SCOTUS: Online Murder Threats Not Enough to Be Illegal

The Supreme Court ruled on Monday that a bunch of online murder threats made by a man about his ex-wife were not illegal under federal law because it could not be proven that he would carry out such threats. The ruling was 7-2, with a very unusual lineup: The four liberal justices plus Kennedy, Roberts and Scalia in the majority, with Alito dissenting in part and Thomas dissenting completely.

The U.S. Supreme Court ruled in favor of a man who was convicted for making violent threats stylized as music lyrics against his wife on Facebook.

Monday’s decision reversed the 2010 conviction of Anthony Elonis, a Pennsylvania man who served a 44-month prison sentence for dozens of Facebook posts that discussed kidnapping and killing his estranged wife.

One post detailed how “someone” could get away with killing his wife with a mortar launcher, and another on his sister-in-law’s Facebook wall suggested his son dress up as “matricide” for Halloween using his mother’s head on a stick as a prop, according to court documents…

First Amendment issues have been central to the case, but the Court ultimately decided not to weigh in on them. The justices primarily addressed whether the Facebook posts were actual and credible threats complete with intent to carry them out. In a 7-2 ruling, the Court found Elonis’ posts may be reckless but alone, they aren’t enough to prove imminent physical harm.

The Court reasoned that upholding Elonis’ conviction would have broad implications, potentially criminalizing innocent behavior. “Negligence is not sufficient to support a conviction,” Chief Justice John Roberts wrote in the majority Court opinion. The statute does not specify the mental state one must have for threatening speech to be criminal, the opinion states, and solely relying on an individual’s perception of harmful intent isn’t enough to constitute a threat.

“Elonis’s conviction, however, was premised solely on how his posts would be understood by a reasonable person,” Roberts wrote, and “whether a ‘reasonable person’ regards the communication as a threat — regardless of what the defendant thinks — ‘reduces culpability on the all-important element of the crime to negligence’…What [Elonis] thinks does matter.”

I don’t think I buy this. I’m virtually a free speech absolutist, but I think the act of making the threat, all by itself, should be criminal. Making such threats is terrorizing another human being, who has no way of knowing whether they intend to carry them out or not. If it can be shown that they have actually taken steps to carry out the threat — by procuring a weapon, for instance, or hiring a hitman — then this should make it an additional crime, but the threat itself should be criminal as well.

I do think there should be fairly high standards of what constitutes a “true threat” (legal term of art alert). “I wish this person would die” is not, in my view, a true threat. But if you read through some of the things he actually said here, there is no doubt that they were designed to terrorize his ex-wife. And that alone is enough to lock him up in my book. You can read the full ruling here.

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  • http://healthvsmedicine.blogspot.com cervantes

    Well to be honest, I don’t see suggesting that somebody should kill his wife with a mortar can even remotely be construed as a credible threat. This is homicidal imagery, not anything you could take seriously. Yes it’s unpleasant but we can’t start convicting people for expressing anger in words. I’m with the justices on this one.

  • John Pieret

    The problem the majority saw was that the jury was instructed that it could convict him if a “reasonable person” would think that what he wrote was intended as a threat. That’s a negligence standard and, generally, mere negligence, without intent or recklessness of some sort, is not sufficient to constitute a crime. I suspect, given what he wrote, if the jury had been instructed that they could convict if they found he intended to convey a threat or wrote the posts with reckless disregard to whether or not they were a threat, they would have still convicted him.

    They may get the chance. One possibility may be that the case is sent by the Third Circuit back to the trial court to retry him with better instructions to the jury.

  • paulparnell

    Meh, first I don’t think it is a bad thing that you have to prove state of mind for this kind of thing. But second I think he could still be prosecuted for this. The problem was the judges instruction to the Jury. The judge used the existing standard of if a reasonable observer would believe it to be a true threat. If the jury had been asked to decide on the defendants state of mind they could have found him guilty and it would have stood.

    This was decided on the very narrow grounds of the judges instruction to the jury. It was not decided as a free speech issue.

  • http://www.facebook.com/den.wilson d.c.wilson

    “and another on his sister-in-law’s Facebook wall suggested his son dress up as “matricide” for Halloween using his mother’s head on a stick as a prop, according to court documents…”

    He seems nice.

    But I don’t see a credible threat here. There’s a lot of really awful “wouldn’t it be funny if someone killed my ex” jokes, but I wouldn’t construe them as a direct threat to kill her. The guy is a major league asshole, but just being an asshole shouldn’t be a criminal offense.

  • abb3w

    Hm. Going from the (non-binding) syllabus, it looks like the SCOTUS is focused on mens rea grounds; that the law was interpreted even for statements made Negligently, but the justices felt that only Purposefully or Knowingly sending a threat would clearly constitute a crime –l leaving Recklessly unresolved (possibly from lacking consensus). This doesn’t make threats legal; it makes getting criminal convictions over them harder.

    Contrariwise, it seems an internal defect of the statute rather than a Constitutional one. The ordinary legislative process could amend the relevant statutes to make clear that it is a criminal offense when done not merely Purposefully and Knowingly, but perhaps also Recklessly or Negligently. Whether it should be so changed could be politically debatable… at least, if and when the political arena ever again becomes amenable to “debate” rather than “screaming matches”.

    Nohow, while I’m probably more on-board with limits for freedom of speech than Ed, I think that Strict Liability would seem a grossly inappropriate standard — which is what “the act of making the threat, all by itself, should be criminal” would legally imply. Unlike statutory rape (where the age of the partner is pretty objective as legal facts go), what constitutes “true threat” seems at least slightly subjective.

  • eric

    I don’t think I buy this. I’m virtually a free speech absolutist, but I think the act of making the threat, all by itself, should be criminal.

    Hmmm, I think I will have to read the decision on this one to see some more examples. The two you excerpt (the mortar thing and the Halloween thing), I could see being covered by free speech. The Halloween one because it’s not a direct threat, and the mortar one because the method is so far-fetched as to be hyperbole or bombast. If I say “Ed, I’m gonna kill you tomorrow around 9 am by dropping a meteor on your head,” that likely wouldn’t count either. Its certainly a direct, imminent, and specific threat, but my choice of method is so out there that I think a reasonable person would see it as either venting or deranged, and not counting as a real or credible plan of first degree murder.

    Now, if this guy actually owns a mortar (including the needed bombs etc.), then yeah, I could see that one counting.

  • felix

    Designed “to terrorize his ex-wife” – aren’t you conceeding that it’s not a true threat?

    I am not in the US, or a lawyer. nor have I read more than you article, however it seems that if the standard is ‘true threat’ then this was correctly decided.

    It is quite similar to the Twitter Joke Trail in the UK.

    As a free speech fundamentalist myself I am not sure how you can criminalise this type of behaviour if your guiding principle is that only direct incitement to violence should be illegal speech.

  • eric

    @2 and @3: thanks, that helps me understand their decision.

  • http://cheapsignals.blogspot.com Gretchen

    Designed “to terrorize his ex-wife” – aren’t you conceeding that it’s not a true threat?

    Uh, how? True threats can easily be designed to terrorize. That’s the kind of threats terrorists make, after all…

  • http://teethofthebuzzsaw.blogspot.com Leo Buzalsky

    That’s the kind of threats terrorists make, after all…

    Yeah…there may be a bit of a difference in that terrorists actually carry out some of their threats. Right? No group gets labeled a terror group for merely making threats, do they? Every terrorist I can think of (whether it be a group or individual) has only been labeled as such after having carried out a threat or acted in a manner (essentially, doing something illegal) in which it would not be unreasonable to worry that they would carry out a threat.

    I realize, though, this is not really a satisfactory response. It seems the only difference between a terrorist and a threatening jerk is one is known for sure to be dangerous and the other is unknown to be. Well…except, perhaps, to his ex-wife!

  • http://motherwell.livejournal.com/ Raging Bee

    The problem I have with this is that all the perp would have to do to avoid criminal charges would be to say “I didn’t really mean it, I was just kidding!” Which is the kind of think abusive assholes say all the time anyway.

    Question: what was the perp’s skin color in this case? Would the Justices have been so easygoing if it had been a black man threatening, say, a white woman or his boss?

  • http://cheapsignals.blogspot.com Gretchen

    It seems the only difference between a terrorist and a threatening jerk is one is known for sure to be dangerous and the other is unknown to be.

    No, the difference between a terrorist and this threatening jerk is that terrorists create terror to further ideological goals, whereas this guy’s only “ideological goal” was making his ex wife think he might murder her. Which, again, is what a threat does– it a) creates fear b) of being attacked. If that’s what a threat does, and that’s what the intent was, I fail to see how it’s not a “true threat.”

    A bomb threat is a terrorist act, and a true threat. This is true without it being known that the person or people making the threat are “known for sure to be dangerous”– it’s true without even knowing who they are.

  • http://www.facebook.com/BZMacLachlan berylmaclachlan

    I’ve been following this case and I think I can summarize what happened quickly. (This builds on what abb3w said.)

    The defendant made all the statements described in the article above. He was charged with five counts of the federal crime of transmitting a “communication containing any threat . . . to injure the person of another.” The trial court instructed the jury that it could convict if a reasonable person would foresee that his statements would be interpreted as a threat. As abb3w noted, that’s a negligence standard; you’ll rarely see a lower state-of-mind requirement as you’ll see in criminal law.

    .

    The defendant appealed, arguing that the trial court had made it too easy for the jury to convict. His ideal outcome was to require the jury to find that he INTENDED to make a threat.

    .

    The Supreme Court gave him most of what he wanted. It said that the threat statute would definitely be satisfied by requiring proof that the defendant intended a true threat or KNEW that what he said would be understood as a true threat. It punted on the issue of whether it would be sufficient for the prosecution to show that he had a reckless state of mind as to whether his statements would be taken as true threats.

    .

    This case isn’t over. The commentators I’ve read suggest that the evidence is sufficient to allow a conviction of the defendant even under the strictest standard. The prosecution seems to be getting that chance. The Supreme Court remanded the matter, so it’s not over. Unless there’s something I missed, the prosecution can retry him under the stricter standard.

    .

    You might think that the Supreme Court would just say that there was a mistake, but the evidence was so strong that it didn’t make any difference–“harmless error.” I didn’t dig into that, but courts have interpreted the right to a jury trial to mean that some kinds of serious errors in instructing the jury are bad enough that the trial wasn’t really valid. In those cases, a defendant gets a new trial even though the evidence was overwhelming.

    .

    (I thought that this article in the Atlantic did a good job of explaining what was a bit annoying about the case. http://www.theatlantic.com/politics/archive/2015/06/does-a-true-threat-require-a-guilty-mind/394643/ )

  • Holms

    I partially agree with Ed; terrorising someone, making them think they are in danger even if you have no intent to act upon any of your threats, is certainly a form of harm. But 44 fucking months?? Ludicrous. Assault cases, i.e. not just a threat to attack but a threat that is acted upon, can get less than this.

  • Pierce R. Butler

    And that alone is enough to lock him up in my book.

    But if this guy got locked up in Ed’s book, he might destabilize the entire shelf!

  • http://polrant@blogspot.com democommie

    Will the statute be enforced in the same way if the target is a sitting politician or SCotUS Justice?

    I’ll take my answer off the air.

  • grendelsfather

    “whether a ‘reasonable person’ regards the communication as a threat — regardless of what the defendant thinks — ‘reduces culpability on the all-important element of the crime to negligence’…What [Elonis] thinks does matter.”

    It seems to me that this expects the jury to be mind readers. This is the same problem I have with ‘hate crimes.’ It doesn’t really matter why someone used logging chains to drag someone else behind a pick-up truck for 2 miles. It is still a horrific crime and should be prosecuted as such. If you cruise through an intersection because you did not see the stop sign, it will be futile to argue to the officer that you did not intend to endanger cross traffic. It doesn’t matter if you threatened to kill your ex-wife on line as an April Fools’ joke or if you really meant it. She is likely to have no way of knowing for sure what your intentions are, and the effect on her could be the same.

    Prosecute the offense, not the intent.

  • Nomad

    So if what this guy did was bad enough to be criminal… what about all the Christians calling for gay people to be killed? How does that differ?

    I mean, this guy calls for death by mortar, they call for death by stone… I’m not seeing the difference.

  • grendelsfather

    Me either.

  • llewelly

    Leo Buzalsky :

    Yeah…there may be a bit of a difference in that terrorists actually carry out some of their threats.

    Plenty of people who threaten their ex partner do carry out threats.

    Eighty-one percent of the women who were stalked by a current or former husband or cohabiting partner were also physically assaulted by the same partner, and 31 percent of the women who were stalked by a current or former husband or cohabiting partner were also sexually assaulted by the same partner.

    Note that here, “stalking” can include telephone harassment. That, except for differences in medium, is equivalent to facebook harassment. Since the study is from 1998, I will state right out I doubt things have changed a lot in the past 17 years.

    https://www.ncjrs.gov/pdffiles1/ovw/172204.pdf

    The dependent variable in the study was whether stalking violence occurred; 35.9% (79/220) of participants experienced stalking violence. Logistic regression analysis revealed that there were statistically significant independent associations between threats, partner jealousy, and former partner drug abuse and stalking violence.

    http://vaw.sagepub.com/content/11/1/89.short

  • John Pieret

    Just to follow up (late at night), there is at least one fact that, if I was a juror, would have made me vote for conviction. After posting (theoretically) non-directly threating stuff, he stated on his Facebook page that he knew that he could be criminally charged if he did. To me, that was a confession that he was knowingly framing it so as to avoid a criminal charge while still terrorizing his wife and the others he threatened.

    Elonis asked his Facebook friends whether they knew that it was illegal for him to say that he wanted to kill his ex-wife, and he added that it would be “incredibly illegal” to suggest that someone could kill his ex-wife by firing a mortar launcher from the cornfield behind her house. A day later, Elonis put up a post about shooting a kindergarten class.

    http://www.scotusblog.com/2014/11/drawing-a-line-between-therapy-and-threats-in-plain-english/

    This is, to me, a confession that he intended to threaten his wife but, more importantly, he knew exactly what he had been … and was … doing to her.

  • carbonfox

    While some of his comments could pass as hyperbole, I’m not so sure about these:

    On his wife:

    Fold up your PFA [protection-from-abuse order]

    and put it in your pocket

    Is it thick enough to stop a bullet?

    On elementary school children:

    Enough elementary schools in a ten mile radius

    to initiate the most heinous school shooting ever

    […]

    The only question is…which one?

    On the FBI agent sent to investigate his threats:

    Pull my knife, flick my wrist, and slit her throat

    Leave her bleedin’ from her jugular in the arms of

  • http://helives.blogspot.com heddle

    Damn. This makes me glad I’m not a lawyer. Resolving (in my mind) this type of free-speech threshold case depends on how I tilt my head. But ultimately I can’t go the free speech mile here. I’m basing that on the assumption that the woman was terrorized. I agree that you do not have the right not to be offended by someone’s speech–but you do have the right not to be placed in a situation where a proverbial reasonable person would live in fear of being assaulted or murdered.

    This crap is more difficult than quantum field theory.

    Nomad, #18

    So if what this guy did was bad enough to be criminal… what about all the Christians calling for gay people to be killed? How does that differ?

    I mean, this guy calls for death by mortar, they call for death by stone… I’m not seeing the difference.

    I do. It is the difference between stating something (reprehensible) like “OT law should be enacted including the stoning of gays, adulterers, etc” and someone threatening actually to do it, especially with a specific target in mind.

  • eric

    @17:

    It seems to me that this expects the jury to be mind readers.

    Yes, but we do that all the time. Any time there’s question between 1st and 2nd degree murder, we’re asking the jury to decide on a question of motivation. Any time there are two conflicting eyewitness report, we’re asking the jury to evaluate witness credibility. Tax disputes require the legal system (albeit a judge, not a jury) to decide whether a religious organization is real, or a tax-dodge sham. Cases about prayer at public meetings also sometimes require an assessment of whether the government’s “neutral” policy is sincere or a sham. Whenever legislation is reviewed for constitutionality, legislative motive and purpose are allowed to be considered. Libel and slander have a motivation component (saying nasty things about other people isn’t a crime unless you specifically intend to harm their reputation).

    Yes it would be nice if no case outcome rested on questions of motivation, but unless we want to be draconian (always assume malice) or overliberal (never assume malice), we have to do that. I think this qualifies as a Churchillian situation: a legal system where the jury has to try and read the minds of the accused is the very worst system we could have…except for all the others.

  • Phillip Hallam-Baker

    The SCOTUS ruling isn’t on the specific case, it is on the instructions given to the jury. The judge could have made a much narrower definition of threat and still secured a conviction.

  • eric

    To me, that was a confession that he was knowingly framing it so as to avoid a criminal charge while still terrorizing his wife and the others he threatened.

    You’re the lawyer, not me, but we don’t put people in jail for disobeying the spirit of the law, only the letter of it, right? If he has found a legal way to make his ex feel terror, then that behavior is legal, yes? This is important because people will say they have been harmed by pretty much any legal behavior under the sun, if they think the can impose their will on others by saying it. Putting someone in jail for knowingly staying within the boundaries of the law while acting in a way clearly intended to be offensive to others has large consequences for (just one example) first amendment speech and religious rights.

    Note I’m arguing against your point here but not the guy’s overall innocence. The more detailed and complex analysis provided here by some of our posters is convincing to me: it sounds like if the case is sent back down to the lower courts and a new jury is given the proper instructions, they’ll still convict. He won a delay, not an innocent verdict.

  • http://composer99.blogspot.ca composer99

    eric @26:

    “offensive”?

    Terrorising your wife is just “offensive”?

    Really? Really?

  • http://www.stupiddinosaurlies.org/ OwossoHarpist

    That guy needs a whole lot of professional psychological help, even be placed in a mental hospital. The way I’ve read it, it’s obvious that he’s an insane psychopath who needs to be stopped before he does carry out those threats.

  • http://motherwell.livejournal.com/ Raging Bee

    This crap is more difficult than quantum field theory.

    No, I really isn’t. The threats were really easy to understand AS THREATS, and not as anything else; and it’s pretty easy to understand why the recipient of such threats would feel threatened.

    How dumb do you have to be to think that’s “more difficult than quantum field theory?”

  • eric

    @27: ‘terrorising’ (the word) implies what he’s doing is illegal. I was trying to pick a word that didn’t necessarily carry the implication of illegal. That was the best I could do at the moment. I’m sorry if that understates the feelings produced in the victim. If you want, I can repost the entire argument using “…staying within the boundaries of the law while acting in a way clearly intended to bring terror to others…,” as long as you agree that putting it that way doesn’t cede the point that its illegal.

    Now that I’ve explained my admittedly imperfect word choice, do you have anything to say about the actual substantive point I was trying to make? Do you agree with me? Disagree?

  • grumpyoldfart

    It’s the same in Australia. The police always tell the wife her husband is allowed to make threats, “But don’t worry because as soon as he kills you we’ll jump on him straight away. “

  • Holms

    ^ You’re a mental health professional who knows the details of this case I take it? Otherwise, your diagnosis is useless. Much more likely to this outside observer is that he is just a fucking bully who wants to be a bastard to someone that he hates. He even discussed the legality of it, so he is clearly going about it in a planned fashion.

  • John Pieret

    eric:

    but we don’t put people in jail for disobeying the spirit of the law, only the letter of it, right?

    Not really. That’s why, on the other end, there is such a thing as “prosecutorial discretion.” Sometimes we don’t put people in jail for disobeying the letter of the law.

    Understand that what SCOTUS and we have been talking about here was his intent. There is no question that what he did could and did terrorize his wife and the other people he posted these words to. The sole issue was did he intend them to do so. Intent is integral to all crimes but, since we can never know what another person was thinking at any given moment, that is always a matter of circumstantial evidence. In this case, given that he expressed a knowledge that threatening his wife would be a crime, his attempts to skirt the law while still implying an intent to harm her, is evidence that his intent was to threaten her.

  • scienceavenger

    Judges are too old. They are thinking in terms of getting a nasty letter in the mail. They don’t seem to undestand the all-encompassing nature online threats and harrasment can become in a person’s life.

  • dingojack

    Further to eric’s point above:

    If protestors are not allowed within X feet of an entrance of a women’s clinic (for fear of intimidation) and protestors manage to intimidate at X feet and 1 inch should we be allowed to lock them up anyway because they found a way to achieve their end despite not breaking any law? (Whether they do this knowingly or not).

    If this is so, why have law at all?

    Dingo

    ———-

    And I thought threats had to be specific and imminent before you first amendment types were comfortable in sending in the police…

  • http://helives.blogspot.com heddle

    RB,

    How dumb do you have to be to think that’s “more difficult than quantum field theory?”

    Fuck but you are an idiot. Do you ever, and I mean ever, respond to anything without going out of your way to be a jackass?

  • eric

    @35: yes exactly. I have no doubt that both the KKK and Westboro Baptist groups would like to provoke fear in their onlookers. They would probably think it just peachy if society changed our ways out of fear of them. Does that intent make their otherwise legal protests and their messaging illegal?

    @33:

    That’s why, on the other end, there is such a thing as “prosecutorial discretion.” Sometimes we don’t put people in jail for disobeying the letter of the law.

    Oh I get that. But I wasn’t disputing that end of the process. I was disputing the other end: whether judicial discretion extends to throwing people in jail for doing legal conduct which causes a result (here, a victim feels terror) similar to what some different illegal conduct could cause. Does it?

  • John Pieret

    whether judicial discretion extends to throwing people in jail for doing legal conduct which causes a result (here, a victim feels terror) similar to what some different illegal conduct could cause.

    I think you are having trouble realizing that threatening with the intent to intimidate someone is a crime. I have a perfect right to drive a car. If I negligently hit a pedestrian, that’s not a crime. If I intentionally run someone down, that is a crime. All stem from legally permissible activity but that doesn’t mean that a crime can’t be committed during the course of that activity.

  • eric

    @38:

    I think you are having trouble realizing that threatening with the intent to intimidate someone is a crime.

    I realize that. But the comment that set off this discussion was you saying: “After posting (theoretically) non-directly threating stuff, he stated on his Facebook page that he knew that he could be criminally charged if he did….”

    So, does not directly threatening with the intent to intimidate someone become a threat and therefore a crime, simply because of the intent?

  • John Pieret

    So, if you’re having an argument with someone and he pulls out a rifle and cocks it and wonders how fast you can run, would you feel threatened even if he doesn’t point it directly at you or says “I’m going to shoot you”? There are many ways to convey a threat.

  • Nomad

    Heddle, this man specifically coached his threats to avoid directly “threatening to do it”.

    This appears to be the cover that you’re giving to Christians who call for gays to be murdered. So long as they don’t specifically say that they’re going to go out and do it that makes it okay.

    So by that reasoning, what this guy did was okay too.

    I’m still trying to find something that distinguishes the two situations.

  • Michael Heath

    grendelsfather writes:

    It seems to me that this expects the jury to be mind readers. This is the same problem I have with ‘hate crimes.’ It doesn’t really matter why someone used logging chains to drag someone else behind a pick-up truck for 2 miles. It is still a horrific crime and should be prosecuted as such.

    You’re referencing a conservative strawman of the hate crimes law rather than what the law states and its intent.

    First, hate crimes laws focus on affect, not necessarily on intent. If three local Baptist churches are set on fire in a particular area, then hate crime laws kick in given that these crimes terrorize Baptist congregants well beyond those three churches. Even if the perps were looking to merely torch buildings that were empty late on Saturday night. Those laws provide additional government resources to that area for a couple of reasons:

    1) Most regional law enforcement authorities don’t have the resources to investigate terrorist threats.

    2) That region’s authoritarian law enforcement resources could very well be biased against the greater population being terrorized.

    Besides providing additional resources to better investigate hate crimes, prosecuting those indicted for hate crimes provides sentencing guidelines more in line with the harm done beyond the direct victims to also include the population that was also terrorized by these crimes.

    I have no idea why you use scare quotes around hate crimes. I’ve yet to hear a high profile case where hate crime laws kicked-in where the criteria that defines hate crimes wasn’t clearly established.

  • dingojack

    John Pieret (#38) – yes but this case is closer to driving a car on the road, just really, really close to the footpath. Doing this isn’t actually illegal (and it certainly isn’t ‘intentionally running someone down’).

    Suppose someone was walking their dog, and I felt threatened or frightened, or if someone videoing me, while we were both on a public street, made me feel intimidated or harassed, could I get those other people arrested despite the fact that they were doing things that are, in fact, perfectly legal?

    Dingo

  • John Pieret

    this case is closer to driving a car on the road, just really, really close to the footpath

    Which could be reckless behavior, which is not legal and can be criminal. Driving really, really close to the footpath with the intent of scaring pedestrians is certainly illegal … it’s called reckless endangerment.

  • dingojack

    John Pieret – It could be reckless and if the intent was to scare pedestrians it could criminal. But in this case neither of these are automatically assumed. You’d have to prove both of these assertions are true. And not to a standard of what ‘a reasonable person’ would believe to be a threat, nor what the victim ‘feels’ is a threat. (AIUI).

    Which isn’t what the judge told the jury to do, hence the appeal.

    Dingo

  • John Pieret

    Dingo:

    Quite correct … and what I have been saying all along.