jury could find that the defendant’s profile page was a threat. Since Counterman v. Colorado, 600 U.S. 66 (2023), the Commonwealth must also show the speaker was at least reckless about how the words would be understood.

A 258E harassment prevention order is a civil order. A judge issues the order on a preponderance of the evidence. The order restrains future conduct. Criminal harassment must be proved beyond a reasonable doubt. The statutes also differ in substance. Under O’Brien v. Borowski, 461 Mass. 415 (2012), a plaintiff seeking a 258E harassment prevention order must show each of the three acts was intended to cause fear, intimidation, abuse, or damage to property. For a 258E harassment prevention order, fear means fear of physical harm or property damage. Section 43A contains no such requirement. An issued order is not a finding of criminal conduct, and a denied application is not an acquittal.

Often, yes. The Commonwealth must prove each act was willful and malicious, meaning intentional and without justification, and that the pattern seriously alarmed the complainant. A full thread showing mutual contact, invitations to communicate, or responses inconsistent with alarm undermines several elements at once. Selective screenshots are common in these cases. Early in the case, defense counsel works to recover the complete exchange from both sides, including messages the complainant sent after the acts they describe as alarming.

No. The case belongs to the Commonwealth once a complaint issues. Only the prosecutor or the court can end the case. A complainant’s change of heart may affect the strength of the case, but the change of heart does not result in dismissal of the charge. Pressuring a complainant to withdraw can constitute intimidation of a witness under M.G.L. c. 268, § 13B, a felony. The lawful ways a case can end are described on the page covering how Massachusetts criminal cases get dismissed.

A person who receives notice of the hearing should take the hearing seriously and should not attend without counsel. A clerk-magistrate’s denial of the application means that no criminal complaint issues, no arraignment occurs, and no CORI entry results from that application. Other police or agency records may still exist. Under Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), a judge who later decides whether probable cause supported the complaint considers testimony given at the hearing. Statements made at the hearing can therefore help or hurt the defendant. The person accused should not contact the complainant and should not post about the dispute. Preparation is covered in the clerk-magistrate hearing FAQs.

No. Under M.G.L. c. 272, § 99, a person who secretly records a conversation in Massachusetts commits a felony. The statute applies even when the person uses their own phone and even when the person is documenting what they believe is harassment against them. Using or disclosing such a recording is a separate crime. The statute is directed at secret interception, so open recording is treated differently. A person who believes they are being harassed should still preserve messages, call logs, voicemails, and witnesses and let counsel decide what can be used. The rules are explained on the page covering Massachusetts wiretap law and secret recordings and in the wiretap and secret recording questions and answers.

A CORI entry is created at arraignment on a criminal harassment charge, whatever the outcome of the case. A nonconviction disposition may be sealed by petition to a judge under M.G.L. c. 276, § 100C. A conviction may be sealed under M.G.L. c. 276, § 100A once three years have passed for a misdemeanor, or seven years for a felony, measured from the court appearance and disposition including any incarceration or custody. The other statutory conditions must also be met. An application denied at the clerk-magistrate stage produces no CORI entry from that application. The sealing and expungement page sets out the remaining rules for sealing and expungement.

A criminal harassment case can affect a professional license or immigration status. The effect on a professional license depends on the specific question the licensing board asks. Some licensing boards ask about charges as well as convictions. A licensed professional may have to report an arraignment alone, depending on the board and the wording of its rule. The professional license page and the questions and answers for licensed professionals describe those reporting obligations. For a noncitizen, federal immigration law can impose consequences on a harassment or stalking disposition. Those consequences depend on the record of conviction rather than on the name of the charge. Immigration counsel should review the person’s exact immigration status and record. The framework is on the immigration consequences page.

The defenses correspond to the elements of criminal harassment. A defense may be based on fewer than three qualifying acts, on acts not directed at the specific complainant, or on acts that are protected speech rather than true threats or fighting words. A defense may also be based on a legitimate purpose that negates malice, such as litigation, debt collection, or co-parenting communication. Other defenses are based on the absence of serious alarm in fact and on conduct that would not cause a reasonable person substantial emotional distress. In a case based on digital messages, the defense may also challenge attribution and authentication and may move to suppress unlawfully obtained devices and messages. A motion to dismiss for lack of probable cause is available after the clerk-magistrate stage.