The offense of threats -
- Section 192 of the Penal Law states that:
"Anyone who threatens a person in any way with unlawful harm to his body, liberty, property, good name or livelihood, his or any other person's, with the intention of intimidating or teasing the person, shall be sentenced to three years' imprisonment."
- As is well known, in order to determine whether the content of a statement amounts to a threat, it is necessary to examine the expression through the eyes of a reasonable person. This is an objective test, and the court is required to examine whether the alleged statement is capable of instilling fear in the heart of an ordinary person from the community, in the circumstances of the person against whom the threat was directed [see, for example, Criminal Appeal 5498/10 Anonymous v. State of Israel [published in Nevo] (April 6, 2011)]. However, it should be remembered that the examination of the content of the expression (insofar as the threat is by way of expression) is not carried out 'in a vacuum', but against the background of the set of concrete circumstances. Within the framework of this examination, the court must consider the manner in which the expression was delivered, the manner in which it was received, as well as the message embodied in the threatening words alleged.
- The case law also held that the factual element encapsulated in the offense of threats is expressed in the very threat to unlawfully harm one of the social interests that the offense was intended to protect, i.e., the peace of mind, security and freedom of action of the individual. The court must balance these interests with the principle of freedom of expression [see, for example, Criminal Appeals Authority 2038/04 Lam v. State of Israel, IsrSC 60 (4) 96 (hereinafter: "the Lam case"); and see Further Criminal Appeal 3779/94 Hamdani v. State of Israel IsrSC 52 (1) 408, where it was held that: "The threat is the imposition of fear or terror of an expected evil, which is capable of harming one of the protected values specified in the section."
- It should be taken into account that the offense of threats restricts freedom of expression. Therefore, the classification of expression as a threat takes the expression outside the scope of protected expression, and the more broad an interpretation is given to the concept of threat, the greater the restrictions on the speaker's freedom of expression will be [see Criminal Appeals Authority 8736/15 Bar v. State of Israel [published in Nevo] (January 17, 2018)]. In this context, it should be remembered that statements – even if they are harsh and ugly – which have the power to harass a person or disturb the peace of mind of the listener – do not necessarily meet the definition of the offense of threats, unless they meet the requirements detailed above. Therefore, a distinction must be made between permissible expression (even if it arouses fear, and even if it is not a 'proper' expression, such as a warning formulated with harsh words, a curse or harassment) and prohibited expression, which formulates the factual basis of the offense of threats.
- Over the years, case law has established a number of auxiliary tests, which can be applied in order to decide whether we are dealing with permissible expression [such as a warning] or whether we are dealing with a statement that constitutes a "threat". Thus, for example, in criminal appeal 103/88 Lichtman v. State of Israel, IsrSC 34 (3) 373, the "control test" and the "substance test" were proposed. The test of control examines whether the speaker has control or influence over the possibility of realizing the danger mentioned in the statement in dispute; The substance test examines the essence and nature of what was said. In addition to these, in Criminal Appeal 6368/09 Zaken v. State of Israel [published in Nevo] (July 12, 2010), the Honorable Justice N. Hendel proposed an additional test – the "context test", according to which three questions must be examined: what was said, who said it and why did he say it:
"The 'what' test focuses on the question of the act of transgression. Of course, a threatening action can also be carried out without words but through signs or other behavior. However, a simple one, without an action, there is no transgression. The "who" test is intended to examine the connection between the defendant and the act of threat. In this way, we can learn about the nature of the act of threat. The purpose of the 'why' test is to examine the intention behind the act as required in criminal cases. The three tests must be weighed... In order to reach a decision as to whether a threatening offense was committed."
- Did the statements attributed to the defendant in the indictment form the foundations of the offense of threats?
In my opinion, with regard to what is stated in sections 3.1 and 3.3 of the indictment, the answer to the question is clear. It seems to me that according to all scholars, the "wishes for death" mentioned in these sections, whether they include a description of the manner of the killing or not, in the circumstances in which they were said – are statements whose entire essence is to unlawfully harm the complainant. These statements are intended to intimidate the complainant of the evil that awaits her. In this way, the foundations of the offense of threats were perfected.