Assault Law




What is Assault Law?

Assault law deals with the consequences of the wrongful act of causing fear of physical contact to another person. It is treated as a crime and a tort, meaning offenders can be prosecuted by the government, or sued for civil damages by the victim, or both. The purpose of assault law is to deter people from exhibiting aggressive, threatening behavior toward others, even if physical contact does not actually occur. If contact does occur, the act is usually treated as the separate offense of battery.

Most state criminal codes make assault a misdemeanor punishable by fines and up to one year in the county jail. Cases involving threats of death or serious bodily harm are charged as “aggravated assault.” The crime of aggravated assault is a felony, usually punishable by fines and a maximum of 10 to 20 years in prison. In civil tort cases, the size of the monetary damage award will likewise escalate based on the seriousness of the defendant’s conduct.

Elements of a Criminal Conviction

Describing assault as the act of causing fear of physical contact is sufficient for general purposes. But those facing prosecution will want to closely examine each specific element of the crime, as a failure by the state to prove any one element will result in acquittal. The elements of the crime of assault differ slightly from state to state. Defendants should examine the exact language of the assault statute that applies in the jurisdiction where the charges were filed.

That said, there are certain elements common to the crime of assault in all states. Foremost is the element of intent. Intent is a central issue because, as one might expect, defendants charged with scaring someone will often assert that the entire incident was an accident or the result of a misunderstanding. To overcome such a claim, the prosecutor will have to show that the defendant meant for the victim to become scared. The subjective knowledge of the defendant may or may not be relevant to this inquiry.

For example, if the defendant is charged with assault for pointing a gun at the victim, it will not matter what was going on inside the defendant’s mind at the time. Intent will be inferred from the circumstances, because it is common knowledge that people fear for their safety when a gun is pointed at them. On the other hand, consider a defendant with a dog who approaches an individual who, unbeknownst to the defendant, is deathly afraid of dogs. In this situation, the defendant’s ignorance of the victim’s phobia will defeat the assault charge. Of course, if the defendant knew about the phobia, then the intent requirement is satisfied and the defendant can be convicted.

Another element of criminal assault that commonly arises at trial is the “imminent bodily harm” requirement. Not only must the defendant intentionally cause the victim to fear harm, but the fear must be for a particular type of harm. To begin with, it must be bodily harm. Thus, threats to steal property or damage the victim’s reputation will not qualify. The fear must also be of imminent harm. This means that threats to cause physical harm at a later time, no matter how menacing, cannot result in a conviction.

Defenses to the Crime of Assault

Besides challenging the prosecutor’s ability to establish any of the statutory elements of assault, defendants can avoid conviction by establishing an affirmative defense. Affirmative defenses to assault include the victim’s consent to the activity, or in some cases, intoxication of the defendant. Self-defense will also negate a charge of assault. To prove self-defense, the defendant must show the assault was reasonably necessary to protect the defendant against equal or greater bodily harm that would have been inflicted by the victim.

Civil Remedies for Assault Victims

Not everyone in need of assistance with an assault law issue has been charged with a crime. Victims of assault can turn to the justice system to obtain compensation for the harm they suffered. While the elements of the tort are generally the same as required for a criminal conviction, civil plaintiffs need only prove their case “by a preponderance of the evidence.” This standard is easier to satisfy than the “beyond a reasonable doubt” burden of proof that applies in criminal court.

A number of issues can arise in a civil assault case that will affect the defendant’s liability. First, indirect conduct is sufficient. The defendant does not need to make the threat in person. Setting a trap to injure the plaintiff would qualify, for example. However, phone calls or text messages do not constitute assault. Verbal threats must be accompanied by some additional action that puts the victim in fear of imminent physical harm. Also, a defendant can be held liable for the tort of assault even if an apparent threat is not real. Hence, a victim threatened with a fake or unloaded weapon can recover damages, as long as the victim perceived the threat to be legitimate.

Hiring the Right Lawyer

The facts surrounding the defendant’s conduct, and how they are presented in court, will make all the difference in an assault case. Criminal defendants and civil plaintiffs should therefore choose an experienced trial attorney. When the circumstances of an assault are in dispute, it may very well require a trial to expose the truth.

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