Assault

Assault (ranging from simple, sexual, and aggravated)- People often confuse the terms assault and battery. However, unlike battery, an assault does not require any physical contact.The statutory definition of an assault is very simple: It is the “unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” In other words, assault requires only that someone acts in a way that could result in the application of force upon another person.

“Application of force” requires only the slightest touch, either directly or indirectly as long as it is done in a harmful or offensive manner. ASSAULT CAN BE EITHER “SIMPLE” OR “AGGRAVATED.”

Simple assault is usually charged when the person assaulted is not significantly injured and when the person doing the assaulting did not use any kind of weapon. Say, for example, two guys are playing a game of one-on-one basketball and one guy gets angry at the other. In his anger, he throws the basketball at his opponent; the ball doesn’t hit its intended target, but the act is still a simple assault. An aggravated assault occurs when a deadly weapon or any other deadly force is used. Thus an aggravated assault may be charged not only when weapons such as guns or knives are used but by any use of force (including fists and feet) that could cause great bodily injury (significant or substantial physical injury). The actual injury need not occur; the crime is committed when the assault would

have likely cause great bodily injury if it had been completed. For example, kicking someone in the stomach could be charged as an aggravated assault even if no injury occurred because a kick to the stomach has the potential to cause significant bodily injury.

Sexual Battery  sexual battery, can be charged as either a misdemeanor or a felony, depending upon the facts of each case. This is considered a “wobbler”, meaning it can go either way. My experience that prosecutors too frequently charge sexual battery as a felony. When representing someone charged with sexual battery, there are three specific elements I will challenge the prosecution on:

  • 1) Did my client actually touch an intimate part of another;
  • 2) Was the touching against the will of the other and/or was the consent fraudulently obtained; and
  • >3) That my client touched the other person to satisfy sexual gratification, cause sexual arousal or sexual abuse.

    • If the prosecution is unable to prove all three of the above elements, there can be no conviction.