Instruction 6.640, Criminal Model Jury Instructions for Use in the District Court

CRIMINAL HARASSMENT

G.L. c. 265, § 43A

The defendant is charged with criminal harassment.

To prove the defendant guilty of this offense, the

Commonwealth must prove five things beyond a reasonable doubt:

First: That the defendant committed at least three separate acts;

Second: That the defendant intended to target [the alleged victim] with

each act;

Third: That the defendant committed each act willfully and

maliciously;

Fourth: That the acts, taken as a whole, seriously alarmed the

[the alleged victim]; and

Fifth: That the acts, taken as a whole, would cause a reasonable

person to suffer substantial emotional distress.

Commonwealth v. McDonald, 462 Mass. 236, 240 (2012) (listing elements).

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the defendant committed at least

three separate acts. An act may be based on conduct, speech or

both. The acts must be separate, distinct, and separated by at least a

brief period of time.

“The phrase ‘pattern of conduct or series of acts’ requires the Commonwealth to prove

three or more incidents of harassment.” Commonwealth v. Bigelow, 475 Mass. 554, 561

(2016). “[O]ne continuous act cannot be divided into multiple discrete acts in order to

satisfy the requirements of G.L. c. 258E, § 1.” F.K. v. S.C., 481 Mass. 325, 333 (2019).

See also Orla O. v. Patience P., 100 Mass. App. Ct. 126, 128 (2021) (one continuous event

over a very brief period of time cannot serve as the basis for a harassment prevention

order); Smith v. Mastalerz, 467 Mass. 1001 (2014) (driving by the plaintiff's home three

times within a very short period of time was one continuous act).

“Period of time” means the passage of time and does not denote a particular time interval.

“As long as the acts are separate, distinct, and separated by some interval, they occur over

a period of time within the meaning of the statute.” Commonwealth v. Valentin, 91 Mass.

App. Ct. 515, 523 (2017) (construing stalking statue, G.L. c. 265, § 43).

Where the acts are based on speech alone. If an act is based on speech,

the Commonwealth must prove beyond a reasonable doubt

that the speech was a true threat or contained “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 disregard 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 statement was made.

“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, the alleged speech cannot be the basis for

one (or more) of the three required acts of harassment.

You may consider, however, whether it gives context to

other acts.

Commonwealth v. Cruz, 495 Mass. 110, 118 (2024), citing Counterman v. Colorado, 600

U.S. 66, 69 (2023); Commonwealth v. Chou, 433 Mass. 229, 236 (2001). See also Virginia

v. Black, 538 U.S. 343, 359-360 (2003); Commonwealth v. A Juvenile, 368 Mass. 580, 591

(1975).

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt that the defendant intended to target [the

alleged victim] with each act. By target, I mean that each act was directed

at [the alleged victim], and that the defendant intended that [the alleged victim]

know that each act was directed at them.

To prove the third element, the Commonwealth must prove

beyond a reasonable doubt that the defendant acted willfully and

maliciously. An act is “willful” if it is done intentionally and by

design, and not by mistake or accident. The defendant acted willfully

if the defendant intended the conduct. An act is done with “malice” if

the defendant’s conduct was intentional and without justification or

mitigation, and any reasonably prudent person would have foreseen

the actual harm that resulted to [the alleged victim].

Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 221–22 (2017). See also note 1 below.

To prove the fourth element, the Commonwealth must prove

beyond a reasonable doubt that [the alleged victim] was seriously alarmed

by the conduct. The Commonwealth is required to prove only that the

cumulative effect of the defendant's conduct seriously alarmed [the

alleged victim], but it is not required to prove that each individual act did

so.

Commonwealth v. Brennan, 481 Mass. 146, 152 (2018), citing Commonwealth v.

Walters, 472 Mass. 680, 699 (2015).

To prove the fifth element, the Commonwealth must prove

beyond a reasonable doubt that the acts, taken as a whole, would

cause a reasonable person to suffer substantial emotional distress.

By substantial emotional distress, I mean distress that is

considerable, of importance, solid and real. The offending conduct

must be such as would produce a considerable or significant amount

of emotional distress in a reasonable person; it must be something

markedly greater than the level of uneasiness, nervousness,

unhappiness or the like which is commonly experienced in day to day

living.

The term “substantial emotional distress” is defined as “considerable in amount”, or “of real

worth and importance.” Commonwealth v. Robinson, 444 Mass. 102, 107-108 (2005)

(“emotional distress that is merely trifling or passing is not enough to satisfy this element,

but must be markedly greater than that commonly experienced as part of ordinary living”).

See also Commonwealth v. Paton, 63 Mass. App. Ct. 215, 221 (2005); Commonwealth v.

Clemens, 61 Mass. App. Ct. 915, 916 (2004).

If the Commonwealth has proved all five elements beyond a

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

Commonwealth has not proved one or more of these five elements

beyond a reasonable doubt, you must return a verdict of not guilty.

SUPPLEMENTAL INSTRUCTION

Communications covered by statute. The conduct, acts or threats may

be communicated by any means, including but not limited

to (mail) (telephone) (facsimile transmission) (e-mail) (internet

communications) (telecommunications device) (electronic

instant messages) (any electronic communication device

including any devise that transfers signs] [signals] [writing]

[images] [sounds] [data] or [intelligence of any nature]

transmitted in whole or in part by a [wire] [radio]

[electromagnetic system] [photo-electronic system] [photo-optical system]).