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Vol. 90 No. 4

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Massachusetts Law Review

Criminal Law – Malice as Element of Criminal Harrassment and Stalking

Commonweath v. O’Neil, 67 Mass. App. Ct. 284 (2006)


In the recent case of Commonwealth v. O’Neil, the Appeals Court addressed the malice requirement of the criminal harassment statute. In doing so, the court reaffirmed the principle that one does not have to specifically intend offensive conduct to be guilty of misdemeanor criminal harassment. The ruling also provides clear guidance for the jury instruction to be used in such cases and should lead to a correction of the instruction used in stalking cases. An unintended consequence of the ruling is that it brings the Massachusetts criminal harassment law (and stalking law) closer to a new model law combating stalking behavior.

Case Background

In August and September, 2002, Dennis O’Neil, an inmate of the Hampshire County jail, began making collect telephone calls to the family home of a young woman who had attended his high school. The victim testified at trial that while she attended the same school as the defendant, she had no social contact with him. The family did not return any of the calls. Nevertheless, the calls continued, but the location of the caller changed to Bridgewater State Hospital in January, 2003.
Also beginning in January, 2003, the family started receiving letters from the defendant. There were a total of seven letters received by the family with varying requests and pleas that demonstrated an increasing “obsessive tone and fabricated familiarity.”
The first letter, postmarked January 25, 2003, asked the victim to send letters to certain unnamed persons and a particular judge to let him know that she was concerned about the defendant. The letter ended with: “Nobody understands what it will take to make you happy like I do. I know this letter is not very good, but in the future you will see how much I care about you.”
In a letter postmarked February 3, 2003, the defendant apologized for the inappropriate content of the earlier letter. The letter concluded with the defendant telling the victim that he has added her name to his telephone list and that he would call her house on that next Monday. The victim testified that she found this letter “very alarming.” She wrote to Bridgewater State Hospital and asked that the administration block all letters and phone calls from the defendant to her household. In March, she wrote a similar letter to the Hampshire House of Correction.
The next letter addressed to the victim was postmarked April 22, 2003, and showed the defendant’s increasing obsession and delusion by referring to an incident that the victim did not recall ever happening. On April 23, 2003, the defendant was served with a “no trespass order” barring actual or attempted contact with the victim or her family. Undeterred, the defendant sent four more letters to the victim’s home.
In a May 10, 2003 letter, the defendant denied ever threatening the victim and told her father that he appreciated that the father was helping the victim because other than the father and the defendant there are no “people that will help her out unconditionally.” He went on to say that he cared more about the victim than anybody else and that he knew what was best for her and how to keep her safe. He ended the letter by asking the father to “help me to convince her to drop this complaint that’s what’s best for her, for me, for you, for everyone.”
In a letter two days later, the defendant told the victim he wanted her to help him get out of jail and not to do anything to keep him in it. He stated he would not “bother” her in the future and that he did not mean to in the past. He then stated, “I still want to be friends with you. If anybody ever thinks about trying to bother you in the future I will handle defending you a lot more responsibly than the courts will.” He concluded by telling her that he is not obsessed with her. But a month later, he sent a long, rambling letter telling the victim that he thinks “about [her] all day long, it’s not like I forgot about you.” The defendant’s final letter came after the family had complained to local police. The letter repeated his obsession.
Based on the letters and phone calls, Dennis O’Neil was indicted for criminally harassing the victim in violation of section 43A of Massachusetts General Laws chapter 265. He was tried without a jury and sentenced to two years probation. The issues on appeal concerned the required state of mind for proving willful and malicious conduct and the requirements for proving substantial emotional distress under the criminal harassment statute. This comment will focus on the state of mind requirement as the court’s decision on the requirements of substantial emotional distress was not novel or ground-breaking and followed existing law.

Legal Analysis
As stated above, the criminal harassment statute requires “willful” and “malicious” conduct as elements of the crime. The Appeals Court defined both terms in responding to Dennis O’Neil’s appeal. O’Neil argued that willfulness required not only that he intended the conduct, but also that he intended its harmful consequences. The court disagreed and straightforwardly ruled that “wilful means intentional without making reference to any evil intent.” No ill will or malevolence is required. The court pointed to the defendant’s persistent contact with the victim after she had twice asked the prison authorities to block his mail and he was told, orally and in writing, not to contact her or her family. Thus, the defendant’s conduct was “willful and not accidental.”
But, “malice” would seem to include the exact ill will or malevolence that is not present in mere willful, i.e., non-accidental, conduct. For example, in Commonwealth v. Peruzzi, the Appeals Court traced the history of the term “malice” and found that “the terms wilful and malicious are not used redundantly” and convey different meanings within the context of criminal destruction of property. The court held, “[t]he word ‘wilful’ means intentional and by design in contrast to that which is thoughtless or accidental. Malice, on the other hand, refers to a state of mind of cruelty, hostility or revenge.” The court went on to state, “[b]oth elements are required for the crime of destruction of property or as it is sometimes referred to, malicious mischief.”
In most other crimes, the mere willful “doing of an unlawful act is a sufficient basis for a finding of malice....” “Malice aforethought” in a murder case “does not necessarily require a showing of ill will toward the victim. Rather it comprehends any intent to inflict injury without legal justification or palliation.” This latter formulation of malice as arising from the willful doing of an unlawful act, and nothing more, is generally found in tort claims based in malicious conduct as well.
After O’Neil was decided, the Supreme Judicial Court (“SJC”) in Chervin v. Travelers Ins. Co., substituted the “improper purpose” element as defined by section 676 of the Second Restatement of Torts in place of the element of “malice” in malicious prosecution cases. The SJC’s “substitution” was not so much that as it was a refinement of the definition of malice found in several older cases. In the 1832 case of Wills v. Noyes, the SJC stated that in order to maintain an action for malicious prosecution, “[t]he malice necessary ... is not necessarily revenge or other base malignant passion. Whatever is done willfully and purposely, if it be at the same time wrong and unlawful, and that known to the party, is in legal contemplation malicious.” Similarly, in the more recent case of Beecy v. Pucciarelli, malice was defined as an improper motive, that “may be one of vexation, harassment, annoyance, or attempting to achieve an unlawful end or a lawful end through an unlawful means.” The formulation of “malice,” then, in malicious prosecution cases looks remarkably similar to the formulation in O’Neil.
In O’Neil, the court pointed out that the requirement of malice under criminal harassment is fully satisfied by intent minus any justification or mitigation and “any reasonably prudent person would have foreseen the actual harm that resulted.” Unlike criminal destruction of property cases, no ill will is required. So like the Chervin case described above, the malice for criminal harassment seems implied or simply reflective of an “improper motive,” i.e., “one of vexation, harassment, annoyance, or attempting to achieve an unlawful end or a lawful end through an unlawful means.”
The holding in O’Neil, however, contradicts the dicta contained in a case relied on by that defendant, Commonwealth v. Jenkins. In Jenkins, the Appeals Court, in reviewing the knowing standard contained in the stalking jury instruction, commented that malice under stalking “requires a showing that the defendant’s conduct was motivated by cruelty, hostility or revenge.” That requirement is found in the model jury instruction for stalking and came from a malicious destruction of property case, Commonwealth v. Armand. The Appeals Court in O’Neil, however, explained that malice needed in property destruction cases is different than that in cases involving harm to people. Thus, in cases involving individuals, it is closer to the lower standard of proving improper motive or means found in the civil cases described above. Essentially, the Appeals Court in O’Neil, like the SJC in Chervin, substituted an improper purpose definition of malice for one requiring cruelty, hostility or revenge.


The O’Neil result makes sense because the case involved serious harm to a person rather than destruction of property. As the court pointed out, property injuries can (and perhaps should) be addressed civilly unless there is some greater social harm due to heightened malicious intent. Historically, it was held there must be a “special depravity or special hostility towards the owner which makes a crime of that which would otherwise be a mere trespass to property.” In other words, affronts to individuals should be viewed by the law differently, if not more seriously, than conduct limited to damaging property.
Moreover, the O’Neil formulation follows a clear legislative intent of early intervention in stalking cases that have not risen to the level of explicitly threatening conduct. Essentially, the legislature in enacting the criminal harassment statute adopted a general intent standard that recognizes that

[s]talkers may suffer from a mental disorder that causes them to believe that their victim will begin to return their feelings of love or affection if properly pursued...[Thus] a general intent requirement holds the accused stalker responsible for his intentional behavior if, at the very least, he should have known that his actions would have caused the victim to be afraid...

That general intent requirement informs the malice needed to prove criminal harassment. It appropriately comports with the Model Penal Code’s treatment of culpable mental states as descriptors without requiring a subjective exploration of the actor’s feelings of ill will. That last point is important in stalking or harassment cases. Too often, as in Dennis O’Neil’s case, the stalker truly believes he or she is expressing good will without any evil intent. But, as shown by this same case, the obsessive consequences of that belief can be disturbingly harmful to the target of the conduct. It is that evil consequence that is forbidden.

J. Thomas Kirkman


1. 67 Mass. App. Ct. 284 (2006).

2. The criminal harassment statute 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 and shall be punished...

Mass.Gen.Laws ch.265 §43A (2006).

3. Criminal harassment is a lesser included offense under the stalking law.

Stalking occurs whenever one

(1) 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 or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and (2) makes a threat with the intent to place the person in imminent fear of death or bodily injury.

Mass.Gen.Laws ch.265 §43 (2006).

4. A model code was first proposed by the National Institute of Justice in 1993. See Annual Report to Congress under the Violence Against Women Act, Appendix B (April, 1996). That code has been reviewed and revised with a new model code released in January of this year by the National Center for Victims of Crime. See pdf file at

5. O’Neil, 67 Mass. App. Ct. at 284. The defendant apparently saw the victim’s picture and got her name from their high school yearbook. Id. at 289 n.5.

6. Id. at 285-86.

7. Id. at 285.

8. Id. at 285-86.

9. Id. at 289.

10. Id.

11. Id.

12. Id. at 286.

13. “No trespass” orders are authorized by Mass.Gen.Laws ch.266 §120 (2006). A violation of such an order only results in a maximum fine of $100 or 30 days in jail. A defendant can only be arrested for violating such orders if the trespass is committed in the presence of the police. Such orders are different from civil injunctions because the complainant does not have to file an action in court. Simply posting a notice or serving an individual with a written notice triggers the protection of this statute that was first enacted in 1862. St. 1862, c. 89.

14. Brief of Commonwealth-Appelle at 3, Commonwealth v. O’Neil, No. 05-P-142 (Mass. App. Ct. June 27, 2005).

15. O’Neil, 67 Mass. App. Ct. at 286-87.

16. Id. at 287.

17. Id.

18. Id. at 288.

19. Id. at 289.

20. Id. at 284, 285 n.1. Probation included specific conditions that he (1) have no direct or indirect contact with the victim or her family; (2) report to the probation department as directed; (3) participate in a counseling program deemed appropriate by the probation department; and (4) reside with his parents until further order of the court. Id. at 285 n.1.

21. O’Neil, 67 Mass. App. Ct. at 294 (citing Commonwealth v. Robinson, 444 Mass. 102 (2005)).

22. Supra note 2.

23. O’Neil, 67 Mass. App. Ct. at 290.

24. Id.

25. Id. (citing In re Adoption of Minor, 343 Mass. 292, 297 (1961)) (interpreting Mass.Gen.Laws. ch.210 §3 (2006)). The model jury instruction defines “willful” as an act that is “done intentionally and by design, in contrast to an act which is done accidentally.” Instruction 5.621 Model Jury Instructions for Use in the District Court (2000). This instruction is virtually identical to the model instruction for stalking: “[a]n act is done willfully if it is done intentionally and not out of mistake or accident. Instruction 5.62 Model Jury Instructions for Use in the District Court (1997).

26. O’Neil, 67 Mass. App. Ct. at 291.

27. 15 Mass. App. Ct. 437(1983).

28. Id. at 443.

29. Id.

30. Id.

31. Id; see also Commonwealth v. Boateng, 438 Mass. 498, 517 (2003)(“in the context of assault with intent to murder, malice has a different definition: the absence of justification, excuse, or mitigation”).

32. Commonwealth v. McInerney, 373 Mass. 136, 140 (1977); Commonwealth v. Scanlon, 373 Mass. 11, 18 (1977); see generally O’Neil, 67 Mass. App. Ct. at 292 n.7; Patricia A. O’Neill and Katherine E. McMahon, Recent Developments in the Law of Malice and Homicide, 84 Mass. L. Rev. 158 (2000).

33. 448 Mass. 95 (2006).

34. Id. at 110. Section 676 of the Restatement states: “To subject a person to liability for wrongful civil proceedings, the proceedings must have been initiated or continued primarily for a purpose other than that of securing the proper adjudication of the claim on which they are based.” Restatement (Second) of Torts §676 (1977).

35. 29 Mass. (12 Pick.) 324 (1832).

36. Id. at 327.

37. 387 Mass. 589 (1982).

38. Id. at 593-94.

39. O’Neil, 67 Mass. App. Ct. at 293; see Boateng, 438 Mass. at 517.

40. As an ironic aside, it should be noted that many stalkers frequently engage in destruction of their target’s property. See Mohandie, et. al., The RECON Typology of Stalking: Reliability and Validity Based Upon a Large Sample of North American Stalkers, 51 Journal of Forensic Science 147 (2006).

41. Beecy, 387 Mass. at 593-594 n.9. This notion of implied malice rather than actual malice is discussed in a very different setting involving an employment relationship in another recent case, Blackstone v. Cashman, 448 Mass. 255 (2007). In that case, the SJC held that an employee of a closely held corporation suing a director of the corporation must show actual malice to recover for tortious interference of a contract. The court found that actual malice involves a higher burden of proof, requiring a showing of “a spiteful, malignant purpose unrelated to the legitimate corporate purpose,” whereas, a lower standard of proof is required by “implied malice,” which requires only a showing of “improper motive or means.” Id. at 260-261.

42. 47 Mass. App. Ct. 286 (1999).

43. Id. at 291.

44. 411 Mass. 167, 171 (1991). The Armand definition of malice is indistinguishable from “actual malice” as described in Blackstone, 448 Mass. 255. See supra note 41.

45. The definition of malice that the Appeals Court announced in O’Neil, is exactly what the court would have instructed the jury using the model criminal harassment instruction. Presumably, it is also the definition that the trial judge was considering in finding Dennis O’Neil guilty. See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005)(judges in jury-waived trials are presumed to know and correctly apply the law). Yet, the model jury instruction for stalking requires a showing of “cruelty, hostility, revenge, or other wrongful motive.” Supra text accompanying note 24. “Malice” after O’Neil, should be defined the same for both stalking and criminal harassment. Therefore, the stalking model jury instruction needs to be changed.

46. O’Neil, 67 Mass. App. Ct. at 292-93; Peruzzi, 15 Mass. App. Ct. at 443; see also, the following destruction of property statutes where malice is an element: Mass.Gen.Laws ch.266 §127 (2006)(malicious destruction of property); Mass.Gen.Laws ch.266 §101 (2006) (destruction by explosion); Mass.Gen.Laws ch.266 §126A (2006) (barring graffiti); Mass.Gen.Laws ch.272 §73 (2006) (destruction of memorials to the dead); and similar statutes protecting private and public property contained in Mass.Gen.Laws ch.266 §§95-98 (2006).  

47. Commonwealth v. Goodwin, 122 Mass. 19, 35 (1877). For an even deeper history of the development of knowledge and malice and the emerging doctrine of “mens rea” see Martin R. Gardner, The Mens Rea Enigma: Observations on the Role of Motive in the Criminal Law Past and Present, 1993 Utah L. Rev. 635.

48. See also Commonwealth v. Lamothe, 343 Mass. 417, 419 (1961) (distinguishing arson from other injury to property and holding that malice in arson need not be express, but may be implied from the wrongful act itself without proof of ill will).

49. See O’Neil, 67 Mass. App. Ct. at 293 (“We...should not construe the statute in such a way as to negate the Legislature’s clear attempt to protect victims of harassment before that behavior escalates into more dangerous conduct.”).

50. State v. Neuzil, 589 N.W. 2d 708, 711-712 (Iowa 1999) (quoting Christine B. Gregson, Comment, California’s Antistalking Statute: The Pivotal Role of Intent, 28 Golden Gate U.L. Rev. 221, 244-45 (1998)).

51. 1 Model Penal Code and Commentaries section 2.02, at 243-44 (Official Draft and Revised Comments 1985); see Gardner, supra note 47.


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