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.).

While the Vermont Supreme Court has not yet directly addressed the criminal threatening statute, it did briefly discuss the statute in State v. Schenk, 2018 VT 45, ¶¶ 26–27 and n.7. There, the Court 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.” Id. ¶ 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 explicitly provides that the words “threat” and “threaten” do not include constitutionally protected activity. 13 V.S.A. § 1702(d)(2). 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 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.