What is the law on harassing or obscene phone calls?
Massachusetts law states:
“Whoever telephones another person or causes a person to be telephoned, contacts another person by electronic communication, or causes a person to be contacted by electronic communication repeatedly, for the sole purpose of harassing, annoying, or molesting the person or the person’s family, whether or not conversation ensues…shall be punished.”
In other words, when a person:
- Telephones another person
- Causes a person to receive a call
- Contacts another person by electronic communication
- Causes a person to receive an electronic communication, repeatedly
…for the sole purpose of:
- Harassing
- Annoying
- Molesting
…the person or the person’s family, whether or not conversation takes place, is committing a crime.
What does the government need to show to prove someone guilty of harassing or obscene phone calls?
In order to prove the defendant GUILTY of the offense of making harassing telephone calls or electronic communications, the Commonwealth must prove BOTH of the following elements of the offense beyond a reasonable doubt:
- That the defendant:
- Made telephone calls to
- Caused telephone calls to
- Contacted by electronic communication
- Caused an electronic communication to
…another person repeatedly—which means three or more times.
2. That the defendant’s sole purpose in making the telephone calls, having the telephone calls made, making the contacts by electronic communication, and/or causing the contacts by electronic communication to be made was EITHER to:
- Firstly, harass
- Secondly, annoy
- Thirdly, molest
…the other person or his or her family.
Remember that “repeatedly” in the context of this offense requires three or more telephone calls or electronic communications.
Does an actual conversation have to take place?
NO, the Commonwealth is NOT required to prove beyond a reasonable doubt that the defendant had a conversation or actual contact with the alleged victim, but only that he or she:
- Made the telephone calls
- Had telephone calls made
- Made the contacts by electronic communication
- Had the contracts made by electronic communication
Did the person who made the calls only have to have the motive of harassing?
YES, the Commonwealth must prove that the defendant’s ONLY purpose was to annoy, harass or molest the alleged victim or his or her family.
Only partial motivation to annoy, harass or molest is NOT sufficient proof for the Commonwealth to satisfy the second element of the offense in question.
For example, a person’s favorite charity might call Person A repeatedly to ask for donations and that might even annoy or harass him or her. However, such actions would NOT violate the law if the intent was NOT to annoy, harass or molest.
Likewise, if the defendant called repeatedly, but not for the sole purpose of harassment, he or she should be found NOT GUILTY of harassing telephone calls or electronic communications.
How does the court determine what I intended by my calls?
The defendant’s intent or purpose CANNOT be proved directly because there is no way to look into a human mind and precisely determine what that mind was or is thinking.
Therefore, jurors must determine a defendant’s purpose from surrounding circumstances. They can consider any of the defendant’s statements and acts, and any other facts and circumstances shown by the evidence which help indicate the defendant’s state of mind.
Moreover, jurors may infer that a person ordinarily intends the natural and probable consequences of acts that he or she does knowingly.
For example, if a person were to make repeated telephone calls in a short period of time, or in the middle of the night, and hangs up when someone answers the phone, it might be reasonable to infer that the calls were made for the purpose of harassment.
Juries may take ANY of the following factors into consideration:
- Number of calls
- Tone of the calls
- The sequence and timing of the calls
- The defendant’s persistence in placing the calls
However, remember that jurors will consider all evidence they deem relevant to determine whether the Commonwealth has proved beyond a reasonable doubt that the defendant acted with the required intent to commit the offense in question.
Is it possible for me to harass the government or a group?
NO, a government unit or organization CANNOT be subject to harassing telephone calls or electronic communications because the governmental bodies are NOT a harassed “person” in this scenario.
However, note that telephone calls or electronic communications could take on a tone so directed at the recipient employee as an individual as to constitute harassment under the offense.
What are examples of electronic communications?
The term electronic communications includes transfer of ANY of the following:
- Signs
- Signals
- Writing
- Images
- Sounds
- Data
- Intelligence of any nature
…transmitted in whole or in part by:
- Wire
- Radio
- Electromagnet
- Photo-electronic device
- Photo-optical system
Does the recipient have to have received my calls for me to go to jail?
NO, the Commonwealth is NOT required to prove beyond a reasonable doubt that the defendant had a telephone conversation with another person or that that person received the defendant’s communication.
The Commonwealth must prove beyond a reasonable doubt that:
- That the defendant made the telephone calls
- The defendant had the telephone calls made
- That the defendant sent the electronic communications
- The defendant had the electronic communications sent
…AND that the defendant could have received them
Moreover, legally speaking, “to telephone” means to place a telephone call that might result in oral communication.
Are anonymous calls harassing or obscene?
By their very nature, anonymous telephone calls and actions do not link to a particular individual. They are anonymous.
Yet, based on factors like ALL of the following:
- Timing
- Mode of communication
- Content of the communication
- Similarity to identified conduct
- Interpersonal relationships—particularly those involving grievances against the recipient of the unwanted communication
…a juror may infer connections to particular individuals.
Where in addition to evidence of specific calls traced to the defendant there is evidence of other, anonymous telephone calls, the judge has discretion to permit the jury to consider such evidence as proving the defendant’s intent to harass, annoy or molest if such evidence would permit (even if it does require) an inference that the defendant was the source of such anonymous calls.
In this scenario, jurors will consider first whether the defendant in fact made the anonymous calls. If so, they must consider that evidence only on the issue of whether the defendant’s sole purpose in making the calls traced to him was to harass, annoy, or molest.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH HARASSING OR OBSCENE TELEPHONE CALLS OR ELECTRONIC COMMUNICATIONS, 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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