Identity fraud is a serious and widespread offense. The Federal Trade Commission logged over one million identity fraud reports in 2024. Identity fraud can also lead to a wide range of harm like bad credit and lost personal information.

Because this crime is so widespread and its consequences can be devastating, it is easy to understand why a person might be falsely accused of identity fraud. This makes it important to understand what this crime is and isn’t.

Is identity fraud illegal in Massachusetts?

Yes, identity fraud is illegal in Massachusetts. It is punished under Massachusetts General Laws Chapter 266, Section 37E. There are three types:

• Identity fraud by obtaining personal information
• Identity fraud by posing as another
• Identity fraud by possessing a theft device

The most common is identity fraud by obtaining personal information.

Is identity fraud a felony or misdemeanor?

Identity fraud is a misdemeanor in Massachusetts. When a crime is a misdemeanor, it means a person who is convicted cannot be sentenced to state prison time. A person who is convicted of a misdemeanor in Massachusetts can only be sentenced to time served in the house of corrections.

When is a person guilty of identify fraud by obtaining personal identifying information?

There are five things the state must show to prove a person is guilty of the crime of identify fraud by obtaining personal information:

• Defendant obtained “personal identifying information” about someone else
• Defendant did so without their consent
• Defendant intended to (either):
  • Pose as that person
  • Assist someone else as posing as that person
• Defendant did so to (either):
  • Obtain something of value (like money, credit, or a product)
  • Obtain their identity
  • To harass someone else
• Defendant intended to defraud the other person

If the state does not prove each part, or each element, of the crime beyond a reasonable doubt, the defendant must be found not guilty. An effective criminal defense attorney will closely analyze if the state met its burden of proving each element.

This crime is punished in Subsection (c) of the statute.

What is “personal identifying information”?

The statute that punishes identity fraud gives a definition of the term “personal identifying information.” Personal identifying information is a name or number that can be used alone or with other information to take another person’s identity.

The law lists specific examples:

• Name
• Address
• Phone Number
• Driver’s License Number
• Social Security Number
• Place of Employment
• Employee Identification Number
• Mother’s Maiden Name
• Bank Account Number
• Credit Card Number
• Electronic Password

What does it mean to “harass” someone else?

Harassing another person when we are talking about identity fraud means willfully and maliciously intending to do something that would seriously alarm or annoy someone else and would cause a reasonable person to suffer substantial emotional distress.

To do so willfully means to do it intentionally, not by mistake. Maliciously means doing it intentionally and without justification or mitigation, causing a person to suffer harm.

What does it mean to “intend to defraud” someone?

Intending to defraud someone means doing something with the aim or cheating or deceiving them. The goal is to benefit them or someone else. It is not required that the “someone” be a specific person. It can be anyone.

What are the other two types of identity fraud?

Identity fraud by obtaining personal identifying information is not the only type of identity fraud. There are two others and they are slightly different.

A person commits the crime of identity fraud by posing as another when they pretend to be another person to obtain something of value, take someone’s identity, or harass another person. Like the first type of identity fraud, it also requires intent. This crime is punished in Subsection (b) of the statute.

A person commits the crime of identity fraud by possessing a data theft device when they use a device to steal someone’s financial or personal information. This crime is punished in Subsection (c ½) of the statute.

What is the punishment for committing identity fraud?

The punishment for identity fraud is serious. Regardless of the type, a person could face up to a $5,000 fine, incarceration in the house of correction for up to 2.5 years, or both.

What are defenses to identity fraud?

If you find yourself accused of this crime, there may be defenses available.

It is the state’s burden to prove the crime beyond a reasonable doubt. If evidence is lacking, a finding of not guilty should enter. There are many reasons why the evidence might not be sufficient. The most challenging element to prove is usually intent. Does the state have sufficient evidence to prove you intended to impersonate another? Does the state have sufficient evidence to prove you intended to defraud? Often, misunderstandings can create the impression that someone committed a crime when in reality they did not.

Consulting with an experienced criminal defense lawyer is key to understanding what defenses may be available to help you win your case.

IF YOU OR A LOVED ONE HAVE BEEN CHARGED WITH IDENTITY FRAUD, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.

CALL 781-393-5900 TO LEARN MORE ABOUT YOUR AVAILABLE DEFENSES.

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