UPDATED: February 20, 2013
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Criminal threats are words that are spoken with the intent to terrorize or threaten another person or group of people. Even though the Constitution guarantees the right to free speech, including venting negative comments, the right to free speech does not extend to criminal threats. If a person is reckless about the impact of his threats on other people, he could be charged with a misdemeanor or felony level offense called criminal threat. Read on to learn more about how states charge the offense of criminal threat and the punishment ranges of a conviction for making criminal threats.
What Constitutes a Criminal Threat?
As mentioned, criminal threats are one of the few types of speech that are not protected by the Constitution. In order to support a conviction for criminal threat, states have to show an interest in regulating a particular type of speech. As a result, criminal threat statutes are written to prohibit speech that results in others being placed in a legitimate fear of harm. Some states label this charge criminal threat, whereas others use terroristic threat or verbal abuse to describe offenses involving verbal threats. The first element of a criminal threat charge is that a threat has to be made or communicated.
States will usually lump several different types of threats into their criminal threat statutes. Common categories of threats include: threats directed to harm another, threats to disrupt a public facility or public utility, threats directed towards witnesses or law enforcement, and threats against family members.
Sometimes the threats overlap. For example a threat to harm another may also naturally overlap with a threat to harm a family member. Even though the threats overlap, the distinctions are important because certain findings (like involving a threat against a family member) can result in a higher punishment range. Most states will not restrict the method of threat. The threat can be communicated in person, over the phone, or via electronic media.
The next element of a criminal threat charge is the intent. It’s not enough that a threat was communicated. There must be some evidence that the defendant actually intended a result. The type of threat made will control what type of intent is required. For threats to another, a family member, witness, or law enforcement officer, a defendant must have made the threat with the intent to terrorize or place the victim in some real fear of personal harm. For threats to public utilities or public offices, the intent must be to disrupt the ordinary activities of the agency or utility company.
The focus is on what the defendant intended the victim to feel. Criminal threat statutes punish the result of the threat, not the actual intent behind the threat. This means that the intent element will be satisfied if a defendant just intended to scare the victim, but never actually intended to harm the victim. Actual intent to harm is not a requirement of a criminal threat allegation. Some state statutes end with these two elements, a threat and an intent to terrorize. However, other states add additional requirements.
Some states require that victims of a threat experience a fear for their personal safety. California also requires additional evidence that the fear experienced by the victim was reasonable under the circumstances. Each state will set out what threats and situations will qualify for a criminal threat offense. The degree and type of threat will often influence the level of punishment.
Defensive Theories for a Criminal Threat Offense
The first defensive reaction is to claim freedom of speech. This defense has been utilized with some degree of success under the right circumstances. If a defendant can show that the threat was mere venting of anger or frustration with no other intent or reaction by a victim, then a defendant can invoke a freedom of speech defense because the only thing being punished is the speech—not the intent or the reaction.
A second defensive theory is to attempt to negate the intent of the threat. Often words are spoken with more than one meaning and only the whole context of the statement can truly capture the intent of the threat. For example, the phrase “I’m going to kick your butt,” can be interpreted playfully in the context of a basketball game. It can also be interpreted aggressively if others are having to hold a defendant back from also attacking a victim. The defensive strategy is to fill in the remaining pieces so that a jury gets a complete picture of the statement so that they understand that the true intent of the statement was not to terrorize.
Punishment Ranges for a Criminal Threat Offense
Minor threats tend to be classified as misdemeanor offenses. A misdemeanor criminal threat charge carries a range of punishment from probation to a year in a county or parish jail. More intense threats directed toward witnesses, family members, or law enforcement tend to be elevated to felony offenses in many state penal codes. Felony criminal threat convictions have a range of punishment from probation up to ten years in prison, with an optional fine. Defendants placed on probation are usually required to attend some type of anger management program and are prohibited from having any contact with the victim of the criminal threat.
The consequences of a criminal threat offense continue even after conviction. Many states will consider a criminal threat conviction a violent offense, which will increase the range of punishment for any subsequent convictions. If the criminal threat was directed to a family member, then the conviction can also be used in some states as a predicate offense for an enhanced assault family violence charge; meaning that the misdemeanor assault family violence charge will be enhanced to a felony by the prior conviction.