An assault is a criminal offense resulting from the intentional actions taken by a defendant to cause a fear of imminent harm to the victim. Actual physical contact does not have to occur for a court to find an assault has occurred.

An assault (sometimes called a simple assault) can rise to the level of aggravated assault if there was serious bodily injury, a deadly weapon was used by the perpetrator or there was some other aggravating factor.

Let’s assume we have a case in which John and Mary are married. During an argument, John draws back his fist to strike Mary in the face. Mary ducks at the last minute, avoiding serious injury. Although Mary was not hurt during this encounter, the facts suggest there may be a basis to charge John with simple assault.

In the same scenario, John does strike Mary several times with a baseball bat, breaking her jaw and causing a concussion. Under these facts, John’s simple assault charge is elevated to aggravated assault.

Depending on your state, a charge of aggravated assault may be considered either a misdemeanor or a felony and often results in jail time for the offender. The offender also can be subject to civil charges wherein the victim seeks compensation for any physical or emotional injuries.

What are Examples Of Aggravating Factors?

There are different factors that may elevate a simple assault to an aggravated assault. When charging an offender with aggravated assault, the charge will often include the aggravating factor. For example, the prosecution may charge you with aggravated assault with a deadly weapon or aggravated assault causing serious bodily injuries.

The factors will vary by state, but some common examples include:

  • Status of the Victim: Was the victim a minor child or an elderly person? Was the victim particularly vulnerable—they were assaulted by a caregiver in a nursing home or they are developmentally challenged. Was the victim a public servant, such as a police officer, bus driver or correctional officer who was assaulted while performing their duties?
  • Assault with a Deadly Weapon: Your state will list weapons that may be considered deadly. For example, a state may not consider a pencil or a nail file a deadly weapon normally. However, if used in the commission of the aggravated assault to threaten a victim, the state may very well determine them to be deadly.
  • Location of the Assault: Did the attack occur in the victim’s space (i.e. at home or at school)?
  • Severity of Injury: As with the listing of deadly weapons, state law may identify the nature of injuries that would be considered serious enough to elevate the charge of assault to aggravated assault.      

What are Common Defenses to Aggravated Assault?

State laws define what actions constitute aggravated assault and also what defenses may be offered in response to that charge. Factual innocence is the strongest defense in these cases but there are other defenses that may be offered in your state, including self-defense, defense of others, defense of property, lack of intent, provocation, consent, and assumption of risk (voluntarily and knowingly assuming a risk of harm). Let’s look at some of these defenses in play.

John and Brad are sparring partners at a local boxing gym. During one of their many sparring matches, John taunts Brad that his punches are too weak to knock him out. Brad gets mad and grabs some weights nearby and knocks John out. John suffers a broken jaw, a concussion and a permanently disfiguring scar on his forehead.

Brad is charged with aggravated assault with a deadly weapon. In response to the charges, Brad argues that John assumed the risk, consented to Brad knocking him out, and that John provoked Brad. Under these facts, a court isn’t likely to accept Brad’s defenses to the charge.

However, if the facts are altered slightly and we now have a scenario in which John is engaged in a sparring match with a sixteen year old. John removes his gloves and starts to beat on the sixteen year old in a manner that is apparent to everyone that this is no longer a sparring situation.

Brad grabs the weights and hits John with them. John suffers the same injuries and the prosecution has charged Brad with aggravated assault with a deadly weapon. Brad argues that he hit John in defense of the sixteen year old. Here, there may be sufficient factual support for a defense to the criminal aggravated assault charges against Brad.  

Should I Consult with an Attorney If I am Facing Charges for Aggravated Assault?

Being charged with aggravated assault can have significant legal consequences, including the probability of jail time. You are entitled to present any defenses to the prosecution’s charge against you. A criminal attorney in your state will be able to advise you about what defenses are available based on your factual circumstances.