Assault is a crime of violence, and 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, it’s the response that you’d expect from any reasonable person in the victim’s position.
Simple and Aggravated Assault
Simple assault is the least serious form of assault and usually involves minor injury or a limited threat of violence. Aggravated assault involves circumstances that make the crime more serious, as when the victim is threatened with or experiences violence that's significantly more than a minor slap across the face or a punch in the jaw.
Examples of aggravated assault include:
- striking or threatening to strike a person with a weapon or dangerous object
- shooting a person with a gun or threatening to kill someone while pointing a gun at the victim
- assault resulting in serious physical injury, and
- assault against a member of a protected class, such as a police officer, healthcare provider, social services worker, or developmentally disabled or elderly person.
To learn more about aggravated assault in your state, see Aggravated Assault Laws and Penalties.
The crime of aggravated assault with a deadly weapon requires that the offender have used a deadly weapon in the commission of the crime. An object is a deadly weapon if it likely can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons because they are inherently dangerous and even designed to cause injury.
Other objects, such as rocks, bricks, or even a boot can constitute a deadly weapon if the object is used in a manner likely to cause or threaten serious bodily injury or death. A person wearing a heavy, steel toed boot, for instance, could cause serious injury or even death by kicking another person with them. Threatening to beat someone up with brass knuckles or to “break your legs” while wielding a metal bar also constitutes assault with a deadly weapon, because the threat and menacing behavior occur while the offender wields a weapon that likely could cause death or severe injury.
Proving the Case and Possible Defenses
In order for a defendant to be convicted of aggravated assault with a deadly weapon, 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 a deadly weapon, 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 with a deadly weapon.
The prosecutor’s case must include evidence about the weapon and how it was “deadly” – either proof that the weapon used was inherently dangerous, or that an object was used in such a way that it did or could have caused death or serious bodily injury. Evidence of the object used and the serious injury inflicted may be enough to establish use of a deadly weapon. For example, if heavy work boots resulted in serious internal abdominal injuries, that’s probably enough to convince the judge or jury that the boots were used in such a way as to make them deadly weapons.
Find more information on Facing Criminal Charges.
Defendants charged with aggravated assault with a dangerous weapon 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 gun or weapon actually was in the victim’s possession.
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.
Penalties for Assault with a Deadly Weapon
Assault with a deadly weapon is usually a felony punishable by one to twenty years in prison, depending on the specific provisions of each state’s sentencing statute or sentencing guidelines. Normally, the judge has some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation rather than in prison.
Factors that judges consider
In determining a sentence, judges usually consider defenses the defendant presented at trial, whether the defendant has taken responsibility for the crime and shows remorse, circumstances surrounding the crime, the extent of any injuries incurred, the type of weapon used, the accused’s prior criminal record, and, in some situations, the victim's background or relationship to the defendant.
In some states, assault against a special victim like a police officer or elderly person carries more severe penalties or is subject to sentence enhancement, which permits the court to add extra time to the sentence for the underlying crime. In many states, there also are more severe penalties or sentencing enhancement provisions if the deadly weapon used in an assault or battery is a firearm. Finally, in some states, the penalties are even more severe for certain types of firearms such as automatic weapons, machine guns, or guns that shoot metal-resistant bullets.
Learn about other common crimes and their penalties.
Aggravated assault with a deadly weapon is a very serious felony charge; a conviction for this crime can seriously impact your life. You could face a lengthy prison sentence and the stigma of being a convicted felon. Convicted felons cannot vote or possess firearms and often have difficulty finding employment. A competent criminal defense attorney can help you fight an aggravated assault charge, protect your rights and achieve the best possible outcome. An attorney will thoroughly investigate your case, aid you in asserting any possible defenses, and guide you through the criminal court process.