Your client is 19 years old. She weighs 105 pounds and stands under five feet tall. Having been arrested for a minor offense, she sits handcuffed in a room surrounded by police officers. Her eyebrow is bleeding from a cut she suffered from being thrown up against a chain link fence.
All the police officers are male. They are twice the size as she. They are experienced professionals. And they are armed. In a moment of bravado you have to admire, a defiance born of anger, humiliation, and helplessness, she tells one of the officers that she will kick his “sorry ass.”
She now stands charged with threats to do bodily harm, a misdemeanor offense in D.C. punishable by up to 6 months in jail. Should she be convicted based on this spontaneous outburst and these simple words?
It is rare that I prefer anything having to do with criminal justice when it comes to Virginia. Virginia’s statute on criminal threats is a rare exception. Unlike D.C., a simple threat by words unaccompanied by anything else is not a separate offense in Virginia. The Virginia statute is limited to written threats. Oral threats to do bodily harm fall under the simple assault statute where they belong.
Not so in D.C.
According to Section 407 of the D.C. Crimes Code, it is illegal to threaten to do bodily harm. That is the extent of the language describing the underlying offense. The rest of the one-sentence section deals with punishment. There is no definition anywhere in the statute as to what constitutes a “threat.” Courts have had to turn to dictionary definitions to try to ascertain what the legislature had in mind.
There is also no language on mental state– no mens rea – modifying the physical act of uttering the threat. The federal statute on threats requires that the conduct be done “knowingly and willfully.” And in Pennsylvania, the degree of menace required is suggested by the very title of the offense: “terroristic threats.”
Again, not so in D.C.
Finally, there is no distinction between a misdemeanor threat, punishable by up to 6 months in jail, and a felony threat, punishable by up to 20 years in prison. The language describing the nature of the offense in both instances is virtually identical. This creates widely disparate punishment for precisely the same conduct.
You might assume that the difference between felony and misdemeanor threats lies in the degree of bodily injury implicated (i.e., bodily injury in the case of a misdemeanor threat and serious bodily injury in the case of a felony threat). But you would be wrong. Again, the statutory language is virtually identical, and the D.C. Court of Appeals has used both formulations for both felony and misdemeanor threats. The end result is that the prosecutor has enormous discretion in deciding which charge to pursue.
The statute has already withstood constitutional challenges on the basis of both vagueness (people need to know what type of conduct is prohibited) and breadth (the statute cannot criminalize innocent behavior, including protected speech). As it currently stands, the statute could encompass everything from an earnest threat to hurt someone – the type of activity that should be proscribed – to idle banter between friends.
It is the inchoate nature of the statute that bothers me. Taken out of context, any type of threat to do someone bodily harm could be argued to meet the plain language of the statute. Ours is a great but not perfect world. Selectively subjecting people to criminal liability for uttering the types of things that are said all the time verges on the ridiculous.