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Assault is an intentional attempt or threat to inflict injury upon a person, coupled with an apparent, present ability to cause the harm, which creates a reasonable apprehension of bodily harm or offensive contact in another. Assault does not require actual touching or bodily harm to the victim. Assault and battery are sometimes used interchangeably, but battery is an unjustified harmful or offensive touching of another. Battery also differs from assault in that it does not require the victim to be in apprehension of harm.
Assault developed in common law, meaning it developed through usage, custom, and judicial decisions rather than from legislative enactment. Modern-day assault statutes closely reflect the ancient common-law definition. An assault is both a crime and a tort. Therefore, an assailant may face both criminal and civil liability. A criminal assault conviction may result in a fine, imprisonment, or both. In a civil assault case, the victim may be entitled to monetary damages from the assailant.
Assault requires:
Words, without an act, cannot constitute an assault. For example, no assault has occurred where a person waves his arms at another and shouts, "I'm going to shoot you!" where no gun is visible or apparent. However, if the threatening words are accompanied by some action that indicates the perpetrator has the ability to carry out a threat, an assault has occurred. It is an assault where a person threatens to shoot another while pointing a gun, even where the victim later learns that the gun was not loaded. Moreover, pointing a gun without an accompanying verbal threat is still an assault, assuming the victim saw the gun.
Assault requires intent, meaning that there has been a deliberate, unjustified interference with the personal right or liberty of another in a way that causes harm. In the tort of assault, intent is established if a reasonable person is substantially certain that certain consequences will result; intent is established whether or not he or she actually intends those consequences to result. Pointing a gun at someone's head is substantially certain to result in apprehension for the victim. In criminal law, intent means acting with a criminal or wrongful purpose. Criminal assault statutes often speak of acting "purposely," "knowingly," "recklessly," or "negligently." Acting negligently means to grossly deviate from the
The victim must have a reasonable apprehension of imminent injury or offensive contact. This element is established if the act would produce apprehension in the mind of a reasonable person. Apprehension is not the same as fear. Apprehension means awareness that an injury or offensive contact is imminent. Whether an act would create apprehension in the mind of a reasonable person varies depending upon the circumstances. For example, it may take less to create apprehension in the mind of a child than an adult. Moreover, if a victim is unaware of the threat of harm, no assault has occurred. An assailant who points a gun at a sleeping person has not committed an assault. Finally, the threat must be imminent, meaning impending or about to occur. Threatening to kill someone at a later date would not constitute an assault.
All states and the federal government have statutes making assault a crime. A criminal assault may be either a felony or a misdemeanor, depending upon the seriousness of the offense. Aggravated assault is a felony in all jurisdictions. It is an assault that goes beyond merely an intention to frighten the victim; it is committed with intent to commit some additional crime or is particularly egregious in some way. Examples of aggravated assault are assaults committed with the intent to kill, rape, or rob. Assault with a dangerous or deadly weapon is an aggravated assault where the assailant points a loaded gun at the victim. An assailant who points an unloaded gun at a victim has committed an assault, but not an aggravated assault.
Separate from any criminal prosecution for assault, a victim may pursue civil damages for injuries caused by it. After a determination by a judge or jury that an assault was committed, the next step is to determine what compensation is appropriate. Three types of damages may be awarded. Compensatory damages, such as medical expenses, are meant to compensate for the injury sustained. Nominal damages are a small sum. Nominal damages act as an acknowledgment that a person has suffered a technical invasion of rights. They are awarded in cases where no actual injury has resulted, or where an injury occurred, but the amount has not been established. Finally, punitive damages may sometimes be awarded. Punitive damages may be awarded in particularly egregious circumstances, as a way to further punish the wrongdoer. Punitive damages go above and beyond compensatory damages.
Criminal Law: Model Penal Code. Dubber, Markus, Foundation Press, 2002.
