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Assault grading is very similar to battery grading in many jurisdictions. As stated previously, many modern statutes follow the Model Penal Code approach and combine assault and battery into one statute, typically called “assault.” 1 Simple assault is generally a misdemeanor. 2 Aggravated assault is generally a felony. 3 Factors that could enhance grading of assault are the use of a deadly weapon and assault against a law enforcement officer, teacher, or helpless individual. 4
| Crime | Criminal Act | Criminal Intent | Harm | Grading |
| Battery | Unlawful touching | Specific or purposely, general or knowingly, reckless, or negligent | Harmful or offensive physical contact | Simple: misdemeanor Aggravated: felony |
| Attempted battery assault | Substantial steps toward a battery plus present ability | Specific or purposely to commit battery | None required | Simple: misdemeanor Aggravated: felony |
| Threatened battery assault | Conduct that inspires fear of physical contact; words are not enough; may require apparent rather than present ability | Specific or purposely to inspire fear of physical contact | Victim’s reasonable fear of imminent physical contact | Simple: misdemeanor Aggravated: felony |
| Note: Battery could also include the attendant circumstance element of lack of consent by the victim. | ||||
KEY TAKEAWAYS
- The criminal intent element required for battery can be specific intent or purposely, general intent or knowingly, recklessly, or negligently, depending on the circumstances and the jurisdiction. Jurisdictions that criminalize reckless or negligent battery generally require actual injury, serious bodily injury, or the use of a deadly weapon.
- The attendant circumstance el
- The criminal act element required for battery is an unlawful touching.
- ement required for battery is lack of consent by the victim.
- The harm element of battery is physical contact. Jurisdictions vary as to whether the physical contact must be harmful or if it can be harmful or offensive.
- Battery that causes offense or emotional injury is typically graded as a misdemeanor, and battery that causes physical injury is typically graded as a gross misdemeanor or a felony. Factors that can aggravate grading are a higher level of intent, such as intent to maim or disfigure, use of a weapon, committing battery in concert with other serious or violent felonies, and battery against a helpless victim, teacher, or law enforcement officer. Saylor URL: http://www.saylor.org/books Saylor.org 424
- Attempted battery assault is an attempt crime that does not require the elements of causation or harm. Threatened battery assault requires causation and harm; the victim must experience reasonable fear of imminent physical contact.
- Attempted battery assault requires the criminal act of substantial steps toward commission of a battery and the criminal intent of specific intent or purposely to commit a battery. Because attempted battery assault is an attempt crime, it also generally requires present ability to commit the battery.
- The criminal act element required for threatened battery assault is conduct that inspires reasonable fear in the victim of imminent harmful or offensive physical contact. Words generally are not enough to constitute the criminal act element, nor are conditional threats. However, because the act need only inspire the fear, rather than culminate in a battery, apparent ability to commit the battery is sufficient in many jurisdictions. The criminal intent element required for threatened battery assault is specific intent or purposely to inspire the victim’s reasonable fear. The defendant must also be the factual and legal cause of the harm, which is the victim’s reasonable fear of imminent harmful or offensive physical contact.
- Simple assault is generally graded as a misdemeanor; aggravated assault is generally graded as a felony. Factors that can aggravate grading are the use of a weapon or assault against a law enforcement officer, teacher, or helpless victim.
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- Bob and Rick get into an argument after drinking a few beers. Bob swings at Rick with his fist, but Rick ducks and Bob does not hit Rick. Bob swings again with the other hand, and this time he manages to punch Rick in the stomach. Identify the crimes committed in this situation. If Bob only swings once and misses, which crime(s) have been committed?
- Read Statev. Higgs, 601 N.W.2d 653 (1999). What criminal act did the defendant commit that resulted in a conviction for battery? Did the Court of Appeals of Wisconsin uphold the defendant’s conviction? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=10727852975973050662&q=State+v.+Higgs+601+N.W.2d+653&hl=en&as_sdt=2,5.
- Read Commonwealthv.Henson, 259 N.E.2d 769 (1970). In Henson, the defendant fired blanks at a police officer and was convicted of assault with a deadly weapon. The defendant appealed, claiming that he had no present ability to shoot the police officer because the gun was not loaded with bullets. Did the Supreme Judicial Court of Massachusetts uphold the defendant’s conviction? The case is available at this link: http://scholar.google.com/scholar_case?case=11962310018051202223&hl=en&assdt=2002&as_vis=1.
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