Assault is a crime of violence and is defined differently from one state to another. In some states, assault refers to placing another in fear of harm, either by threats or actions. Other states consider an assault as an intentional act of causing another person harm. Despite differing definitions, states tend to punish assault crimes similarly based on the level of harm threatened or inflicted, whether a weapon was involved, and who the victim was.
This article will discuss these various views of assault and their common penalties.
Here are the main divisions of assault.
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, any offensive touching—no matter how slight—will suffice. A few states lump assault and battery into one crime, which is defined as a physical attack. Under this approach, an "attempted assault" is an act that intends to physically harm the victim but fails or falls short. For example, swinging at someone but missing would be an attempted assault.
In other states, assault does not involve actual physical contact and is defined as an attempt to commit a physical attack or as threatening actions that cause a person to feel afraid of impending violence. In these states, when the attempt succeeds, the resulting crime is often battery. Under this approach, there is no such crime as an "attempted assault," because the assault itself is an attempt.
Verbal threats. Verbal threats are usually not enough to constitute an assault for this second approach. 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.
Victim's fear. Furthermore, 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 victim's response must be one that you'd expect from any reasonable person in the victim's position.
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 a weapon or experiences violence amounting to significantly more than a minor slap across the face or a punch in the jaw.
Your state might use levels of harm to distinguish simple from aggravated assault or misdemeanor from felony assault. Simple assault charges might apply if a person threatens or causes bodily harm or moderate bodily harm. Aggravated penalties typically apply when the crime results in serious, substantial, or great bodily harm or risk of death.
Bodily harm typically refers to physical pain or injury, whether or not visible. Serious or moderate harm may refer to more substantial yet temporary harm, such as a cut requiring stitches, significant bruising or swelling, or a sprain or broken bone. And great bodily harm tends to involve life-threatening injuries or permanent, serious injuries, such as injuries requiring surgery or resulting in a permanent limp or loss of a bodily function.
Depending on the state law, an assailant may face aggravated assault charges if they possessed a weapon and either threatened to use it or used it in the offense. In some states, assault with a deadly weapon is a separate, distinct crime and not included in the crime of aggravated assault.
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. Learn more about the laws and penalties associated with assault with a deadly weapon by reading our article Assault With a Deadly Weapon: Laws, Penalties, and Sentencing.
Every state has different laws and different interpretations of those laws. Below are examples of simple and aggravated assault crimes, but be sure to talk to a lawyer about the laws that apply in your state.
Simple assault can include:
Examples of aggravated assault may include:
To learn about aggravated assault laws in your state, jump ahead to the section on state aggravated assault laws.
In order to convict on aggravated assault, the prosecutor must prove every aspect of the crime (called the "elements" of the crime) beyond a reasonable doubt, including the act of assault and the elements that made the assault "aggravated."
The prosecutor must prove that the defendant intentionally threatened an attack and caused the victim fear, or that the defendant attempted or accomplished a physical attack. The prosecutor also must prove the facts that make the assault aggravated—that the defendant used a deadly weapon, inflicted serious injuries, committed the assault in furtherance of another serious crime, or targeted a protected class of victim, such as a police officer, school employee, or an elderly or other vulnerable person.
Defendants charged with aggravated 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 the defendant was defending himself or another person from the alleged victim's attack. That defense may take the form of showing that a weapon actually was in the victim's possession or that the victim made the first threat or struck the first blow. Another possible defense is showing that the defendant's actions were purely accidental and that he had no criminal intent.
Simple assault typically carries misdemeanor penalties punishable by up to a year in jail. Aggravated assault is usually a felony punishable by approximately 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.
In determining a sentence, judges usually consider the defenses 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 a 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.
Aggravated assault is a very serious felony charge and a conviction 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. Misdemeanor charges might seem minor but they carry significant penalties as well and should not be taken lightly. Any time spent in jail can impact one's life and employment. A criminal record for assault, even a misdemeanor, won't look good to potential landlords or employers. A competent criminal defense attorney can help you fight an assault charge, protect your rights, and achieve the best possible outcome.
Choose your state from the list below to find information about your state's laws regarding aggravated assault.
For more information on assault and battery, see the following.