Instruction 6.660, Criminal Model Jury Instructions for Use in the District Court

HARASSING OR OBSCENE TELEPHONE CALLS

OR ELECTRONIC COMMUNICATIONS

I. HARASSING TELEPHONE CALLS OR ELECTRONIC COM M UNICATIONS

The defendant is charged with making harassing (telephone calls) (or)

(electronic communications). Section 14A of chapter 269 of our General

Laws provides as follows:

“Whoever

(telephones another person. . .

or causes a person to be telephoned,)

(contacts another person by electronic communication,

or causes a person to be contacted by electronic

communication)

repeatedly,

for the sole purpose of harassing, annoying, or molesting the

person or the person’s family,

whether or not conversation ensues. . .

shall be punished.”

In order to prove the defendant guilty of this offense, the

Commonwealth must prove two things beyond a reasonable doubt:

First: That the defendant (made telephone calls to) (caused telephone

calls to be made to) (contacted by electronic communication) (caused to be

contacted by electronic communication) [name of person] repeatedly, which

means three or more times; and

Second: That the defendant’s sole purpose in (making the telephone

calls) (having the telephone calls made) (making the contacts by electronic

communication) (causing the contacts by electronic communication to be

made) was either to harass, annoy or molest [name of person or his (her)

family.

The Commonwealth is not required to show that the defendant had a

conversation or actual contact with [name of person] , but only that he (she)

(made the telephone calls) (had the telephone calls made) (made the

contacts by electronic communication) (had the contacts made by

electronic communication).

As I indicated, the Commonwealth must prove that the defendant’s

only purpose was to annoy, harass or molest [name of person] or his (her)

family. For example, your favorite charity might call you repeatedly to ask

for donations and that might annoy or even harass you, but it would not

violate the law if the intent was not to annoy, harass or molest. If the

defendant called repeatedly but not for the sole purpose of harassment, he

(she) is entitled to be acquitted.

The defendant’s intent or purpose cannot be proved directly because

there is no way to look into the human mind. But you may determine the

defendant’s purpose from the surrounding circumstances. You may

consider any of the defendant’s statements and acts, and any other facts

and circumstances shown by the evidence, which help to indicate his (her)

state of mind. You may infer that a person ordinarily intends the natural

and probable consequences of acts that he (she) does knowingly. For

example, if a person makes repeated telephone calls in a short period of

time, or in the middle of the night, and hangs up when someone answers

the phone, it might be reasonable to infer that the calls were made for the

purpose of harassment. However, you should consider all the

circumstances in evidence that you deem relevant in determining whether

the Commonwealth has proved beyond a reasonable doubt that the

defendant acted with the required intent.

Commonwealth v. Roberts, 442 Mass. 1034, 816 N.E.2d 112, 113 (2004) (“The jury could infer the

requisite intent from the num ber of calls, the tenor of the calls, their sequence and tim ing, and the

defendant’s persistence in placing the calls despite repeatedly being asked to cease. . . .”);

Commonwealth v. W otan, 37 Mass. App. Ct. 727, 728-730, 643 N.E.2d 62, 63-64 (1994), rev’d on

other grounds, 422 Mass. 740 (1996) (hundreds of calls are “so obviously vexatious to the receiver

that the requisite sole purpose of harassing, annoying and m olesting m ay be inferred, even if getting

the receiver’s goat is at bottom stim ulated by an obsessive desire to get the receiver’s attention”).

Com pare Commonwealth v. Strahan, 30 Mass. App. Ct. 947, 949, 570 N.E.2d 1041, 1043 (1991)

(calling 11 tim es in 7 m inutes, while perhaps partially m otivated by a desire to harass, does not

support conviction of § 14A where evidence suggests at least a partial m otive was to reestablish a

prior relationship with victim ), with Roberts, supra (holding that “certain statem ents m ade during som e

of the calls were, at least superficially, phrased as concern for the [victim] did not m ake it

im perm issible for the jury to infer that the actual and sole purpose of the calls was to annoy or

harass). See Commonwealth v. Voight, 28 Mass. App. Ct. 769, 556 N.E.2d 115 (1990) (governm ent

unit cannot be a harassed “person,” but calls “could take on a tone so directed at the recipient

[em ployee] as an individual as to constitute harassm ent under the statute”).

SUPPLEM ENTAL INSTRUCTIONS

1. “Electronic communications.” The term “electronic communications” includes but is not limited to any transfer of (signs) (signals)

(writing) (images) (sounds) (data) (or) (intelligence of any nature),

transmitted in whole or in part by a (wire) (radio) (electromagnetic)

(photo-electronic) (or) (photo-optical) system.

2. W hen there was no conversation or the communication was not read. The Commonwealth is not required to show that (the defendant had a

telephone conversation with) (the defendant’s electronic

communication was received by) [name] , but only that the

defendant (made the telephone calls or had them made) (sent the

electronic communications or had them sent) and that they could

have been received by [name] .

Commonwealth v. Roberts, 426 Mass. 689 (1998) (“to telephone is to place a

telephone call that m ight result in an oral com m unication”).

II. OBSCENE TELEPHONE CALLS OR ELECTRONIC COM M UNICATIONS

The defendant is (also) charged with making repeated and obscene

(telephone calls) (or) (electronic communications). Section 14A of chapter

269 of our General Laws (also) provides as follows:

“[W]hoever (telephones. . . a person repeatedly)

(or) (contacts a person repeatedly by electronic

communication)

and uses indecent or obscene language to the person,

shall be punished. . . .”

In order to prove the defendant guilty of this offense, the

Commonwealth must prove two things beyond a reasonable doubt:

First: That the defendant (made telephone calls to) (or) (contacted by

electronic communication) [name] repeatedly, which means three or

more times; and

Second: That in making those (calls) (electronic communications),

the defendant used indecent or obscene language.

It is not necessary that the defendant specifically knew or believed

that his (her) language was legally indecent or obscene. It is only

necessary that such language was in fact indecent and obscene, and the

defendant knew the general character of what he (she) was saying.

For a definition of “obscene,” see Instruction 7.180 (Dissem inating Obscene Matter). For a definition

of “indecent,” see Instruction 6.500 (Indecent Assault and Battery). See also F.C.C. v. Pacifica

Found., 438 U.S. 726, 740, 98 S.Ct. 3026, 3035 (1978) (in statute banning “obscene, indecent or

profane language” over the radio, the word “indecent” should be given its norm al dictionary m eaning

of “nonconform ance with accepted standards of m orality”).