Misdemeanor Assault and Offensive Touching in Delaware

Delaware classifies assault by degree, depending on a variety of factors, such as the accused's intent, the seriousness of the injury, the means used to inflict the injury, and the age and profession of the victim. Assault in the first degree (the most serious) and assault in the second degree are felonies, while assault in the third degree is a misdemeanor. "Offensive touching" is yet another misdemeanor assault crime.

To learn about assault in the first degree, see Felony Assault in the First Degree in Delaware. To learn about assault in the second degree, see Felony Assault in the Second Degree in Delaware.

For more information on assault with a deadly weapon, see Assault with a Deadly Weapon in Delaware.

Assault in the Third Degree

A person commits assault in the third degree, classified as a Class A misdemeanor, in any of the three ways discussed below:

  • by intending to cause physical injury to a person and causing such injury to the person
  • by recklessly causing physical injury to a person, or
  • by causing, with criminal negligence, physical injury to another person with a deadly weapon or a dangerous instrument.

(Del. Code Ann. tit. 11, § 611.)

Offensive Touching

A person commits offensive touching, an unclassified misdemeanor, in either of the two ways discussed below:

  • by intentionally touching, with a member of his or her body, or with any instrument, another person, knowing that the touching likely will cause offense or alarm to the other person, or
  • by intentionally striking another person with saliva, urine, feces or any other bodily fluid, knowing that the striking likely will cause offense or alarm to the other person.

(Del. Code Ann. tit. 11, § 601.)

What distinguishes intentional, reckless, and criminally negligent conduct?

Intentional behavior occurs when a person acts with the conscious objective to cause a result or to engage in specific conduct. For example, aiming a gun at a person and pulling the trigger constitutes an intentional act.

A person acts "recklessly" by acting with a conscious disregard of a substantial and unjustifiable risk that a result will occur or that a circumstance exists. The risk must be such that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. For example, firing bullets through a wall into an occupied apartment constitutes recklessness.

A person acts with "criminal negligence" by failing to perceive a risk that a result will occur or that a circumstance exists. The risk must be of such that the failure to perceive it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. For example, driving a car while intoxicated and speeding around a curve and crossing the center line constitutes criminal negligence.

(Del. Code Ann. tit. 11, § 231.)

What constitutes "serious physical injury?"

Serious physical injury means either:

  • physical injury that creates a substantial risk of death, or
  • physical injury that causes serious and prolonged disfigurement, prolonged impairment of health, prolonged loss or impairment of the function of any bodily organ, or the unlawful termination of a pregnancy without the consent of the pregnant female.

Knocking someone's teeth out to the extent that victim cannot chew properly for six months is an example of serious physical injury.

(Del. Code Ann. tit. 11, § 222.)

What constitutes "physical injury?"

Physical injury means impairment of physical condition or substantial pain. Examples of physical injuries include bruises, bites that require medical attention, and pulled muscles.

(Del. Code Ann. tit. 11, § 222.)

What is a "deadly weapon?"

A deadly weapon is a firearm, a bomb, a knife of any sort (except a folding pocketknife having a blade 3 inches or less in length and carried in a closed position), switchblade knife, billy, blackjack, bludgeon, metal knuckles, slingshot, razor, bicycle chain, or ice pick. It includes any item constituting a "dangerous instrument" (see below) that is used, or attempted to be used, to cause death or serious physical injury.

(Del. Code Ann. tit. 11, § 222.)

To learn more about this topic, see Assault with a Deadly Weapon in Delaware.

What is a "dangerous instrument?"

A dangerous instrument means any instrument, article or substance that, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury. The definition includes any "disabling chemical spray," such as pepper spray, as that term is defined by statute. The definition also includes any electronic control devices designed to incapacitate a person, including a neuromuscular incapacitation device (a Taser). Such a device uses electrical current to disrupt a person's ability to control his or her muscles.

A judge or jury must often examine the facts of a case and determine whether an alleged victim has suffered serious physical injury or whether an object constitutes a dangerous instrument. For example, in one case a police officer's description of a stick, without introduction of the stick into evidence, did not establish that the defendant used a "billy."

(Del. Code Ann. tit. 11, § 222.)

Penalties for Assault in the Third Degree and Offensive Touching

Someone convicted of assault in the third degree or offensive touching can be subjected to any or all of the following penalties:

  • Incarceration. Imprisonment is permitted for not more than one year for assault in the third degree and not more than 30 days for offensive touching. However, a defendant who commits offensive touching against the following victims can be imprisoned up to one year: law enforcement officer, hospital or nursing home employee, physician, medical professional, ambulance attendant, emergency medical technician, advanced emergency medical technician, paramedic, Delaware State Fire Police Officer, correctional officer, volunteer firefighter, or full-time firefighter.
  • Fines and restitution. The court can impose a fine up to $2,300 for assault in the third degree and up to $575 for offensive touching. Restitution is compensation paid to the victim of a crime by a defendant as repayment for property stolen or damaged by the defendant.
  • Probation. A person on probation regularly meets with a probation officer and fulfills other terms and conditions, such as maintaining employment and attending counseling.
  • Community service. Courts often include as a part of probation the requirement that the defendant work for a specified number of hours with court-approved organizations, such as charities.

(Del. Code Ann. tit. 11, § 4206.)

See a Lawyer

If you are facing a charge of assault in the third degree or offensive touching, consider consulting with an experienced criminal defense attorney who regularly practices in your area. A lawyer can evaluate the strength of the prosecution's case against you and help develop any defenses that might apply to your case.

A lawyer's skillful negotiation with the prosecutor can sometimes result in a reduction of charges or a reduction in penalties, such as less prison time, no prison time, probation, and lower fines. A local criminal defense attorney, who knows how the prosecutors and judges involved in your case typically handle such cases, can assist with these negotiations. Finally, if you decide to go to trial, having a good lawyer on your side will be essential.

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