Understanding Assault Law - Roseline D. Feral
If you have been accused or arrested for assault, it is important that you understand what assault is under federal or state law and that you get help from an experienced criminal defense attorney.
Wikipedia defines assault as: “An assault is carried out by a threat of bodily harm coupled with an apparent, present ability to cause the harm. It is both a crime and a tort and, therefore, may result in either criminal and/or civil liability. Generally, the common law definition is the same in criminal and tort law.”
You can actually be prosecuted criminally as well as being sued for civil damages so you want to seek counsel sooner rather than later. The law is designed to discourage people from aggressively attacking another person whether physical contact is actually made or not. Sometimes, simply threatening someone can cause assault charges to be filed.
In criminal cases, assaults may be prosecuted anywhere from simple assaults charged as misdemeanors to attempted murder with different allegations. The prosecution can charge assaults in many different ways depending on the circumstances. For example, if a weapon were used, the assault itself is enhanced by a weapon use allegation which carries additional penalties in addition to making the crime a violent felony.
In many states the criminal codes treat assault as a misdemeanor that can be handled with fines or possibly a year in jail. If the charge is found to involve threats of death or serious bodily harm, that raises the stakes to aggravated assault. The charge may then become a felony and can result in sentences of 10-20 years in prison. This can also increase the size of civil awards substantially.
Understanding the elements of a criminal charge of assault requires an experienced criminal defense attorney. Your attorney will closely examine the charges filed because, if the state fails to prove any one element of the charge, it can result in an acquittal. Your attorney will fully examine the exact language of the statute where the charges were filed to make sure that they were filed correctly. This would be difficult for you to do on your own, without a law degree.
The legal elements of assault also may vary from state to state. In general, assaults are general intent crimes. In some situations, for example, if a defendant puts intent at issue by claiming that the assaultive behavior was an accident or was a misunderstanding, the prosecutor must then prove intent by use of using the defendant’s prior bad acts, regardless of whether or not charges were filed. While, in some cases, assaultive intent may seem hard to prove, you do not want to be out there on your own. Your criminal defense attorney is your best source of information and defense against these charges.
A good example of intent would be if you pointed a gun at someone. There is no doubt that you meant to threaten the person whether you were actually going to shoot them or not. It is clear that the person would be afraid because people are always afraid when threatened by someone pointing a gun at them. Another form of criminal assault would be if you threatened bodily harm. Threatening to break someone’s legs or to beat them up is threatening bodily harm. It is therefore the fear of bodily harm that is called, “imminent bodily harm” and can be prosecuted.
If you end up before a jury by pleading not guilty, how your defense case is presented in court will make the difference in an acquittal or being found guilty. If the circumstances of the assault charge are disputed, you may have a jury trial. In any case, you need an experienced and well respected criminal defense attorney on your side.
Another serious and life- long consequence of an assault conviction is deportation for permanent lawful residents or those who have no legal right to be in the United States. Generally, any crime of violence that has as an element “the use, attempted use, or threatened use of physical force against the person or property of another (Title 18 United States Code § 16) where the term imposed is at least one year, whether or not any or all of that term is stayed or suspended at time of sentencing” constitutes an “aggravated felony” under Federal Immigration law. Certain offenses defined as misdemeanors under State Law may be considered “Aggravated Felonies” under Federal Law. Any conviction of a non-citizen for an “aggravated felony” as defined under Tile 8 United States Code § 1101(a) (43) will result in removal/deportation, exclusion and denial of naturalization. For example, if a non-citizen who has lived here his entire life and has a family in the United States, is convicted of a misdemeanor assault and receives a probationary term of three years, he may be facing deportation as an additional consequence of the assault conviction.
Roseline D. Feral has 28 years of experience as a criminal defense attorney and has the experience and professional reputation to help you defend yourself against a charge of assault. You may call her at 619-232-1010 for a FREE consultation.