The New Law of Threats: But What If The Defendant Is Not A "Reasonable Person"?

In Elonis v. United States, the Court reversed defendant’s conviction for threatening his wife on the ground that the jury had not been instructed to determine whether he had an intent to threaten, despite the ordinary assumption that a competent person intends the foreseeable consequences of his or her acts, the fact that he did not and could not claim not to intend to threaten his wife, and the fact that the harm of threats does not depend on subjective intent.  The result was to effectively convert 18 U.S.C. § 875(c) from a prohibition of threats to a prohibition of intent to threaten by reading a subjective intent mens rea requirement into the statute.  This result is not supported and is possibly opposed by the cases the Court relies on except for a one-judge dubitante opinion.  The change in the law is not necessary to meet the mens rea requirement that limits punishment to an awareness of wrongdoing and to true threats that are not protected by the First Amendment.  The result is to seriously weaken the statute’s protection against threats, a result that is particularly important in the context, as in this case, of domestic violence.