Criminal Threats

Last Modified: August 14, 2023


If you are charged under Penal Code 422 with making criminal threats, the prosecution must prove the following elements of the crime beyond reasonable doubt:

  1. that you willfully threatened to unlawfully kill or unlawfully cause great bodily injury to the alleged victim, or someone in their immediate family;
  2. that you made the threat orally, in writing, or by an electronic communication device;
  3. that you intended that your statement be understood as a threat (and intended that it be communicated to the alleged victim);
  4. that the threat was so clear, immediate, unconditional, and specific that it communicated to the alleged victim a serious intention and the immediate prospect that the threat would be carried out;
  5. that the threat actually caused the alleged victim to be in sustained fear for their own safety, or for the safety of their immediate family; and
  6. the alleged victim’s fear was reasonable under the circumstances.


Willfully threatened to unlawfully kill or cause great bodily injury

To establish this element of the offense, the Prosecutor must prove that a certain kind of threat was intentionally made by the defendant – that is, a threat to kill or cause great bodily injury to the alleged victim. ‘Great bodily injury’ means “significant or substantial physical injury”[17] and it must be more than just a minor, or even moderate, amount of harm. For example, threatening to push someone off a chair might not be considered a serious enough threat to establish this element, because it is not really a threat of causing great bodily injury.


Made the threat orally, or in writing, or by an electronic communication device

This element really catches all of the ways in which someone would usually make a threat. However, the Prosecution must prove that the threat was made by one of these means – so, by speaking to the alleged victim, calling them, texting or emailing them, or similar.


Intended the statement to be understood as a threat, and communicated to the alleged victim

This element refers to the defendant’s state of mind – the Prosecutor must prove that, at the time of making the threat, the defendant really did mean to make a threat. So, for example, if the defendant was not serious – even if they were making a joke that was in very poor taste, or otherwise inappropriate – then they could not be found guilty.

Further, the Prosecutor must prove that the defendant intended the threat to be communicated to the alleged victim. If the defendant never intended for the alleged victim to see or hear the threat, then the prosecution could not prove this element. For example, consider a man who creates a private Facebook group that he invites only a few of his friends to join. In that group, he posts photos of his ex-girlfriend and writes posts that include threats to harm her. If the girlfriend is shown one of those posts by one of the members of the group, she might very well be upset – but the ex-boyfriend would probably not be guilty of this offense, because he never intended for his ex-girlfriend to see the posts or learn of the threats at all.


Threat was clear, immediate, unconditional, and specific, to the alleged victim a serious intention and the immediate prospect that it would be carried out

It is not enough for the Prosecutor to prove that some kind of vague threat was made – for example, “one day I’m going to kill you!” Rather, the threat must meet all the requirements set out in this element of the offense.

When deciding if a threat does fulfill all of these requirements, the words as well as all of the surrounding circumstances are important to consider. For example, imagine a threat made to stab someone – if the person says that over the phone, in the heat of an argument, and they are interstate at the time, then the threat might not be considered immediate and specific enough to meet these requirements. However, if the threat to stab someone is made by someone who is holding a knife at the time, and in the presence of the alleged victim, then it would likely meet the requirements.


Threat actually caused sustained fear

The Prosecutor must prove that the threat really did make the alleged victim afraid, and afraid for more than a moment. It is not enough that the alleged victim is momentarily shocked or upset by what the defendant says – they must really be afraid, in a sustained manner, that the defendant will carry out the threat on them or someone in their immediate family.


Fear was reasonable in the circumstances

Again, this element requires a consideration of all of the circumstances surrounding the threat. The position of the alleged victim must be considered, and a determination made about whether their state of fear was reasonable. Consider the above example of someone making a threat from interstate, over the phone – if someone is many miles away at the time a threat is made, and there is no real prospect of them travelling any closer to the alleged victim, then it might be unreasonable to be really afraid of them.

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