In a criminal law context, the term “assault” generally refers to the criminal act of intentionally placing another individual in reasonable apprehension of imminent bodily harm or offensive contact. Although this definition is subject to change based on the laws of the jurisdiction hearing the case, the standard case for assault is as follows:

  • The defendant must have intended to create a state of apprehension or awareness in the victim. Unlike the crime of battery, an accidental act will not give rise to assault charges; it must be intentional.
  • Next, the prosecutor must prove that the victim reasonably believed that they would be harmed or offended by the defendant’s conduct. In other words, the victim must be aware of or be able to appreciate (i.e., apprehend) the defendant’s potential to harm or offend them.
  • The victim’s belief of impending injury must be both reasonable and one that creates a sense of immediate, physical danger. The belief cannot be based on a future act and it must be more than a verbal threat (note that there are some exceptions).
  • The defendant must exhibit a present intention to harm or offend the victim through a physical act.

Some examples of assault may include:

  • Attempting to spit on the victim;
  • Miming the act of hitting, punching, or kicking the victim;
  • Brandishing a deadly or non-deadly weapon in a manner that suggests the victim will be hit with that object; and
  • Pointing a gun at the victim, regardless of whether it is loaded or not.

In addition, some states have statutes that define assault as criminal attempted battery. However, assault and battery should not be confused with one another since many jurisdictions treat them as separate offenses.

An easy way to remember the difference between the two is that battery requires the use of force and actual contact, whereas an assault needs the victim to reasonably believe or be aware that they are in danger of imminent harm, even if no physical injury occurs.

What Are the Elements Required to Prove an Assault?

As discussed above, the elements required to prove assault will typically vary by jurisdiction, but generally include that a prosecutor prove beyond a reasonable doubt that:

  • The defendant intended to cause the victim to become aware of or anticipate the possibility that they would suffer imminent harm;
  • The victim must reasonably believe that the defendant’s conduct would be harmful or offensive to them;
  • The victim must also believe that the harm was imminent and not just a future threat; and
  • The defendant must display some kind of behavior that implies they are about to physically hurt or do something offensive to the victim.

In some instances, it may be difficult to prove whether or not a defendant actually intended to commit an assault. Intent is one of the elements that judges and juries often spend a lot of time deliberating on when deciding the final verdict. Thus, it is important to have substantial evidence to support the assault charges.

Some types of strong evidence needed for assault charges include police reports, testimony from eyewitnesses, medical records (if applicable), and various other items that may be relevant to the assault incident.

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

A person does not necessarily need to strike someone in order to be found guilty of assault. In fact, the legal definition and elements of proof for assault do not ever mention any kind of physical contact—only the reasonable belief that harmful or offensive contact will be inflicted on the victim.

However, there are some acts that may offer stronger proof that an assault occurred. For example, getting in someone’s fact can be considered assault if the assaulter is being aggressive and doing things like screaming, spitting, or threatening to hit the other person with an object that they are holding (e.g., bat, beer bottle, fist, etc.).

On the other hand, getting in a friend’s face and pretending to slap them while both parties are laughing about it, will not constitute an assault.

What Are the Penalties for Assault?

The penalties for assault will vary based on state laws, the facts of an individual case, and the degree or type of assault that was committed. For instance, a defendant who is charged and convicted of committing a simple assault, will be found guilty of a misdemeanor offense. Misdemeanor crimes can carry a sentence of up to one year in a county jail and some amount of criminal fines (usually no more than $1,000).

Other types of assault, such as aggravated assault or assault with a deadly weapon, may result in felony charges. Defendants who are convicted of committing a felony assault may need to serve a sentence of one year or longer in a state prison facility and might have to pay an increased amount of criminal fines that could range from anywhere between $100 to over $5,000.

Keep in mind that it is a lot harder to expunge or erase a felony conviction from a criminal record than it is to remove one for a misdemeanor.

Additionally, the length of prison time and amount of criminal fines may be increased in cases where the defendant is a repeat or habitual offender. In other words, if the defendant has already committed and been convicted of certain crimes in the past, then the legal consequences they may receive will be much more severe than those issued to first-time offenders.

Are There Any Legal Defenses to Assault Charges?

There are a number of different legal defenses that a defendant in an assault case might be able to raise against their charges. Whether the defense is available for a particular defendant, however, will depend on the facts of their specific case and on the laws of the jurisdiction hearing the matter.

Some potential defenses that a defendant who is charged with assault might be able to raise include:

  • Involuntary intoxication: If the defendant was involuntarily intoxicated (e.g., someone slipped a drug in their drink) when the assault occurred, then they may be able to argue that their actions were not intentional or that they were unaware of the events (due to being involuntarily intoxicated) that led to the assault.
  • Lack of proof or evidence: If the prosecutor fails to satisfy the burden of proof, does not prove each element of the crime, or does not have enough evidence to support the assault charges, then lack of proof or evidence may be asserted as a defense.
  • Consent: If the victim provided valid and voluntary consent to commit the assault, then the defendant can raise consent as a complete defense against the charges.
  • Duress or coercion: A defendant may assert that they were under duress or coerced to commit the assault as a defense. While the defendant will need to admit that the assault did in fact happen if they use either of these two defenses, they may still provide protection if the defendant can prove someone else forced them to choose between committing the assault or suffering serious physical harm themselves.
    • For instance, if someone held them at gunpoint and told them to assault the victim or else risk being shot.
  • Self-defense or in defense of others: Similar to duress or coercion, the defendant will still have to admit that they committed the assault. However, in this instance, the defendant can argue that they only committed the assault to protect themselves against the other party’s initial threats of harm. A defendant can also use this defense if they were defending a third party from an initial aggressor.

In addition, some defenses may be used to reduce a defendant’s assault charges from a felony to a misdemeanor. To learn more about these types of legal defenses, it is strongly recommended that a person who is facing assault charges contact a local criminal lawyer immediately.

Do I Need an Attorney for Help with Assault Charges?

Being convicted of criminal assault can lead to serious legal consequences. This is true even in cases where the defendant intended their actions to be taken as a practical joke or prank. Therefore, if you are facing charges for criminal assault, then it may be in your best interest to consult a local criminal lawyer as soon as possible.

An experienced criminal lawyer will be able to assist you in navigating the criminal justice system, can inform you of your legal rights as a criminal defendant, and can provide representation in court. Your lawyer can also help you negotiate for a more favorable plea bargain deal if the prosecutor offers such an arrangement.

Additionally, a criminal lawyer can perform legal research to find out whether there are any defenses you can raise to reduce the charges, or alternatively, may be able to advocate for dropping the case against you in its entirety.