After a jury-waived trial in the District Court, the defendant, Valerie Welch, was convicted of criminal harassment pursuant to G. L. c. 265, § 43A, based on a series of homophobic statements she made over the course of more than one and one-half years to and about the complaining witnesses, Stephen Robichau and Frank Brienza.
Factual background. In reviewing the sufficiency of the evidence, we consider the facts in the light most favorable to the Commonwealth. See Commonwealth v. Latimore,
During the relevant period, the complainants Stephen Robichau
The first incident occurred on May 31, 1999. While at home, Robichau and Brienza heard loud noises outside. The defendant, her former boy friend, and two other tenants were sitting in front of the apartment building drinking beer and conversing loudly. Robichau and Brienza stepped out onto their balcony and asked the group to quiet down and not to block the stairs. According to Brienza, the defendant called the plaintiffs “fag-gots” and “queers,” and said, “Why don’t you go back in the house, you fucking queers?” Robichau testified that the defendant said to him, “Shut up, you fucking fag.” The two
The second incident was on the following Saturday, again while both men were home. The defendant and her friend stood outside the apartment building, underneath Robichau and Brien-za’s bedroom window, looking up at them and yelling homophobic comments for about thirty minutes to one hour.
The third incident occurred a few months later at the end of October, 1999. When Brienza returned home from work and got out of his car in the parking lot beside the apartment building, the defendant yelled from her open window on the third floor, “The queer is home now, the fucking queer is home now.”
In a fourth encounter in December, 2000 (the first incident to occur after the harassment statute became effective), the defendant was talking loudly with a gentleman in the hallway outside Robichau and Brienza’s apartment. Robichau poked his head out his apartment door and asked the defendant to quiet down. The defendant turned to the gentleman and said, “Oh, yeah, he’s a fucking fag. Don’t worry about it.”
The fifth incident, on January 24, 2001, occurred when both Robichau and Brienza were home. The men overheard two or more women talking in a “normal” tone outside the building below their window, mentioning “the queers up on the third floor.” Brienza heard the defendant say, “We’ll get their ass. It’s about time. We have to get rid of these fucking queers.” Robichau heard one of the individuals (not the defendant) state, “Yeah, we’ll get him. We’ll fuck him up. We’ll get rid of him.”
During the sixth incident on January 26, 2001, Robichau was in his bedroom. He discovered the defendant outside, once again below his bedroom window, looking up at the window and screaming, “It’s not my fault you like to take it up the ass.” Ro-bichau telephoned the police, who spoke to both parties.
In the seventh and final incident, which, the parties suggest, occurred the next day, Robichau was in his apartment when he heard the defendant yelling, “Don’t worry. They’re just fags. We can deal with them. I know people. I’ll deal with them.” The defendant was in her own apartment at the time she made these statements but was yelling loudly enough that Robichau thought she was “right outside [his] door.” Robichau once again contacted the police.
Robichau testified that the sum of the incidents made him “fearful,” that he “is [ajgoraphobic,” and that “[t]he end result of this was it became nearly impossible for [him] to leave [his] apartment. . . .” The judge denied the defendant’s motions for required findings of not guilty as to the harassment charges at the close of the Commonwealth’s case and again at the close of all the evidence.
Discussion. This court has not had the opportunity to consider the elements of the new criminal harassment statute, G. L. c. 265, § 43A. We first consider the nature and scope of the “pattern of conduct or series of acts” that constitutes criminal harassment. Id. We then consider the meaning of the statutory requirement that such conduct be “directed at a specific person,” and whether harassing conduct that occurred prior to the effective date of the statute may be punishable. We apply the statute, as construed, to the defendant’s conduct in the present case and conclude that there is insufficient evidence to convict. Finally, because the issue was thoroughly briefed and future application of the statute is likely to give rise to similar concerns, we discuss whether the statute, as interpreted today, is
1. Statutory construction. We first consider whether hateful words, such as those employed by the defendant in this case, are criminalized by § 43A. We apply the general rule of statutory construction that a statute is to be interpreted “according to the intent of the Legislature ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object to be accomplished, to the end that the purpose of its framers may be effectuated.” Commonwealth v. Galvin,
A. Harassing “conduct” or “acts.” By its terms, the criminal harassment statute is applicable to a “knowing pattern of conduct or series of acts.” However, the statute provides no definition of the terms “conduct” or “acts,” nor does it indicate expressly whether such “conduct” or “acts” may include speech or statements, the “conduct” employed by the defendant in this case. “When a statute does not define its words we give them their usual and accepted meanings, as long as these meanings are consistent with the statutory purpose. . . . We derive the words’ usual and accepted meanings from sources presumably known to the statute’s enactors, such as their use in other legal contexts and dictionary definitions.” Commonwealth v. Bell,
This apparent ambiguity in the statutory language is resolved by reference to the remaining portions of the statute. See Commonwealth v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Auth.,
Our determination that the criminal harassment statute was intended to proscribe harassing conduct encompassing “speech” or “statements” gains support from the language and construction of related statutes. See Boswell v. Zephyr Lines, Inc., supra (“we must attempt to construe [a statute] in harmony with other related statutes and rules so as to give rise to a consistent body of law”). Particularly instructive to our analysis is the closely related criminal stalking statute, G. L. c. 265, § 43. The criminal harassment law was passed in response to a perceived loophole
Also helpful is the definition of the term “harassment” as used in the context of sexual harassment law. It was well established at the time of this statute’s passage that sexual harassment encompasses harassing speech. See, e.g., G. L. c. 151 A, § 25 (defining “sexual harassment” in unemployment compensation statute as including “verbal or physical conduct of a sexual nature”); Melnychenko v. 84 Lumber Co., 424 Mass.
Finally, other jurisdictions have construed similar statutes that proscribe harassing “conduct” as encompassing speech. See, e.g., State v. Cropley,
B. “Pattern” or “series.” Our analysis regarding the scope of the “conduct” or “acts” that fall within the statute’s reach does not end our inquiry. We have not had an occasion to consider the meaning of the words “pattern” and “series” as used in the criminal harassment statute. We determine today that the phrase “pattern of conduct or series of acts” requires the Commonwealth to prove three or more incidents of harassment for the following reasons. First, the dictionary definition of “series” is “a group of usu[ally] three or more things or events standing or succeeding in order and having a like relationship to each other” (emphasis added). Webster’s Third New IntT Dictionary 2072 (1993). See Commonwealth v. Bell,
C. Conduct “directed at a specific person.’’’’ The statute further requires that the “pattern of conduct or series of acts” be “directed at a specific person.” G. L. c. 265, § 43A (a). Moreover, the statute clarifies that the “specific person” referred to is the victim — the person who is “seriously alarm[ed]” by the harassment. Id. In short, this provision, by its plain terms, requires the Commonwealth to establish, at the very least, that the defendant intended to target the victim with the harassing conduct on at least three occasions.
D. Prestatutory incidents. Next we must determine whether the incidents that occurred in this case prior to the effective date of the statute, October 30, 2000, but which otherwise might meet the statutory requirements for harassing “conduct” or “acts” under G. L. c. 265, § 43A, may be considered among the three or more harassing incidents necessary to support a conviction. Our Federal and State Constitutions protect defendants against the application of ex post facto laws. See art. 1, § 10, of the United States Constitution; art. 24 of the Massachusetts Declaration of Rights (“Laws made to punish for actions done before the existence of such laws, and which have not been declared crimes by preceding laws, are unjust, oppressive, and inconsistent with the fundamental principles of a free government”). An ex post facto law is one that “makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.” Opinion of the Justices,
Even if a consideration of prestatutory incidents would not violate the ex post facto clauses of our Federal and State Constitutions, we do not read retroactivity into criminal harassment statutes where the Legislature has indicated no intent to do so. “Absent clear language to the contrary it is presumed that legislation is not intended to operate retroactively.” Commonwealth v. Fuller,
2. Application to present case. We now apply the statute, as construed, to the defendant’s allegedly harassing conduct. In considering whether there was sufficient evidence to support a conviction under the criminal harassment statute as limited above, we must decide “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt” (emphasis in original). Commonwealth v. Latimore,
Of the seven incidents described in the record, the first three occurred before October 30, 2000, the effective date of the criminal statute, and may not be considered evidence of a “pattern” of harassing conduct. See discussion, supra. We consider only those four incidents that occurred after the effective date of the statute. We begin with an analysis of the January 24 and January 27, 2001 incidents (fifth and seventh, discussed supra). The January 24, 2001, incident involved the defendant speaking in a “normal” tone to a third party outside the building below the complaining witnesses’ window, and the January 27, 2001, incident consisted of the defendant’s yelling while in her own apartment. Although the utterance of offensive language during these two incidents could meet the “conduct” or “acts” requirement of the statute, there was insufficient evidence that these incidents were “directed at” Robichau or Brienza. The defendant (for unknown reasons) concedes that the January 24, 2001, incident meets the statutory requirements. However, as we have made clear, to be consistent with the constitutional requirements, any speech prohibited by the criminal harassment statute must be directed at a specific person. See discussion, supra. While the Commonwealth established that the offensive language was indeed overheard by the complaining witnesses, the record does not establish that the defendant intended the statements to be heard by Robichau or Brienza, nor that she should have known that the statements would be heard by them.
This leaves only two poststatutory incidents as a possible basis for a conviction under the harassment statute (incidents four and six), an insufficient number to meet the “pattern” or “series” requirement necessary to support a conviction. See discussion, supra. We therefore need not decide whether those two incidents meet the statutory elements for criminal harassment, and hold that the defendant’s actions in this case, however offensive and hurtful to Robichau and Brienza, did not constitute criminal harassment within the meaning of G. L. c. 265, § 43A.
3. Constitutional concerns. We do not generally consider constitutional questions unless their resolution is necessary to the disposition of the controversy before us. See, e.g., Bynum v. Commonwealth,
We begin by canvassing the leading cases that have considered the constitutional limits on the criminalization of speech. Mindful of the constitutional limitations recognized by the United States Supreme Court, we analyze the criminal harassment statute, G. L. c. 265, § 43 (a), and conclude that it is not constitutionally infirm. We are guided in our analysis not only by decisions of the United States Supreme Court, but also by the canons of statutory
Although not an absolute rule, the Supreme Court has held that States generally may not proscribe speech based on its content. See R.A.V. v. St. Paul,
Although the United States Supreme Court has never considered the constitutionality of a criminal statute that
Guided by Federal case law, some State courts have held unconstitutional statutes outlawing harassing conduct or speech
Other States, however, have construed their statutes that proscribe harassing conduct or speech as constitutionally permissible. Most commonly, statutes have been upheld that contain some combination of the following limiting characteristics: a “willful,” “malicious,” or specific intent element; a requirement that the conduct be “directed at” an individual; a reasonable person standard; a statutory limitation that the conduct have “no legitimate purpose”; and a savings clause excluding from the statute’s reach constitutionally protected activity or communication. See, e.g., State v. Brown,
Considering these constitutional restrictions and benefiting from the law of other jurisdictions, we now consider the constitutionality of G. L. c. 265, § 43A, as interpreted today. It goes without saying that the criminal harassment statute cannot be applied to punish constitutionally protected speech. See, e.g., Commonwealth v. A Juvenile,
The elements set forth in § 43A are very similar to those that have led courts in other jurisdictions to uphold their statutes. See discussion, supra. By contrast, however, the Massachusetts criminal harassment statute lacks a savings clause or other provision that restricts punishable conduct to that which is constitutionally unprotected. Similarly, it contains no express limitation to fighting words. Nonetheless, we believe the Legislature, in carefully crafting the statute, intended the statute be applied solely to constitutionally unprotected speech. Any attempt to punish an individual for speech not encompassed within the “fighting words” doctrine (or within any other constitutionally unprotected category of speech) would of course offend our Federal and State Constitutions.
In upholding the statute’s constitutionality, we effectuate the legislative intent, consistent with both the statutory language and its greater purpose. Our decision also comports with our canons of statutory interpretation that require we presume statutes to be constitutional, see, e.g., Leibovich v. Antonellis,
The Legislature drafted the criminal harassment statute to extend protections to victims of harassment, providing a remedy to victims before “nonthreatening” harassment escalates into life-threatening assault. Our statutory interpretation today effectuates this intent by protecting victims from harassment that may begin with words, but tragically end with violence. See Kirkman, Every Breath You Take: Massachusetts Steps up its Efforts to Stop Stalkers, 85 Mass. L. Rev. 174, 181, 183 (2001) (“stalkers who become lethal move from non-threatening behavior to direct threats and property destruction” and “criminal harassment law establishes a continuum along which law enforcement may confront stalking behaviors”).
So ordered.
Notes
The criminal harassment statute, G. L. c. 265, § 43A (a), inserted by St. 2000, c. 164, and effective October 30, 2000, provides:
“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.... Such conduct or acts described in this paragraph shall include, but not be limited to, conduct or acts conducted by mail or by use of a telephonic or telecommunication device including, but not limited to, electronic mail, internet communications or facsimile communications.”
We deny the defendant’s motion to expand the record to include a supplemental appendix.
It is unclear precisely how many episodes of alleged harassment the judge credited, as the judge’s findings note “close to a half a dozen episodes.” The testimony of the complaining witnesses, which served as the basis for the findings, indicates seven in total.
A third complaint alleged a civil rights violation under G. L. c. 265, § 37 (“No person . . . shall by force or threat of force, willfully injure, intimidate or interfere with . . . any other person in the free exercise or enjoyment of any right or privilege” secured by Federal or State law). This complaint also alleges one count of malicious destruction of property in violation of G. L. c. 266, § 127. The defendant was acquitted of these charges.
Robichau’s testimony places this incident on May 31, 1999, the date of the first incident, but the difference in time is of no import to the present appeal and evidently did not diminish the witnesses’ credibility in the eyes of the judge.
The trial transcript does not indicate what action, if any, the police took on arrival.
The transcript does not indicate if the police responded.
The defendant testified, denying the comments and presenting a different version of the seven incidents. The defense also called two other witnesses. The judge did not credit the defense testimony.
See, e.g., Comments of Senator Linda Melconian, Senate Session, Jan. 27, 2000 (“Now is the time to close some loopholes . . . . It is criminal behavior to make a person live in terror and it should not matter whether or not the victim has actually received an overt threat .... That’s why this bill is needed to create the crime of criminal harassment”); Comments of Representative Stephen Tobin, House Session, July 12, 2000 (“The thing is up to now, the stalking provision hasn’t covered conduct that doesn’t threaten bodily injury or harm. ... So what we’re doing today is we’re creating a new provision in the general laws that would cover that”). See also Senate to Vote Today on Bill to Boost Protection of Stalking Victims, Boston Globe, Jan. 27, 2000, at B7 (harassment legislation drafted in response to high-profile victims of stalking, and considered just days after Everett woman was killed by stalker who harassed her but had not threatened her).
There are other differences between the harassment statute and the stalking statute. For example, the stalking statute requires the victim be “seriously alarm[ed] or annoy[ed],” while the harassment statute requires only that the victim be “seriously alarm[ed].” The stalking statute also carries a longer maximum sentence. Compare G. L. c. 265, § 43 (stalking statute) with G. L. c. 265, § 43A (a) (harassment statute).
The Commonwealth cites People v. Bastían,
Although they may not comprise part of the pattern or series of acts, prestatutory incidents may be considered in determining whether poststatutory incidents meet the statutory elements of harassing conduct or acts (such as causing a reasonable person severe emotional distress and causing serious alarm in the victim). Prestatutory incidents may also be admitted to show intent or motive. See, e.g., Commonwealth v. Helfant,
The defendant was not convicted of any conduct or acts other than speech, and there is no indication in the record that the defendant engaged in other conduct encompassed by the criminal harassment statute.
The “trac threats” exception is not applicable to the criminal harassment statute because the statute was enacted to criminalize those acts of harassment that do not rise to the level of threats. Contrast G. L. c. 265, § 43 (criminal stalking statute).
We do not suggest that incidents of harassment that consist of more than pure speech should be exempted from punishment merely because they are accompanied by protected speech. See Cox v. Louisiana,
This court has narrowly construed statutory language in the past to avoid constitutional problems. See, e.g., Commonwealth v. Templeman,