NOTE 1: If convicted of only offenses committed on or after 28 December 2023, the judge shall sentence the accused in accordance with the sentencing parameters or criteria, as appropriate, or state reasons for deviating in writing. See RCM 925(c)(2), RCM 1002(a)(2), Appendices 12B (Parameter Table-Confinement Categories), 12C (Offense Category Chart), and 12D (List of Criteria Offenses), 2024 MCM.
a. MAXIMUM PUNISHMENT: DD, TF, 3 years, E-1. (Category 2)
b. SAMPLE SPECIFICATION:
In that __________ (personal jurisdiction data), did, (at/on board—location), on or about __________, wrongfully communicate to __________ a threat (to injure __________ by __________) (to accuse __________ of having committed the offense of __________) (__________).
c. ELEMENTS:
(1) That (state the time and place alleged) the accused communicated certain language, to wit: (state the language alleged), or words to that effect, expressing a present determination or intent to injure the person, property, or reputation of (state the name of the person alleged), presently or in the future;
(2) That the communication was made known to (state the name of the person threatened, or a third person, as alleged); and
(3) That the communication was wrongful.
d. DEFINITIONS AND OTHER INSTRUCTIONS:
A “threat” means an expressed present determination or intent to kill or injure a person,to damage or destroy certain property, or to injure a person’s reputation, presently or in the future. The communication must be one that a reasonable person would understand as expressing a present determination or intent to wrongfully injure the person, property, or reputation of another person, presently or in the future. Proof that the accused actually intended to kill, injure, damage or destroy is not required.
A communication is “wrongful” if the accused transmitted it for the purpose of issuing a threat or with the knowledge that it would be viewed as a threat.
A communication is not “wrongful” if it is made under circumstances that reveal it to be in jest or for an innocent or legitimate purpose that contradicts the expressed intent to commit the act.
NOTE 2: In general. This offense requires both an objective expression of intent (that is, the first element) and a subjective intent by the accused (contained in the element of wrongfulness). Thus, the offense is not committed by only the objective expression of intent to commit an unlawful act involving injury to another. Additionally, even if accompanied by the required subjective intent, the offense is not committed by the objective expression of intent to commit an unlawful act not involving injury to another.
NOTE 3: Wrongfulness. “Wrongfulness” is properly understood to reference the accused’s subjective intent. If the evidence raises a “legitimate purpose” for the statement (which would negate “wrongfulness”), the judge must, sua sponte, instruct carefully and comprehensively on the issue. For example, if the evidence reasonably raises that the accused made the communication in self-defense or in defense of property, the judge must, sua sponte, give the appropriately tailored self-defense or defense of property instructions.
e. REFERENCES:
(1) Defense of property and self-defense negate wrongfulness: See US v Viers, 75 MJ 554 (ACCA 2015).
(2) Mens rea: See US v. Elonis, 135 SCt 2001 (2015);US v. Rapert, 75 MJ 164 (CAAF 2016); see also Counterman v. Colorado, 600 US 66 (2023).