Assault

For other uses, see Assault (disambiguation).

Assault is a crime of violence against another person. In some jurisdictions, including Australia and New Zealand assault refers to the actual violence, while in other jurisdictions, such as the United States, England and Wales, assault refers only to the threat of violence, while the actual violence is battery. Simple assaults that do not involve any aggravation such as use of a deadly weapon are distinguished from aggravated assaults.

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:

• common assault (which includes even the most minor assault)
• assault occasioning actual bodily harm (ABH)
• assault occasioning grievous bodily harm (GBH)

In most jurisdictions, an assault occasioning grievous bodily harm (or its equivalent) may amount to murder in certain circumstances.

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 (unless it involves a law enforcement officer). 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.

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 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.

Furthermore, the crime of assault generally requires that both the perpetrator and the victim of an assault are human. Thus, there is no assault if an ox gores a man. However, the Unborn Victims of Violence Act of 2004 treats the fetus as a separate person for the purposes of assault and other violent crimes, under certain limited circumstances. See H.R. 1997 / P.L. 108-212

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 may 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.

Aggravated assault

Aggravated assault is, in some jurisdictions, a stronger form of assault, usually using a deadly weapon. A person has committed an aggravated assault when that person:

• attempts to cause serious bodily injury to another person; or
• causes such injury purposely, knowingly, or recklessly in circumstances where the person has exhibited indifference to human life; or
• attempts or causes bodily injury to another person with a deadly weapon.

Aggravated assault is usually differentiated from simple assault by the offender's intent (i.e., to murder, to rape etc.), the extent of the injury to the victim, or the use of a deadly weapon, although legal definitions vary between jurisdictions. Sentences for aggravated assault are generally more severe, reflecting the greater degree of harm or malice intended by the perpetrator.

General defenses to assaults

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

Consent

Consent may be 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, as long as there is no legally recognised good reason for the assault.. This can have important consequences when dealing with issues such as consensual sadomasochistic sexual activity, the most notable case being the Operation Spanner case. Legally recognised good reasons for consent include; surgery, activities within the rules of a game (Burnes), bodily adornment (R v Wilson), or horseplay (Jones and others). However, any activity outside the rules of the game is not legally recognised as a defence of consent.

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.

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 administer 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.

Self-defense

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

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.

Defense of property

Some states allow force to be used in defense of property, to prevent damage 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.

See also

• Affray
• Battery (crime)
• Assault (tort)
• Street fighting
• Domestic violence
• Gay-bashing
• Hate crime
• Mayhem
• Misdemeanor
• Offences Against The Person Act 1861
• Terroristic Threats

External links

• Crime prevention: theory & practice
• H.R. 1997 / P.L. 108-212 Unborn Victims of Violence Act of 2004