Misdemeanor assaults are the least serious among assault and battery crimes and usually don't involve serious injury. This crime might be referred to as simple assault in your state. While a conviction for misdemeanor assault might not seem serious, it shouldn't be taken lightly. In most states, a person's prior misdemeanor assault convictions can be used to enhance future criminal charges, impact bail decisions, and result in restraining orders.
This article will review the basic elements, penalties, and consequences of misdemeanor (or simple) assault charges and convictions. Be sure to consult your state's laws for specifics applicable to your case.
States define assault differently. In some states, assault refers to physical contact (however slight), but in others, it's limited to an act that places someone in fear of immediate harm. Some states include both definitions in their assault crimes. Generally, assault—however defined—is a crime of violence.
Physical contact. In states where assault involves physical contact, the law might define assault as any intentional act that results in unwanted or offensive touching of another. The definition could also refer to the intentional use of force or violence, however slight, against another. Physical contact may include shoving, grabbing, pulling, slapping, punching, or striking the victim with an object. (In some states, this crime is referred to as a battery.)
Fear of harm. In other states, an assault need not involve actual physical contact. It's defined as an attempt to commit a physical attack or as an intentional act that causes 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 is usually required. In these states, threatening to hurt someone while walking toward him with a clenched, raised fist would constitute assault.
In order for a defendant to be convicted of a misdemeanor or 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:
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!" Generally, the prosecutor needs to show that the defendant took some action like walking toward the victim in a menacing manner or raising a fist and standing close enough to the victim to throw a punch.
In states that define assault to include an actual touching or bodily injury, the level of harm can be minimal. For instance, it may be as slight as unwanted touching or pain with no visible injury. State laws often define "bodily harm or injury" to include minimal, temporary pain or bruising. Harm or injury that rises to the level of broken bones, lacerations, or significant bruising will usually be considered a felony-level or aggravated assault.
For a threatened assault, the victim's response must not only be genuine but also 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.
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." Or the defendant might argue their actions weren't intentional but rather purely accidental.
A defendant might also 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. For instance, the defense may try to show that the other person actually threw the first blow, the defendant could not safely retreat, and the defendant had to take physical action to stop the attack or to protect himself.
Some states 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, these laws usually require 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.
As the name implies, misdemeanor assault carries misdemeanor penalties, usually punishable by a maximum of six months to one year in jail. A judge will also likely order payment of fines and victim restitution (especially if the assault result in property damage or hospital bills).
The actual penalty will depend on the specific provisions of each state's sentencing laws. 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. Defendants might also receive sentencing alternatives, such as performing community service, participating in criminal education programs or counseling, or being placed on house arrest rather than serving time in jail.
After an arrest for assault, some state laws require or permit a judge to hold a defendant in jail for a day or two before allowing release on bail—often referred to as a "cooling-off period." If the assault victim was a family or household member, the judge might also issue a restraining order that prevents the defendant from seeing or contacting the victim in any way.
A defendant who has multiple prior assault convictions could face enhanced felony charges that carry the possibility of prison time. For instance, a prosecutor might charge a third misdemeanor assault in 10 years as a felony. Some states allow enhanced penalties even if the prior or current charges aren't for assault but rather are for other related offenses, such as battery, attempted strangulation, unlawful restraint, child abuse, or domestic violence.
In many states, a defendant can face harsher penalties for simple assault against certain individuals who are either particularly vulnerable (a child or disabled or elderly person) or work in service to the community (police officers or emergency medical care providers). Assaulting someone because of their actual or perceived race, gender, religious beliefs, ethnicity, nationality, or sexual orientation or identity may also subject a defendant to these harsher penalties or result in additional charges for a hate crime.
Protected classes. Those who are designated members of a protected class vary from state to state. But, in addition to those mentioned above, they can include firefighters, hospital staff, social services workers, teachers and school employees, sports officials, corrections employees (those who work in jails or prisons), judges, mental health care providers, and utility workers.
Penalties. An assault against one of these designated individuals might be defined as a more serious misdemeanor or even a felony. In other instances, it may subject the offender to a minimum jail sentence.
If you face criminal charges for assault or a related offense, contact a criminal defense lawyer as soon as possible. A lawyer can help you navigate the criminal justice system, from getting out of jail after an arrest to plea bargaining and raising defenses on your behalf. On top of the immediate consequences of a conviction, talk to your lawyer about how a misdemeanor assault conviction on your criminal record can impact your future ability to get a job, housing, or loans. Many states don't allow expungement of crimes of violence, including assault.