The standard legal definition of assault is to intentionally give someone reasonable apprehension of offensive contact or imminent harm. Essentially, to commit assault is to make someone believe there is a reason to fear immediate danger or some form of unwanted touching will follow threatening conduct. The victim doesn’t have to be physically touched for an assault to occur.
Additionally, this is why it is an assault and not a battery. All that is needed is fear of the harm of offensive touching taking place. There are two forms of assault: simple assault, and criminal assault. The difference between the two types of assault is further explained below.
In most states, simple assault is a misdemeanor. A misdemeanor is a criminal act punishable by a fine or less than a year in jail, not an actual prison facility. A misdemeanor will attach to your record. However, most are removable by an expungement process. This process does require an attorney.
As discussed above, simple assault is only a misdemeanor. However, criminal assault is a simple assault coupled with aggravating criminal activity or a felony, such as attempting to rob someone a gunpoint. Robbery is a felony, and the presence of a gun used to invoke fear is enough to prove the elements of assault. It is important to note that even an attempted felony (meaning the crime is not completed) is still enough for a felony assault charge. How, because even if the accused fail to complete the robbery, the assault using the gun already took place.
Additionally, the amount of time spent in prison for a criminal assault charge varies from state to state, as well as the charges attached to criminal activity or felony. Such that, attempting to engage in sexual activity with an underage child, verses assaulting a police officer. These crimes will probably have a different sentence attached.
To prove an assault took place, the following elements/actions must have occurred;
- Intent: The act must have been intentional, meaning, the individual charged with assault must have meant to scare the victim in some way;
- Reasonable apprehension: The victim must have feared something was actually about to happen. An example of reasonable fear would be to chase someone with a metal bat and screaming threats of hitting them. The victim must honestly believe they are about to get attacked by the person running toward them; and
- Imminent danger: This means the act of immediately fear of harm as a result of the threatening act. However, the mere threat of an action to take place in the future does not qualify as imminent danger. For example, suppose the individual being chased in the above case can see the bat and the person coming towards them. The bat never actually needs to make contact with the person because the chasing and the presence of the bat induce fear of an immediate injury. Therefore, the victim does not need to be harmed to have an assault.
State laws vary regarding assault defenses. The list of the following defenses may not apply in all states:
- Consent: This is when the victim gives permission for your actions. Any actions outside of the boundaries set by the victim is no longer consent. Also, in some situation’s individuals under the age of majority can not give consent;
- Self-defense, defense of others and defense of property: If you are the initial actor who causes the problem, it is unlikely that you will be able to use self-defense as a defense;
- Fabrication by the victim: Here, the situation was not as bad as the victim explained to them, such that the victim had no reason to fear any harm was going to happen. Also, there was no actual reason to think an offensive touching was about to occur;
- Mistaken identity: If you legitimately thought the victim was someone else at the time the assault occurred, this may amount a defense; and
- Accident: Accidents are not intentional. Remember, the action must be an intentional act. However, if you were deliberate meaning to assault someone but instead scared the person next to them, you may now be liable for two counts of simple assault.
You will need to contact a criminal defense attorney if you are charged with simple assault. It is best to have someone explain all of your options and defenses in dept. You may also be facing a fine and or jail time. It is best not to go into this situation without the professional help of someone trained in this area.