Assault and battery are commonly used interchangeably by people, but legally, are separate offenses that do differ. Assault is the unlawful attempt to use physical force against another person, or intentionally placing another person in reasonable apprehension of immediate bodily harm. Unlike battery, one need not even have physical contact to be charged. An unlawful attempt to use physical force for example, would be a failed battery against a victim that you intended to cause (e.g. swinging a bat at someone’s head who then ducks out of harm’s way).
Another way to commit an assault that does not even require intent to use unlawful physical force, but only that you intentionally place a person in reasonable apprehension of immediate bodily harm. Apprehension is knowledge, so the victim must have knowledge of your actions. Holding a weapon at a person who had knowledge of this would be reasonable apprehension of immediate bodily harm. Even scaring someone with a fake weapon can cause reasonable apprehension of immediate bodily harm.
Luckily, assault must be reasonable, so that it would have to be something that a reasonable person would believe to cause immediate bodily harm. For example, openly carrying a firearm without something more would not cause reasonable apprehension because such an act is legal and not an immediate threat. Pointing the gun at someone would be assault, or making a threat while the person had knowledge of you being armed might be.
There are defenses to assault. For example, lack of intent to cause assault; the harm was not reasonable, such as a reasonable person would not believe the conduct would cause immediate harm; the victim had no knowledge of the conduct and therefore there was no apprehension; self-defense if reasonable under the circumstances; and consent if the conduct was consented to and it was within the scope of the consent (e.g. a boxing match where one boxer pulls out a knife is not within the scope of consent).
Assault can be a complicated charge, where multiple defenses may exist. Assault is a crime where your intent and actions matter.
Penalties for assault are:
If the assault was not committed with a deadly weapon or the present ability to use a deadly weapon, is a misdemeanor
If the assault was made with a deadly weapon or the present ability to use a deadly weapon, a category B felony with a minimum 1 year and a maximum 6 years prison term, or by fine not more than $5,000, or both
If the assault was made upon an officer, provider of health care, school employee, taxicab driver or transit operator while performing his/her duty, or upon a sports official based on the performance of his/her duties at a sporting event and the person charged knew or should have known the victim was such person, then a gross misdemeanor unless made with a deadly weapon, then a category B felony
An assault committed by a parolee or probationer will make the assault a category D felony, unless a deadly weapon is used or present ability to use a deadly weapon, then a category B felony
Contact The Law Offices of Garrett T. Ogata if you have been charged with assault to discuss your case and defenses at 702-366-0891.