Cyberbullying and Online Harassment in Massachusetts

While bullying has always been a stumbling block during the teenage years, cyberbullying and online harassment can be even more harmful and dangerous. What many don't realize is that these actions can result in criminal charges, including charges for harassment and stalking under Massachusetts' criminal laws.

Massachusetts' Criminal Statutes Prohibiting Cyberbullying and Online Harassment

Massachusetts' laws prohibit several acts of harassment and stalking—described below—committed in-person, by mail or phone, or through the use of electronic communications. Electronic communications can include conduct or messages communicated by email, text message, instant messaging, or phone, on the Internet, or through a website or social media application.

Criminal Harassment

Harassment applies to repeat conduct that is willful and malicious, is directed at and seriously alarms a specific victim, and would cause a reasonable person in the victim's position to feel distressed.

In Massachusetts, harassment can incur a fine of up to $1,000 and up to two years and six months in jail. For second and subsequent offenses, the judge may impose this same jail sentence or a state prison sentence of up to ten years. (Mass. Gen. Laws ch. 265, § 43A (2021).)

Criminal Stalking

Stalking applies to more serious bullying behaviors, as it involves harassment (as defined above) along with threats intended to place the victim in fear of imminent injury or death.

Penalties for stalking include a fine of up to $1,000 and either up to two years and six months in jail or up to five years in prison.

When the offense occurred in violation of a restraining or other similar civil protective order and in other similar specified circumstances, the defendant will face at least one and up to five years jail or state prison (in addition to any applicable monetary fines). And second and subsequent convictions incur at least two and up to ten years in jail or state prison (and any fines imposed by the judge). (Mass. Gen. Laws ch. 265, § 43 (2021).)

Annoying or Harassing Electronic Communications or Phone Calls

A defendant also commits a crime by repeatedly contacting a victim by an electronic communication device or phone for the purpose of:

• harassing or annoying the victim (or the victim's family), or
• to send obscene or indecent messages to the victim.

This offense incurs a fine of up to $500, up to three months in jail, or both. (Mass. Gen. Laws ch. 269, § 14A (2021).)

Defenses to a Criminal Charge of Harassment or Stalking

Possible defenses to harassment or stalking charges will depend on the circumstances of the offense. Two common defenses in these types of cases are described below.

Free Speech Protections

Your right to free speech and to express your opinion is protected under the First Amendment. However, these rights are not absolute. The state may limit free speech when it is considered a serious and imminent threat and prosecute you if such speech causes (or threatens to cause) harm.

For example, talking about how much you like firearms would usually be protected speech. However, you are not allowed to make threats to harm someone with your gun if that person reasonably believes you have the weapon and will make good on the threat. You could face charges of assault or attempted battery.

But the line between a legitimate expression of opinion and seriously threatening speech is not always this easy to draw. For this reason, it is worth exploring this defense, especially if your words or actions were ambiguous enough not to put a reasonable person in fear of harm (see below).

Not Really Threatening

To convict on charges relating to harassment or stalking, the prosecutor must show actual distress felt by the victim and prove that the reaction was "reasonable." In other words, if the victim is hypersensitive to behavior that wouldn't bother most people in the victim's position, the alleged bully may be acquitted of the harassment or stalking charges.

Would a Teenager Facing Charges Go to Juvenile or Adult Court?

The above laws apply to acts done by both adults and minors, but the procedures for prosecuting such acts vary depending on the offender's age. In Massachusetts, teenagers ages 18 and 19 face charges in adult court that carry the possibility of a conviction and jail or prison time. Matters involving teenagers age 17 and younger are generally handled in juvenile court.

In juvenile court, judges can often exercise greater discretion in diverting kids away from court or handing down a sentence (called a disposition). For instance, a judge can order a juvenile to participate in a number of programs, such as substance use or behavioral health treatment, educational or social guidance programs, and community service projects, or place the juvenile under probation supervision. A juvenile who's found guilty will receive an adjudication of delinquency rather than an adult conviction. (Mass. Gen. Laws ch. 119, §§ 54A, 58 (2021).)

Anti-Bullying School Policies and Discipline

Massachusetts' education code specifically addresses and prohibits acts of bullying and cyberbullying directed at students or school staff. Cyberbullying can result in disciplinary action by the school and referral to law enforcement if the conduct may warrant criminal charges. (Mass. Gen. Laws ch. 71, § 37O (2021).)

Civil Lawsuits for Cyberbullying

In addition to sanctions imposed under school anti-bullying policy and the criminal charges discussed above, bullies may also face civil lawsuits brought by the victim (or victims).

Victims of bullying may seek monetary damages (payment) for the emotional, social, or financial harm caused by instances of bullying. For example, the judge may award monetary awards for property damage caused by the crime. Similarly, a bully may have to pay for the cost of therapy for the emotional distress caused to the victim.

Talk to a Lawyer

Harassment and stalking are serious crimes that can incur harsh fines and even prison time. If you have been charged with one of the crimes discussed here (or something similar), or if you have questions about how Massachusetts law applies to you, contact a qualified local criminal defense lawyer. An attorney can give you legal advice and help you to chart your best course of legal action.