Does Massachusetts have a hate crimes law?

Yes, Massachusetts has several provisions of criminal law geared toward identifying and punishing hate-motivated violence (Massachusetts also has a “criminal harassment” statute, Mass. Gen. Laws, chap. 265, sec. 43A, which targets any willful and malicious pattern of conduct or series of acts directed at a specific person, seriously alarming that person, and causing any reasonable person to suffer substantial emotional distress. It could apply to homophobic statements directed against a person.  Visit Com. V. Welch, 444 Mass. 80 (2005)).

Most specifically, Massachusetts law contains a “Hate Crimes Penalties Act” which provides stiff penalties for those who:

  • commit an assault or a battery; or, cause damage to a person’s real or personal property
  • with the intent to intimidate a person because race, color, religion, national origin, sexual orientationgender identity, or disability (Mass. Gen. Laws, chap. 265, sec. 39).

Massachusetts also has a law which punishes those who:

  • by force or threat of force,
  • willfully injure, intimidate, interfere with (or attempt to do so), or oppress or threaten a person
  • in the free exercise or enjoyment of any right or privilege secured to them under state or federal constitutions or laws (Mass. Gen. Laws, chap. 265, sec. 37).

Essentially, this law provides criminal penalties for violations of a person’s civil rights (visit also Commonwealth v. Stephens, 25 Mass. App. Ct. 117, 123-24 (1987)(sec. 37 applies to hate-motivated harassment and violence)). For further information, see GLAD’s publication, Anti-LGBT Violence and Harassment, at Anti-LGBT Violence and Harassment.

In a typical hate crimes case, both of the above laws are charged, along with another criminal statute, such as assault and battery, assault and battery with a dangerous weapon, or assault with intent to murder and maim. Criminal charges can be initiated by the police, or by the victim themselves.

In order to track hate crimes, the State has set up a reporting system so that incidents alleged are centrally recorded (Mass. Gen. Laws, chap. 22C, secs. 32-35). To report an incident of hate-motivated violence, contact the Violence Recovery Program at Fenway Community Health, at (617) 927-6250 or 1-800-834-3242 (toll free in MA).

How does the law define what is a hate crime?

Under Massachusetts law, a “hate crime” is “any criminal act coupled with overt actions motivated by bigotry and bias, including, but not limited to, a threatened, attempted or completed overt act motivated at least in part by racial, religious, ethnic, handicap, gender, sexual orientation or gender identity prejudice, or which otherwise deprives another person of his constitutional rights by threats, intimidation or coercion, or which seek to interfere with or disrupt a person’s exercise of constitutional rights through harassment or intimidation. . .” (Mass. Gen. Laws, chap. 22C, sec. 32).

Technical definitions aside, law enforcement officials and others tend to use the following as guideposts for determining whether or not a crime is an anti-LGBT hate crime:

  • Did the attacker use anti-LGBT language or slurs?
  • Was the victim in an area associated with LGBT people (e.g., outside a LGBT bar, at a Pride parade location, at a cruising area)?
  • Was the victim identified and targeted because of appearance or behavior (e.g., holding hands with a same-sex partner, wearing a Pride flag)
  • Have there been similar crimes in the area?
  • Did the attack occur regardless of economic motive (e.g., was the victim attacked but not robbed) (see generally Mass. Gen. Laws, chap. 22C, sec. 33; 501 Code of Mass. Regs. sec. 4.04(1) (Hate Crimes Reporting Classification Criteria))?

What can I do if I think I’ve been a victim of a hate crime?

Victims of hate crime violence have three types of legal recourse if they decide to take legal action against their perpetrators: (1) criminal prosecution under the laws discussed above; (2) injunctive relief; and (3) a civil suit for damages.

Immediately after the incident, seek medical attention if necessary. Second, consider reporting the incident to the police if you feel comfortable doing so. If you wish to press charges, a police report will be required and an investigation will often be necessary to identify the perpetrators. In addition to contacting the local police, you may also contact the Criminal Division of the Attorney General’s office at (617) 727-2200. Be sure to explain all of the factors that make you think this was a hate crime.

For support and advocacy, contact the Violence Recovery Program (VPR) at Fenway Community Health. In addition to short term counseling for victims, VPR’s professional advocates can assist you with reporting an incident, pursuing an investigation, or pursuing a case in court. All calls are confidential; you will not be required to provide your name. Contact VPR at (617)-927-6200 or 1-800-834-3242 (toll free in MA).

What other options do I have if I think I have been the victim of a hate crime?

In addition to pursuing your rights in the criminal justice system, you may seek a “civil rights injunction” from the Superior Court.

A civil rights injunction is a protection order issued by the court, and typically forbids a person or persons from contacting you or coming near you (or your home, or school, or workplace) because they have been determined to be threatening to you. To obtain an injunction, you must show that the person interfered or attempted to interfere with the exercise of your secured rights by using threats, intimidation or coercion. This is not always as easy as it sounds.

You can seek a civil rights injunction on your own or with your lawyer, or you can ask the Attorney General to do so on your behalf (Mass. Gen. Laws, chap. 12, sec. 11H (actions by Attorney General); chap. 12, sec. 11I (actions by private individuals)). The Attorney General’s Office, Civil Rights Unit, is found at (617) 727-2200, but it cannot fulfill all of the requests it receives. In an action you bring on your own, you may also seek compensatory money damages from the perpetrator and an award of attorneys’ fees.

Although injunctions are civil in nature, violating an injunction is a criminal offense (Mass. Gen. Laws, chap. 12, sec. 11J). If a perpetrator does so, they can be fined, imprisoned, or both. For further information see GLAD’s publication, Anti-LGBT Violence and Harassment, at Anti-LGBT Violence and Harassment.

In what ways might the federal hate crimes law help to investigate and prosecute hate crimes?

The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act (visit H.R. 2647 at was passed by Congress on October 22, 2009 and was signed into law by President Obama on October 28, 2009. It expands the 1969 United States federal hate crime law to include crimes motivated by a victim’s actual or perceived gender, sexual orientation, gender identity or disability.

First, and perhaps foremost, the Act allows local and state law enforcement agencies to apply for the following federal assistance from the U.S. Attorney General:

  • investigative, technical, forensic or prosecutorial support for criminal investigations and prosecutions,
  • grants for extraordinary expenses associated with the investigation and prosecution of hate crimes, and
  • grants to combat hate crimes committed by juveniles.

In providing assistance to local and state authorities, the priorities are hate crimes:

  • where the offender(s) has committed crimes in more than one state, or
  • that occur in rural areas which do not have the resources needed to prosecute such crimes.

Second, for hate crimes that in some way involve crossing state or national borders, or involve or affect interstate commerce, and where a state does not have jurisdiction or has requested federal assumption of jurisdiction, or where the federal government feels that justice has not been served or that U.S. prosecution is in the public interest, the Act authorizes the federal government to prosecute the case. The Federal Bureau of Investigation (FBI) encourages victims of hate crimes to make a report to the FBI as well as local and state authorities. The Boston field office of the FBI can be reached at (617) 742-5533.

The Act also requires the Federal Bureau of Investigation to track statistics on hate crimes on the basis of gender and gender identity (statistics for the other groups are already tracked) and on crimes committed by and against juveniles. This is the first federal law to explicitly extend legal protections to transgender persons.

Does Massachusetts have a law to protect people who are being harassed or threatened?

Yes. The Harassment Prevention Law, Chapter 258E, allows people who are being harassed, stalked, or sexually assaulted to obtain a restraining order against the perpetrator. Unlike 209A orders (see above), a Harassment Prevention Order does not require the victim to have a special relationship with the perpetrator—the law can be used to protect you against anyone. You can apply for a Harassment Prevention Order free of charge at your local court (District Court, Superior Court, or Boston Municipal Court). If both the victim and the harasser are under the age of 17, you should file in the Juvenile Court whose jurisdiction covers where you live.

In emergency situations when the courts are closed, you can get a temporary order from the police, but you will still have to appear in court the next business day. Finally, although filing for a Harassment Prevention Order does not preclude pursuing other civil or criminal remedies, you must disclose any prior or pending actions with the harasser when you file your complaint.

What do I need to show in order to get a Harassment Prevention Order?

You need to document:

  • that the harasser committed three or more acts against you of willful and malicious conduct that caused fear, intimidation, abuse or damage to property; or
  • that the harasser forced you to involuntarily engage in sexual relations; or
  • that the harasser violated any of the criminal laws in Chapter 265 that pertain to sex with a minor, indecent assault and battery, rape, stalking or the law in Chapter 272 that deals with drugging for sexual intercourse.

What measures can the court take to protect the victim from future harassment?

The first action a court will generally take is to issue a temporary Harassment Prevention Order, which remains in place until a court hearing can be held. The temporary order may instruct the harasser:

  • to refrain from abusing or harassing the victim,
  • to refrain from contacting the victim,
  • to stay away from the victim’s home or workplace, and
  • to pay the victim monetary compensation for the losses suffered as a direct result of the harassment.

How does the victim extend the temporary order?

After granting the temporary order, the harasser will be notified and given an opportunity to appear in court and be heard on the question of continuing the temporary order. If the harasser does not appear, the temporary order will automatically be extended. The hearing will be scheduled within 10 business days of the court first issuing the order.

At the hearing, the judge will listen to the evidence and decide whether or not to extend the order. If the judge chooses to extend the order, it can remain in place for up to one year. At the expiration of the order, the victim can petition the court to provide another extension. The court may modify the order at any time based upon a petition from either party.

What happens if the harasser violates the Harassment Prevention Order?

Violation of the order is a criminal offense punishable by a fine of not more than $5,000, or by imprisonment of not more than 2 ½ years, or both.

What if I have a protection order issued by another jurisdiction?

Provided the victim presents the appropriate Massachusetts court with a certified copy of the protection order and a sworn affidavit that the order is presently in effect as written, the protection order will be enforced in Massachusetts for as long as the order was in effect in the issuing jurisdiction.

For more detailed information about hate crimes, violence and harassment, see GLAD’s publication, Anti-LGBT Violence and Harassment in Massachusetts, at Anti-LGBT Violence and Harassment