Appeals Court (September 7, 2006)

Wilful conduct is established with proof that the conduct was intentional, not that the consequences of the conduct were intended. An act is done maliciously if it is done willfully without justification or mitigation.

The incarcerated defendant placed a number of unsuccessful collect calls to the victim's home. The phone calls were followed by a series of letters to the victim and her family which presumed a non-existing familiarity with the victim. The letters became increasingly obsessive in tone and resulted in a court issuing a "no-contact" order. Undeterred, the defendant's disturbing letters continued, and he was later indicted for criminal harassment.

On appeal, the Appeals Court held that wilful conduct must be intentional rather than accidental, but rejected the defendant's claim that wilfulness requires that he not only intend the conduct, but that he intend its harmful consequences as well. The modern definition is that wilful means intentional without making reference to any evil intent.

The Appeals Court also rejected the defendant's claim that malice requires the Commonwealth to show that his conduct was motivated by cruelty, hostility, or revenge. Rather, proof of malice, contemplated by G. L. c. 265, §45A(a), does not require anything more than the wilful doing of the unlawful acts, without justification or mitigation.

** Below, courtesy of ADA Tom Kirkman, is a sample jury instruction for criminal harassment. The current MCLE "model" jury instruction improperly defines malice.**

Sample Jury Instruction on Criminal Harassment, G.L. c. 265, §43A

The defendant is charged with criminal harassment, which is a crime specifically defined by our Legislature in Chapter 265, section 43A of our General Laws. The relevant portions of that statute read as follows:

"Whoever willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person, and would cause a reasonable person to suffer substantial emotional distress, shall be guilty of the crime of criminal harassment and shall be punished."

In order to prove the defendant guilty of criminal harassment, the Commonwealth must prove four things beyond a reasonable doubt:

First, the Commonwealth must prove that over a period of time, the defendant knowingly engaged in a pattern of conduct or series of acts involving at least three incidents directed at a specific person, here the complainant. The Commonwealth must show that the defendant intended to target the complainant with harassing conduct on at least three occasions.

Second, the Commonwealth must prove that those acts were of a kind that would cause a reasonable person to suffer substantial emotional distress. Emotional distress that is merely trifling or passing is not enough to satisfy this element. The emotional distress must be markedly greater than the level of uneasiness, nervousness, unhappiness or the like which are commonly experienced in day to day living; it must entail a serious invasion of the victim's mental tranquility.

Third, the Commonwealth must prove that those acts did cause the complainant to become seriously alarmed.

Fourth, the Commonwealth must prove that the defendant took those actions willfully and maliciously. Willful conduct is intentional, not accidental or mistaken. The Commonwealth does not have to prove that the defendant intended a harmful consequence, only that he intended the act leading to a harmful consequence.

An act is done maliciously if it is done willfully without justification or mitigation. Malice need not be express, but may be inferred from the defendant's conduct.

If after having considered all of the evidence you find that the Commonwealth has proved beyond a reasonable doubt each of the four elements I have just defined, that is, that the defendant willfully and maliciously engaged in a knowing pattern of conduct or series of acts over a period of time directed at the complainant that seriously alarmed the complainant, and that would cause a reasonable person to suffer substantial emotional distress, then you shall find the defendant guilty of criminal harassment.

If, however, after your consideration of all of the evidence you find that the Commonwealth has not proved each and every one of these four elements beyond a reasonable doubt, you shall find the defendant not guilty.

BY: J. Thomas Kirkman
Director, Domestic Violence Prosecution Unit
Cape Cod and Islands District Attorney's Office