Guideline 8:14
The court has a variety of sentencing options for defendants who are convicted of, or who admit to sufficient facts to, violating a c. 258E order or any crimes involving harassment.
In addition to the usual sentencing considerations, there are several statutory requirements that are applicable to cases involving harassment.
As in any criminal case, the named victim has the right to provide a victim impact statement at the disposition of the case about the effects of the crime on the victim and as to a recommended sentence. See G.L. c. 258B, § 3(p); G.L. c. 279, § 4B. Victim input can be made orally in the courtroom or in writing, which can be read into the record by the prosecutor or other representative of the victim. As in a c. 258E hearing, the court should take appropriate steps whenever necessary to separate the victim from the defendant.
Whenever a defendant is convicted, admits to sufficient facts or receives a continuance without a finding for a violation of a c. 258E order, the court “may order the defendant to pay the plaintiff for all damages including, but not limited to, loss of earnings, out-of-pocket losses for injuries sustained or property damaged, cost of replacement locks, medical expenses, cost for obtaining an unlisted telephone number and reasonable attorney’s fees”; and, depending on the facts and circumstances of the offense, may order as a condition of probation completion of an “appropriate treatment program”, such as anger management, mental health or substance abuse treatment. G.L. c. 258E, § 9.
A conviction of violating a harassment prevention order, G.L. c. 258E, § 9, requires the imposition of a fine of $25.00. These fees are in addition to the victim and witness fees required by G.L. c. 258B, § 8.
Upon a conviction of any offense under c. 265 (including sexual assault, criminal harassment or stalking) in the jury session after trial or by plea, G.L. c. 265, § 41 requires the court to make specific findings on the record for not imposing a sentence of incarceration.
In addition to the above statutory requirements, whenever a defendant is placed on probation1 for violation of a c. 258E order or a crime involving harassment, the court has a wide range of options in ordering specific conditions of probation. These specific terms of probation can include, for example:
- abide by the terms of any c. 258E order or order of protection from another jurisdiction;
- no abuse or harassment of and/or stay away from the named victim;
- submit to an evaluation for mental health, anger management, substance use disorder or other appropriate treatment; based on this evaluation, the court may craft appropriate conditions, such as inpatient or outpatient treatment, with which the defendant should comply;
- abstain from drugs and/or alcohol with random testing;
- comply with electronic monitoring.
In the Juvenile Court, if the juvenile is found to have violated an order, a Juvenile Court Judge should sentence consistent with the Juvenile Court Dispositional and Sentencing Best Practices.
Commentary
These sentencing considerations do not depend on the crime having as an element the relationship between the defendant and the victim. As with any criminal case, it is important for the court to hear from all parties and to fashion a comprehensive and appropriate sentence.
Probation terms must be clear and strictly enforceable in order to be effective. Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603 (2002) (“ambiguities in probation conditions are construed in favor of the defendant”). A judge may not delegate to probation the setting of the terms of probation. Id. (probation condition ordering “treatment as deemed necessary” will not be read to require random screens). See also Commonwealth v. Quigley Q., 99 Mass. App. Ct. 1112 (2021) (unpublished) (order of probation term that juvenile defendant comply with Department of Youth Services requirements improperly delegated power to set terms of probation to executive branch).
While the court may not impose probationary terms unrelated to the substance of the underlying offense, the court retains the authority to impose probationary conditions appropriate to the defendant’s history, the interrelationship between the defendant and victim, and the circumstances of the case. Commonwealth v. Gomes, 73 Mass. App. Ct. 857, 857-860 (2009). Advanced technical options, including GPS monitoring and remote alcohol testing devices, have enhanced the ability of the probation department to monitor defendants and thus have enhanced the ability of the sentencing judge to fashion appropriate sentences and conditions utilizing these options. In imposing GPS monitoring, the sentencing judge must set specific exclusion zones. See Commonwealth v. Roderick, 490 Mass. 669, 677-678 (2022) (finding that, in order to further the government’s interest in preventing further harm to a victim, the government must show that the device will be configured effectively to notify authorities should a defendant enter a prohibited area).
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| Last updated: | October 20, 2025 |
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