HARASSING OR OBSCENE TELEPHONE CALLS OR ELECTRONIC COMMUNICATIONS

HARASSING OR OBSCENE TELEPHONE CALLS OR ELECTRONIC COMMUNICATIONS

This post will answer the following legal questions on the offenses of harassing or obscene telephone calls or electronic communications:

  • What is Massachusetts’s law on the offense of harassing telephone calls or electronic communications?
  • How does the Commonwealth prove the defendant guilty of the offense of making harassing telephone calls or electronic communications?
  • Is the Commonwealth required to show that the defendant had a conversation or actual contact with the alleged victim, to convict the defendant of making harassing telephone calls or electronic communications?
  • Does the Commonwealth have to prove the defendant’s ONLY purpose was to annoy, harass or molest the alleged victim or his or her family?
  • How do courts determine a person’s intent or purpose in cases regarding harassing telephone calls or electronic communications?
  • Can a governmental unit or organization be subject to harassing telephone calls or electronic communications?
  • Legally speaking, what are electronic communications?
  • Is the Commonwealth required to prove beyond a reasonable doubt that the defendant had a telephone conversation with a person or that the defendant’s electronic communication was received by that person in convicting a defendant of the offense of making harassing telephone calls or electronic communications?
  • What is Massachusetts’s law on the offense of obscene telephone calls or electronic communications?
  • How does the Commonwealth prove the defendant guilty of the offense of making obscene telephone calls or electronic communications?
  • Can anonymous telephone calls ever be legally considered harassing or obscene?

What is Massachusetts’s law on the offense of harassing telephone calls or electronic communications?

Commonwealth 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 (ONE OR MORE):

  • Telephones another person
  • Causes a person to be telephoned
  • Contacts another person by electronic communication
  • Causes a person to be contacted by electronic communication repeatedly

…for the sole purpose of (ONE OR MORE):

  • Harassing
  • Annoying
  • Molesting

…the person or the person’s family, whether or not conversation takes place, is committing a crime.

How does the Commonwealth prove the defendant guilty of the offense of making harassing telephone calls or electronic communications?

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:

  1.  That the defendant (ONE OR MORE):
  • Made telephone calls to
  • Caused telephone calls to be made to
  • Contacted by electronic communication
  • Caused to be contacted by electronic communication

…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:

  • Harass
  • Annoy
  • 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. 

Is the Commonwealth required to show that the defendant had a conversation or actual contact with the alleged victim, to convict the defendant of making harassing telephone calls or electronic communications?

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 (ONE OR MORE):

  • Made the telephone calls
  • Had telephone calls made
  • Made the contacts by electronic communication
  • Had the contracts made by electronic communication

Does the Commonwealth have to prove the defendant’s ONLY purpose was to annoy, harass or molest the alleged victim or his or her family?

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 do courts determine a person’s intent or purpose in cases regarding harassing telephone calls or electronic communications?

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.

Jurors also are allowed to 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 are allowed to take ANY of the following factors into consideration in determining if the required intent for the offense in question exists:

  • Number of calls
  • Tone of the calls
  • The sequence and timing of the calls
  • The defendant’s persistence in placing the calls despite repeatedly being asked to cease

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.

Can a governmental unit or organization be subject to harassing telephone calls or electronic communications?

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.

Legally speaking, what are electronic communications?

The term “electronic communications” is legally considered to include, but is not limited to, transfer of ANY of the following (ONE OR MORE):

  • 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

Is the Commonwealth required to prove beyond a reasonable doubt that the defendant had a telephone conversation with a person or that the defendant’s electronic communication was received by that person, in convicting a defendant of the offense of making harassing telephone calls or electronic communications?

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 is ONLY required to prove beyond a reasonable doubt that (ONE OR MORE):

  • That the defendant made the telephone calls
  • That the defendant had the telephone calls made
  • That the defendant sent the electronic communications
  • That the defendant had the electronic communications sent

…AND that the defendant could have received them

Note that legally speaking, “to telephone” means to place a telephone call that might result in oral communication.

What is Massachusetts’s law on the offense of obscene telephone calls or electronic communications?

Commonwealth law states:

“Whoever telephones a person repeatedly or contacts a person repeatedly by electronic communication and uses indecent or obscene language to the person, shall be punished.”

In other words, a person who (ONE OR BOTH):

  • Telephones a person repeatedly
  • Contacts a person repeatedly by electronic communication

…and uses (ONE OR BOTH):

  • Indecent language
  • Obscene language

…to another person, is committing a crime.

How does the Commonwealth prove the defendant guilty of the offense of making obscene telephone calls or electronic communications?

In order to prove a defendant GUILTY of the offense of making obscene telephone calls or electronic communications, the Commonwealth must prove ALL of the following elements beyond a reasonable doubt:

  1. That the defendant (ONE OR MORE):
  • Made telephone calls to
  • Contacted by electronic communication

     …the alleged victim repeatedly—which means THREE OR MORE times

  1. That in making those calls or electronic communications, the defendant used indecent or obscene language

Note that to convict a defendant of this offense, it is NOT necessary that the defendant specifically knew or believed that his or her language was legally indecent or obscene. It is only necessary that the Commonwealth prove beyond a reasonable doubt that (BOTH):

  • The language was in fact indecent and obscene
  • The defendant knew the general characterof what he or she was saying

Note also that in this scenario, “indecent” should be given its normal dictionary meaning of “nonconformance with accepted standards of morality”.

Can anonymous telephone calls ever be legally considered harassing or obscene?

By their very nature, anonymous telephone calls and actions are NOT perceptibly linked 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

…connections to particular individuals CAN be inferred.

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 are required to 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.

 

Instruction 6.660

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