What is stalking?

What is stalking?

Massachusetts General Laws c. 265, § 43 punishes stalking, a threatening pattern of conduct or series of acts that seriously alarms or annoys a person or causes a reasonable person to suffer substantial emotional distress.

What is the law on stalking?

Massachusetts law states:

“Whoever…willfully and maliciously engages 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 makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking…”

In other words, if a defendant:

  • Willfully
  • Maliciously

…engages in:

  • A knowing pattern of conduct
  • A series of acts

…over a period of time directed at a specific person, which seriously:

  • Alarms
  • Annoys

…that person and would cause a reasonable person to suffer substantial emotional distress, AND makes a threat with the intent to place the person in imminent fear:

  • Of death
  • Of bodily injury

…that person is committing the crime of stalking.

What does the government have to show to prove that someone is guilty of stalking?

In order to prove a defendant guilty of the offense of stalking, the Commonwealth must prove the following FIVE elements of the offense beyond a reasonable doubt:

  1. That over a period of time the defendant knowingly engaged in:
  • A pattern of conduct
  • A series of acts

…involving AT LEAST three incidents, directed at the alleged victim

2. That those acts were a kind that would cause a reasonable person to suffer substantial emotional distress

3. That those acts did cause the alleged victim to become seriously alarmed or annoyed

4. That the defendant took those actions willfully and maliciously

5. That the defendant made a threat with the intention of placing the alleged victim in imminent fear of death or bodily injury

Note that prior to passed amendments to the statute (effective November 7, 1996), there was a two-pronged definition to the offense of stalking: stalking by harassing or stalking by following.

A court challenge to the constitutionality of the amended statute (Commonwealth v. James X. Kwiatkowski), arguing that cases on direct appeal prior to the date the amendments became legally effective should NOT be subject to the amended statue, failed. The court ruled that only in cases in direct appeal prior to the date the amendments became legally effective where there was a substantial risk of miscarriage of justice could be could be exempted from subjection to the amended statute.

Also note, that “a pattern of conduct or series of acts” requires AT LEAST THREE proven incidents.

Remember that violations of the statute defining the crime of stalking happen when an element of the crime occurs.

How is conduct, acts, or threats directed to a victim?

The conduct, acts or threats relevant to a stalking case may communicate in any way.

Moreover, some examples of means of communicating such conduct, acts, or threats, are as follows:

  • Mail
  • Telephone
  • Facsimile transmission
  • E-mail
  • Internet communications
  • A telecommunications device
  • Electronic instant messages
  • Any electronic communication device, including any device that transfers (ONE OR MORE):
    • Signs
    • Signals
    • Writing
    • Images
    • Sounds
    • Data
    • Intelligence of any nature

…transmitted in whole or in part by a (ONE OR MORE):

  • Wire
  • Radio
  • Electromagnetic system
  • Photo-electronic system
  • Photo-optical system

Is the punishment for stalking worse if I violate a court order?

YES, stalking in violation of a court order is an aggravated form of the offense (i.e. altered version of the general offense in question with harsher penalties) with a mandatory minimum penalty if it is committed in violation of a temporary OR permanent:

Is a violation of a c. 209A protective order also a stalking crime?

YES, a violation of a c. 209A order is considered to be a lesser-included stalking offense.

Also, under Commonwealth law, a c. 209A protective order is a court order that protects its recipient from abuse by:

  • A family member
  • A former member of that person’s household or family
  • Someone that person has been in a romantic relationship with

A person acting in violation of a c. 209A protective order may NOT be convicted of stalking based upon the same conduct.

Are harassing letters evidence of stalking?

YES, harassing letters may be admissible as evidence in a stalking case. A judge may not exclude otherwise-admissible harassing letters sent by the defendant to the complainant.

The Commonwealth is entitled to present to the jury the totality of the defendant’s conduct, since it must prove the victim’s alarm or annoyance to convict him or her of stalking, as well as the likelihood that a reasonable person in the victim’s position would suffer substantial emotional distress.

What is willful or malicious conduct?

Legally speaking, conduct is done “willfully” if it is done intentionally and by design, and NOT out of mistake or accident.

Willful conduct must be intentional (as opposed to negligent) but it does NOT require that the defendant intend its harmful consequences as well.

An act is done with “malice” if the defendant’s conduct was intentional and without justification or mitigation, OR any reasonable prudent person would have foreseen the actual effect the conduct had on the alleged victim.

Malice does NOT require any showing of cruelty, hostility, revenge or other wrongful motive. Nor does it require an actual intent to cause the required harm. As legal proof, the conduct is intentional and without justification or mitigation.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH STALKING 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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