1. That the accused communicated certain language expressing a present determination
of intent to wrongfully injure the person, property, or reputation of another person, presently or in the
future;
2. That the communication was made known to that person or to a third person;
3. That the communication was wrongful; and
4. That, under the circumstances, the conduct of the accused was to the prejudice of
good order and discipline in the armed forces or was of a nature to bring discredit upon the armed
forces.
To establish the threat, it is not necessary to prove that the accused actually intended to do the injury
threatened. However, it will not be a violation of this Article if the utterance is made as a joke or for an
innocent or legitimate purpose. Part IV, MCM 1984, para 110(c). The circumstances surrounding the
uttering of the words must be evaluated in order to determine whether the words were spoken as a joke
or as an actual threat. United States v. Johnson, 45 CMR 53 (CMA 1972).
QUESTION: IS IT STILL A THREAT IF IT IS CONDITIONAL UPON AN "IMPOSSIBLE
VARIABLE?"
ANSWER: NO. IT WILL NOT CONSTITUTE THE OFFENSE OF COMMUNICATING A THREAT
WHEN SUCH A THREAT IS CONDITIONED UPON AN "IMPOSSIBLE VARIABLE." AN
EXAMPLE OF THIS TYPE OF CONDITIONAL THREAT WOULD BE A HANDCUFFED
PRISONER WHO TELLS HIS GUARD, "I HAVE MORE MUSCLE IN MY LITTLE FINGER THAN
YOU HAVE IN YOUR WHOLE BODY, AND IF YOU TAKE THIS RESTRAINING GEAR OFF,
I'LL SHOW YOU WHAT I WILL DO TO YOU." UNITED STATES V. SHROPSHIRE, 43 CMR 214
(CMA 1971). IN SUCH A CASE, THESE WORDS WOULD NOT CONSTITUTE A THREAT
SINCE NO REASONABLE GUARD WOULD HAVE REMOVED THE RESTRAINING GEAR IN
ORDER TO PERMIT AN ATTACK ON HIMSELF AND, THEREFORE, THIS CONDITIONAL
LANGUAGE "NEUTRALIZED THE DECLARATION." THE COURT DID NOTE, HOWEVER,
THAT THIS LANGUAGE COULD BE CONSTRUED AS DISRESPECT TO AN NCO. FINALLY,
THE COURT NOTED THAT THE CONVICTION WOULD HAVE BEEN AFFIRMED OR UPHELD
IF THE ACCUSED HAD SAID, "WHEN I GET THIS RESTRAINING GEAR OFF, I WILL SHOW
YOU WHAT I'LL DO." THIS CONDITION COULD AND WOULD EVENTUALLY REASONABLY
BE FULFILLED. AT SOME POINT PROPER AUTHORITIES WOULD HAVE TAKEN OFF THE
ACCUSED'S RESTRAINING GEAR THEREBY FREEING HIM TO "SHOW YOU WHAT I'LL
DO." SIMILARLY, IT DOES NOT CONSTITUTE THE OFFENSE OF COMMUNICATING A
THREAT FOR AN AIRMAN IN THE UNITED STATES AIR FORCE TO TELL ANOTHER
INDIVIDUAL, "IF THIS WERE THE CIVILIAN WORLD...I WOULD TAKE MY .357 MAGNUM
AND SHOOT YOU SIX TIMES BETWEEN THE EYES." THE ACCUSED WAS AN ACTIVE
DUTY MEMBER OF THE AIR FORCE, NOT A CIVILIAN. THEREFORE, BECAUSE THE
STATEMENT WAS NOT REASONABLY POSSIBLE TO FULFILL, IT DID NOT CONSTITUTE A
VALID THREAT. HOWEVER, BECAUSE THIS LANGUAGE WAS LIKELY TO INDUCE A
BREACH OF THE PEACE, A CONVICTION FOR THE USE OF PROVOKING WORDS WAS
AFFIRMED.
QUESTION: CAN IT STILL BE A THREAT TO CONDITION THE ACTION ON A POSSIBLE
VARIANT?
MP1019
1-26
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