Assault

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Background

Black's Law dictionary defines criminal and tortious assault as "the threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery." Assault is a very broad crime and there are various forms of assault, including (but not limited to) civil assault, assault by contact, sexual assault, simple assault, and aggravated assault. Though nowadays it is common to use the term "assault and battery" as if it were one crime, the terms are separate and distinct legal concepts.[1] Assault refers specifically to demonstration of an unlawful intent to inflict immediate injury of offensive contact on another, whereas battery involves the actual act of contact with another. Thus, assault is the beginning of the act which, if consummated, results in battery.[2]

Model Penal Code

The Model Penal Code (MPC) § 211.1 separates assault into two general categories: simple assault and aggravated assault:

(1) Simple assault: a person is guilty of simple assault if he:
  • (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
  • (b) negligently causes bodily injury to another with a deadly weapon; or
  • (c) attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple assault is generally a misdemeanor unless committed in a fight entered into by mutual consent, in which case it is a petty misdemeanor.

(2) Aggravated assault: a person is guilty of aggravated assault if he:

  • (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or
  • (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.
Aggravated assault under section (a) is categorized as a felony of the second degree whereas assault under (b) qualifies as a felony of the third degree.

Variation by Jurisdiction

New York

The New York Penal Code divides assault into three degrees of offenses (third, second, and first degree assaults). The NY Code also provides for aggravated assaults and variations thereof of the different assault types (i.e. reckless, vehicular, and gang assault). The categorization range from class A misdemeanor to class B felony.[3]

California

Under Title 8, Chapter 9 of the California Penal Code, assault is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on another person.[4] Rather than separating the crimes of assault into degrees like the NY Penal Code, the CA Penal Code delineates specific types of assaults, such as assault by caustic chemicals and assault with a deadly weapon.[5]

Common Defenses

There are several common defenses to an assault charge. Such defenses include a statute of limitations argument, mistake of fact, or intoxication. The length of the statute of limitations depends on the type of assault crime charged (i.e. if the crime is a felony or misdemeanor). If available, one can argue intoxication, which may negate the requisite intent of the crime. Moreover, there is the affirmative defense of reasonable provocation. The provocation must be reasonably sufficient to incite the defendant into using deadly force. [6] In general, words or gestures are not enough to constitute reasonable provocation, unless there is a statute that explicitly states otherwise in a jurisdiction.[7] Reasonable provocation, however, will not be a successful defense if the defendant still acts after a reasonable cooling time.[8]

Foreign Codes

India

Section 351 of the Indian Penal Code (1860) is the general assault provision:

  • "Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit as assault.Explanation: - Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault."

Illustrations

  • (a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z, A has committed an assault.
  • (b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault upon Z.
  • (c) A takes up a stick, saying to Z, "I will give you a beating" Here, though the words used by A could in no case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture explained by the words may amount to an assault.[9].

The Penal Code also outlines specific types of assault in sections 352-358, including assault with intent to dishonor a person, assault within an attempt to commit theft of property, and assault on grave provocation.[10]

Germany

Under the German Criminal Code, there is no one article that directly addresses assault in the general sense. Instead, the Code includes assaults within the realm of punishable insults (section 185) and causation of bodily harm (section 223).[11] Sections 177 and 178, however, do directly address sexual assault and rape.[12]


See Crimes

Notes

<references>
  1. Mary G. Leary, Criminal Defense: Assault and Battery Cases, American Jurisprudence Trials Database (2010)
  2. Mary G. Leary, Criminal Defense: Assault and Battery Cases, American Jurisprudence Trials Database (2010)
  3. NY Penal Code, Chapter 40 § 120
  4. CA Penal Code, Chapter 9 § 240
  5. CA Penal Code, Chapter 9 §§ 244-245
  6. Mary G. Leary, Criminal Defense: Assault and Battery Cases, American Jurisprudence Trials Database (2010)
  7. Mary G. Leary, Criminal Defense: Assault and Battery Cases, American Jurisprudence Trials Database (2010)
  8. Mary G. Leary, Criminal Defense: Assault and Battery Cases, American Jurisprudence Trials Database (2010)
  9. http://www.vakilno1.com/bareacts/indianpenalcode/S351.htm
  10. http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode2.htm
  11. http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html
  12. http://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html