Criminal Threatening

Reporter’s Note

The model instruction is based on instructions given by the trial courts in State v. Benson, 61-8-16 Gicr (Apr. 18, 2017) (Harris, J.) and State v. Steele, 750-8-18 Wrcr (May 23, 2019) (Tomasi, J.).

The Vermont Supreme Court has observed that “the Legislature may have enacted § 1702 based on a concern that the disorderly conduct statute would not prohibit pure speech,” and that § 1702 thus “specifically addresses threatening speech and acknowledges that such a crime can extend only as far as the First Amendment allows.” State v. Schenk, 2018 VT 45, ¶¶ 26–27. The Court inferred from the “presence” of § 1702 that “‘threatening behavior,’ as criminalized in § 1026(a)(1) [the disorderly conduct statute] should not extend to threatening speech.” Id.

The criminal threatening statute “expressly excludes constitutionally protected activity from the definition of ‘[t]hreat’ and ‘threaten.’ ” State v. Blanchard, 2021 VT 13, ¶ 10 (quoting 13 V.S.A. § 1702(d)(2)). Thus, the statute “can only punish constitutionally unprotected ‘true threats.’ ” Id. (citing Hinkson v. Stevens, 2020 VT 69, ¶¶ 43-44). Trial courts may need to address and elaborate on this point and the “true threat” doctrine in cases where constitutionally protected activity is potentially at issue. See id. ¶ 17 (concluding that a jury could find that, “considering the context of defendant’s overall conduct, his statement ‘I have an AR-15 right fucking here. Do we need that?’ would cause a reasonable person to fear unlawful violence” and therefore constituted a “true threat” that did not fall outside the scope of the criminal threatening statute); see also State v. Noll, 2018 VT 106, ¶¶ 24–25, 208 Vt. 474 (discussing concept of “true threats” in stalking context).

Note that it is an affirmative defense to a charge of criminal threatening that the defendant “did not have the ability to carry out the threat.” 13 V.S.A. § 1702(f). The defendant has the burden to prove the affirmative defense by a preponderance of the evidence. Id.