A couple’s hostile, emotionally charged separation or divorce can trigger the dark response of one partner stalking the mate. Stalking and harassment involves physically following an individual. However, menacing stalking behavior also can occur in cyberspace. The focus of this post is Massachusetts’ stalking law. Also discussed are Identification of stalking laws, prosecution and options for victims and accused. For an assessment of your case, schedule a consultation with one of our family law attorneys.
Massachusetts Stalking Law
Under Massachusetts law, a stalker intentionally exhibits “pattern of conduct or series of acts over a period of time” that targets a specific person and seriously alarms or annoys that individual. The conduct causes the victim to endure “substantial emotional distress”. For example, if the stalker deliberately threatens that person resulting in the victim fearing imminent death or bodily injury.
A stalking conviction carries a maximum five-year state prison sentence. This sentence includes a $1,000 fine or up to two-and-a-half years in a house of correction. If the stalker violates an existing temporary or permanent restraining or no-contact order, they face a mandatory one-year incarceration. Furthermore, they can face as much as a five-year jail or prison term. Parole or probation are available after one-year minimum jail time is served.
In contrast, violation of the Commonwealth’s criminal harassment statute is punishable by a maximum fine of $1,000. A $1,000 fine and confinement in a house of correction for up to two-and-a-half years. Another Massachusetts law defines harassment as “three or more acts of willful and malicious conduct aimed at a specific person.” The acts intend to intimidate or cause that person to be fearful. See our earlier post about harassment.
The stalking law mandates the victim be “seriously alarm[ed] or annoy[ed],” the harassment statute only requires the target be “seriously alarm[ed.]” Moreover, the potential sentence for stalking is stiffer than that for harassment.
At the federal level, a person who violates the stalking law by placing a person in reasonable fear of death or serious injury through intimidation, harassment or surveillance faces severe punishment for causing emotional distress. Violating stalking law can result in five years in jail and a fine. Permanent disfigurement of a victim results in the stalker can punished with up to 20 years in prison. Life imprisonment is a possibility if the misconduct causes the victim’s death.
Stalking and Divorce
Violation of a “209A Order” (intended to prevent abuse) is a lesser-included stalking offense. Therefore, conviction of violating an abuse prevention order and of stalking because of the same underlying misconduct.
The lion’s share of accused stalking law violations occurs in the divorce realm. Bureau of Justice Statistics indicate 14 per 1,000 individuals in the U.S. allege they are stalking victims. The stalking claims skyrocket to 34 out of every 1,000 persons nationwide among separated or divorced individuals.
A Probate and Family Law Court judge may order an offending spouse to vacate the marital home if the other spouse and his or her minor children has fled the residence out of fear for their safety. Likewise, the Court may issue a restraining order to preserve a spouse’s personal liberty during the pendency of the dissolution of the marriage. In both instances, or in the case of a “stay-away” order in a divorce judgment, violation of the Probate Court orders could give rise to stalking charges.
Cyberstalking or Free Speech?
The cinematic image of a stalker is often a looming angry, overwrought spouse following an ex on foot or in a vehicle glaring menacingly and hurling threats and insults. However, an individual may run afoul of the statue by cyberstalking. Stalking without actually making physical contact with the victim. Cyberstalking examples are sending abusive Facebook or Twitter posts to victim after being warned not to.
Cyberstalking accusations can clash with First Amendment free speech rights. In a 2015 Massachusetts case, the Supreme Judicial Court (SJC) upheld a defendant’s criminal harassment conviction and violation of a 209A Order. The victim alleged she was fearful based on a Facebook profile image of her ex-fiance´ holding a gun across his lap. The photo appeared elsewhere on the page by a statement about bringing “idiots to justice”. The SCJ ruled the Facebook posting to be protected speech and did not rise to the level of clear, imminent, threat.
In another case, the SJC acknowledged a defendant’s ongoing homophobic harangues against a gay couple who were her neighbors were “hateful, bigoted and highly offensive.” The Court overturned her criminal harassment conviction because the prosecution didn’t satisfy the burden of proof (statutory minimum three or more incidents of harassment directed at a specific person) had occurred.
Turco Legal, with locations in Newburyport or Andover, offers a team of experienced divorce and family law attorneys. If you have any questions about divorce, custody, or family law issues, schedule a free consultation with our experienced attorneys. For more information, please call (866) 995-6663 during business hours and we will respond to your phone call promptly.