Learn about misdemeanor assault, along with the penalties and defenses. Assault is a crime of violence, which is defined differently from one state to another. Some states define assault as the intentional use of force or violence against another, such as punching a person or striking the victim with an object. In other states, assault need not involve actual physical contact, and is defined as an attempt to commit a physical attack or as intentional acts that cause a person to feel afraid of impending violence.
Under this second definition, verbal threats are usually not enough to constitute an assault. Some action, such as raising a fist or moving menacingly toward a victim, usually is required. In these states, threatening to hurt someone while walking toward him with a clenched, raised fist would constitute assault. Misdemeanor assaults are the least serious among assault and battery crimes, and ususally do not involve serious injury.
The Victim’s Fear In states that define assault as placing a victim in fear of violence, the victim’s response must not only be genuine but reasonable under the circumstances. The test normally is whether the defendant’s actions would cause a reasonable person to be in fear of an immediate physical attack. In other words, the response should be what you would expect from any reasonable person in the victim’s position.
Simple and Aggravated Assault Simple assault, usually charged as a misdemeanor, is the least serious form of assault. It involves minor injury or a limited threat of violence. In states where assault is a physical attack, pushing someone or slapping someone in an argument are instances of simple assault. Where the law defines assault as threatening behavior that puts another in fear, threatening to punch someone would be a simple assault.
Aggravated assault involves circumstances that make the crime more serious, as when the assault is committed with a deadly weapon or results in serious injury that requires hospitalization or surgery or disfigures the victim. To learn more about aggravated assault, see our article on Aggravated Assault. Simple, Misdemeanor Assault Against a Member of a Protected Class or Special Victim In many states, simple assault against certain individuals who are either particularly vulnerable (a disabled or elderly person) or work in service to the community (police officers or emergency medical care providers) is treated differently and considered a more serious crime than simple assault against a person without this special status.
A simple assault against one of these designated individuals may be defined as a more serious misdemeanor or even a felony; or may subject the offender to a minimum jail sentence or sentencing enhancement (more jail time than is normally imposed for the crime of simple assault). Those who are designated members of a protected class vary from state to state but, in addition to those mentioned above, they can include: fire fighters social services workers teachers and school employees corrections employees (those who work in jails or prisons) judges mental health care providers, and utility workers.
Proving the Case and Possible Defenses In order for a defendant to be convicted of simple assault, the prosecutor or district attorney must prove every aspect of the crime (called the “elements” of the crime) beyond a reasonable doubt. The evidence must show: that the defendant intentionally threatened the victim with an attack or bodily harm that the defendant appeared to have the ability to carry out the threat and/or took some sort of action that seemed to set an attack in motion, and that this threat caused the person to fear immediate serious violence, or the defendant actually attempted to or applied physical force to the victim.
Because a verbal threat alone does not constitute an assault, the prosecutor’s case must include evidence of more than a person yelling, “I’m going to kill you!” There must be evidence that the defendant had a weapon in his hand when he made the threat or took some action like walking toward the victim in a menacing manner or raising a fist as he stood close enough to the victim to throw a punch.
To learn more about possible defenses, see I unintentionally hurt someone. Can I be charged with assault? Defenses Defendants charged with simple assault have the usual defenses available to all criminal defendants, starting with “You’ve got the wrong person, it wasn’t me.” In addition, a defendant can claim self defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself or another person from the alleged victim’s attack.
That defense may take the form of showing that the other person actually threw the first blow, the defendant could not safely retreat, and he had to take physical action to stop the attack or to protect himself. Some states, such as Florida, now have “stand your ground” laws that no longer require someone being attacked to retreat if possible and allow the defendant to fight back if attacked; however, this usually requires that the aggressor’s actions be so threatening or violent that the defendant feared serious physical injury or even death if he did not fight back.
Other possible defenses are that the defendant’s actions were purely accidental and that he had no criminal intent; or an insanity defense, in which the defense argues that the accused is mentally ill and did not have the capacity to control his behavior or to understand what he was doing or that his actions were unlawful. For more information on the "stand your ground" defense, see "Stand Your Ground" New Trends in Self-Defense Law.
Penalties Simple assault is a misdemeanor punishable by six months to one year in jail, depending on the specific provisions of each state’s sentencing statute or sentencing guidelines. Normally, the judge in a misdemeanor case has discretion as to the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation. For misdemeanors, defendants often also have the option of performing community service, participating in criminal education programs, or being on house arrest rather than serving time in jail.
Legal Representation While it is usually a misdemeanor, simple assault is a serious charge because it is considered a crime of violence. But because it is a misdemeanor rather than a felony, defendants usually have options for plea bargains and sentencing arrangements that can keep their criminal records as clear as possible. A competent criminal defense attorney can help you fight an assault charge, by thoroughly investigating your case, helping you to evaluate and assert any possible defenses, and guiding you through the criminal court process.
Additional Information For more information on assault and battery, check out the following articles:See Also: Average Wattage For Household Appliances
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Herman is correct - the potential sentence is a fine and from 2 to 20 years in jail. If you have never before been convicted of a felony, you are eligible for community supervision. However, eligibility does not mean you will get it. Just as Herman pointed out the differences in types of offenses that would charged as aggravated assault, the worse the offense (or injury to the complainant), the more likely you will receive some type of incarceration whether a prison sentence or a jail sentence as a condition of probation.
(You can receive up to 180 days flat time in jail as a condition of probation.) You should see counsel. And, while awaiting court, you should gather information which will help demonstrate that you were acting out of character and that you truly are a good and decent citizen such as your recent high school or college transcript, any awards or recognitions you have received, gather names, addresses, and telephone numbers of positive people without criminal histories who could provide letters of recommendation on your behalf, etc.
After consulting with your lawyer, s/he may instruct you to become involved in counseling for drugs are alcohol and to attend AA or NA meetings and provide proof. Cynthia Ask a similar question