Why an assault doesn’t always require an “assault” for conviction:
At least once a month this scenario plays out in my conference room. A client, usually a younger male, sits at my table, staring at the charging documents in his hands. He has just been served with a criminal complaint that alleges that he committed an assault. With a puzzled expression on his face he asks, “How can I be charged with an assault? I never laid a finger on him!” Or, he says, “I barely touched him . . . he didn’t have a scratch on him!” I, unfortunately, have to break the bad news to him: under the law, assault doesn’t always require contact or injuries. Welcome to the strange world of criminal law.
If you look up the word assault in a non-legal dictionary, the most common definition is something along the lines of “a sudden, violent attack.” But, if you look up the word in a legal dictionary, you get a different definition, usually something like “an attempt to do violence, with or without battery.”
It is that “with or without battery” part that distinguishes our common sense notion of assault with the legal definition. Under the law you don’t actually have to make contact (commit battery) to be charged with assault. As we’ll discuss below, in some cases you don’t even have to try to make contact to be charged with a felony assault.
In South Dakota, there are two basic categories of assault: (1) misdemeanor simple assault; and, (2) felony aggravated assault. Each category carries increased penalties if the “victim” is a law enforcement officer. They are all serious charges and all carry stiff penalties and consequences. In another forum I’ll discuss domestic assaults, which are a different beast altogether and deserve special attention outside this general discussion.
Simple assault is generally a misdemeanor in South Dakota. It is punishable by up to one year in jail, a two thousand dollar fine, or both. Often, because of the nature of the crime, if convicted the offender may also have to pay restitution to the victim (medical bills, counseling costs, lost wages, damaged property). And, the offender may have to go to anger management or corrective thinking classes. These classes can be expensive and time consuming. Last, in most cases a no contact order is imposed, which prevents the offender from having any contact with the victim.
With these serious consequences in play, you’d expect that the underlying conduct would have to be pretty serious, wouldn’t you? If so, you’d be wrong. Simple assault in South Dakota can be charged in 5 different ways: (1) if you merely attempt to cause non-serious injury to another, regardless of whether any injury occurs or whether you make contact; (2) if you unintentionally, but recklessly, cause bodily injury to another; (3) if you negligently cause bodily injury to another; (4) if you attempt by “physical menace” to put another person in fear, regardless of whether you actually had any ability to cause the other person harm; and, (5) if you intentionally cause non-serious bodily injury to another. So, in crimes #1 and #4, you don’t need to make any contact at all. You don’t even have to have the ability to cause any injury to be convicted. And, in regard to crimes #2, #3, you don’t need to have even meant to harm anyone . . . if your conduct was reckless (i.e. stupid and careless) or negligent (really, really stupid), that is enough.
What is even more significant to note is that a misdemeanor simple assault can become a felony charge with a punishment of up to two years in prison, a four thousand dollar fine, or both, plus all the other classes and costs, if one of two things happens: the “victim” is a law enforcement officer, or, you have two previous assault convictions within the preceding 10 years.
Aggravated assault is much more serious than simple assault. It is a class three felony, meaning it is punishable by up to 15 years in prison, a $30,000.00 fine, or both. In addition to those consequences, there are some additional things to consider. Aggravated assault, by statute, is a “crime of violence.” That means that you are going to do at least 50% of the sentence before you will be parole eligible (as opposed to 25% for nonviolent offenses). Even if no actual harm occurred, it is a violent crime under the law. And, in the federal system, prior state convictions for drug crimes and crimes of violence can be used against you to substantially increase your sentence under the “career offender” statutes.
Like simple assault, aggravated assault can be charged even if you never touch the other person. The statute permits you to be convicted of aggravated assault in five circumstances: (1) if you attempt to cause serious bodily injury, even if it doesn’t actually occur, under circumstances manifesting extreme indifference to the value of human life; (2) if you cause bodily injury (serious or not) with a dangerous weapon; (3) if you intentionally cause serious bodily injury to another; (4) if you put another person in fear of serious bodily injury by merely brandishing or “physically menacing” another person with a dangerous weapon; or, (5) if you choke someone in such a way as to cause them to fear death or serious injury. As with simple assault, a number of these scenarios involve no actual injury, or no serious injury. For instance, under scenario #4, if you point an unloaded weapon at someone, and they get seriously spooked by it, you are guilty of aggravated assault. And, like simple assault, if an aggravated assault is against a law enforcement agent, the penalty is substantially increased: the maximum goes from 15 years to 25 years in prison.
As you can see, the defense that you never laid a finger on a guy, or didn’t cause him any real injury, is not a defense to assault. This is one of the many times when the common sense understanding of a term is far different than the legal definition.