Threatening Someone: Unraveling The Legal Repercussions

Threatening someone can have serious legal consequences. While freedom of speech is a cherished right, it does not extend to statements or actions that constitute a credible threat of violence or harm. A criminal threat is typically defined as a threat to kill or physically harm someone else. However, the specifics of what constitutes a criminal threat vary by location. For example, in California, a criminal threat is defined by four elements: the threat must be communicated verbally, in writing, or electronically; the threat must be unequivocal, unconditional, immediate, and specific; the recipient must be placed in a state of reasonably sustained fear for their safety; and the threat must be credible and specific. In Colorado, a similar crime called menacing involves intentionally making someone believe they are at risk of imminent serious bodily injury. The legal consequences for making a threat depend on the specifics of the case and the criminal history of the defendant but can range from misdemeanors to felonies, with penalties including jail time, fines, and a criminal record.

Criminal threats vs. free speech

While the Constitution guarantees the right to free speech, that right is not absolute. The law has long recognized specific limitations when it comes to speech, such as prohibitions against slander and libel. In some situations, speech can even constitute a crime, such as in the case of criminal threats.

A criminal threat involves one person threatening someone else with physical harm or death. To be convicted, the prosecution must prove:

• The defendant communicated a threat of harm to another.
• The defendant intended for the communication to be taken as a threat.
• The threat was credible and specific so as to place a person in fear of harm.

A person can communicate a threat in almost any form—written, verbal, electronically, or through a third person. In some instances, a defendant's non-verbal body language, gestures, or actions have been enough to communicate a threat. Criminal threats are made with the intent of placing someone in fear of injury or death. It doesn't matter if the defendant intends to carry out the threat. Many states don't require proof that a victim actually experienced fear or terror. Rather, it's the intent of the person making the threat to place another in fear that typically matters.

A true threat is a serious expression conveying that the speaker means to commit an act of unlawful violence. The existence of the threat depends not on the speaker's mental state but on what the message conveys to the receiver. However, the speaker's subjective mental state may shield some true threats from criminal liability. The requirement of proof of the speaker's culpable mental state is necessary to protect against the chilling or deterring of free speech.

True threats constitute a category of speech that is not protected by the First Amendment and can be prosecuted under state and federal criminal laws. The speaker need not actually intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat.

In the United States, some categories of speech are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing limitations on certain categories of speech. Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, false statements of fact, and commercial speech such as advertising.

What constitutes a criminal threat?

Threatening someone can constitute a criminal threat, which is a serious offence and can carry serious consequences, even if there was no intention to carry out the threat.

A criminal threat involves threatening to kill or physically harm someone. In some states, this crime might be referred to as terroristic threats, threats of violence, malicious harassment, menacing, or another term. To be convicted of a criminal threat, the prosecution must prove that:

• The defendant communicated a threat of harm to another person.
• The defendant intended for the communication to be taken as a threat.
• The threat was credible and specific enough to place a person in fear of harm.

The threat can be communicated in almost any form, including written, verbal, electronic, or through a third person. In some cases, non-verbal body language, gestures, or actions have been enough to constitute a threat. The threat must be capable of placing someone in fear of harm and lead them to believe that the threat is credible, real, and imminent.

In Colorado, for example, threatening statements can be charged as a crime called "menacing" if they cause someone to fear for their safety or believe that bodily harm is imminent, even if no threatening actions are taken at the time. The charge can range from a Class 1 misdemeanour to a Class 5 felony, depending on the specifics of the case.

In Maine, "criminal threatening" is a Class D crime, in which a person intentionally or knowingly places another in fear of imminent bodily injury.

It is important to note that the law recognises limitations to free speech, and in some situations, speech can constitute a crime, such as in the case of criminal threats.

Legal consequences of threatening someone

Threatening someone can carry serious legal consequences, even if you had no intention of carrying out the threat. In the United States, a criminal threat involves threatening to kill or physically harm someone. This crime may also be referred to as terroristic threats, threats of violence, malicious harassment, menacing, or criminal intimidation, depending on the state.

To be convicted of a criminal threat, the prosecution must prove that:

• The defendant communicated a threat of harm to another person.
• The defendant intended for the communication to be taken as a threat.
• The threat was credible and specific enough to place a person in fear of harm.

Criminal threats can be communicated in almost any form, including written, verbal, electronically, or through a third person. In some cases, non-verbal body language, gestures, or actions have been deemed sufficient to communicate a threat.

The penalties for criminal threats vary significantly across states and federal laws, ranging from misdemeanours to serious felonies. For instance, in California, engaging in criminal threats is considered a "wobbler offence", carrying a sentence of up to a year in jail or prison time. In contrast, Colorado categorises threats or menacing without a weapon as a Class 1 misdemeanour, but the penalty increases to a Class 5 felony if a weapon is implied or involved.

In addition to fines and incarceration, a felony conviction can have long-term repercussions, such as restrictions on gun ownership and employment in specific professions like teaching, law, or law enforcement.

Defenses that can be used in a criminal threat offense

While the laws on criminal threats vary across states, there are some common defenses that can be used in a criminal threat offense. Here are some of the defenses that can be used:

Lack of Intent

The prosecution must prove that the defendant intended to make a threat and cause fear or harm. If the defendant can show that their statement was made in jest, without any malicious intent, or as a joke or a matter of blowing off steam, they may be able to avoid a conviction. For example, sending a text message saying, "I'm going to kill you if you don't come to my party tonight," could be argued as a joke with no intent to cause fear.

Ambiguity or Vagueness

The defense can argue that the alleged threat was too vague or ambiguous to constitute a criminal threat. If the statement can be interpreted in multiple ways and does not clearly convey an intent to cause fear or harm, it may not meet the legal definition of a criminal threat. For instance, telling a co-worker, "You better watch your back," is ambiguous and open to different interpretations.

Protected Speech

While true threats are not protected by the First Amendment, the defense may argue that the alleged threat falls under the right to free speech. However, this defense is limited and requires showing that the threat was not a true threat and did not cause the victim to fear for their safety. For example, criticizing a political figure on social media and stating, "I wish someone would do something about them," is controversial but does not convey a direct threat.

False Accusation

The defendant may argue that they were falsely accused of making a threat by presenting evidence or testimony that casts doubt on the credibility of the alleged victim or other witnesses. For instance, providing phone records to show that they were not on the phone at the time of the alleged threat.

Insufficient Evidence

The defense can challenge the sufficiency of the prosecution's case by arguing that they lack sufficient evidence to prove the elements of the crime beyond a reasonable doubt. This may involve questioning the credibility of witnesses, the reliability of evidence, or the overall strength of the prosecution's arguments.

Mental Disorder (Insanity)

Insanity or mental disorder may negate the intent element of a crime. The defense must prove that the defendant had a mental disorder that rendered them incapable of understanding right from wrong or controlling their actions and impulses. The result of a successful insanity defense may be treatment in a mental hospital rather than imprisonment.

Intoxication

Intoxication can be a defense if the defendant was involuntarily intoxicated and unaware of their actions due to drugs or alcohol. It may negate specific intent and reduce the severity of the charge. For example, involuntary intoxication from a drink spiked with alcohol may lead to no inference of basic intent.

Mistake of Fact or Law

The defendant may argue that they made a genuine mistake about a fact, which led them to believe their actions were justifiable. For instance, a charge of assaulting a police officer may be negated by a genuine mistake of fact, where the defendant mistakenly believed they were assaulting a criminal, thus allowing a defense of self-defense.

Necessity/Lesser Harm

The doctrine of necessity states that a criminal act can be justifiable if it prevents a greater harm than the harm caused by the act itself. For example, trespassing to put out a fire or rescue someone drowning.

Lawful Capacity of Office

This defense applies to public servants and first responders, protecting them from responsibility for criminal actions performed within the scope of their duties. For instance, a paramedic who forcibly enters a building in response to an emergency call cannot be charged with breaking and entering.

Self-Defense

Self-defense is a reasonable action taken to protect oneself. It often negates a crime, provided that the defensive force is proportionate to the threat. For example, threatening to punch someone is usually not an assault, but approaching the person in a threatening manner while making the threat does qualify as assault.

Duress

Duress can be a defense if the defendant was forced to commit an unlawful act under the threat of imminent peril of death or serious injury. The threat must be credible, and the defendant must reasonably believe it. However, duress is typically not a defense for the most serious crimes, such as murder or treason.

Impossibility Defense

The impossibility defense is used when a defendant is accused of a criminal attempt that failed because the crime was factually or legally impossible to commit.

It is important to note that the specific defenses applicable in a criminal threat case may vary depending on the jurisdiction and the specific circumstances of the case. Consulting with an experienced criminal defense attorney is crucial to build the most effective defense strategy.

How can criminal threats be charged?

Criminal threats are typically defined as a person threatening to kill or physically harm someone else. This crime may also be referred to as terroristic threats, threats of violence, malicious harassment, menacing, or criminal intimidation, depending on the state. Criminal threats are considered a serious offence and can carry serious consequences, even if the person making the threat had no intention of carrying it out.

To be convicted of a criminal threat, the prosecution must prove the following:

• The defendant communicated a threat of harm to another person.
• The defendant intended for the communication to be taken as a threat.
• The threat was credible, specific, and capable of placing someone in fear of harm.

Criminal threats can be communicated in various forms, including written, verbal, electronically, or through a third person. In certain cases, non-verbal body language, gestures, or actions may also be considered a form of communication for a criminal threat.

The penalties for criminal threats vary depending on the state and federal laws. They can range from misdemeanours to serious felonies. For example, in California, engaging in criminal threats is considered a "wobbler offence", meaning it can be filed as either a misdemeanour or a felony. If charged as a felony, it is considered a strike offence, which can lead to more severe consequences. In Colorado, threatening someone without a weapon is typically considered a Class 1 misdemeanour, but if a weapon is involved, it can be charged as a Class 5 felony.

It is important to note that criminal threats are not always treated as standalone crimes. They can often be included as elements of other crimes, such as assault, menacing, harassment, terrorism, criminal mischief, cyberbullying, hate crimes, or extortion.

If you are facing charges for making criminal threats, it is crucial to consult with an experienced criminal defence lawyer who can guide you through the legal process and help you navigate the specific laws and penalties in your jurisdiction.

Frequently asked questions