Massachusetts Criminal Defense Attorney

225 W. Squantum St., Suite 100, Quincy, MA 02171

Free Consultations Available

617.300.0212

What’s the Difference Between Criminal and Civil Harassment under Massachusetts Law?

There are two different kinds of harassment in Massachusetts.  There is criminal harassment and civil harassment.

A conviction for Criminal Harassment is punishable by up to 2.5 years in the house of correction or up to 10 years in state prison.

A person complaining of civil harassment can obtain a Harassment Prevention Order. The order is civil in nature but a violation of a Harassment Prevention Order that is issued against you because of the civil harassment is a criminal offense.

If you are convicted of violating a Harassment Prevention Order, then you face up to 2.5 years in the house of correction.

Criminal Harassment is defined in General Laws c. c. 265 § 43A. “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 that person and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of Criminal Harassment ….”

What does that really mean? 

In order to convict you, the Commonwealth (the district attorney) must prove FIVE different things to obtain a conviction for Criminal Harassment. The Commonwealth must show:

  1. you engaged in a knowing pattern of conduct or speech, or series of acts, on at least 3 separate occasions;
  2. you intended to target the victim with the harassing conduct or speech, or series of acts, on each occasion;
  3. the conduct or speech, or series of acts, were of such a nature that they seriously alarmed the victim;
  4. the conduct or speech, or series of acts, were of such a nature that they would cause a reasonable person to suffer substantial emotional distress; and
  5. the conduct or speech, or series of acts, were committed willfully and maliciously.

While Criminal Harassment has many similarities to General Laws c. 258E which governs Harassment Prevention Orders, they are different. A person can be served with a Harassment Prevention Order even though they are not charged with Criminal Harassment and vice versa. Generally, a Harassment Prevention Order will be issued by a judge if:

  1. Someone has committed 3 or more acts,
  2. That were willful and malicious,
  • Malicious means the acts were characterized by cruelty, hostility, or revenge
  1. The acts were aimed at a specific person,
  2. The acts were intended to cause the person fear, intimidation, abuse or damage to property, and
  3. The acts did cause the person fear, intimidation, abuse or damage to property

            While not as common, Harassment Prevention Orders can also be issued if:

  • If you have caused a person to engage in sexual relations involuntarily by using force, threat, or duress, or
  • If you committed an Indecent Assault & Battery, Rape, Statutory Rape, Assault with Intent to Rape, Enticing a Child, Criminal Stalking, Criminal Harassment, or Drugging A Person for Purposes of Sexual Intercourse.

If you received a Harassment Prevention Order alleging you committed a sexual offense, you must immediately contact an attorney! You will have the right to a two-party hearing if someone has obtained an order against you but anything you say at the hearing, will be used against you in later criminal proceedings!

Even if the Harassment Prevention Order issued because of acts unrelated to sexual assault allegations, you should still hire an attorney to represent you at the hearing. Often, we can successfully fight the Order itself, so you are not walking around with a Harassment Prevention Order on you.  Remember while the Harassment Prevention Order may be civil, a violation of the order is criminal.

There are multiple ways to defend against criminal harassment charges and harassment prevention orders. The first step is to contact us at Sweeney & Associates at 617-328-6900 or see our webpage at www.rsweeneylaw.com.  We can hear the facts of your case and develop the best possible defense. Often, we will pursue a legal defense that the acts alleged in the affidavit do not qualify as harassment.

Recently, we have noticed that many Criminal Harassment charges and harassment prevention orders stem from the use of advances in technology. The laws have not caught up with the technology. The highest court in Massachusetts, the Supreme Judicial Court, has started to weigh in on the various uses of technology and whether the way the technology was used amounts to harassment.

One advancement in technology is for people who write, record, and post their songs to social media. The problem arises when that song references another person in a negative manner. At what point does that become harassment? In F.K. v. S.C., the defendant recorded and posted a vulgar song online. The two people threatened in the song sought a Harassment Prevention Order. The SJC said that even though the song had multiple lyrics, was posted online, and multiple people listened to the song, the posting of the song online only counted as one act so it wasn’t harassment. If the person had created three songs and posted all three songs online, then it would have been harassment because there needs to be three separate acts.

Another significant advancement in technology is the use of GPS tracking devices. The SJC recently decided the case of Commonwealth v. Brennan. In that case, the defendant was accused of placing a GPS device under the vehicles of a Husband and Wife and tracking their movements. The SJC found that those facts did count as three acts under the Criminal Harassment statute. Interestingly, the court said that not every case involving a GPS tracking device would amount to criminal harassment. The facts of the case will determine whether or not it is criminal harassment. For instance, if the Commonwealth cannot prove who placed the GPS device, they cannot prove criminal harassment. Or if the Commonwealth, cannot prove three separate acts, then they cannot prove criminal harassment.

Charges involving criminal harassment are extremely fact specific! The best way to defend against the charge is to higher an experienced law firm to defend you. If you have been charged with Criminal Harassment, served with a Harassment Prevention Order, or charged with a violation of the order, contact us today at Sweeney & Associates today for a free consultation. We can be reached at mail@rsweeneylaw.com or (617) 300-0212. Don’t delay; we can help you! 

Categories