Felony Assault & Battery Laws and Penalties

The crime of battery is the intentional touching of another in an angry manner or the intentional use of force or violence against another. Grabbing someone's arm, pushing or punching a person, or striking a victim with an object all are crimes of battery.

The crime of assault is defined differently from one state to another. In some states, the act of battery is called an "assault" or "assault and battery." 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. Under this 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.

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 victim's response must be one that you'd expect from any reasonable person in the victim's position.

When Is a Crime a Felony Assault or Battery?

Simple assault or battery is the least serious form of assault or battery, usually involves minor injury or a limited threat of violence, and is a misdemeanor. Felony assault or battery (also referred to in some states as aggravated assault or battery) involves circumstances that make the crime more serious, as when the victim is threatened with or experiences significant violence amounting to substantially more than a minor slap across the face or a punch in the jaw.

Examples of Felony Assault or Battery 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 or battery with the intent to commit another felony crime such as robbery or rape
  • assault or battery resulting in serious physical injury, including permanent disfigurement
  • assault (threat of violence) while concealing one's identity, and
  • assault or battery against a member of a protected class, such as a police officer, healthcare provider, social services worker, or developmentally disabled or elderly person.

Deadly Weapon

An assault that is aggravated based on the use of a deadly weapon requires that the offender have used a deadly weapon in the commission of the crime. (In some states, assault or battery with a deadly weapon is a separate, distinct crime and not included in the crime of felony assault or battery.)

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. For in-depth information regarding assault with a deadly weapon, see our article Aggravated Assault With a Deadly Weapon.

Serious Physical Injury

Felony assault or battery based on physical injury usually requires permanent disfigurement, such as permanent scarring to the face or other body part, or significant physical injury. The requirement of serious physical injury most often is listed as great bodily harm or substantial bodily harm and is defined as a serious risk of death, loss of or serious injury to a limb or bodily organ, or injury requiring surgery and/or a long rehabilitation period.

Proving the Case

In order for a defendant to be convicted of felony assault or battery, 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 prove that the defendant intentionally threatened an attack and caused the victim fear; or (depending on how the state defines an assault) that the defendant attempted or accomplished a physical attack. The evidence also must prove the facts that make the assault or battery a felony—either that the defendant used a deadly weapon, concealed his identity, inflicted serious personal injury, or committed the assault or battery with the intent to commit some other serious crime, or that the victim was a member of a protected class, such as a police officer, school employee, or an elderly or other vulnerable person.

Possible Defenses

Defendants charged with felony assault or battery 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 a weapon actually was in the victim's possession or that the victim made the first threat or struck the first blow.

Other possible defenses are that the defendant's actions were purely accidental and that he had no criminal intent to harm; 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 Felony Assault and Battery

Felony assault and battery usually are felonies punishable by approximately one to 25 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 the defenses presented at trial, whether the defendant has taken responsibility for the crime and shows remorse, circumstances surrounding the crime (mitigating or aggravating), 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.

Sentence Enhancement

In some states, assault or battery 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.

Legal Representation

Felony assault and battery are very serious charges; a conviction for one of these crimes 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 a felony assault or battery 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.

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