Felony Assault & Battery: Laws and Penalties

A conviction for felony assault or battery carries serious consequences. Learn when assault or battery becomes a felony, the common penalties for such crimes, and possible defenses.

By , Attorney

Assault and battery crimes involve intentional acts that place another in fear of immediate harm or that cause harm to another. Such acts become felony-level offenses when the risk of harm, the attempted harm, or the actual harm increases or when other aggravating circumstances exist.

When Is Assault a Felony? Is Battery a Felony?

Most assault and battery offenses start off as misdemeanors. Also called simple assault and battery, these misdemeanor-level offenses generally refer to acts that cause minimal harm or pain and don't place another at risk of serious harm. But these simple offenses can escalate to felonies when you add in factors such as weapons or dangerous objects, protected or vulnerable victims, increasing levels of harm, or other aggravating circumstances.

Is It Assault or Battery?

State laws vary greatly when it comes to the use of the terms "assault" and "battery." Some only use the term "assault," others use only "battery," and some states use both.

But regardless of the term used, assault and battery crimes generally involve the following:

  • an intentional act of placing another in fear of immediate bodily harm, or
  • an intentional act of offensive touching or contact that causes harm to another.

Fear of harm. When assault involves the threat of harm, the prosecutor must usually prove that the defendant took some action or appeared to have the ability to carry out the threat, and the threat would cause a reasonable person to fear imminent harm. The following acts by a defendant would likely place a reasonable person in fear of immediate harm:

  • raises a fist or moves menacingly toward a victim with a belt
  • strikes the wall right next to the victim
  • throws a vase or large object toward the victim and misses, or
  • attempts to grab the victim's arm or leg

Unwanted physical contact. Intentional physical contact that causes bodily harm to another is assault and battery. But not all acts of offensive touching need result in visible harm to be considered assault and battery. Often any unwanted touching counts. For instance, a defendant commits assault and battery by:

  • pushing or punching a person
  • pulling someone's hair or twisting their arm and causing pain
  • groping a person's buttocks without consent
  • slapping someone or knocking them down, or
  • throwing a large object at another and hitting that person with it.

When Assault or Battery Becomes a Felony

Assault and battery offenses (such as those described above) generally start off as misdemeanor-level offenses. But when the circumstances increase the level of harm or risk of harm, simple assault and battery can become felony crimes. For instance, it's typically a felony assault or battery to do any of the following:

  • use or threaten to use a weapon or dangerous object to commit the offense, such as a gun, knife, steel-toed boot, bat, or metal knuckles
  • cause the victim serious or great bodily harm, such as a broken bone, laceration or deep cut, sprain, or severe bruising
  • target a vulnerable victim, which could be a family member, elderly adult, child, or person with a disability, or
  • target a someone who's part of a protected class, such as police officers, first responders, health care workers, teachers, transit workers, judicial officers, and correctional officers while acting in their professional capacity

Other factors that may increase or enhance a misdemeanor assault or battery to a felony assault or battery include:

  • an offender who has a criminal record of assault or battery convictions
  • the offender assaulted the victim with the intent of committing another felony offense, such as robbery, rape, or burglary, or
  • the offender commits the assault or battery while concealing their identity or targets someone based on hate, prejudice, or bias.

What Are the Penalties for Felony Assault and Battery?

The penalties for felony assault and battery depend upon the state law, the circumstances of the offense, and the defendant's criminal record. But generally, it's considered a crime of violence and a defendant will likely see time in jail or prison.

Degrees or Classifications of Felony Assault and Battery

Most state penalties provide a range of penalty levels for felony assault and battery crimes. A state might distinguish various felony levels by degrees (such as first-degree or second-degree) or classifications (such as aggravated assault with a deadly weapon). Your state might use other terms or distinctions in the law.

Felony Penalties for Aggravated Offenses

The most severe penalties will typically apply when multiple aggravating factors are involved, such as the assault of a police officer with a deadly weapon. Here the felony assault involved two aggravating factors: a weapon and a protected victim. Another example involving two aggravating factors would be inflicting substantial bodily harm (increased harm) to an elderly victim (vulnerable victim). A person who commits one of these aggravated offenses might face a maximum sentence of 10 to 30 years' prison time.

Felony Penalties for Increasing Levels of Harm or Risk of Harm

For other felony assault and battery offenses, the penalties will generally increase as the level or risk of harm increases. For instance, a state might penalize battery resulting in serious bodily harm as a 10-year felony and battery resulting in great bodily harm or risk of death as a 15-year felony. Likewise, someone who assaults another by pointing a gun at them will generally face a harsher penalty than the person who threatens to attack someone without a deadly weapon.

Felony Penalty Enhancements

Most states have felony enhancements in the law that elevate a misdemeanor offense to a felony offense. A defendant who causes bodily harm to a victim (such as bruising), which would normally be a misdemeanor assault, could be looking at felony charges if that defendant:

  • has a prior assault conviction in the past 10 years
  • has a prior assault conviction against that same victim
  • committed the assault because of the victim's religion, nationality, or sexual orientation, or
  • concealed their identity during the attack by wearing a mask.

For an elevated felony assault or battery, the person might be looking at somewhere between a two- and five-year felony sentence.

Considerations in Sentencing Felony Assault or Battery

Normally, judges have 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 (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.

However, when it comes to crimes of violence, the law might impose a mandatory sentence, which greatly limits the judge's discretion in sentencing. Many states have mandatory sentences that apply to crimes involving weapons, repeat offenses, or protected victims. In such cases, the law directs a judge to impose a minimum sentence and may prohibit probation.

Possible Defenses for Felony Assault or Battery

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." Here are some other possible defenses.

Self-Defense or Defense of Others

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.

Resisting Excessive Use of Force During an Arrest

If a police officer uses an excessive amount of force (likely to cause great bodily harm) during an arrest, the arrestee may generally use a reasonable amount of force to resist. But what counts as "excessive" and what qualifies as "reasonable" are highly fact intensive, making it extremely difficult for a defendant to win on this defense.

Elements of Crime Not Proven

A defendant might also argue that the prosecutor hasn't met its burden of proof by establishing every element of the crime beyond a reasonable doubt. For instance, assault and battery both require intent on the part of the defendant. If the actions were accidental, the defendant could argue no crime was committed. Or a defendant might argue the alleged threats were merely a bad joke and no reasonable victim would have actually feared immediate harm. Both of these arguments, if successful, would negate an element of the crime.

Get Legal Representation

Felony assault and battery are very serious charges. You could face a lengthy prison sentence and the stigma of having a violent crime as part of your criminal record. 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.

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