Assault and Defenses

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Assault is a serious criminal charge. Its consequences are serious. Knowing the potential consequences and defenses can help criminal defendants protect their legal interests.

Overview of Assault

In many jurisdictions, assault is considered a separate and distinct offense from battery. In others, it is encompassed under battery statutes. In traditional terms, assault is a crime that consists of intentionally causing another person to be in reasonable apprehension of imminent fear of injury.

Distinct from the traditional definition of battery, assault does not usually rely on the victim actually being injured. The crime instead rests on the perpetrator threating injury so that the victim is reasonably afraid that such an injury will result. The burden to prove assault is often much lower for an assault charge because the prosecutor need only show that the victim was reasonably afraid of injury and that the injury was capable of being caused by the defendant. Very often, such claims are supported by the victimís testimony during a trial.

Degrees of Assault

Many jurisdictions separate various criminal offenses into degree categories. A first degree charge is the most serious offense in the category. It is often associated with much longer prison sentences, larger fines and heftier punishments. Offenses that have higher numeric degrees, such as fourth degree or fifth degree, are still serious, but they often do not carry as significant of punishments or involve the factors involved in the crime that can make a charged as a first degree or second degree offense.

Various factors may cause an assault charge to be considered more serious. This may be because the assault did actually result in a serious bodily harm. Another factor that can affect the offense degree is if a deadly weapon is used in the offense, such as a person threatening another while holding a gun. The identity of the victim can also increase the potential degree of the offense, such as if the victim is a peace officer or a minor. A prior criminal history involving assault or battery may also make the crime more serious.

Potential Consequences of Conviction

The primary consequence of being convicted of assault is a possible term of imprisonment. However, collateral consequences are often just as serious as or even more serious than the criminal consequence. For example, individuals who are convicted of crimes and especially felonies will have a permanent record of the offense. This information may be acquired by potential employers who perform criminal background checks. Assault may be considered a violent crime, so employers may be reluctant to hire someone who may pose a safety risk to customers or other individuals. Likewise, other individuals who perform background checks may refuse to assist the defendant, such as a landlord who does not want someone considered violent to be a tenant. Ambitions for careers or possible learning opportunities may be denied if such a charge would interfere with the licensing process.

Often, a person who is convicted of a felony is required to provide a DNA sample, fingerprints and other information that remains on file. Additionally, individuals who are not citizens may find that such a conviction may make them removable.

Defenses to Assault Charges

The availability of potential defenses to a charge of assault depends on the circumstances involved in the case and state law. A criminal defense attorney in the defendantís jurisdiction can explain possible defenses, such as:

Self Defense

Alleging self defense in an assault case is appropriate when the defendant agrees that he or she committed the assault but that it was justified given the threatening actions of the victim. Such a defense may be more successful when the defendant can show that the victim was actually the aggressor, the defendant believed that he or she was acting reasonably and the defendantís actions did not go beyond the force necessary in the situation.

Defense of Others

This defense can arise when the defendant assaulted the victim after the victim threatened a third person. The jury determines whether the defendant was acting in a reasonable manner at the time of the alleged assault.


An alibi defense shows that the defendant was not at the location of the crime because he or she was somewhere else. This defense may arise when the victim misidentified the perpetrator.

Failure to Meet the Burden

In a criminal case, the prosecutor has the burden of showing that the defendant committed each element of the crime beyond a reasonable doubt. If the prosecutor is unable to meet this burden, the jury has to find the defendant not guilty. The criminal defense attorney may challenge the credibility of witnesses or other evidence to convince the jury the prosecutor has not met this burden.


Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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