Physical Assault & Attempted Insult
Some states say assault is the intentional use of force or violence against another. Under this approach, an “attempted assault” is an act that intends to physically harm the victim, but fails or falls short. In other states, assault does not involve actual physical contact, and is defined as an attempt to commit a physical attack, or as threatening actions. In these states, when the attempt succeeds, the resulting crime is a battery. Under this approach, there is no such crime as an “attempted assault.” 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.
The Victim’s Fear
Some states define assault as placing a victim in fear of violence. The standard test is if the defendant’s actions would cause a reasonable person to be in fear of an immediate physical attack.
Simple and Aggravated Assault
Simple assault involves minor injury or a limited threat of violence. Aggravated assault means the crime is more serious, as when the victim is threatened with or experiences more than minimal physical violence’
An aggravated assault means the offender has used a deadly weapon in the commission of the crime. (In some states, assault with a deadly weapon is a separate, distinct crime and not included in the crime of aggravated assault.)
An object is a deadly weapon if it likely can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons. Other objects, such as rocks, bricks, can be considered a deadly weapon, as well.
Proving the Case and Possible Defenses
For a defendant to be convicted of aggravated assault, the prosecutor must prove every element of the crime.
- The prosecutor must prove that the defendant intentionally threatened an attack and caused the victim fear
- Alternatively, the defendant attempted or accomplished a physical attack. The prosecutor also must prove the facts that make the assault aggravated.
- Alternatively, the victim was a member of a protected class, such as a police officer, school employee or an elderly or other vulnerable person.
Defendants can claim they have the wrong person as well as claiming self defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself. That defense may take the form of showing that a weapon actually was in the victim’s possession. It can be argued the defendant’s actions were purely accidental and that he had no criminal intent.
Penalties for Aggravated Assault
Aggravated assault is usually a felony punishable by approximately one to twenty years in prison. Normally, the judge has some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation.
In some states, assault against a special victim like a police officer or elderly person carries more severe penalties or is subject to sentence enhancement, which permits the court to add extra time to the sentence for the underlying crime. In many states, there also are more severe penalties or sentencing enhancement provisions if the deadly weapon used in an assault or battery is a firearm of certain kinds.
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*This information is not intended to be legal advice. Please contact Canterbury Law Group today to learn more about your personal legal needs.