Instruction 6.600, Criminal Model Jury Instructions for Use in the District Court

ANNOYING AND ACCOSTING PERSONS

G.L. c. 272, § 53

The defendant is charged with annoying and accosting a person.

To prove the defendant guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant acted, spoke, or communicated in an

offensive manner to another person;

Second: That those actions or words were disorderly;

Third: That the defendant intended to direct those actions or

words to [the alleged victim];

Fourth: That [the alleged victim] was aware of the defendant’s

actions or words; and

Fifth: That those actions or words would be considered both

offensive and disorderly to a reasonable person.

To prove the first element of the offense, the Commonwealth

must prove beyond a reasonable doubt that the defendant knowingly

acted offensively by engaging or attempting to engage in sexual

conduct or by using sexual language.

To be offensive, the sexual conduct or sexual language must be

repugnant to contemporary standards of decency, and causes [the

alleged victim] real displeasure, anger, or resentment. It must have a

sexual connotation, either explicit or implicit, that is contrary to the

prevailing sense of what is decent and moral. Implicit sexual conduct

or language is behavior that a reasonable person would understand

as having a sexual connotation.

To prove the second element of the offense, the Commonwealth

must prove beyond a reasonable doubt that those actions or words

were also disorderly.

“Disorderly” is defined in two ways. It is either:

1) conduct that is fighting or threatening or violent or

tumultuous; or

2) conduct that creates a hazardous or physically offensive

condition without any legitimate purpose.

Threatening behavior or language may take many forms. It may

be an act or a communication that would make a reasonable person

fearful, not just uncomfortable. The Commonwealth is not required

to prove that the defendant intended a threat to be immediately

followed by actual violence or physical force, so long as the

circumstances would justify a reasonable person’s fear or

apprehension from such acts or communications.

See Chou, 433 Mass. at 234.

Where the conduct alleged is speech. Where the only conduct is

speech, the Commonwealth must prove beyond a

reasonable doubt that the speech was a true threat or

fighting words.

A true threat is a serious expression of the speaker’s

intent to cause imminent physical harm to the alleged

victim or to cause the alleged victim to fear physical harm

in the future. The Commonwealth must prove beyond a

reasonable doubt that the defendant either intended to

cause fear of physical harm, or that the defendant was

aware of or consciously disregarded a substantial risk that

the statement would be viewed as threatening physical

harm. To determine if the defendant made a true threat,

you may consider the context or circumstances in which

the statements were made.

If sexually explicit language is involved. Sexually

explicit language may be inherently threatening

when it is directed at particular individuals in

settings in which such communications are

inappropriate and likely to cause severe

distress.

“Fighting words” are face-to-face personal insults

that are so personally abusive that they are plainly likely to

provoke a violent reaction.

If the Commonwealth has not proven beyond a

reasonable doubt that the alleged speech is a true threat or

fighting words, then the speech cannot be the basis for the

alleged offense.

A true threat may be punished criminally only if the speaker had “some subjective

understanding of the threatening nature of [the] statements.” Commonwealth v. Cruz,

495 Mass. 110, 118 (2024), quoting Counterman v. Colorado, 600 U.S. 66, 69 (2023).

“Fighting words” are not protected by the First Amendment. Commonwealth v. A

Juvenile, 368 Mass. 580, 591 (1975).

“Sexually explicit and aggressive language directed at and received by an identified

victim may be threatening, notwithstanding the lack of evidence that the threat will be

immediately followed by actual violence or the use of physical force.” Chou, 433 Mass.

229 at 235. Compare Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 10, 21-22 (2007)

(defendant staring at complainant at swimming pool and singing that he “fell in love with a

little girl” insufficient to infer that he intended her to fear that harm would befall her).

A “physically offensive condition” can include physical

contact between the defendant and the alleged victim. However,

actual physical contact is not required, so long as the conduct

created a condition that would cause a reasonable person to fear

imminent physical harm.

See Commonwealth v. Sullivan, 469 Mass. 621, 627 (2014), citing

Commonwealth v. Ramirez, 69 Mass. App. Ct. 9, 18 (2007), See also Commonwealth v.

Cahill, 446 Mass. 778, 781 (2006); Commonwealth v. Chou, 433 Mass. 229, 235 (201).

To prove the third element of the offense, the Commonwealth

must prove beyond a reasonable doubt that the defendant intended

to direct those actions or words to [the alleged victim].

See Chou, 433 Mass. at 235, n.5. If further instruction on intent is required, see Instruction

3.120. “In determining whether acts of harassment are directed at a person, we look not

only to statements and conduct of the defendant but to the nature of the act and the natural

consequence of the act.” Commonwealth v. Brennan, 481 Mass. 146, 152 (2018). See

also Commonwealth v. Johnson, 470 Mass. 300, 312-313 (2014) (defendant’s act of

posting on Craigslist was directed at victims because ensured that victims would be

harassed by others; it was the “equivalent of the defendants recruiting others to harass the

victims”).

To prove the fourth element of the offense, the Commonwealth

must prove beyond a reasonable doubt that [the alleged victim] was

aware of the defendant’s actions or words.

To prove the fifth element of the offense, the Commonwealth

must prove beyond a reasonable doubt that those actions or words

would be considered both offensive and disorderly to a reasonable

person.

Commonwealth v. Cahill, 446 Mass. 778, 781, 783 (2006) (Commonwealth must prove

that defendant’s behavior was offensive and disorderly to a reasonable person).

If the Commonwealth has proved all five elements beyond a

reasonable doubt, you should return a verdict of guilty. If the

Commonwealth has failed to prove one or more of the elements

beyond a reasonable doubt, you must find the defendant not guilty.