Deconstructing the Law: Virginia Code § 18.2-60 Explained

Virginia Code § 18.2-60 is the cornerstone statute criminalizing threats of violence. To secure a conviction, the Commonwealth’s Attorney must prove, beyond a reasonable doubt, every component of the offense. The law states that any person who communicates a threat to kill or inflict bodily injury on another person, which causes the recipient to experience a reasonable apprehension of death or bodily injury, is guilty of a Class 6 felony. This statute is precise and requires a granular analysis.

From my years of litigating these cases in Circuit Courts across Virginia, I can tell you that the battle is almost always fought over the context and interpretation of the words used. The prosecutor cannot simply present the threatening words in a vacuum. They must build a case around them to show they meet the statute’s strict requirements. Let’s dissect the three critical elements the government must prove:

1. The Communication of a Threat to Kill or Cause Bodily Injury:

   This is the core of the act. The communication can be transmitted in any form: spoken face-to-face, over the phone, in a voicemail, through a text message, via email, a social media post or direct message, or even in a traditional letter. The content of the message must explicitly or implicitly threaten physical harm. “Bodily injury” means any harm to the body, including pain, illness, or physical impairment. It does not need to be a threat of *serious* bodily injury; any threat of unlawful physical harm can suffice.

2. The Threat is Directed at a Person or Their Family:

   The statute specifies that the threat must be aimed at a person or a member of their family. This is straightforward but important. A vague, generalized threat against a group might not fall under this specific statute, although it could be prosecuted under other laws (like threats to bomb a public place, also covered in § 18.2-60). The focus here is on targeted, personal intimidation.

3. The Threat Places the Recipient in Reasonable Apprehension:

   This is the most nuanced and often the most contestable element. It is not enough that the words were threatening on their face. The prosecution must prove that the person who received the threat was *actually* placed in fear, and that their fear was *reasonable*. This is a two-part test:

   • Subjective Fear: The alleged victim must testify and convince the judge or jury that they genuinely felt fear of death or bodily injury upon receiving the communication. If they laughed it off, ignored it, or were not truly afraid, the charge should fail.
   • Objective Reasonableness: The victim’s fear must be objectively reasonable to an average person under the same circumstances. The court will consider the relationship between the parties, their history, the context of the conversation, the specificity of the threat, and whether the person making the threat had the apparent ability to carry it out. An outlandish threat made by someone thousands of miles away might not be considered reasonable to fear.

A violation of this part of the statute is a **Class 6 felony**. This is a serious offense, carrying a potential prison sentence of one to five years. Alternatively, the court or jury has the discretion to reduce the penalty to that of a Class 1 misdemeanor (up to 12 months in jail and/or a fine up to $2,500). This flexibility in sentencing underscores the importance of presenting a strong case with mitigating factors, even if the evidence of a threat is strong.

“True Threats” vs. Free Speech: The Constitutional Line

The First Amendment of the U.S. Constitution provides broad protection for speech, but this protection is not absolute. One of the major, recognized exceptions is for “true threats.” A significant portion of defending a Virginia § 18.2-60 charge involves arguing that the defendant’s words, while perhaps offensive or angry, did not rise to the level of a true threat and are therefore protected speech. This is a complex legal doctrine shaped by decades of Supreme Court decisions.

In my experience, this is where a deep, scholarly understanding of constitutional law becomes a powerful shield for my clients. It’s not enough to simply say “I have free speech.” We must demonstrate to the court *why* specific words, in their specific context, fail the legal test for a true threat. A true threat is a statement where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence against a particular individual or group.

The key question revolves around the speaker’s state of mind (or *mens rea*). For a long time, courts were split on what the prosecution had to prove. Did they have to show the speaker *intended* to threaten the victim? Or was it enough if a reasonable person would *perceive* the words as a threat, regardless of the speaker’s intent?

The Supreme Court provided crucial clarification in the 2023 case *Counterman v. Colorado*. The Court held that for speech to be a punishable true threat, the prosecution must show, at a minimum, that the speaker acted with **recklessness**. This means the government must prove that the speaker was aware that others could view their statements as a threat of violence and made them anyway. It’s a higher bar than simple negligence. They don’t have to prove you *intended* to threaten, but they must prove you were aware of the risk that your words would be perceived that way and disregarded that risk.

This standard helps to protect innocent speakers from being convicted for statements that were merely:

• Political Hyperbole: “We need to fight the politicians in Washington.” This is classic political speech, not a true threat against an individual.
• Jokes or Sarcasm: “I’m going to kill you for taking the last donut.” In the context of an office breakroom, this is almost universally understood as a joke, not a threat.
• Angry Venting or Emotional Outbursts: In a heated argument, someone might scream, “I could just kill you right now!” While frightening to hear, the context of the argument might show this was an expression of frustration, not a serious expression of intent to commit violence.

Therefore, a powerful defense strategy involves a meticulous examination of the context. We dissect the conversation, the relationship between the parties, and the medium of communication to argue that the defendant was not reckless. We aim to show that they were not aware, and had no reason to be aware, that their words would be interpreted as a genuine threat of harm, thus placing them back under the protective umbrella of the First Amendment.

The Felony Legal Process for a Threat Charge in Virginia

Because a threat to kill or injure under § 18.2-60 is a felony, the legal process is more complex and severe than a misdemeanor case. It typically involves multiple courts and procedural stages, each one carrying significant weight. Understanding this path is essential for anyone facing such a serious charge. The journey from accusation to resolution is a marathon, not a sprint.

Having guided clients through this intimidating process for over two decades, I make it a point to demystify the steps so they know what to expect. Here is the general roadmap for a felony threat charge in Virginia:

1. Investigation and Arrest: The process begins when the alleged victim reports the threat to the police. Law enforcement will investigate by interviewing the victim, any witnesses, and preserving evidence like text messages or emails. They will likely attempt to question the accused. If they believe there is probable cause, they will obtain a felony warrant for your arrest from a magistrate.
2. Preliminary Hearing (General District Court): After the arrest, the case begins in the General District Court for a preliminary hearing. This is not a trial to determine guilt. The sole purpose is for a judge to hear evidence from the prosecutor and decide if there is “probable cause” to believe a felony was committed and that you committed it. It is a lower standard of proof than “beyond a reasonable doubt.” An experienced attorney can use this hearing to cross-examine the complaining witness and gain valuable insight into the prosecutor’s case.
3. Grand Jury Indictment: If the judge finds probable cause, the case is “certified” to the Circuit Court. The Commonwealth’s Attorney must then present the case to a grand jury. A grand jury is a panel of citizens who hear a one-sided presentation of evidence from the prosecutor and decide if there is enough evidence to issue a “true bill” of indictment. This is a formal accusation that allows the felony case to proceed. The defense is not present for this stage.
4. Arraignment (Circuit Court): Once indicted, you will be arraigned in Circuit Court. Here, you will be formally read the felony charge from the indictment and will enter a plea, which is almost always “not guilty.” At this point, trial dates will be set, and a schedule for filing motions and exchanging evidence will be established.
5. Discovery and Motions: This is a critical phase where your attorney files motions to obtain all of the prosecution’s evidence against you (police reports, witness statements, digital evidence). Your legal team will also file pre-trial motions, which could include a “Motion to Suppress” evidence obtained illegally or a “Motion to Dismiss” the case for legal or constitutional reasons, such as arguing the statement was not a true threat.
6. Plea Negotiations: Throughout the process, your attorney will be in communication with the prosecutor. Based on the strength or weakness of the evidence, it may be possible to negotiate a plea agreement. This could involve pleading guilty to a reduced charge (like a misdemeanor) in exchange for a more lenient sentence, potentially avoiding a felony conviction or prison time.
7. Trial (Circuit Court): If no agreement is reached, the case proceeds to trial. In Circuit Court, you have the right to a trial by jury or a “bench trial” (where the judge decides guilt). The prosecution presents its case, and your attorney will cross-examine their witnesses, present your evidence, and make legal arguments on your behalf. To convict, all 12 jurors must unanimously agree that the Commonwealth has proven your guilt beyond a reasonable doubt.
8. Sentencing: If you are found guilty, a separate sentencing hearing is held. Both sides present evidence and arguments about what an appropriate punishment should be. This can include evidence of your good character, lack of a prior record, and other mitigating factors. The judge or jury will then impose a sentence within the range allowed by the statute.

The SRIS Virginia Threat Charge Deconstruction Kit

When you are accused of making a criminal threat, the context surrounding the words is just as important as the words themselves. To build a strong defense, you and your attorney need to reconstruct the entire event with precision. We developed the **Virginia Threat Charge Deconstruction Kit** as a private tool for our clients to organize their thoughts and recollections. This is not legal advice, but a systematic framework to prepare for a productive and confidential conversation with your legal counsel.

Step 1: The Exact Communication Record

Memory can fade and distort. As soon as possible, record the communication with perfect accuracy.

• For Spoken Words: Write down the exact phrase or sentence you are accused of saying. Do not paraphrase. Include the words said immediately before and after the alleged threat.
• For Written/Digital Threats: Preserve the original evidence. Do NOT delete it. Take screenshots of the text thread, email chain, or social media conversation. Ensure the timestamps and context of the conversation are visible. Save the original file or message.

Step 2: The Contextual Analysis

A statement’s meaning is shaped by its environment. Detail the circumstances.

• Location & Audience: Where did this happen? At home? At work? In public? Who was present? Was it a private conversation or was it overheard?
• Preceding Events: What led up to the communication? Was it during a calm discussion or a heated argument? Was there a history of conflict? Were you under the influence of alcohol or drugs?
• Relationship History: What is your relationship with the accuser? Is it friendly, hostile, professional, romantic? Is there a history of joking, hyperbole, or using aggressive language with each other?

Step 3: The Intent Memorandum (For Your Attorney’s Eyes Only)

This is for you to be brutally honest with your lawyer. What was in your mind when you communicated the words?

• Did you intend to make the person fear for their safety?
• Were you trying to vent frustration without any intent to act?
• Were you making a bad joke or being sarcastic?
• Were you trying to sound tough without meaning it?
• Did you even realize the words could be taken as a threat?

Your true state of mind is critical for your attorney to assess whether the “recklessness” standard can be challenged.

Step 4: The Recipient’s Reaction Log

The accuser’s immediate reaction is powerful evidence.

• How did they react in the moment they heard or read the words? Did they appear terrified, angry, sad, or did they seem to ignore it or laugh?
• How much time passed between the communication and them reporting it to the police? A long delay can suggest they were not in immediate, reasonable fear.
• Did you have any further communication with them after the alleged threat? If so, what was the nature of that communication?

Compiling this information gives your attorney a comprehensive picture of the event, enabling them to identify the weakest points in the prosecutor’s case and build the strongest possible defense for you.

Key Defenses Against Criminal Threat Charges

Defending against a felony threat charge requires a proactive and multi-faceted strategy. The goal is to dismantle the prosecution’s case element by element. Simply denying you said it is one path, but often, the most effective defenses concede the words were said but argue they do not legally constitute a criminal threat under Virginia law.

In my decades of practice, I’ve found that success hinges on a deep dive into the facts and a sophisticated application of constitutional law. Here are some of the principal defenses we investigate and deploy for our clients:

1. The Statement Was Not a “True Threat”

This is the cornerstone of many defenses. We argue that the communication falls under the umbrella of protected speech because it was:

• Hyperbole or a Joke: We present evidence of a history of joking or using exaggerated language between the parties to show the words were not meant to be taken seriously.
• An Emotional Outburst: We demonstrate that the words were said in the heat of a momentary, passionate argument and were an expression of transient anger, not a settled intention to inflict harm.
• Conditional or Vague: A threat that is conditional (“If you were the last man on earth, I might kill you”) or too vague to be taken seriously may not meet the legal standard.

2. Lack of Reasonable Apprehension

This defense attacks the victim’s alleged reaction. We work to prove that either the accuser was not actually afraid, or that if they were, their fear was not reasonable.

• Victim’s Conduct: We can introduce evidence that the victim’s actions after the threat were inconsistent with genuine fear. For example, they may have continued to communicate with you civilly, did not immediately call the police, or have a known motive to lie (e.g., gaining leverage in a custody dispute).
• Context Negates Threat: We can show that the context made any fear unreasonable. For instance, if the accused was clearly intoxicated, physically incapable of carrying out the threat, or located hundreds of miles away, it would be harder for a prosecutor to prove the victim’s fear was reasonable.

3. Challenging the Speaker’s Intent (The *Counterman* Standard)

Leveraging the “recklessness” standard, we can argue the prosecution cannot prove your state of mind. We would aim to show that you were not subjectively aware that your words would be interpreted as a threat. This is especially potent in cases of ambiguous language or where the communication was intended for a different audience and was taken out of context.

4. Factual Dispute and Credibility

In some cases, the defense is that the event never happened as the accuser claims.

• False Accusation: We investigate the accuser’s background and potential motives to fabricate the charge. We look for inconsistencies in their story to undermine their credibility before the judge or jury.
• Misidentification: In cases of anonymous or online threats, the defense may be that the prosecution cannot prove you were the one who actually sent the message.

5. Voluntary Intoxication

While generally not a complete defense, evidence that you were severely intoxicated when you made a statement can sometimes be used to argue that you could not have formed the specific intent to threaten, or that your words were so nonsensical that they could not have caused *reasonable* fear. This is a nuanced defense and its effectiveness varies greatly depending on the specific facts.

The selection and application of these defenses must be tailored to the unique facts of each case after a thorough and confidential review with your attorney.

Critical Mistakes to Avoid When Accused of Making Threats

An accusation of making a felony threat is terrifying. In the ensuing panic, it is easy to make critical errors that can severely damage your defense. As an attorney who has seen the consequences of these mistakes, I urge anyone under investigation or charged with this crime to proceed with extreme caution.

1. Trying to “Explain” Yourself to the Police: This is the most common and damaging mistake. Police investigators are not there to hear your side and make the case go away. They are gathering evidence to use against you. Your attempts to explain context, claim it was a joke, or minimize the statement will be recorded and used by the prosecutor to prove your state of mind. The only correct response is: “I am exercising my right to remain silent and I want a lawyer.”
2. Contacting the Accuser: Do NOT reach out to the alleged victim to apologize, explain, or ask them to “drop the charges.” This act can be interpreted as witness tampering or intimidation, which is a separate felony. It can also violate a protective order, leading to another arrest. Cease all contact immediately.
3. Deleting the Evidence: Deleting the text messages, emails, or social media posts at the center of the accusation is a disastrous move. It does not make the evidence go away; prosecutors can recover it with subpoenas. Worse, it gives them powerful evidence of “consciousness of guilt” to present to the jury. It makes you look like you knew you did something wrong and tried to cover it up. Preserve everything.
4. Posting About the Situation on Social Media: Do not vent, complain, or discuss any aspect of your case online. The Commonwealth’s Attorney’s office monitors social media. Any post, comment, or “like” can be taken out of context and used against you.
5. Ignoring the Seriousness of the Charge: This is a felony. It is not a traffic ticket. It carries the potential for prison time and a permanent criminal record that can destroy your career, housing prospects, and firearm rights. You must treat it with the utmost seriousness from day one.
6. Waiting to Hire a Seasoned Criminal Defense Attorney: The early stages of a felony investigation are critical. An attorney can intervene before charges are even formally filed, communicate with investigators on your behalf, and begin building your defense. The sooner you have knowledgeable counsel, the better your position will be.

Glossary of Key Legal Terms

True Threat

A legal term for a statement that communicates a serious expression of intent to commit an act of unlawful violence against a particular individual. True threats are not protected by the First Amendment.

Recklessness

A state of mind required for a threat conviction post-*Counterman*. It means the speaker was consciously aware that their words could be viewed as a threat and disregarded that risk. It is more than just carelessness.

Reasonable Apprehension

A required element of VA Code § 18.2-60. It means the victim had a genuine, subjective fear of harm, and that an objective, reasonable person in their shoes would also have been afraid.

Class 6 Felony

A category of felony in Virginia that carries a sentence of 1 to 5 years in prison, or, at the discretion of the court or jury, confinement in jail for up to 12 months and/or a fine.

Preliminary Hearing

A court proceeding in General District Court where a judge determines if the prosecutor has enough evidence (probable cause) to move a felony case forward to the Circuit Court.

Grand Jury

A panel of citizens that hears preliminary evidence from a prosecutor and decides whether to issue a formal felony accusation, known as an indictment.

Indictment

The formal written accusation issued by a grand jury that authorizes the Commonwealth to prosecute a felony case in Circuit Court.

Common Scenarios Leading to Threat Charges

Felony threat charges can arise from a wide variety of situations, often where emotions are running high. Understanding these common fact patterns can help illustrate how easily words can cross the legal line.

Scenario 1: The Social Media Rant

Chris, a local resident, is furious about a decision made by a member of his town council. He posts a long, angry rant on a community Facebook page. Buried in the post, he writes, “Someone ought to teach Councilman Smith a lesson he’ll never forget. If I see him, I’ll put him in the hospital.” Another resident sees the post, becomes alarmed, and reports it to the police. Even though Chris claims it was just “venting,” the police investigate. The prosecutor will focus on whether this public post could cause a reasonable person (like the councilman) to fear bodily injury, making it a potential Class 6 felony.

Scenario 2: The Breakup Argument

After a bitter breakup, Maria discovers her ex-boyfriend, David, is now dating her former friend. In a fit of rage, she sends David a series of text messages, culminating in “You are a dead man. I swear I will kill you.” David, knowing Maria’s volatile temper and fearing she might act on her words, takes the texts to the police. Maria is arrested and charged under § 18.2-60. Her defense would have to focus on the context of the breakup, arguing the words were a form of emotional hyperbole and that she lacked any real intent, but the prosecution will argue the direct, unambiguous threat caused reasonable fear.

Scenario 3: The Custody Battle Voicemail

Mark is in a contentious custody battle with his ex-wife, Susan. Frustrated after a court hearing, Mark leaves a furious, rambling voicemail on Susan’s phone. In it, he says, “You will regret this. I’m going to end you.” Susan, who has a history of domestic issues with Mark, interprets this as a direct threat on her life. She plays the voicemail for law enforcement. The recording becomes the primary piece of evidence in a felony threat case against Mark. The history between them will be a key factor in determining whether Susan’s fear was reasonable.

Frequently Asked Questions (FAQ)

1. Can I really be charged with a felony for a text message?

Yes, absolutely. Virginia Code § 18.2-60 applies to any communication, and electronic communications like text messages and emails are the most common forms of evidence in these cases because they are easily preserved and presented in court.

2. What if I was just joking?

A “joke” is not a magical defense. The prosecution will argue that a reasonable person would have perceived it as a threat regardless of your secret intent. The success of this defense depends heavily on the context, your relationship with the accuser, and the specific words used. If there’s a history of dark humor between you, it might be a viable defense. If not, it’s a much harder argument to win.

3. The person I threatened isn’t scared of me. Can I still be convicted?

If the alleged victim was not actually placed in reasonable apprehension of harm, then an essential element of the crime is missing, and you should not be convicted. Their actual, subjective fear is something the prosecutor must prove. Their testimony and actions around the time of the threat are critical pieces of evidence.

4. What is the difference between a Class 6 felony and a Class 1 misdemeanor?

A Class 6 felony is punishable by 1-5 years in prison. A Class 1 misdemeanor is punishable by up to 12 months in jail. For a § 18.2-60 conviction, the jury or judge has the discretion to sentence within the felony range or reduce the punishment to the misdemeanor range, depending on the severity of the facts.

5. I was drunk when I said it. Is that a defense?

Voluntary intoxication is not a complete excuse for criminal conduct in Virginia. However, it can sometimes be used to argue that you were incapable of forming the required state of mind (recklessness) or that your words were so nonsensical that they couldn’t have caused *reasonable* fear. It is a very fact-specific and difficult defense to mount successfully.

6. The police want to talk to me. What should I do?

You should politely decline to answer any questions and state clearly, “I am exercising my right to remain silent, and I want to speak with an attorney.” Do not give them any information, explanation, or apology. Contact a criminal defense attorney immediately.

7. How can the prosecutor prove what I was thinking?

They don’t need to read your mind. They will use circumstantial evidence to prove your state of mind was reckless. This includes the words themselves, your tone, the context of the conversation, your relationship with the victim, and your actions before and after the statement (like deleting the message, which suggests consciousness of guilt).

8. Can this charge affect my right to own a gun?

Yes. A conviction for a Class 6 felony will result in a lifetime ban on possessing a firearm under both Virginia and federal law. This is one of the most significant collateral consequences of a conviction.

9. What if the threat was made “through” another person?

The law criminalizes communicating a threat *to* a person. If you tell Person A that you are going to harm Person B, and you intend for Person A to relay that message to Person B, you can still be charged. This is an indirect threat, and it is still illegal.

10. Is a threat to damage property illegal under this law?

No. Virginia Code § 18.2-60 specifically applies to threats of “death or bodily injury” to a person. A threat to damage property, while potentially illegal under other statutes (like destruction of property if carried out), would not typically fall under this felony threat law.