A Virginia Attorney’s Analysis of Criminal Charges for Threats to Kill

The Core Felony Statute: Va. Code § 18.2-60 Explained

The primary law targeting written threats in Virginia is Code § 18.2-60. This statute makes it a Class 6 Felony to knowingly send a letter or any form of electronic communication containing a threat to kill or inflict bodily injury on another person. The prosecution must prove each element of this law beyond a reasonable doubt for a conviction.

To secure a conviction in a Virginia Circuit Court, the Commonwealth’s Attorney must prove the following distinct elements:

1. Knowingly Sends or Causes to be Sent: The prosecutor must prove that you were the person who sent the communication and that you did so intentionally. This can be a point of contention in cases involving anonymous emails or messages from a shared device.
2. Any Letter or Electronic Communication: This is defined broadly to include modern technology. It covers not just traditional letters but also emails, text messages, social media direct messages (DMs), and posts on public forums directed at a specific person.
3. Containing a Threat to Kill or Do Bodily Injury: The content of the message must explicitly or implicitly threaten physical violence. “Bodily injury” means any harm to the body, including pain, illness, or physical impairment.
4. The Threat is Directed to Another Person: The communication must be sent to a person, with the intent that they receive it as a threat.

The Concept of a “True Threat”

This is the most critical legal battleground in these cases. The First Amendment protects a great deal of speech, including offensive and alarming language. For a threat to be criminal, it must be a “true threat.” A true threat is a statement that a reasonable person would foresee as being interpreted by the recipient as a serious expression of an intent to inflict bodily harm. It is not:

• Political Hyperbole: For example, saying “politicians who vote that way should be shot” is generally protected speech.
• Idle Chatter or Jokes: Statements made in a clearly joking manner, even if in poor taste, are not criminal threats.
• Angry Venting: A general expression of anger, such as “I could just kill him for doing that,” is often not considered a true threat if the context does not suggest a serious intent.

A judge or jury in Virginia will look at the entire context—the relationship between the parties, the platform used, and the specific wording—to determine if the statement crossed the line from protected speech into a criminal “true threat.”

When Spoken Words Become a Crime in Virginia

While Va. Code § 18.2-60 focuses on written and electronic threats, purely spoken or verbal threats can absolutely result in criminal charges in Virginia. Prosecutors use different statutes and common law principles to charge individuals for threats made in person or over the phone.

Many clients are confused by the focus on written communication, asking, “What about a verbal threat to kill?” The Commonwealth has several tools to address these situations:

• Va. Code § 18.2-427: Threatening Language Over the Telephone. This statute makes it a Class 1 Misdemeanor to use “profane, threatening, or indecent language” over any telephone or citizens band radio. If you threaten someone during a phone call, this is the most likely charge you will face.
• Common Law Assault: In Virginia, the crime of assault can be committed without any physical contact. An assault is an act that places a person in reasonable fear or apprehension of an imminent battery (harmful touching). A verbal threat (“I’m going to punch you”) combined with an overt act (like raising a fist) can constitute a Class 1 Misdemeanor assault.
• Va. Code § 18.2-60.3: Stalking. Threats are often a component of a larger pattern of stalking. If a verbal threat is part of a course of conduct that places a person in reasonable fear of death, assault, or bodily injury, it can lead to a stalking charge.
• Va. Code § 18.2-83: Threats to Bomb. A specific and very serious law making it a Class 5 Felony to threaten to bomb or damage any building or mode of transportation.

The key takeaway is that the method of communication—written, electronic, or verbal—determines which specific statute the Commonwealth’s Attorney will use to prosecute, but all forms of “true threats” are illegal in Virginia.

The SRIS Threat Charge Context & Evidence Log

In a criminal threat case, the words themselves are only half the story. The context in which they were communicated is everything. This log is a critical tool to help you and your legal team document the complete picture, which is essential for building a robust defense.

Your memory of events is a crucial piece of evidence. Use this confidential worksheet to record the details before they fade.

Part 1: The Communication Record

• Date and Time: When exactly was the alleged threat made?
• Method: Was it a text, email, social media post, phone call, or in-person conversation?
• The Exact Words: To the best of your memory, write down the exact words used by all parties. Do not summarize.

Part 2: The Full Context

This is the most important section. What was happening at the time?

• The Preceding Conversation: What was the topic of conversation immediately before the alleged threat? Was it a heated argument? A joke? A political debate?
• Your Emotional State: Were you angry, frustrated, scared, or joking?
• The Recipient’s Reaction: How did the person react at the time? Did they seem genuinely scared, or did they continue the argument?

Part 3: Relationship History

The history between you and the accuser provides crucial context for a judge or jury.

• Your Relationship: (e.g., ex-spouse, business partner, neighbor, stranger).
• History of Conflict: Is this part of an ongoing dispute (e.g., a custody battle, a financial disagreement)? Is there a history of making angry statements to each other?
• Motive to Fabricate: Does the accuser have any reason to lie or exaggerate to gain an advantage over you in another matter?

Part 4: Evidence Preservation

It is vital to preserve the complete record, not just the single message the police may have.

• Save Everything: Do not delete anything. Save the entire text thread, email chain, or social media conversation. The messages before and after the alleged threat provide essential context.
• Identify Witnesses: Was anyone else present during the conversation or aware of the situation? List their names and contact information.

Building a Defense: How We Fight Criminal Threat Charges

A defense against a criminal threat charge is a nuanced and fact-intensive process that centers on disproving the Commonwealth’s interpretation of your words and intent. A successful strategy often involves demonstrating that the communication did not legally constitute a ‘true threat’ under Virginia law.

In my years defending clients against these serious charges, several key defense strategies have proven effective:

1. It Was Not a “True Threat”

This is the cornerstone of most defenses. We argue that your words, viewed in their full context, would not cause a reasonable person to believe you intended to commit violence. We present evidence to show the statement was:

• Hyperbole or an Expression of Anger: Demonstrating that the statement was made in the heat of a passionate argument and was an exaggeration, not a genuine threat.
• A Joke or Sarcasm: Showing that the relationship between the parties and the nature of the conversation made it clear the statement was not meant to be taken seriously.
• Conditional or Ambiguous: Arguing that the language was too vague or conditional to constitute a direct threat of imminent harm.

2. Lack of Criminal Intent

The Commonwealth must prove you “knowingly” sent the threat. We can challenge this element by presenting evidence that you did not intend for the communication to be a threat or, in some cases, that you did not send it at all (e.g., another person used your phone or computer).

3. Challenging the Identification of the Sender

In cases involving anonymous emails, social media profiles, or “spoofed” phone numbers, the prosecution has a high burden to prove you were the one who actually sent the message. We can challenge the digital forensic evidence and argue that the Commonwealth cannot definitively link you to the communication.

4. First Amendment Protected Speech

While less common in interpersonal disputes, if the alleged threat occurred in a political or public context, we can mount a vigorous defense based on your First Amendment right to free speech, arguing that the statement, while perhaps offensive, did not rise to the level of a criminal threat against a specific individual.

The High Stakes of a Felony Conviction

A conviction for making a criminal threat under Va. Code § 18.2-60 is not something you walk away from with a fine. As a Class 6 Felony, it carries devastating, lifelong consequences that extend far beyond the prison gates and fundamentally alter your status as a citizen.

Many clients are shocked to learn the full scope of what it means to be a convicted felon in the Commonwealth of Virginia. A conviction will result in:

• Incarceration: A sentence of one to five years in the state penitentiary is possible.
• Loss of Civil Rights: You will permanently lose the right to vote, the right to serve on a jury, the right to hold public office, and, most notably, the right to possess a firearm for the rest of your life.
• “Convicted Felon” Status: You will be required to disclose your felony conviction on job applications, housing applications, and applications for professional licenses. This creates a massive and permanent barrier to employment and opportunity.
• Immigration Consequences: For non-citizens, a felony conviction is often an automatic trigger for deportation and a permanent bar to re-entry or naturalization.

These consequences are why a threat charge must be met with the most serious and comprehensive defense possible. The goal is not just to avoid jail, but to avoid the conviction itself.

Glossary of Key Legal Terms

True Threat

A statement that a reasonable person would interpret as a serious expression of an intent to commit an act of unlawful violence against a particular individual or group.

Class 6 Felony

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

Class 1 Misdemeanor

The most serious class of misdemeanor in Virginia, carrying a penalty of up to 12 months in jail and a fine of up to $2,500.

Commonwealth’s Attorney

The elected prosecutor in a Virginia city or county who is responsible for bringing criminal charges on behalf of the state.

Circuit Court

The trial court in Virginia with jurisdiction over all felony cases.

Common Scenarios Leading to Threat Charges

Criminal threat charges often arise from emotionally charged situations where lines are crossed.

Scenario 1: The Contentious Divorce Text

During a bitter custody dispute, one spouse texts the other, “If you try to take my kids, you’ll regret it. It’ll be the last thing you ever do.” The recipient feels terrified and reports the text to the police.

Analysis: This is a classic fact pattern for a `Va. Code § 18.2-60` charge. The prosecution will argue this is a clear threat to kill. The defense would focus on the context of the acrimonious divorce, arguing the statement was an expression of anger and frustration about the custody battle, not a “true threat” of physical violence.

Scenario 2: The Angry Email to a Boss

An employee is fired and sends an angry, profanity-laced email to their former manager that includes the line, “I’m going to get you for this.” The manager is alarmed and calls security.

Analysis: This is more ambiguous. The defense would argue that “get you for this” is not a specific threat of bodily injury. It could imply filing a lawsuit, reporting them to corporate, or damaging their reputation. The prosecution would have a difficult time proving this was a “true threat” of violence beyond a reasonable doubt.

Scenario 3: The Misunderstood Social Media Post

A person gets into a heated political argument online. In response to another user, they post a comment with a violent movie quote or aggressive song lyric. The other user reports the post as a threat.

Analysis: The defense here would be grounded in the First Amendment and the “true threat” doctrine. We would argue that in the context of a public, political debate, using a quote or lyric is a form of expressive hyperbole, not a direct, personal threat meant to intimidate a specific individual.

Frequently Asked Questions