What is criminal harassment?
Harassment can be a crime in Massachusetts and may result in a Harassment Prevention Order being issued. Under Massachusetts General Laws Chapter 265, Section 43A a person who engages in a knowing pattern of conduct or speech on at least three separate occasions that causes substantial emotional distress, may be convicted.
What does the government need to show to prove someone guilty of criminal harassment?
In order to prove a defendant GUILTY of criminal harassment, the Commonwealth must prove the following FIVE elements beyond a reasonable doubt:
1. That the defendant engaged in:
- Firstly, a knowing pattern of conduct
- Secondly, harassing speech
- Thirdly, a harassing series of acts
…on at least THREE separate occasions.
2. That the defendant intended to target the alleged victim with the harassing conduct or speech, or series of acts, on EACH occasion.
3. That the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the alleged victim.
4. That the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress
5. That the defendant committed the conduct or speech, or series of acts, willfully and maliciously.
If the Commonwealth has proved each of these elements beyond a reasonable doubt, the defendant must be found GUILTY of the offense of criminal harassment. If the Commonwealth has not proved ONE OR MORE of these FIVE elements beyond a reasonable doubt, the defendant must be found NOT GUILTY.
What is substantial emotional distress?
Substantial emotional distress is distress that is ALL of the following:
- Firstly, considerable
- Secondly, of importance
- Thirdly, solid and real
Conduct that constitutes substantial emotional distress would produce a considerable or significant amount of emotional distress in a reasonable person. Furthermore, such distress produces something markedly greater than the level of uneasiness, nervousness, or unhappiness commonly experienced in day-to-day living.
Substantial emotional distress must be considerable in amount, or of real worth and importance.
What does it mean to act willfully and maliciously?
An act is legally considered to be willful if it is done intentionally and by design, and NOT out of mistake or accident. The defendant acted willfully if the defendant intended the conduct.
Willful conduct must be intentional (as opposed to negligent), but does NOT require that the defendant intend its harmful consequences as well (i.e. general intent).
An act is malicious if the defendant’s conduct was ALL of the following:
- Intentional
- Without justification or mitigation
- Any reasonably prudent person would have foreseen the actual harm that resulted to the alleged victim
The requirement of malice does NOT require a showing of cruelty, hostility or revenge, NOR does it require an actual intent to cause the required harm. The ONLY requirement is that the conduct be intentional and without justification or mitigation, and any reasonably prudent person would have foreseen the actual harm that resulted.
In summary, an act is “willful” if it is done intentionally and by design, in contrast to an act which is done thoughtlessly or accidentally. The defendant acted willfully if the defendant intended both the conduct and its harmful consequences. An act is done with “malice”if it is done out of cruelty, hostility or revenge. To act with malice, a person must act not only deliberately, but also out of hostility toward the alleged victim.
What are harassing forms of communication?
The defendant can communicate the conduct, acts, or threats to the alleged victim by ANY means, including, but not limited to:
- Mail
- Telephone
- Facsimile transmission
- E-mail
- Internet communication
- Telecommunications device
- Electronic instant messages
- Any electronic communication device, including any device that transfers (AT LEAST ONE):
- Signs
- Signals
- Writing
- Images
- Sounds
- Data
- Intelligence of any nature
…transferred in whole or in part by (AT LEAST ONE):
- Wire
- Radio
- Electromagnetic system
- Photo-electronic system
- Photo-optical system
Is harassing conduct protected speech?
NO, under Commonwealth law, harassing conduct does NOT constitute “free” or protected speech.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH CRIMINAL HARASSMENT, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.
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