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Is Assault a Misdemeanor or a Felony? (It Depends)

Assault can be classified as either a misdemeanor or a felony, depending on the circumstances and the severity of the offense. In general, assault is considered a misdemeanor if it involves threats of violence or minor physical contact that does not result in serious injury. However, if the assault involves a weapon, causes serious injury, or is committed against certain protected individuals, it may be charged as a felony.
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C.L. Mike Schmidt Published by C.L. Mike Schmidt

What is Assault?

According to Law Cornell, assault is generally defined as an intentional act that puts another person in reasonable apprehension of imminent harmful or offensive contact [1].

Physical injury is not necessary for an action to be considered assault, but the person committing the act must have intended to cause fear or apprehension of harm in the victim.

Here are some key points about assault:

  • Intention: Assault is not accidental; the person must have intended to cause fear or apprehension of harm.
  • Motive: The motive behind the act is not relevant; even if the intention was to scare or as a joke, it can still be considered assault.
  • Contact: The person committing the assault does not need to intend for the contact to be harmful or offensive; the intent is for the actual contact to occur.
  • Reasonable Apprehension: The victim must have a reasonable belief that the act will lead to immediate harm or offensive contact.
  • Special Knowledge: If the victim and the person committing the assault have a history or special knowledge of each other, this may be considered in determining the reasonableness of the victim’s apprehension.
  • Imminence: The threatened harm or offensive contact must be certain or likely to occur very soon.
  • Harmful or Offensive: This refers to touching that is likely to cause harm or offend a reasonable person based on prevailing social standards.

It’s important to note that assault laws can vary by jurisdiction, so it’s advisable to consult local laws or legal counsel for specific information.

What’s the Difference Between Assault and Battery?

Assault is the act of causing someone to fear imminent violence, whether through attempted or threatened violence. It is usually classified as a misdemeanor. Battery, on the other hand, involves the actual use of force or violence against another person and is generally considered more serious.

It’s important to note that battery can sometimes be classified as a “wobbler,” meaning it can be charged as either a misdemeanor or a felony, depending on the circumstances.

Both assault and battery have varying degrees of severity depending on the type. Simple assault and simple battery charges, for instance, are much less serious than aggravated assault and aggravated battery charges.

It’s crucial to understand the specific laws regarding assault and battery in your jurisdiction, as they can vary. Consulting with legal counsel can provide further clarity on these matters.

What Must a Prosecutor Prove to Convict a Person of Misdemeanor Assault?

According to SCLG, to establish guilt for misdemeanor assault, a prosecutor must demonstrate the following elements [2]:

  • The accused performed an act that inherently would likely result in applying force to another person.
  • The act was done intentionally.
  • The accused was aware of circumstances that would lead a reasonable person to believe the act would likely result in applying force to someone.
  • At the time of the act, the accused had the immediate ability to apply force to another person.
  • The accused did not act in self-defense or defense of another person.

The terms application of force and apply force mean to touch in a harmful or offensive manner. The slightest touching can be enough if it is done in a rude or angry way. Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.

When is Assault a Felony?

Assault and battery offenses typically begin as misdemeanors, but under certain circumstances, they can escalate to felony charges.

Actions that can elevate simple assault and battery to felonies include:

  • Using or threatening to use a weapon or dangerous object, like a gun, knife, steel-toed boot, bat, or metal knuckles.
  • Causing the victim serious or great bodily harm, such as broken bones, deep cuts, sprains, or severe bruising.
  • Targeting a vulnerable victim, such as a family member, elderly adult, child, or person with a disability.
  • Targeting someone in a protected class, like police officers, first responders, health care workers, teachers, transit workers, judicial officers, and correctional officers while on duty.

Other factors that can raise a misdemeanor assault or battery to a felony include:

  • The offender has a criminal history of assault or battery convictions.
  • The offender assaults the victim with the intent to commit another felony, such as robbery, rape, or burglary.
  • The offender commits the assault or battery while concealing their identity or targeting someone due to hate, prejudice, or bias.

What are the Penalties for Felony Assault?

The consequences for felony assault and battery vary based on state laws, the specifics of the offense, and the offender’s criminal history. Typically, these crimes are considered violent and carry jail or prison sentences.

Degrees or Classifications of Felony Assault and Battery
States categorize felony assault and battery in different levels, such as first-degree or second-degree, or classifications like aggravated assault with a deadly weapon. Each level carries its own penalties, and states may use different terms or distinctions.

Felony Penalties for Aggravated Offenses
The most severe penalties apply when multiple aggravating factors are present, like assaulting a police officer with a deadly weapon. Offenses with multiple aggravating factors can result in 10 to 30 years in prison.

Felony Penalties Based on Harm or Risk
Penalties increase as the harm or risk of harm rises. For example, battery resulting in serious bodily harm might carry a 10-year sentence, while battery causing great bodily harm or risk of death might lead to a 15-year sentence.

Felony Penalty Enhancements
Many states have laws that elevate a misdemeanor assault to a felony. Factors like prior assault convictions, assaulting the same victim again, targeting the victim’s religion or nationality, or concealing identity during the assault can lead to a two- to five-year felony sentence.

Understanding these distinctions can help individuals comprehend the potential consequences of felony assault and battery charges.

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