Stalking is a crime that is often discussed. There are different types of stalking. One type is stalking someone who already has a restraining order against you.
What is a protection (restraining) order?
A protection order, or restraining order, is a court order that protects a person by requiring someone else to do or not do certain behavior, like not to harass or abuse them. There are different types of protection orders in Massachusetts. They cover different categories of relationships:
There are also temporary restraining orders, a very short-term injunction (court order) before trial in civil cases. A restraining order that lasts until trial is called a preliminary injunction. A restraining order that is permanent after trial in a civil case is called a permanent injunction.
Other states or countries issue protection orders. Massachusetts may recognize them as valid too.
What is stalking?
In Massachusetts, stalking has six elements, or requirements, that must be proven beyond a reasonable doubt:
- The accused committed three or more acts.
- The accused intended to target the alleged victim with each act.
- The accused committed each act willfully and maliciously.
- The acts, taken all together, caused the alleged victim to be seriously alarmed.
- The acts, taken all together, would cause a reasonable person to suffer substantial emotional distress.
- The accused threated the alleged victim with the intention of placing the alleged victim in imminent fear of death or bodily injury and the alleged victim’s fear was reasonable.
What is stalking in violation of a protection order?
The crime of stalking in violation of a protection order is stalking plus violation of a protection order. This means proving the six requirements of stalking beyond a reasonable doubt plus that the accused knowingly violated a protection order.
What counts as an act for stalking?
The first requirement of stalking is proof beyond a reasonable doubt that the accused committed three or more acts. The acts must be:
- Separate and distinct
- Separated by at least a brief period of time
A “brief period of time” is not a specific interval of time.
An act can be:
- Speech
- Conduct
- Speech and conduct
If the act is speech, the Commonwealth is required to prove beyond a reasonable doubt that the speech was not protected by the First Amendment. There are two categories of speech not protected by the First Amendment:
- True threats
- Fighting words
A true threat is a threat that either:
- Threatens imminent physical harm to the alleged victim
- Was intended to cause the alleged victim to fear physical harm at that time or the future
Here are some examples of speech that would likely be a true threat:
- “I’ll kill you right here, right now, if you say another word to him.”
- “If you come by the apartment again, you’ll be leaving on crutches.”
Fighting words are face-to-face personal insults that are so abusive to the other person they are likely to provoke a violent reaction.
Here are examples of speech that would likely be fighting words:
- “You’re a loser and you’re going to amount to nothing in life.”
- “I’ve never seen an uglier face in my life.”
What does it mean to act willfully and maliciously?
In law, to do something willfully means to do it intentionally and by design. Willful conduct is not conduct that is by mistake or accident. To do something maliciously means to do it intentionally and without justification or any mitigation. Any reasonable would have expected the conduct to result in harm before it took place.
The state must prove beyond a reasonable doubt that each alleged act of stalking was done both willfully and maliciously.
Does each act have to be seriously alarming?
No, each act of stalking does not have to be seriously alarming to the alleged victim. The conduct all together, or collectively, must be seriously alarming. Stalking requires proof that the alleged victim was seriously alarmed by the acts.
What is substantial emotional distress?
For stalking, substantial emotional distress means distress that is considerable, important, solid, and real. It is not subjective. It is objective. This means that a reasonable person would suffer distress as a result of the acts.
Conduct that causes an individual to subjectively feel they have suffered substantial emotional distress might not be objectively reasonable. Here is an example. Person A tells Person B that they are an “idiot” and says nothing more. Person B alleges that they suffered “substantial emotional distress” as a result of this comment. The comment is offensive, but a reasonable person would not likely view it as arising to substantial emotional distress. Although Person B might truly feel, from their own perspective, that they have suffered substantial emotional distress, their conclusion is not likely to be viewed as reasonable.
On the other hand, if Person A knew Person B had serious mental health difficulties and was suicidal, and Person A’s comment was instead that Person B is “an idiot who should kill himself” not only would likely cause Person B to feel they have suffered significant emotional distress but it would also likely be objectively reasonable to think that.
What does it mean to knowingly violate a protection order?
The final requirement for the crime of stalking in violation of a protection order is to prove that the order was knowinglyviolated by the accused. There are three requirements:
- A protection order was issued.
- The order was in effect on the date when the alleged acts occurred.
- The accused knowingly violated the order by committing the alleged acts.
The state is required to prove each beyond a reasonable doubt.
To “knowingly” violate the order means either:
- The accused received a copy of the order.
- The accused learned of the pertinent terms of the order some other way.
If the threat is communicated to a third person, is it still a threat?
Yes, even if a threat is not communicated directly to the alleged victim, it could still be a threat. The threat is still a threat if the state proves beyond a reasonable doubt that the accused intended the threat to be conveyed to the alleged victim.
Here is an example. Person A tells Person B to tell Person C that Person A will kill Person C if he ever tries to come visit her again. Although Person A’s threat was not communicated directly to Person C, it is likely that Person A intended Person B to communicate the threat to Person C.
Does the method of communication matter?
The method of communication of the threat does not matter. It could be verbal, in writing, or electronically, such as by an email or text message.
Is stalking in violation of a protection order a felony or a misdemeanor?
Stalking in violation of a protection order is a felony. In Massachusetts, the difference between a felony and a misdemeanor is a felony is punishable by a state prison term. A person cannot be sentenced to a state prison term if they are only convicted of a misdemeanor.
What is the punishment for stalking in violation of a protection order?
There is a mandatory minimum sentence for stalking in violation of a restraining order. A person convicted of the offense must serve at least a one-year state prison term. The maximum they could be required to serve is five years in state prison.
The law punishing this crime states that no person can be released on probation or parole or receive a good behavior sentence reduction until the minimum mandatory has been served.
IF YOU OR A LOVED ONE HAVE BEEN CHARGED STALKING AND/OR VIOLATION OF A PROTECTION ORDER, 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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