CRIMINAL LAW ISSUES – HIGH-CONFLICT CUSTODY LITIGANTS – THREAT TO ESTRANGED CO-PARENT – COMMUNICATION BY ELECTRONIC SOCIAL MEDIA – §18.2-60(A)(1). Once again FLN finds itself summarizing one of those criminal cases that takes place within a very definite family law context, kicking around an issue that has arisen before in Virginia domestic relations cases, and apparently will again and again. The appellant in Holcomb v. Commonwealth, 58 Va. App. 339, 709 S.E.2d 711, 26 VLW 46 (6/7/11), was the kind of appellant the Court of Appeals sees coming of course, an embittered male custody case loser, so probably there shouldn’t have been any doubt about the outcome. This case stands in marked contrast to the Barson case (see above) however, because Mr. Holcomb tried to portray his words as an effort to ape the usual diction of rap lyrics, because Mr. Holcomb put it on his My Space profile and a blog, and because his words left very little doubt of his homicidal and other dire intentions. §18.2-60 criminalizes “communicating” a threat, and subsection (A)(1) is directed to written threats. The statute does not specifically say that the defendant must have communicated the threat directly to the victim, but in this case the evidence was plain that the defendant father was deeply involved in a custody dispute against his former girl friend over their daughter. That the words in question were supposed “rap lyrics,” and appeared on My Space, brings up some very interesting issues. Of course the defendant argued that simply putting written words, in the form of verse that is “available for everyone to view” in a very public form of communication is not the kind of communicating a threat that the law seeks to punish. Of course he tried to defend by characterizing them as poetry and therefore literature and free expression, and as personal, and therefore doubly sanctified, expression, being My Space postings. The threats were very scary indeed, and it’s hard to see them as political expression, even the cop-killing parts. The interesting argument was made by his lawyer, Afshin Farashahi, that it couldn’t be considered intimidation, harassment or a threat since his client was after all speaking to the whole world out there, and just making it available for anybody who fires up a computer to see. But the Court of Appeals, in sustaining the conviction, pointed out that this statute was amended in 1998 specifically to reach electronically transmitted communications. The Court also ruled that there was no requirement that the victim own a computer, and certainly in this case it was not much of an argument, since the mother saw the offending words on her own mother’s computer, so the threat definitely reached her. And these nasty words were just so specifically directed to this particular mother, as involved in this particular custody contest, that it could not logically be argued that the words were not intended to injure. It scared her enough that she moved into her mother’s house where there were security cameras and alarms. And if the messages are legally threats, there is no requirement for a showing that they reached the victim anyway. The idea that the threatening words were art, and First Amendment protected, etc., wasn’t persuasive either. The trial court’s finding that they were threats specifically referring to this mother and her relatives was supported by the evidence. There were references to specific incidents in this case, and the history and context of the case can be taken into account by the convicting court. The Court, however, pointed out that the statutory language doesn’t say anything about the number of recipients of the communication, and it found it pretty plain from the circumstances that these threats were directed at the former girl friend who had bested him in this child custody contest (and to her family of course). The lyrics even “identified details that were unique to the acrimonious history between them stemming from an ongoing custody dispute.” The imagery was “graphic and violent,” decidedly scary, and just not nice at all. And it didn’t matter that the defendant had testified in his defense at trial that the only reason he put these things on My Space is “because it’s there to express who you are.” He also testified that he had not intended the ex-girl friend to be frightened, or even to read these postings, and that he later deleted his profile. Whether she saw the postings or not, the word definitely got back to her. Citing Second Circuit precedent, the Court held that the broadcasting of the threat to an indefinite and unknown audience can still be a punishable communication of threat. It is also all right, under Virginia v. Black, 538 U.S. 343, 359-60 (2003), to hold that this person need not have actually intended to carry out the threat for it to be punishable. There was no reasonable doubt that this written message was a threat to kill or do serious bodily harm to this victim and that it placed her in reasonable apprehension of death or injury.
