Simple and Aggravated Assault Laws and Penalties
Assault is a crime of violence, which is defined differently from one state to another. Here are the main divisions:
Assault as physical connection. Some states define assault as the intentional use of force or violence against another, such as punching a person or striking the victim with an object. (A few states even lump assault and battery into one crime, which is defined as a physical attack.) Under this approach, an "attempted assault" is an act that intends to physically harm the victim, but fails or falls short. For example, swinging at someone but missing would be an attempted assault.
Assault as an attempt to physically touch. In other states, assault does not involve actual physical contact, and is defined as an attempt to commit a physical attack, or as threatening actions that cause a person to feel afraid of impending violence. In these states, when the attempt succeeds, the resulting crime is a battery. Under this approach, there is no such crime as an "attempted assault," because the assault itself is an attempt.
Verbal threats are usually not enough to constitute an assault for this second approach. Some action such as raising a fist or moving menacingly toward a victim usually is required. In these states, threatening to hurt someone while walking toward him with a clenched, raised fist would constitute assault.
To learn about simple and aggravated assault laws in your state, jump ahead to the section on state simple and aggravated assault laws.
The Victim’s Fear
In states that define assault as placing a victim in fear of violence, the victim’s response must not only be genuine but reasonable under the circumstances. The test normally is whether the defendant’s actions would cause a reasonable person to be in fear of an immediate physical attack. In other words, the victim’s response must be one that you’d expect from any reasonable person in the victim’s position.
Simple and Aggravated Assault
Simple assault is the least serious form of assault and usually involves minor injury or a limited threat of violence. Aggravated assault involves circumstances that make the crime more serious, as when the victim is threatened with or experiences violence amounting to significantly more than a minor slap across the face or a punch in the jaw.
Examples of aggravated assault include:
- striking or threatening to strike a person with a weapon or dangerous object
- shooting a person with a gun or threatening to kill someone while pointing a gun at the victim
- assault with the intent to commit another felony crime such as robbery or rape
- assault resulting in serious physical injury
- assault (threat of violence) while concealing one’s identity, and
- assault against a member of a protected class, such as a police officer, healthcare provider, social services worker, or developmentally disabled or elderly person.
For additional information on simple assault crimes and penalties, see our article on Simple Assault Laws.
An assault that is aggravated based on the use of a deadly weapon requires that the offender have used a deadly weapon in the commission of the crime. (In some states, assault with a deadly weapon is a separate, distinct crime and not included in the crime of aggravated assault.)
An object is a deadly weapon if it likely can cause death or great bodily harm. A gun and a large knife are, by definition, deadly weapons because they are inherently dangerous and even designed to cause injury. Other objects, such as rocks, bricks, or even a boot can constitute a deadly weapon if the object is used in a manner likely to cause or threaten serious bodily injury or death. Learn more about the laws and penalties associated with assault with a deadly weapon by reading our article Assault With a Deadly Weapon: Laws, Penalties, and Sentencing.
Proving the Case and Possible Defenses
In order for a defendant to be convicted of aggravated assault, the prosecutor or district attorney must prove every aspect of the crime (called the “elements” of the crime) beyond a reasonable doubt, including the act of assault and the elements that made the assault “aggravated.”
The prosecutor must prove that the defendant intentionally threatened an attack and caused the victim fear, or that the defendant attempted or accomplished a physical attack. The prosecutor also must prove the facts that make the assault aggravated – either that the defendant used a deadly weapon, concealed his identity, inflicted serious personal injury, committed the assault with the intent of committing some other serious crime, or that the victim was a member of a protected class, such as a police officer, school employee or an elderly or other vulnerable person.
Defendants charged with aggravated assault have the usual defenses available to all criminal defendants, starting with “You’ve got the wrong person, it wasn’t me.” In addition, a defendant can claim self defense or defense of others and present evidence that the alleged victim initiated the confrontation and that the defendant was defending himself or another person from the alleged victim’s attack. That defense may take the form of showing that a weapon actually was in the victim’s possession or that the victim made the first threat or struck the first blow.
Other possible defenses are that the defendant’s actions were purely accidental and that he had no criminal intent; or an insanity defense, in which the defense argues that the accused is mentally ill and did not have the capacity to control his behavior or to understand what he was doing or that his actions were unlawful.
Penalties for Aggravated Assault
Aggravated assault is usually a felony punishable by approximately one to twenty years in prison, depending on the specific provisions of each state’s sentencing statute or sentencing guidelines. Normally, the judge has some discretion on the length of the sentence and whether to allow the defendant to serve any portion of the sentence on probation rather than in prison.
Factors that judges consider
In determining a sentence, judges usually consider the defenses presented at trial, whether the defendant has taken responsibility for the crime and shows remorse, circumstances surrounding the crime, the extent of any injuries incurred, the type of weapon used, the accused’s prior criminal record and, in some situations, the victim's background or relationship to the defendant.
In some states, assault against a special victim like a police officer or elderly person carries more severe penalties or is subject to sentence enhancement, which permits the court to add extra time to the sentence for the underlying crime. In many states, there also are more severe penalties or sentencing enhancement provisions if the deadly weapon used in an assault or battery is a firearm. Finally, in some states, the penalties are even more severe for certain types of firearms such as automatic weapons, machine guns, or guns that shoot metal-resistant bullets.
Aggravated assault is a very serious felony charge; a conviction for this crime can seriously impact your life. You could face a lengthy prison sentence and the stigma of being a convicted felon. Convicted felons cannot vote or possess firearms and often have difficulty finding employment. A competent criminal defense attorney can help you fight an aggravated assault charge, protect your rights and achieve the best possible outcome. An attorney will thoroughly investigate your case, aid you in asserting any possible defenses, and guide you through the criminal court process.
Aggravated Assault Laws by State
Choose your state from the list below to find information about your states laws regarding aggravated assault.
For more information on assault and battery, see the following.