Threatening a violent act in Oklahoma is criminal, it’s a misdemeanor, and it carries up to six months in the county jail. I often see the misdemeanor charge of threatening a violent act in domestic assault and battery cases. Why in these cases so often? Mainly because these allegations of domestic violence are not just physical in nature, they also typically involve a verbal argument between two or more individuals, which gets typically quite heated. In those heated moments, words are exchanged, and folks are yelling, and it is not uncommon in these types of cases for there to be a threat of violence.

Threatening a violent act, the criminal charge is found in 21 OS §1378 (B), and in that subsection, it states in part: that any person who shall threaten to perform an act of violence involving or intended to involve serious bodily harm or death of another person shall be guilty of a misdemeanor punishable upon conviction by imprisonment in the county jail for a period of not more than six months. In this hypothetical argument where the threat of a violent act takes place, the act of violence must involve or intend to involve serious bodily harm or death. The requirement that the threat involves serious bodily harm or death is the key element to the charge.

So, if you just state you’re going to come over to his apartment and punch him in the nose, punch him in the gut, sock him in the arm, kick him in the shins, slap him in the face, that does not qualify as threatening a violent act in Oklahoma. Really, even the allegation of, I’m going to come over there, I’m going to kick your ass, as we commonly hear and see, becomes a fact issue for the jury to decide. The jury alone must determine if that threat of violence, the threat to perform that act of violence (I’m going to come over there and kick your ass), somehow involves serious bodily harm. Well, that’s a totality of the circumstances analysis for the jury exclusively to make.

Who’s making the threat or allegation? Does their version of kicking the person’s ass involve great bodily harm or death? Is it even a physical possibility that it can happen? If this threat is coming from a gal that weighs 90 pounds dripping wet and her significant another boyfriend, family member, whoever it was that she made this threat against, is a 6 foot tall, 250-pound guy, her threat of coming over to the house to kick his ass does not rise to the level of serious bodily harm or death. Now again, there are plenty of assistant district attorneys out there who are either too stupid to figure that out or too lazy to even read the statute!

These counts get charged all the time, even though a simple reading of the statute would tell the prosecutor the crime of threatening a violent act didn’t actually happen. Most often due to the absence of a threat that involves serious bodily harm or death the charge is defensible. The Oklahoma uniform jury instructions for this are found in Oklahoma Uniform Jury Instruction (OUJI) CR-2-24. OUJI CR-2-24 states: No person may be convicted of threatening to perform an act of violence unless the state, the prosecution, has proved beyond a reasonable doubt each element of the crime

These elements are:

First willfully;

Second threatening;

Third, to perform an act of violence; and,

Fourth, involving or intending to involve serious bodily harm or the death of another person.

The requirement that the threat involves serious bodily harm or death is the key element to the Threatening a Violent Act charge.

Threatening an act of violence is not a charge that is unique to domestic violence. This threatening violent act can occur between any two or more individuals regardless of what their relationship is. So, the statute does not have the same requirements as to the class of the victim, and the victim does not need to be family members, they don’t have to be in an intimate relationship nor have lived with somebody or been a former lover of your current lover, none of that. This charge is, however, quite often charged collaterally or added in addition to the underlying domestic violence charge itself.

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Lee Berlin
Dedicated to defending clients accused of domestic violence, sex & violent crimes throughout eastern Oklahoma