Criminal assault is a type of crime defined by criminal statutes as: an attempted battery, or “an act intended to create a reasonable apprehension of imminent harm that is either harmful or considered offensive.” 

Thus, assault charges must involve conduct that is offensive or causes another person to fear for their safety. This means that a person (the defendant) can be guilty of assault even if they did not physically harm the victim. 

The crime of assault typically results in misdemeanor charges. Misdemeanors are punishable by fines and time in jail (not prison) for up to one year. However, in some cases, assault charges can result in more strict criminal penalties. Some of the more serious assault charges are considered to be felonies in some states or jurisdictions.

Some state laws may include even more types of criminal assault charges. However, the common characteristic in all criminal assault charges is that the defendant creates a fear in the victim that they will suffer physical harm as a result of their action. 

What Elements are Required to Prove Criminal Assault?

In order to prove criminal assault, the state prosecutor must prove all of the required elements of proof beyond a reasonable doubt. It can be a defense to the charge of assault if one or more of the elements has not been satisfied. The elements for the crime of assault are:

  • An Act or Conduct Intended to Create”: For criminal assault to be proven, the defendant’s behavior must be motivated by an intent to create a state of fear or danger in the victim. Accidental acts do not result in assault charges;
  • “A Reasonable Apprehension”: Next, the victim must reasonably believe that they would be harmed or offended by the defendant’s conduct. The victim must perceive (apprehend) the defendant’s potentially harmful or offensive acts.
  • “Of Imminent Harm”: In addition, the victim’s fear must be a direct response to a threat that is imminent, or immediately about to occur. Future threats, such as, “I will beat you up next week” will not result in assault charges. 
    • Also, the harm must present some sort of perceived physical danger for the victim; for this reason, words by themselves generally do not constitute assault.
  • “That is Considered Either Harmful or Offensive”: Finally, the defendant’s actions must present a physical threat or offensive behavior to the victim. Thus, pretending to kick or punch the victim may be an assault, as would be attempting to spit on the victim (offensive behavior).

All of the above elements must be present and supported with evidence in order for a defendant to be found guilty of assault. 

It can oftentimes be difficult to prove whether the defendant actually intended to commit an assault. Likewise, judges and juries often spend a lot of time determining whether the defendant’ acts are considered to be harmful or offensive. In determining this, they will look at what an average person might reasonably consider to be harmful or offensive.

What are the Penalties for Assault?

Penalties for assault can depend on several factors, including state laws, which may vary. As mentioned, simple assault charges will usually result in a misdemeanor conviction if the defendant is found to be guilty. Misdemeanors can result in a sentence of up to one year in a county jail, as well as some criminal fines. Misdemeanors are less serious charges and can often be erased or removed from one’s record over time. 

Some assault charges can result in more serious felony convictions. Felonies will result in a sentence of more than one year in a state prison facility (not a county jail facility), and higher criminal fines. Felony charges are more difficult to have removed or cleared from one’s record. 

Felony charges may result if certain “aggravating factors” are present in the assault. Such factors may include:

  • Assaults on a police officer;
  • Assaults on a child or woman;
  • Assaults that led to serious bodily injury; or 
  • Assaults of a sexual nature.

Criminal consequences may also be more severe if the person is a repeat or habitual offender and has committed similar assault crimes in the past. 

Are There Any Legal Defenses to Assault Charges?

As with other types of criminal charges, there may be some defenses to assault charges. These also will depend on each individual case, as well as other factors such as state laws. Some commonly-raised defenses to criminal assault charges include:

  • Self-Defense: It can be a defense if the defendant was acting out of self-defense. They must only use an amount or display of force as is reasonable in the situation and proportionate to the force being used against them;
  • Intoxication: In some instances, intoxication can be a legal defense, especially in cases where the intoxication affects the person’s ability to act intentionally;
  • Coercion: If the defendant was forced to commit the assault under threat of harm, it can be a defense (for instance, if they are being held at gunpoint and told to assault someone); or
  • Lack of Proof/Evidence: As mentioned above, if the elements of proof are not met or not supported with proper evidence, it might serve as a legal defense. 

Various other types of defenses can exist, depending on the circumstances. 

Should I Hire a Lawyer if I’m Facing Assault Charges?

If you are facing criminal assault charges, you may need to speak with a criminal defense lawyer immediately for advice and representation. An attorney in your area will be able to explain to you in greater detail what the elements of assault mean and which elements will be focused on in court. Or, if you have been the victim of an assault, a criminal lawyer can help you obtain a legal remedy.