In US criminal law, assault is usually listed with battery, as in ‘assault and battery.’ But assault is a separate charge from battery. Assault is generally defined as attempted battery. It also can be defined as intent to create a reasonable apprehension of harm. Assault essentially refers to situations where a person creates a fear of harm in another party.
For instance, if a person pulls back their fist as if to hit another person, and the other person thinks they will be struck, this could be called assault. Battery, on the other hand, happens if the person was actually struck with the fist. So, assault can be charged as a crime even when no physical harm results in the other person. The key element is the creation of fear of physical harm.
In most states, assault and battery occurs when a person attempts to physically hit another person, or acts in a threatening way to put another in fear of being immediately harmed. Some states find that aggravated assault and battery occur when someone tries or does cause injury in another person, or causes injury through using a deadly weapon.
Assault definitions vary by state, but it generally is defined as attempting to injure another person. Some circumstances may include making threats or engaging in threatening behavior against another person. A common definition in many states is an intentional effort with violence or force to harm another person. Another way assault is often defined is as attempted battery. As noted above, no contact is necessary for assault to occur under most state laws.
Assault: Act Requirement
Contact is usually not needed for an assault charge, being convicted of assault still has the need for a criminal act to occur. The type of acts that define assault vary, but usually an assault requires an act that would put a ‘reasonable person’ in fear of their safety. Spoken words normally are not enough to be defined as assault, unless the offender backs up the words with an act that puts the victim in fear of harm.
Assault: Intent Requirement
To commit assault, you need to have had ‘general intent.’ This means that you cannot assault someone on accident, but it is enough to show that you intended the actions that constitute the assault. If you act in a way that is thought to be dangerous to other parties, this can be enough to have you charged with assault.
Simple and Aggravated Assault
The laws of many states classify assault as simple or aggravated. This is according to how serious the harm or potential harm is if the person actually strikes the victim. Aggravated assault is considered a felony and often involves assault with a deadly weapon, or with intent to commit another felony such as rape. Some states’ assault laws specifically name the aggravating factor i.e. assault with a deadly weapon.
An assault can also be called aggravated if it happens in a relationship that the state legal system dictates is worthy of special protections. But other states recognize assault not as simple or aggravated but by first, second or third degree. Second degree assault may involve using a dangerous weapon, while third degree assault may involve a non-physical injury, such as emotional or mental trauma. Some states may consider third degree assault as failed efforts to hurt another person.
Federal Assault Crimes
Many assault crimes are prosecuted at the state level, but there also are federal laws covering the crime of assault. Under federal law, an assault is defined as an effort to hit another person, or engaging in an act that causes the other person to expect they could be harmed. Under federal law, throwing a punch or intentionally pointing a firearm at another person could be assault.
As under most state laws, federal law states that assault does not require physical contact or harm. The crime has occurred if the whether or not you succeed in harming the other person. Assault also has occurred under federal law if you actually do physically injure the other person. This is different from some state laws, where battery has occurred if there is actual physical harm done.
Some assaults are federal charges simply because of where they occur. For example, if an assault occurs in a federal park, this may be a federal assault charge. Attacks or attempted attacks that occur in a federal prison, on a US ship or in a federal building will be charged as federal crimes.
Other assault charges that can be prosecuted under federal law are:
- Assault with intent to commit murder or felony: This is assault that is intended to kill another person. It is another crime to assault a person with the intent to commit another felony, such as pointing a gun at someone to rob them.
- Assault with a dangerous weapon: This occurs when you intend to injure, strike, wound or physically threaten the person with a dangerous weapon. The weapon does not need to be a gun or knife; it can be anything that can harm another person, such as a metal chair, vase, rock or even a shoe.
Penalties for Federal Assault Charges
A simple federal assault charge can result in up to six months in prison. If the person who was assaulted is under 16, the maximum imprisonment can increase to one year. If the assault leads to ‘serious’ injury, the prison sentence can be as high as 10 years. The injury is deemed to be serious if there is substantial risk of death; extreme pain; and continued and obvious disfigurement.
Assault with intent to murder under federal law can result in 20 years in prison. Assault with intent to commit a felony can result in up to 10 years in federal prison.
What Proves Assault?
To prove assault, state laws generally require the following elements to be present:
- Intentional: The defendant needed to act in an intentional manner to scare or threaten the other party into thinking they were about to be harmed. If the act was accidental or unintentional, it does not count as assault.
- Reasonable apprehension: This means the victim perceives or apprehends that harm or a threat of harm is directed toward them. So, if the victim is not aware of a threat, such as when a person aims a gun at them behind their back and they do not see it, this may not be enough to prove an assault took place.
- Harm: This can be a threat of physical harm or a threat of unwanted and offensive contact.
To prove assault, the notion of reasonableness is often key. For instance, if someone stands 100 yards away from you and yells they are going to punch you, this is not assault. It is unreasonable to expect the person is going to be able to hit you from such a distance. Also, just words are not enough to be assault. The words have to be accompanied by a physical threat of some kind.
On the other hand, if the person is 10 feet from you and threatens to hit you with a rock, this could be assault. It is reasonable in this case to assume that the person may actually strike you.
Based upon the legal definition of assault, it might not be necessary to physically hit another person to be guilty of this crime. It is common in the media for assault to be portrayed incorrectly. For example, we often hear the term ‘brutal assault’ on TV, but in the real legal world, the charges probably would be battery, if actual physical contact was made.
Keep in mind that any intentional act that causes another party to be afraid they may be contacted or struck is probably going to be defined as assault and not battery. Therefore, pretending to kick or punch a person, or aiming a fake gun at another person, all could be considered assault, even if no physical harm occurs.
Defenses in assault and assault and battery cases vary a great deal based upon the circumstances. But below are some of the effective defenses used in some of these cases:
- Self defense: This is the most common defense in assault and battery cases. To establish a self defense argument, you must show a threat of force was against you; a real and perceived threat of harm to you; you showed no harm or provocation on your part; and there was no way to reasonably retreat from the situation.
- Defense of another person: You might claim you were acting in defense of another person, if you can show that you had a real and honest fear that another person would be harmed.
- Defense of property: You may be able to claim that you acted in defense of property being either invaded or illegally held.