In legal terms, assaults refers to “the intentional creation of a reasonable apprehension of harm.” This refers to situations in which one person causes another person to fear being harmed. Thus, assault is an attempt or threat that causes another person to be apprehensive of imminent bodily harm. An example of this would be if a person pulls their fist back as if they were going to punch someone, and that person believes that they are going to be punched.

Assault is often confused with battery, due to the fact that assault and battery are commonly charged together. However, assault is a separate charge from battery. Assault refers to the fear of being harmed, whereas battery refers to the actual act of harming another person. Battery is the unlawful use of force against a victim, with the intent to cause injury, or offensive touching. In some jurisdictions, assault may also be considered to be attempted or unsuccessful battery.

Although assault is considered to be an intentional tort, every state has its own criminal statutes for both assault and battery. This means that an assault could serve as the basis for a civil lawsuit as well as prosecution by a state court, which could result in fines and/or jail time. 

What Is Needed to Prove Assault?

When proving assault, there are specific elements of proof that the prosecution must fulfill in order to prove an assault occurred. These elements of proof must be proven beyond a reasonable doubt, as it could be a defense against the assault charge if one or more elements cannot be successfully proven. 

These elements of proof include:

  • Intention: In order for assault to be proven, the defendant must have intended for their acts or conduct to create an apprehension of fear or harm in the victim. As such, accidental or unintentional acts are not considered to be an assault;
  • Reasonable Apprehension: The victim must have been reasonably apprehensive of being harmed by the defendant. Alternatively, the victim must have reasonably perceived that a harm or threat of harm was being directed towards them. If the victim was not aware of the threat, it may not be enough to successfully prove an assault. An example of this would be when a person aims a weapon at a person, behind that person’s back, without that person being aware of what’s happening behind them;
  • Imminent Harm: The victim’s harm must be a direct response to an imminent threat of harm, or a threat that is immediately about to occur. The harm can either be physical, such as a kick or a punch, or a threat of unwanted and offensive contact, such as a sexually suggestive touch or embrace. No matter the type of harm, future threats will not result in assault charges; and
  • Harmful or Offensive Conduct: The defendant’s actions or conduct must have presented a physical threat, or their behavior must have been offensive to the victim. An example of this would be pretending to kick or punch the victim, or attempting to spit on them.

When proving an assault, the theory of reasonableness is often brought up. An example of reasonableness would be if a person were standing ten yards away and threatens to throw the rock they are holding at another person. It could be reasonable to assume that the rock could actually make physical contact and cause harm if thrown. If a person is standing one hundred yards away and verbally threatens to kick another person, it may not be reasonable to assume that the victim would actually be struck from that distance.

In addition, words alone do not constitute assault. The verbal threat must be accompanied by some sort of physical threat. All of the listed elements must be present, as well as supported by evidence, in order for the defendant to be found guilty of assault.

Is It Necessary to Strike Someone In Order to Be Found Guilty of Assault?

In short, no. Any intentional act that causes another person to fear that they may be physically harmed is likely going to be considered to be assault. Faking a punch or kick, aiming a weapon, or making a sudden lunge at another person may all be considered assault if they were done with the intent of causing another person to feel threatened.

Penalties for assault vary based on the specifics of the case. In general, simple assault charges result in a misdemeanor conviction which carries a sentence of up to one year in a county jail facility, as well as some criminal fines. Some assault charges may result in a more serious felony conviction, if certain aggravating factors are present in the assault. Additionally, criminal consequences may be more severe if the defendant is a repeat or habitual offender, or has committed similar crimes in the past.

Do I Need an Attorney for Assault Charges?

If you believe you have been assaulted, or you are being accused of assault, you should immediately contact a skilled and knowledgeable criminal attorney. An experienced criminal attorney can help you understand your state’s laws regarding assault, and compile evidence supporting your claim. Finally, an attorney can represent you in court as needed.