Can Using an Insult Subject You to Criminal Charges?

A prosecutor in the UK thought so, when charges were filed against a woman for leaving a voicemail calling the alleged victim a “pu**y.” Apparently, the defendant had been trying to collect on a debt when the “criminal act” was committed.

The court ultimately dismissed the case and expressed its displeasure with the prosecution’s efforts.

In California, there are two crimes typically charged for verbal acts: Penal Code section 415 and Penal Code section 422.

Under PC 415 (generally referred to as the “disturbing the peace” law), the following people can be charged with misdemeanors carrying a potential jail sentence of 90 days and/or a fine of $400:

  1. Any person who unlawfully fights in a public place or challenges another person in a public place to fight.
  2. Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.
  3. Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.

In San Diego County, a PC415 misdemeanor conviction can result in the granting of probation for three years and a $539 fine (which includes the statutory fine and other penalty assessments). It can also be charged as an infraction, in which case the sentence would be a $239 fine (no probation because you cannot be on probation on an infraction). In practice, a PC415 resolution is reached when the conduct is seen as relatively minor and there are mitigating circumstances and the PC415 charge will serve as a “catch all” or generic conviction.

Another charge that can stem from a purely verbal act is an alleged violation of Penal Code section 422, also known as a “criminal threat.”

For a PC422 charge, the prosecution must prove:

  1. The defendant willfully threatened to unlawfully kill or unlawfully cause great bodily injury;
  2. The defendant made the threat (orally/in writing/by electronic communication device);
  3. The defendant intended that (his/her) statement be understood as a threat [and intended that it be communicated];
  4. The threat was so clear, immediate, unconditional, and specific that it communicated to the complaining witness a serious intention and the immediate prospect that the threat would be carried out;
  5. The threat actually caused the complaining witness to be in sustained fear for (his/her) own safety [or for the safety of (his/her) immediate family];

AND

  1. The complaining witness’ fear was reasonable under the circumstances.

[see CALCRIM 1300].

This list of elements, of course, is a simple overview of the law; each element has various sub-factors that make for some complex issues. Because PC422 is a “wobbler” (can be charged as either a misdemeanor or a felony) the potential consequences and punishment varies drastically. If filed as a misdemeanor, a criminal threat charge carries up to one year in jail (364 days in jail, technically) and a fine of $1000. It will also lead to a 10-year ban to the ownership or possession of firearms. In San Diego County, specifically, a conviction can lead to three years of probation,  $696 fine, and stay away order (with a reminder regarding the 10-year firearm ban). If filed as a felony, and probation is not granted, the maximum custodial exposure is either 16 months, 2 years, or 3 years in state prison (along with other consequences, such as the 10-year firearm ban). More importantly, a felony conviction under PC422 is deemed a serious felony, also known as a “strike felony” subject to the three-strikes law.

Many people are surprised that verbal acts can lead to criminal charges believing that all forms of speech are protected under the First Amendment. This contention has been well litigated within U.S. Supreme Court precedent, thus allowing the government to charge individuals with such crimes.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s