Assault

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Template:CrimLaw

For other uses, see Assault (disambiguation).

Assault is a crime of violence against another person. In some jurisdictions, assault is used to refer to the actual violence, while in other jurisdictions (e.g. some in the United States, England and Wales), assault refers only to the threat of violence, while the actual violence is battery. Simple assaults do not involve deadly weapons; aggravated assaults often do.

Assault is often defined to include not only violence, but any physical contact with another person without their consent. When assault is defined like this, exceptions are provided to cover such things as normal social behavior (for example, patting someone on the back).

English law makes distinctions based on the degree of injury, between:

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American Jurisprudence

American common law has traditionally defined assault as an attempt to commit a battery.

Assault is typically treated as a misdemeanor and not as a felony. The more serious crime of aggravated assault is treated as a felony.

Four elements were required at common law: 1) The apparent, present ability to carry out; 2) an unlawful attempt; 3) to commit a violent injury; 4) upon another. As the criminal law evolved, element 1 was weakened in most jurisdictions so that a reasonable fear of bodily injury would suffice. These four elements were eventually codified in most States.

Modern American statutes define assault as: 1) an attempt to cause or purposely, knowingly, or recklessly causing bodily injury to another; or, 2) negligently causing bodily injury to another with a deadly weapon.

The requirement is that a person be the subject of the attack or threatened attack. The principle underlying the Unborn Victims of Violence Act 2004 applies only to offenses over which the United States government has jurisdiction, namely crimes committed on Federal properties, against certain Federal officials and employees, and by members of the military, and treats the fetus as a separate person for the purposes of all levels of assault including murder and attempted murder:

"Sec. 1841. Protection of unborn children

(a)(1) Whoever engages in conduct that violates any of the provisions of law listed in subsection (b) and thereby causes the death of, or bodily injury (as defined in section 1365) to, a child, who is in utero at the time the conduct takes place, is guilty of a separate offense under this section.
(2)(A) Except as otherwise provided in this paragraph, the punishment for that separate offense is the same as the punishment provided under Federal law for that conduct had that injury or death occurred to the unborn child's mother.
2(B) An offense under this section does not require proof that--
(i) the person engaging in the conduct had knowledge or should have had knowledge that the victim of the underlying offense was pregnant; or
(ii) the defendant intended to cause the death of, or bodily injury to, the unborn child.
2(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being."

Some States also define assault as an attempt to menace (or actual menacing) by placing another person in fear of imminent serious bodily injury.

States vary as to whether it is possible to commit an "attempted assault" since it can be considered a double inchoate offense.

In some States, consent is a complete defense to assault. In other jurisdictions, mutual consent is an incomplete defense, with the result that the misdemeanor is treated as a petty misdemeanor.

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Example

Two men wave metal pipes threateningly at each other in an alley. They are ten feet away from each other. When one man advances, the other retreats, maintaining the distance between them. The police come and break up the disturbance. They charge each man with assault.

The men would probably not be found guilty in an American common law jurisdiction. Being ten feet away does not make it likely or apparent that he would have the present ability to carry out an unlawful act.

However, they would probably be found guilty in a modern American jurisdiction. Each actor is trying to cause bodily injury to another and the fear of bodily injury is reasonable.

Some possible examples of defenses, mitigating circumstances, or failures of proof are:

  • A defendant could argue that since he was drunk, he could not form the specific intent to commit assault. This defense would most likely fail since only involuntary intoxication is accepted as a defense in most American jurisdictions.
  • The defendants could also argue that they were engaged in mutually consensual behavior.
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General defenses to assaults

Although the range and precise application of defenses varies between jurisdictions, the folloiwng represents a list of the defenses that may apply to all levels of assault:

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Consent

Consent may a complete or partial defense to assault. In some jurisdictions, most notably England, it is not a defense where the degree of injury is severe: see R v Brown (1993) 2 All ER 75). This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case.

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Arrest and other official acts

Police officers and court officials have a general power to use force for the purpose of effecting an arrest or generally carrying out their official duties. Thus, a court officer taking possession of goods under a court order may use force if reasonably necessary, etc.

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Punishment

In some jurisdictions, caning and other forms of corporal punishment are a part of the culture. Self-evidently, if it is a state-administered punishment, e.g. as in Singapore, the officers who physically adminster the punishment have immunity. Some states also permit the use of less severe punishment for children in school and at home by parents. In English law, s58 Children Act 2004, limits the availability of the lawful correction defense to common assault under s39 Criminal Justice Act 1988.

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Self-defense

Self defense and defense of others may be defenses to liability. They usually require that the degree of force used was both reasonable and proportionate to the degree of force threatened.

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Prevention of crime

This may or may not involve self defense in that, using a reasonable degree of force to prevent another from committing a crime could involve preventing an assault, but it could be preventing a crime not involving the use of personal violence.

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Defense of property

Some states allow force to be used to prevent damage to valuable property either in its own right, or under one or both of the preceding classes of defense in that a threat or attempt to damage property might be considered a crime (in English law, under s5 Criminal Damage Act 1971 it may be argued that the defendant has a lawful excuse to damaging property during the defense and a defense under s3 Criminal Law Act 1967) subject to the need to deter vigilantes and excessive self-help.

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See also

sv:Misshandel

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