Criminal harassment is a Massachusetts crime built around a pattern of conduct aimed at one person — not a single rude message or one heated argument. Under G.L. c. 265, § 43A, the Commonwealth must prove a series of willful and malicious acts that seriously alarm the alleged victim and that would cause a reasonable person substantial emotional distress.
This guide walks through the statute in the order a case usually presents: what the charge covers, what prosecutors must prove, how speech is treated, how criminal harassment differs from stalking and from civil harassment prevention orders, high-level penalties, and a short FAQ. Section references are to G.L. c. 265 unless another chapter is named.
Attorney William J. Barabino has over 23 years of experience in Massachusetts criminal defense and represents clients from his Medford office throughout Greater Boston. If you or a family member is facing a criminal harassment complaint, early review of the exact allegations matters.
What criminal harassment covers under G.L. c. 265, § 43A
Section 43A makes it a crime to willfully and maliciously engage in a knowing pattern of conduct or series of acts over a period of time, directed at a specific person, that seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress.
In plain terms, the statute is aimed at repeated targeting of one person — by conduct, speech, or both — that goes well beyond ordinary conflict. The acts can be carried out by many means, including:
- Mail
- Telephone or other telecommunication devices
- Email, internet communications, and instant messages
- Fax
- Other electronic devices that transfer writing, images, sounds, or data by wire, radio, electromagnetic, photo-electronic, or photo-optical systems
That list is not exclusive. The same statute also has a separate subsection, § 43A(b), that addresses knowing distribution of certain intimate visual material without consent. That topic is covered at a high level below and in more detail on the firm’s Revenge Porn posts.
What the Commonwealth must prove
To convict on the core criminal-harassment offense under § 43A(a), the Commonwealth must prove five things beyond a reasonable doubt. District Court Model Jury Instruction 6.640 (Criminal Harassment), revised February 2026, frames them this way:
- The defendant committed at least three separate acts;
- The defendant intended to target the alleged victim with each act;
- The defendant committed each act willfully and maliciously;
- The acts, taken as a whole, seriously alarmed the alleged victim; and
- The acts, taken as a whole, would cause a reasonable person to suffer substantial emotional distress.
If any one of those five points is not proved beyond a reasonable doubt, the defendant is not guilty of this charge — even if someone felt upset or the messages look harsh on a phone screen.
Three separate acts, targeting, and “over a period of time”
The pattern requirement is a real gate. Instruction 6.640 requires at least three separate acts. An act may be based on conduct, speech, or both. The acts must be separate and distinct, and separated by at least a brief period of time.
“Target” means each act was directed at the alleged victim, and that the defendant intended the alleged victim to know each act was aimed at them. A random unpleasant encounter with no directed targeting does not satisfy this element.
“Over a period of time” means the passage of time — not a particular number of days or weeks. As long as the acts are separate, distinct, and separated by some interval, they occur over a period of time within the meaning of the statute. One continuous episode chopped into pieces to reach “three” is not what the instruction describes.
Willful and malicious conduct
Willful and malicious are defined carefully in Instruction 6.640, and they do not mean the same thing as everyday “spite.”
- Willful: done intentionally and by design, not by mistake or accident. The defendant acted willfully if the defendant intended the conduct. Willful conduct must be intentional rather than negligent, but it does not require that the defendant also intend the harmful consequences.
- Malice (modern instruction definition): the defendant’s conduct was intentional and without justification or mitigation, and any reasonably prudent person would have foreseen the actual harm that resulted to the alleged victim. Malice does not require a showing of cruelty, hostility, or revenge, and it does not require an actual intent to cause the required harm.
Older summaries sometimes mixed those ideas. The live instruction is the standard used for trial framing: intentional conduct without justification or mitigation, with foreseeable harm — not a separate requirement of hatred or revenge.
Serious alarm and substantial emotional distress
Two related measures apply. First, the alleged victim must have been seriously alarmed by the conduct. The Commonwealth must prove that the cumulative effect of the defendant’s conduct seriously alarmed the alleged victim; it does not have to prove that each individual act did so on its own.
Second, the acts taken as a whole must be the kind that would cause a reasonable person to suffer substantial emotional distress. “Substantial emotional distress” means distress that is considerable, of importance, solid and real — markedly greater than the uneasiness, nervousness, or unhappiness commonly experienced in day-to-day living. Trifling or passing upset is not enough.
When the alleged acts are based on speech alone
If an act is based on speech alone, Instruction 6.640 requires the Commonwealth to prove beyond a reasonable doubt that the speech was a true threat or contained fighting words. Harassing speech under this statute does not reach ordinary protected speech.
- True threat: a serious expression of the speaker’s intent to cause imminent physical harm, or to cause the alleged victim to fear physical harm in the future. The Commonwealth must prove the defendant either intended to cause that fear of physical harm, or was aware of or consciously disregarded a substantial risk that the statement would be viewed as threatening physical harm. Context matters.
- Fighting words: face-to-face personal insults so personally abusive that they are plainly likely to provoke a violent reaction.
If speech is not a true threat or fighting words, it cannot count as one of the three required acts — though it may still give context to other acts. Vulgar, profane, offensive, or abusive speech, without more, is not enough for criminal sanction under this framing.
How criminal harassment differs from stalking and from harassment prevention orders
Criminal harassment, stalking, and civil protective orders often get spoken about as if they were the same thing. They are not.
- Criminal harassment (§ 43A): pattern of willful and malicious conduct that seriously alarms and would cause a reasonable person substantial emotional distress. No threat of death or bodily injury is required for the core § 43A(a) offense.
- Stalking (§ 43): similar pattern language, plus a threat made with the intent to place the person in imminent fear of death or bodily injury. Stalking carries different — and for some forms, mandatory-minimum — penalties. See the firm’s Stalking post.
- Harassment prevention orders (G.L. c. 258E): a civil court order that can restrain contact or other conduct. A 258E case is not the same proceeding as a criminal harassment prosecution, though the same facts sometimes appear in both. See the Harassment Prevention Order practice page.
- Threats (G.L. c. 275, § 2): a separate charge focused on threatening to commit a crime against person or property. See the Threats post.
Which label fits depends on the exact allegations, the number and spacing of acts, whether a qualifying threat is charged, and whether a civil petition has been filed. The complaint language and the instruction that will be given at trial control.
Nonconsensual intimate images under § 43A(b)
Subsection (b) of § 43A addresses knowing distribution of visual material depicting another person who is nude, partially nude, or engaged in sexual conduct, when the person depicted is identifiable (or identified by the distributor), the distribution causes physical or economic injury or substantial emotional distress, and the distributor acted with intent to harm, harass, intimidate, threaten, coerce, or cause substantial emotional distress — or with reckless disregard for the likelihood of those harms, the lack of consent to distribution, and the depicted person’s reasonable expectation that the material would remain private.
Consent to create the visual material is not consent to distribute it. The subsection also covers certain digitized or altered material that would falsely appear to a reasonable person to be an authentic representation of the person depicted. Statutory exceptions exist for defined public-interest, law-enforcement, medical, commercial, and related settings.
This rewrite does not replace the firm’s dedicated Revenge Porn posts. Those pages own the deeper explanation of image-based distribution under the 2024 amendments. Here, the point is only that § 43A now includes this separate path labeled as criminal harassment, with its own penalty structure.
Penalties at a high level
Penalties depend on which part of § 43A is charged and on prior convictions:
- Core offense under § 43A(a): imprisonment in a house of correction for not more than 2½ years, a fine, or both.
- Nonconsensual intimate-image offense under § 43A(b): imprisonment in a house of correction for not more than 2½ years, a fine, or both (the statute sets a higher maximum fine than subsection (a)).
- Second or subsequent offense under this section, or an offense after a prior stalking conviction under § 43: imprisonment in a house of correction for not more than 2½ years or in state prison for not more than 10 years, a fine, or both.
A crime punishable by state prison is a felony under Massachusetts law (G.L. c. 274, § 1). The subsequent-offender path under § 43A(c) therefore carries felony exposure. Exact sentencing in any one case depends on the charged subsection, the person’s record, and the court’s application of the statute — not on a blog summary.
Frequently asked questions
Is criminal harassment the same as stalking?
No. Both can involve a pattern of directed conduct, but stalking under § 43 also requires a threat intended to place the person in imminent fear of death or bodily injury. Criminal harassment under § 43A(a) does not require that threat element.
Do three texts in one minute count as three acts?
Not automatically. Instruction 6.640 requires separate, distinct acts separated by at least a brief period of time. One continuous episode is not supposed to be sliced into three acts just to meet the number.
Can emails or social-media messages support the charge?
Yes. The statute expressly covers mail, phone, internet communications, instant messages, and other electronic communications, among other means.
Does every rude or angry message become criminal harassment?
No. The Commonwealth must prove the full five-element pattern, including willful and malicious targeting, serious alarm, and substantial emotional distress as measured by a reasonable person. Speech-only acts must also clear the true-threat or fighting-words gate.
Is a harassment prevention order the same as this criminal charge?
No. A Chapter 258E harassment prevention order is a civil protective order. Criminal harassment is a criminal prosecution under § 43A. The same underlying allegations sometimes appear in both settings, but the standards, procedures, and consequences differ.
Questions about a criminal harassment charge in Massachusetts?
Criminal harassment cases turn on the exact acts alleged, how they are spaced in time, whether each was directed at a specific person, and whether the Commonwealth can prove alarm and substantial emotional distress under the instruction. The Law Office of William J. Barabino in Medford has over 23 years of experience in Massachusetts criminal defense and represents clients throughout Greater Boston.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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Disclaimer
This post is for general educational information about Massachusetts criminal law. It is not legal advice for your situation, and reading it does not create an attorney-client relationship. Laws and jury instructions change. For advice about a specific case, speak with a licensed Massachusetts attorney.
