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) and 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, and that the defendant must have intended to target the complainant on each of them. The acts must be genuinely separate. One continuous argument, however unpleasant, is not three acts.

It can. 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, and that the people tracked did not have to know about it at the time. In Commonwealth v. McDonald, 462 Mass. 236 (2012), by contrast, the Court reversed a conviction built on driving a public street, looking at people and their dogs, and photographing dogs, holding 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. Digital evidence creates two separate lines of defense. 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. Whether a posting was directed at the specific person, or was commentary that person happened to see, is a central contested issue.

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. Where the charged acts are speech, the speech must fall within an unprotected category, such as a true threat or fighting words, before it can support a conviction. The same limits apply to 258E orders under Van Liew v. Stansfield, 474 Mass. 31 (2016), and the firm’s article on criminal harassment, 258E orders, and the First Amendment works through the line.

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 carrying up to five years in state prison, a mandatory minimum of one year where it is committed in violation of certain protective orders, and a mandatory minimum of two years for a second offense. A prior stalking conviction also elevates a later criminal harassment charge into the ten year provision of § 43A(c). The felony, its subsections, and the cases construing the threat element are set out in full on the stalking page.

It is the element that most often fails. The Commonwealth must prove a threat made with the intent to place the complainant in imminent fear of death or bodily injury, and the complainant’s fear must 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, then vacated the stalking conviction because no reasonable jury could find that the defendant’s profile page was one. 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 civil: a judge issues it on a preponderance of the evidence, and it 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 258E plaintiff must show each of the three acts was intended to cause fear, intimidation, abuse, or damage to property, and fear there 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, and one of the first defense tasks is recovering the complete exchange from both sides, including messages the complainant sent after the acts they describe as alarming.

No. Once a complaint issues, the case belongs to the Commonwealth, and only the prosecutor or the court can end it. A complainant’s change of heart may affect the strength of the case, but it does not dismiss the charge, and pressuring a complainant to withdraw can constitute intimidation of a witness under M.G.L. c. 268, § 13B, a felony. The lawful routes to ending a case are described on the page covering how Massachusetts criminal cases get dismissed.

Take the hearing seriously and do not attend without counsel. 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. Under Commonwealth v. Salvatore, 103 Mass. App. Ct. 605 (2023), testimony given at the hearing counts in the later probable cause analysis, so what is said in that room can decide the case either way. Do not contact the complainant and do not post about the dispute. Preparation is covered in the clerk-magistrate hearing FAQs.

No. Under M.G.L. c. 272, § 99 it is a felony in Massachusetts to secretly record a conversation, even on your own phone and even to document what you believe is harassment of you. Using or disclosing such a recording is a separate crime. The statute is directed at secret interception, so open recording is treated differently, but the safe course is to preserve messages, call logs, voicemails, and witnesses and to 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 charge creates a CORI entry at arraignment whatever the outcome. 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, and the other statutory conditions are met. An application denied at the clerk-magistrate stage produces no CORI entry from that application. The sealing and expungement page sets out the rest.

It can, and the answer depends on the specific question asked. Some licensing boards ask about charges as well as convictions, and an arraignment alone can start a reporting obligation depending on the board and the wording of its rule, as described on the professional license page and in the questions and answers for licensed professionals. For noncitizens, a harassment or stalking disposition can carry immigration consequences that turn on the record of conviction rather than on the name of the charge, and immigration counsel should review the exact status and record. The framework is on the immigration consequences page.

The defenses follow the elements: fewer than three qualifying acts; acts not directed at the specific complainant; acts that are protected speech rather than true threats or fighting words; a legitimate purpose that negates malice, such as litigation, debt collection, or co-parenting communication; the absence of serious alarm in fact; and conduct that would not cause a reasonable person substantial emotional distress. Digital cases add attribution and authentication challenges and motions to suppress unlawfully obtained devices and messages. A motion to dismiss for lack of probable cause is available after the clerk-magistrate stage.