Stalking is a crime in Massachusetts under G.L. c. 265, § 43. The statute has three parts: the basic crime (subsection (a)), stalking in violation of certain court orders (subsection (b)), and stalking by a person previously convicted of stalking (subsection (c)). The last two carry mandatory minimum prison sentences.
This guide follows a stalking charge in order, from what the law prohibits, to what must be proven, to sentencing. Section references are to G.L. c. 265 unless another chapter is named.
First, the Basics: What Stalking Means
Stalking is a pattern of willful and malicious conduct aimed at one person, combined with a threat meant to make that person fear death or bodily injury.
Under § 43(a), a person commits stalking by (1) willfully and maliciously engaging 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 (2) making a threat with the intent to place the person in imminent fear of death or bodily injury.
Some of these words need explanation:
- Pattern of conduct or series of acts over a period of time describes repeated conduct directed at the same person, not a single moment.
- Willfully and maliciously describe the required state of mind. Section 43 does not define these words.
- Reasonable person sets an outside measure: the conduct must be the kind that would cause an ordinary, reasonable person substantial emotional distress. It must also actually seriously alarm or annoy the person it is aimed at.
- Imminent fear means fear of harm that is about to happen. The threat must be made with the intent to cause that fear of death or bodily injury.
Stalking and criminal harassment. Criminal harassment under § 43A uses similar pattern-of-conduct language, but it requires conduct that seriously alarms the person and has no threat requirement. It is punishable by up to 2½ years in a house of correction, a fine of up to $5,000, or both (§ 43A(a)). See Criminal Harassment.
Step 1: What the Commonwealth Must Prove
To convict, the Commonwealth must prove every part of the statute, including both the pattern of conduct and the threat.
Under § 43(a), those parts are:
- a pattern of conduct or series of acts over a period of time, directed at a specific person;
- that the person engaged in it willfully and maliciously, and that it was a knowing pattern;
- that it seriously alarmed or annoyed the person it was directed at;
- that it would cause a reasonable person to suffer substantial emotional distress; and
- that the person made a threat with the intent to place the other person in imminent fear of death or bodily injury.
The Commonwealth must prove the charge beyond a reasonable doubt; see Proof Beyond a Reasonable Doubt in Massachusetts. A charge under subsection (b) or (c) also requires proof of the court order or the prior stalking conviction, as described below.
Step 2: How the Conduct or Threats Can Be Carried Out
The statute expressly covers conduct and threats carried out by mail, phone, or any electronic communication.
The conduct, acts, or threats in § 43(a) include, but are not limited to, those carried out by mail or by a telephonic, telecommunication, or electronic communication device. That includes any device that transfers signs, signals, writing, images, sounds, data, or intelligence of any nature by a wire, radio, electromagnetic, photo-electronic, or photo-optical system, such as email, internet communications, instant messages, and fax (§ 43(a)).
Step 3: Stalking in Violation of a Court Order
Stalking becomes a more serious charge if it is committed in violation of certain protective court orders.
Subsection (b) applies when stalking is committed in violation of a temporary or permanent vacate order (an order to leave and stay away from a home), restraining order, or no-contact order or judgment issued under any of these laws (§ 43(b)):
- G.L. c. 208, §§ 18, 34B, or 34C: orders in divorce and related cases, including orders barring a spouse from restraining the other spouse’s personal liberty and orders to vacate the marital home;
- G.L. c. 209, § 32: orders barring a spouse from restraining the personal liberty of a married person;
- G.L. c. 209A, §§ 3, 4, or 5: abuse prevention orders, which can order a person to stop abusing the plaintiff, to have no contact, and to vacate a home, including temporary orders and orders issued when the court is closed;
- G.L. c. 209C, §§ 15 or 20: orders, including vacate, restraining, or no-contact orders, issued to protect a party or child in cases under that chapter;
- a protection order issued by another jurisdiction; or
- a temporary restraining order or preliminary or permanent injunction issued by the Superior Court, which are court orders issued at different stages of a civil case.
Abuse prevention orders under chapter 209A. These are the most common orders on the list, so their terms are worth knowing. Under G.L. c. 209A, § 1, abuse means attempting to cause or causing physical harm, placing another in fear of imminent serious physical harm, causing another to engage involuntarily in sexual relations by force, threat, or duress, or coercive control, when it happens between family or household members. That term covers people who are or were married, are or were living in the same household, are or were related by blood or marriage, have a child in common, or are or have been in a substantive dating or engagement relationship.
- Section 3 orders can require the defendant to refrain from abusing the plaintiff, to refrain from contacting the plaintiff unless the court authorizes it, and to vacate and stay away from the household, multiple family dwelling, and workplace. Relief is for a fixed period of up to one year, and the court may extend it.
- Section 4 temporary orders may enter when a complaint is filed. If the plaintiff shows a substantial likelihood of immediate danger of abuse, the court may enter them without notice to the defendant, and the defendant must be given a chance to be heard within ten court business days.
- Section 5 orders may be granted by a judge when the court is closed or the plaintiff cannot appear because of severe hardship due to the plaintiff’s physical condition, again on a showing of a substantial likelihood of immediate danger of abuse.
Violating the order is also its own crime. Under G.L. c. 209A, § 7, a violation of an order to vacate, to refrain from abusing, or to have no contact issued under the chapter 208, 209, 209A, or 209C sections listed above, or of a protection order issued by another jurisdiction, is punishable by a fine of up to $5,000, up to 2½ years in a house of correction, or both. For any violation, the court must also order the defendant to complete a certified batterer’s intervention program unless it makes specific written findings of good cause not to, or the program finds the defendant not suitable. See Violation of Restraining Orders.
Step 4: A Second or Subsequent Stalking Charge
A person previously convicted of stalking faces a longer mandatory minimum sentence for a new stalking offense.
Under § 43(c), a person who commits stalking after having been convicted of stalking is punished by imprisonment in a jail or the state prison for not less than 2 years and not more than 10 years, with a mandatory minimum term of 2 years.
Step 5: Sentencing and the Limits on the Court
Each subsection sets its own penalty, and the two more serious forms limit what a judge can do.
- Stalking (§ 43(a)): up to 5 years in the state prison, or a fine of up to $1,000, or up to 2½ years in a house of correction, or both fine and imprisonment.
- Stalking in violation of a court order (§ 43(b)): not less than 1 year and not more than 5 years in a jail or the state prison, with a mandatory minimum term of 1 year.
- Second or subsequent stalking (§ 43(c)): not less than 2 years and not more than 10 years in a jail or the state prison, with a mandatory minimum term of 2 years.
A mandatory minimum is the lowest sentence the law allows; the judge cannot impose less. For charges under subsection (b) or (c), § 43 also provides that:
- the case may not be placed on file (set aside without a final disposition) or continued without a finding;
- the sentence may not be reduced below the mandatory minimum, and may not be suspended or reduced until the mandatory term is served;
- the person is not eligible for probation, parole, furlough, work release, or deductions for good conduct until the mandatory term is served; and
- the court’s general power to place a person on probation, including before trial, under G.L. c. 276, § 87 does not apply to a person 18 or older charged under that subsection.
The one exception is a temporary release in the custody of an officer, which the commissioner of correction may grant on the recommendation of the person in charge of the facility, only to attend the funeral of next of kin or a spouse, to visit a critically ill close relative or spouse, or to obtain emergency medical services not available at the facility (§ 43(b), (c)).
Frequently Asked Questions
Is stalking a felony?
Yes. A felony is a crime punishable by death or imprisonment in the state prison (G.L. c. 274, § 1), and each subsection of § 43 allows a state prison sentence.
Can a stalking charge be sent to court diversion?
Not under chapter 276A. Offenses in chapter 265, which include stalking, are on the list in G.L. c. 277, § 70C, and a charge on that list cannot be diverted under chapter 276A (c. 276A, § 4(b)). See Diversion in Massachusetts Criminal Cases.
Does the threat have to be made in person?
No. The statute covers conduct and threats made by mail, phone, or electronic communication, and that list is not exclusive (§ 43(a)).
What is the maximum sentence for stalking?
Five years in the state prison for stalking under § 43(a) or stalking in violation of a court order under § 43(b). Ten years for a second or subsequent stalking offense under § 43(c).
Can a charge of stalking in violation of a court order be continued without a finding?
No. Section 43(b) provides that the case may not be continued without a finding or placed on file, and § 43(c) says the same for a second or subsequent offense. Section 43(a) does not contain that restriction.
Facing a Stalking Charge? Talk to a Lawyer
Stalking charges carry serious penalties, including mandatory minimum sentences for some forms of the offense. 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 for a confidential consultation.
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Disclaimer
This article is for general educational purposes only and is not legal advice. The outcome of a stalking case depends on its specific facts, and statutes and court decisions change. Reading this page does not create an attorney-client relationship. If you have questions about a stalking charge in Massachusetts, consult a licensed Massachusetts criminal defense attorney about your situation.
