Assault is a crime of violence, which is defined differently from one state to another. Some states define assault as the intentional use of force or violence against another, such as punching a person or striking the victim with an object. In other states, assault need not involve actual physical contact, and is defined as an attempt to commit a physical attack or as intentional acts that cause a person to feel afraid of impending violence. Under this second definition, verbal threats are usually not enough to constitute an assault. Some action, such as raising a fist or moving menacingly toward a victim, usually is required. In these states, threatening to hurt someone while walking toward him with a clenched, raised fist would constitute assault.
The Victim’s Fear
In states that define assault as placing a victim in fear of violence, the victim’s response must not only be genuine but reasonable under the circumstances. The test normally is whether the defendant’s actions would cause a reasonable person to be in fear of an immediate physical attack. In other words, the response should be what you would expect from any reasonable person in the victim’s position.
Simple and Aggravated Assault
Simple assault is the least serious form of assault. It involves minor injury or a limited threat of violence, and usually is charged as a misdemeanor. In states where assault is a physical attack, pushing someone or slapping someone in an argument are instances of simple assault. Where the law defines assault as threatening behavior that puts another in fear, threatening to punch someone would be a simple assault.
Aggravated assault involves circumstances that make the crime more serious, as when the assault is committed with a deadly weapon or results in serious injury that requires hospitalization or surgery or disfigures the victim. To learn more about aggravated assault, see our article on Aggravated Assault.
Simple Assault Against a Member of a Protected Class or Special Victim
In many states, simple assault against certain individuals who are either particularly vulnerable (a disabled or elderly person) or work in service to the community (police officers or emergency medical care providers) is treated differently and considered a more serious crime than simple assault against a person without this special status. A simple assault against one of these designated individuals may be defined as a more serious misdemeanor or even a felony; or may subject the offender to a minimum jail sentence or sentencing enhancement (more jail time than is normally imposed for the crime of simple assault).
Those who are designated members of a protected class vary from state to state but, in addition to those mentioned above, they can include:
- fire fighters
- social services workers
- teachers and school employees
- corrections employees (those who work in jails or prisons)
- mental health care providers, and
- utility workers.
Proving the Case and Possible Defenses
In order for a defendant to be convicted of simple assault, the prosecutor or district attorney must prove every aspect of the crime (called the “elements” of the crime) beyond a reasonable doubt. The evidence must show:
- that the defendant intentionally threatened the victim with an attack or bodily harm
- that the defendant appeared to have the ability to carry out the threat and/or took some sort of action that seemed to set an attack in motion, and
- that this threat caused the person to fear immediate serious violence, or
- the defendant actually attempted to or applied physical force to the victim.
Because a verbal threat alone does not constitute an assault, the prosecutor’s case must include evidence of more than a person yelling, “I’m going to kill you!” There must be evidence that the defendant had a weapon in his hand when he made the threat or took some action like walking toward the victim in a menacing manner or raising a fist as he stood close enough to the victim to throw a punch.
To learn more about possible defenses, see I unintentionally hurt someone. Can I be charged with assault?
Defendants charged with simple assault have the usual defenses available to all criminal defendants, starting with “You’ve got the wrong person, it wasn’t me.” In addition, a defendant can claim self defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself or another person from the alleged victim’s attack. That defense may take the form of showing that the other person actually threw the first blow, the defendant could not safely retreat, and he had to take physical action to stop the attack or to protect himself. Some states, such as Florida, now have “stand your ground” laws that no longer require someone being attacked to retreat if possible and allow the defendant to fight back if attacked; however, this usually requires that the aggressor’s actions be so threatening or violent that the defendant feared serious physical injury or even death if he did not fight back.
Other possible defenses are that the defendant’s actions were purely accidental and that he had no criminal intent; or an insanity defense, in which the defense argues that the accused is mentally ill and did not have the capacity to control his behavior or to understand what he was doing or that his actions were unlawful.
For more information on the "stand your ground" defense, see "Stand Your Ground" New Trends in Self-Defense Law.
Simple assault is a misdemeanor punishable by six months to one year in jail, depending on the specific provisions of each state’s sentencing statute or sentencing guidelines. Normally, the judge in a misdemeanor case has discretion as to the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation. For misdemeanors, defendants often also have the option of performing community service, participating in criminal education programs, or being on house arrest rather than serving time in jail.
While it is usually a misdemeanor, simple assault is a serious charge because it is considered a crime of violence. But because it is a misdemeanor rather than a felony, defendants usually have options for plea bargains and sentencing arrangements that can keep their criminal records as clear as possible. A competent criminal defense attorney can help you fight an assault charge, by thoroughly investigating your case, helping you to evaluate and assert any possible defenses, and guiding you through the criminal court process.
For more information on assault and battery, check out the following articles: