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, serious alarm or annoyance that would cause a reasonable person substantial emotional distress, and a threat intended to place that person in imminent fear of death or bodily injury. The threat distinguishes stalking from criminal harassment under M.G.L. c. 265, § 43A. It also creates exposure to state prison and, in the circumstances specified in subsections (b) and (c), mandatory minimum sentences.

Stalking allegations often arise after a relationship ends, during a dispute between neighbors or coworkers, or alongside a 209A or 258E 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, and the criminal harassment FAQs provide shorter answers about both charges.

Stalking and Criminal Harassment Are Different Charges

The offenses share a pattern requirement, and both require more than two incidents. Criminal harassment under § 43A does not require a threat. Stalking under § 43 does. A first criminal-harassment offense is a misdemeanor; stalking is a felony, and specified stalking cases carry 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 offenses from the same facts, and the criminal-harassment count can remain if the threat element fails. 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 which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and, second, makes a threat with the intent to place the person in imminent fear of death or bodily injury. The penalty is imprisonment in the state prison for not more than five years, a fine of not more than $1,000, imprisonment in a house of correction for not more than two and one half years, or 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; M.G.L. c. 209, § 32; M.G.L. c. 209A, §§ 3, 4, or 5; or M.G.L. c. 209C, §§ 15 or 20; 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, and no sentence under subsection (b) may be less than a mandatory minimum term of one year.

A harassment prevention order under M.G.L. c. 258E is not on that list. Stalking committed while a 258E order is in force is therefore charged under subsection (a), with the order violation prosecuted separately under M.G.L. c. 258E, § 9. Stalking committed while a 209A abuse prevention order is in force falls within subsection (b) and the mandatory minimum.

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, and no sentence under subsection (c) may be less than a mandatory minimum term of two years.

Stalking is not confined to the District Court and the Boston Municipal Court. Jurisdiction follows the maximum punishment the charged subsection authorizes rather than the sentence imposed, so a charge under subsection (c), which authorizes a state prison term of two to 10 years, may be prosecuted in the Superior Court. Commonwealth v. Graham, 388 Mass. 115 (1983).

The Threat Element

The threat element distinguishes stalking from criminal harassment and often determines whether the stalking count survives.

Commonwealth v. Matsos, 421 Mass. 391, 394 to 395 (1995), supplies the standard. The Commonwealth must prove that the defendant made a threat with the intent to place the person in imminent fear of death or bodily injury, and the Supreme Judicial Court held that this 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; it must prove that the threat was reasonably calculated to place the complainant in imminent fear of bodily injury. Walters, 472 Mass. at 693 to 694, states the two sided requirement: the defendant must intend to place the complainant in immediate fear that physical harm is likely, and the complainant’s fear must 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, because the act itself was violent and criminal and was directed at her property. Nor must the threat be delivered face to face. Where the threat is 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, and the First Amendment governs what qualifies. 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). Since Counterman v. Colorado, 600 U.S. 66 (2023), that is not the whole of it: the State must also prove that the speaker had some subjective understanding of the threatening nature of the statements, and the Supreme Court 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 the resulting motion and the resulting cross-examination.

Walters is the working example. 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), and then held that no reasonable jury could have found that this page was such a threat: the photograph contained nothing menacing in the defendant’s expression or in the way the firearm was held, there was no caption suggesting violence, the defendant had never pointed a firearm at the complainant or threatened her physically, and the photograph had been posted roughly three years after the last occasion on which she had seen him with a firearm. The stalking conviction was vacated. The convictions of criminal harassment, of two counts of violating an abuse prevention order, and of two counts of perjury were affirmed.

The Pattern Element in a Stalking Case

Both statutes require a knowing pattern of conduct or series of acts, and a single act, however alarming, does not satisfy the element.

The rule 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 defect the Court construed the offense prospectively into the two part form the Legislature later adopted, and it held that a pattern or a series in this 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 turns on willfulness, malice, and targeting, not on how much distress the conduct produced. Those elements, 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, and most stalking cases now arrive with a digital record. Message threads, account logs, and social media posts are the primary evidence, and each of them 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. How police may obtain messages and accounts, and how that evidence is challenged, is covered on the page treating phone, computer, and digital device searches, and the constitutional framework is on the page covering illegal searches and seizures.

Location evidence carries its own foundation requirements, and Lehan is the current authority. The Appeals Court held the harassment element there 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, and it held the vandalism sufficient to supply the threat. It 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, and 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 stalking allegation may produce both a criminal prosecution and a civil 209A or 258E proceeding. Each court applies a different standard and can enter a separate order or judgment.

An 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 258E plaintiff at the hearing after notice must prove by a preponderance of the evidence three willful and malicious acts 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 order is not simply the criminal charge under a lower burden of proof.

Violating either order is a separate crime: violation of a 209A order under M.G.L. c. 209A, § 7, and violation of a 258E order under M.G.L. c. 258E, § 9. A single course of conduct after an order issues can therefore produce a stalking count, a criminal harassment count, and a violation count at the same time. Where the order is one of those listed in section 43(b), the stalking count carries the one year mandatory minimum. Questions arising in both proceedings at once are answered in the 209A and 258E violation FAQs.

The Model Jury Instructions

Three District Court model instructions govern this cluster: Instruction 6.680 on stalking, revised July 2024; Instruction 6.690 on stalking in violation of a protection order, issued July 2024; and Instruction 6.640 on the companion misdemeanor of criminal harassment, revised February 2026. The model instructions state the elements and distinctions that ordinarily guide the trial instruction. They are worth reading before 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. A felony stalking application receives a hearing in the circumstances the statute specifies, including when a law-enforcement officer submits the application and requests the hearing. A hearing is discretionary for some other felony applications, and § 35A permits process to issue without one in the exceptions it identifies.

Because stalking is a felony, more stalking cases begin by arrest than criminal-harassment cases do. When a hearing is held and the clerk-magistrate denies the application, no criminal complaint issues, no arraignment occurs, and the application produces no CORI entry. Other police or agency records may still exist, and the denial does not resolve a 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 route. A conviction may be sealed under M.G.L. c. 276, § 100A once the court appearance and court disposition, including any period of incarceration or custody, occurred not less than three years earlier for a misdemeanor or not less than seven years earlier for a felony, and the other statutory conditions are 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 this purpose, so a companion violation count carries the seven-year period even where the other count on the record would not. The standards are set out on the pages covering sealing and expungement and sealing and expungement standards.

Professional licensing. 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, and a licensed person facing this 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. Those are three separate grounds. The stalking ground is not limited by the relationship between the parties, while the domestic violence ground 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. Whether a particular Massachusetts conviction under section 43 satisfies the federal stalking ground is a question decided by comparing the elements of the state offense with the federal generic definition, and it is not answered by the name of the charge. A noncitizen facing this charge needs immigration counsel to assess the actual record of conviction. The 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, which is the subject of the firm’s page on firearm surrender under a 258E order. Where the parties are family or household members, the separate rules on firearms after a domestic violence charge apply as well.

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, communicated to the complainant directly or with the intent that it reach them, objectively capable of producing reasonable fear, and, where it is speech, constituting a true threat that the defendant was at least reckless about. Walters shows how much of a case can fail on this 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. When the charged acts 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 for the electronic evidence. Under Lehan the Commonwealth must lay a proper business records foundation for location data, and an officer may not state conclusions drawn from records they did not create and do not understand. The same discipline applies to account records, extraction reports, and annotated exhibits.

Credibility. Stalking allegations frequently arise from acrimonious separations, divorce proceedings, and custody disputes. Prior communications between the parties, the complainant’s own conduct, and inconsistencies in the account are the material of cross-examination.

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.

Who Attorney Serpa Represents

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. These cases include allegations after a separation, conduct while a 209A or 258E order was in force, messages or social-media posts read together as a pattern, and complaints charging both stalking and criminal harassment from the same facts. If you have been charged with stalking or received notice of a clerk-magistrate hearing on a stalking application, contact Serpa Law Office at 617.936.0201 for a confidential consultation. 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 or 258E 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.