What Constitutes An Assault in Virginia?
While the crime of Assault and Battery is found in Virginia Code § 18.2-57, the terms aren’t defined there. Assault and battery are “common law” crimes, so their definitions have been developed over the course of many years and can be found in legal dictionaries or in written judicial opinions. Assault is defined as basically any “overt act” to another person that is done with the intention of creating fear of harm. It can be an assault to create fear of harm even if you don’t have the ability to cause the harm—if it is reasonable for the person to have the fear. So, you can be charged with assaulting someone if you verbally threaten to hurt them, or make a physical move that would indicate you intend to hurt them. You don’t have to touch anyone to commit an assault.
So What is Battery Then?
Battery is defined as “the willful touching of another, without legal excuse or justification, done in an angry, rude, insulting or vengeful manner.” When someone is charged with assault and battery (“A&B” for short), usually it is for the completed act of battery—actual physical contact made to another person without justification. These two examples illustrate what may or may not constitute a battery:
Example 1. John taps Michael on the shoulder to get his attention, and Michael turns around and says “don’t touch me.” John has not committed a battery against Michael, because his touching Michael was not done in “an angry, rude, insulting or vengeful manner.”
Example 2. After Michael says “don’t touch me,” John continues to tap Michael on the shoulder—again and again. John may now have crossed the line into an assault and battery, as he is now touching Michael in an “angry, rude, insulting or vengeful” (rude, at the very least) manner.
Battery can include, but is not limited to: punching, kicking, slapping, biting, pulling, pushing, bumping, grabbing, squeezing, throwing an object, striking someone with an object, and knocking an object out of someone’s hand (even without coming into physical contact with the person).
What About Self-Defense?
It is an oversimplification to say that hitting someone first is a battery, but hitting them back is self-defense. Our article, Self-Defense vs. Assault and Battery in Virginia, describes in more detail the relationship between self-defense and assault and battery. Basically, self-defense is committing a battery with legal justification: hitting, pushing, scratching, etc. a person who placed you in “reasonable fear” of “imminent danger of bodily harm,” where your actions were “reasonably necessary to protect” yourself. An act that began as self-defense can cross the line into a separate crime of battery if you use excessive or unreasonable force in defending yourself.
What If You Were Both Fighting and No One Knows Who Started It?
According to the United States Supreme Court, participants in mutual combat are both wrong-doers. Rowe v. United States, 164 U.S. 546, 556 (1896). Anyone engaging in a fight could be convicted of assault and battery. In a case where all the combatants invoke their Fifth Amendment rights and refuse to testify, the government can have a tough time prosecuting any of them. If there are independent witnesses, however, such as a police officer or a bystander, then everyone involved in a fight might be charged. The Supreme Court also states in the Rowe case that even if you start the fight, if you withdraw from the conflict and express your desire for peace, but the other party continues to fight and you defend yourself, you could have a self-defense case.
What If the Assault & Battery Was Against a Family or Household Member?
This offense, a violation of Virginia Code § 18.2-57.2, is commonly referred to as “domestic assault and battery.” That term covers assault and battery between family members, extended family members, in-laws if they live in the same household, former spouses, people who are cohabiting (living together romantically) or have done so in the previous year, and between people who have children together even if they don’t live together or were ever married. There are several important implications to being charged with a domestic assault vs. a regular assault:
J&DR Court. Domestic assault and battery cases are tried in the Juvenile and Domestic Relations District Court (“J&DR Court) rather than the General District Court.
Emergency Protective Order. When you are arrested for a charge of domestic A&B, an Emergency Protective Order (“EPO”) will automatically
be issued. An EPO lasts 72 hours (unless the 72 hours expire before court is in session, in which case the EPO will last until the next scheduled court opening). An EPO will usually grant exclusive use of the parties’ residence to the alleged victim (meaning the accused must find a place to stay and may not even be able to pick up their personal property), and prohibit any and all contact between the parties as well as between the accused and any other individuals in the home (such as children). The alleged victim can elect to appear in court to request an extension of the protective order, which would last 15 days and trigger an automatic hearing that in turn could result in a protective order lasting up to 2 years. Alternatively, the EPO can expire, and the accused can theoretically resume lawful contact with the alleged victim and return to the residence.
Gun Rights. Domestic violence charges and protective orders can impact a person’s ability to carry or use a firearm, which can have a wide-ranging impact, particularly on those in law enforcement or the military. See Domestic Violence and Gun Rights in Virginia for more information.
First-Offender Disposition. If you are charged with a domestic A&B and you have never been charged with one before, you are eligible for a first-offender disposition under Virginia Code § 18.2-57.3. That statute grants the trial court the discretion to defer a finding of guilt for 2 years. During that time you would be placed on probation, be required to complete certain terms and conditions like completing a domestic violence class, pay court costs, maintain good behavior, and commit no new crimes. If you successfully complete these terms, then the judge would dismiss the charge against you. This option is extremely useful in some cases, as it allows the defendant to avoid the risk of a trial and subsequent conviction, and possibly a serious punishment like jail—and avoid having a criminal conviction record. See Deferred Disposition in Virginia for more information
Can You Be Charged With Domestic Assault for Spanking Your Own Child?
Corporal punishment is not, in and of itself, illegal in Virginia. However, depending on the circumstances you can indeed be charged with domestic assault for spanking your own child in Virginia. See Corporal Punishment in Virginia: Is Spanking Legal? for more information
What Are the Maximum Punishments for Assault & Battery in Virginia?
Simple assault, assault and battery or domestic A&B are generally Class 1 Misdemeanors. This means that the matters are first heard in a district court by a judge only. The maximum punishments are up to 12 months in jail and a $2,500 fine. If you are convicted, you have the automatic right to appeal the conviction or sentence to Circuit Court for a new trial, wiping away your conviction and sentence, giving you a new judge, or a seven-person jury if you wish. But there are some violent offenses that go beyond “simple” assault and are charged as felonies. The most commonly charged felony A&B offenses are (a) malicious wounding or unlawful wounding and (b) assault and battery on a law enforcement officer. Strangulation is also a separate felony assault crime in Virginia.
Assault & Battery on a Law Enforcement Officer. This offense has the same elements as misdemeanor assault and battery, but the alleged victim is a police officer, sheriff, firefighter, EMS, judge, magistrate, works for a jail or prison, or is an employee of the Department of Behavioral Sciences. If the prosecutor proves that the accused knew or should have known that the victim was someone in one of those capacities, the A&B will become a Class 6 felony, punishable by up to five years in prison (with a mandatory minimum of 6 months in jail).
The most common situation for this offense is when a person is being arrested for something else and refuses to be taken into custody, and in resisting arrest pushes, kicks or otherwise contacts the police officer. A defendant who makes contact with more than one officer can be charged with separate felonies for each officer. Spitting at a police officer can also result in a felony assault charge.
Malicious Wounding and Unlawful Wounding. Malicious wounding goes beyond assault and battery to include a criminal mindset called malice. Generally speaking, you commit an offense with malice when you intentionally commit a crime, and you were not provoked to act in the heat of passion. Assault and battery doesn’t have to result in an injury for there to have been a crime; but malicious wounding requires some kind of injury inflicted with malice. Malicious wounding also requires the intent to injure or kill. The maximum punishment for malicious wounding in Virginia is 5–20 years in prison and a $100,000 fine. For aggravated malicious wounding—where the victim suffers a “permanent and significant physical impairment”—the maximum punishment is 20 years to life in prison and a $100,000 fine.
If the offense occurs without malice—meaning that the injury was inflicted intentionally but in the heat of passion or after being provoked to rage or
anger, then the offense is considered “unlawful wounding,” punishable by up to five years in prison.
One important factor to remember about these offenses is that each is considered a lesser included offense of the other. For example, if you are charged initially with aggravated malicious wounding, but the alleged victim has not suffered a permanent injury, you can still be found guilty of malicious wounding. If the facts of the case determine that the offense was committed in the heat of passion and without malice, then you could still be found guilty of unlawful wounding. If it becomes apparent that the offense was committed without an intent to injure or kill, then you could still be found guilty of assault and battery. This becomes very important when your attorney is preparing for a trial and possibly negotiating a resolution of your case with the prosecutor.
What Should You Look For In Hiring An Attorney For Your A&B Case?
Assault and battery and its more serious related offenses are by their very nature violent crimes. This means that prosecutors, victims and their families, judges, and ultimately juries, will tend to react in a more emotional way than they would for an impersonal crime like shoplifting. This could result in severe punishments even for someone who has no prior criminal history. While the cost of an attorney is certainly a factor, there is too much on the line to make cost your number one consideration. Focus instead on the attorney’s experience and familiarity with the local jurisdiction. Does the attorney have a proper understanding of very subjective standards like fear of harm, malice or uncontrolled passion—concepts that could mean the difference between a serious felony conviction and an acquittal?
The crime of assault and battery can be a misdemeanor or a felony in Virginia, depending on the circumstances. The most commonly charged felony assault offenses in Virginia are malicious wounding and unlawful wounding.
What Are Malicious & Unlawful Wounding in Virginia?
The crimes of malicious wounding and unlawful wounding are both found in Virginia Code Section 18.2-51. Why some people are charged with one of these felonies instead of misdemeanor assault and battery has to do with the mindset of the person accused as well as the impact on the alleged victim. The crime of assault and battery in Virginia does not require that an injury occurred. Nor does it even require that the defendant intended to hurt anyone. By contrast, the crime of malicious or unlawful wounding requires that the defendant inflicted a wound with an “intent to maim, disable, disfigure or kill.”
Wounding vs. Causing Bodily Injury. Technically, there are four crimes in Virginia Code Section 18.2-51: (1) malicious wounding, (2) unlawful wounding, (3) maliciously causing bodily injury and (4) unlawfully causing bodily injury. These terms are often used quite interchangeably, but there are important differences between them. How the charge is worded makes a tremendous difference:
For charges of malicious or unlawful wounding, the prosecution is required to prove that the victim’s skin was broken—and by a weapon other than a body part. You can’t bite a person on the arm and be convicted of malicious or unlawful wounding. If you hit a person with a frying pan, and it causes a cut on their arm, then you may be at risk for a conviction. On the other hand, if you hit a person with a frying pan, and then they fall against a counter top, and it is the sharp edge of the counter that causes the cut, that should not be considered a wounding.
For charges of maliciously or unlawfully causing bodily injury, the prosecution is not required to prove that the victim’s skin was broken or that the defendant used a weapon. That means you can be charged and convicted of maliciously or unlawfully causing a bodily injury if you punch a person in the arm and leave any kind of injury, although the standard to increase such an act from a simple assault to a felony assault has to do with facts such as whether the injury required any medical attention or lingered for some period of time affecting the person’s lifestyle. If your warrant or indictment is not specific as to which effect (wounding or bodily injury) has taken place, you may now have a viable defense. In many cases, prosecutors include both wounding and bodily injury language as a catch-all, hoping to be able to prove one or the other.
What are the Maximum Punishments for Malicious & Unlawful Wounding?
Because of the difference in a person’s mindset in committing malicious wounding vs. unlawful wounding, the punishments for each are vastly different. The maximum punishment for malicious wounding (or maliciously causing bodily injury) in Virginia is 5–20 years in prison and a $100,000 fine. By contrast, unlawful wounding (or unlawfully causing bodily injury) is punishable by up to five years in prison, or up to 12 months in jail and a $2,500 fine.
Aggravated Malicious Wounding. For malicious wounding cases where where the victim suffered a “permanent and significant physical impairment,” the maximum punishment increases to 20 years to life in prison and a $100,000 fine. This is called “aggravated malicious wounding.” A scar that is visible and obvious would qualify as a permanent and significant physical impairment. Certainly leaving a person disabled or crippled would qualify. But, an injury that has completely healed or is predicted to heal and leave no signs of an injury—even if the injury was otherwise quite serious—will likely not meet the standard for an aggravated malicious wounding.
What are Some Examples of Malicious & Unlawful Wounding?
Here are some concrete examples to illustrate the differences between aggravated malicious wounding, malicious wounding, unlawful wounding and simple assault:
Example 1. Jeff knows that his wife is committing adultery with their neighbor Steve. Jeff knows that Steve likes to jog through a wooded path around the same time every Saturday morning. Jeff owns a baseball bat.
Jeff decides that this Saturday, he’s going to hide along the path and teach Steve a lesson—not kill him, but send him a message. Jeff surprises Steve on the path and beats him with the baseball bat. Jeff leaves Steve with a concussion, a cracked orbital bone, as well as a bloody and broken nose and various cuts and bruises. Jeff also knocks out several of Steve’s teeth. At a minimum, Jeff is facing a charge for malicious wounding—the malice being evidenced by his planning out the attack. He could also be convicted of aggravated malicious wounding if Steve suffers visible scarring, or because Steve’s teeth were removed, or if the concussion resulted in a permanent disability to Steve.
Example 2. Jeff surprises Steve on the path, takes a single swing of the bat, and hits and breaks Steve’s arm. Jeff is definitely at risk of a conviction for malicious wounding—for making a plan to attack and injure Steve and carrying it out. However, if Steve’s arm fully heals and there is no permanent and significant physical impairment, Jeff will likely escape the more severe punishment for aggravated malicious wounding.
Example 3. Jeff has no idea that his wife and Steve are having an affair—until he comes home from work, goes up to the bedroom and finds them in bed. Jeff immediately flies into a rage and without thinking, grabs a flashlight sitting on top of the dresser and starts hitting Steve, breaking Steve’s nose and arm. Jeff is most likely facing charges of unlawful wounding or unlawfully causing bodily injury. Why? No malice. There was no plan on Jeff’s part to injure: he was provoked to anger, he acted in the heat of passion. Therefore, Jeff should not be convicted of aggravated malicious wounding, malicious wounding or maliciously causing bodily injury.
Example 4. Jeff comes home from work and catches his wife and Steve in the act. Jeff punches Steve in the face and then walks away. Steve has just a swollen cheek. Most likely, Jeff will see a misdemeanor charge of assault and battery, as opposed to malicious or unlawful wounding.
These examples illustrate a very important point: assault and battery is a “lesser included offense” of unlawful wounding, which is a lesser included offense of malicious wounding, which is a lesser included offense of aggravated malicious wounding. In practice, this means that the prosecutor will often “overcharge”—charge the defendant initially with a greater offense with the expectation that the defendant might ultimately be convicted of, or plead guilty to, a lesser offense.
In 2012, the Virginia General Assembly passed a law that carved out a significant distinction in the assault and battery laws in Virginia, by making strangulation a separate offense from misdemeanor assault and battery, as well as from the felony assault crimes of malicious and unlawful wounding. The law is codified in Virginia Code Section 18.2-51.6, which makes strangulation a Class 6 Felony, punishable by up to five years in prison, or in the discretion of the judge or jury, up to twelve months in jail and a $2,500 fine.
The Need for a Separate Law
The crime of assault and battery can be a misdemeanor or a felony in Virginia, depending on the circumstances. The act of strangulation often falls between the classic misdemeanor assault and battery, and the various types of felony assault in Virginia.
A simple misdemeanor assault and battery would be any unwanted or unjustified touching of another person, done in an angry, rude, insulting or vengeful manner, with the intention of creating fear of harm. Most acts of strangulation would easily meet this definition.
However, strangulation as a crime seems to be more serious than a standard misdemeanor assault. The effect of strangulation on the victim seems much greater than the fear or apprehension of harm. A person who is being strangled has a heightened sense of fear and helplessness. Cutting off a person’s circulation or respiration could lead to brain damage or death. Most acts of strangulation will by definition occur over many more moments in time than a single punch or push, making them even more traumatic for the victim. Finally, the mindset of the person committing the act seems much worse than that of a person who simply inflicts an unwanted or unjustified touching in an angry, rude, insulting, angry or vengeful manner.
However, many acts of strangulation do not quite meet the definition of any of the felony assault crimes in Virginia.
The most commonly charged felony assault offenses in Virginia are malicious or unlawful wounding and maliciously or unlawfully causing bodily injury. Virginia law makes very important distinctions between these terms, as discussed in detail in Malicious Wounding & Unlawful Wounding in Virginia. A wounding requires a breaking of the skin using something other than a body part. Causing bodily injury has to do with visible signs of injury, such as bruising, as well as the effect on a person’s lifestyle, the lingering effect of the injury and the requirement for medical attention.
Most acts of strangulation are committed with a person’s hands and will not normally result in a cut or other open wound—and so will not fall under the category of malicious or unlawful wounding. Many are done in the heat of passion, eliminating the criminal mindset of malice and thus the crimes of malicious wounding and maliciously causing bodily injury. Many acts of strangulation are done without leaving a serious visible injury or causing the victim to require medical attention, and so would not fall under the crime of of maliciously or unlawfully causing bodily injury.
Thus, strangulation can be seen as falling somewhere on the scale between misdemeanor assault and battery, and the various types of felony assault in Virginia. It is more serious than the former, but does not often meet the definitions of the latter. An examination of the legislative history of Virginia Code Section 18.2-51.6 shows that lawmakers were attempting to address this problem with the new strangulation law in Virginia.
What Constitutes Strangulation Under the 2012 Law?
Virginia law now defines strangulation as the nonconsensual, knowing, intentional and unlawful application of pressure to a person’s neck, impeding “the blood circulation or respiration,” which results in that person’s wounding or bodily injury. The prosecutor must prove each of these elements to convict a defendant of strangulation in Virginia.
Nonconsensual. Without getting too graphic, there are certain occasions where a person does consent to be choked. When two consenting adults engage in this sort of activity, the crime of strangulation does not occur.
Knowing, intentional and unlawful. This is the intent element of the crime—the prosecutor must prove that the defendant knowingly, intentionally and unlawfully choked the victim. The “and” means that the prosecution must prove all three things: that the defendant knew he or she was choking the victim, was doing it on purpose, and was not doing it for any lawful purpose. This is separate from the requirement that the choking was nonconsensual, which means that not every act of nonconsensual choking is a crime.
Application of pressure to a person’s neck. This requirement limits the crime of strangulation to object around another person’s neck and squeezes. One could theoretically choke a person by having him or her ingest something that would cut off their circulation or respiration, without applying any pressure to the person’s neck. That would not constitute strangulation under Virginia law.
Resulting in a wounding or bodily injury. This element of the crime of strangulation raises many questions. As explained above, a separate strangulation crime was needed because many acts of strangulation do not quite meet the definition of any of the felony assault crimes in Virginia. In many cases that is precisely because the act of strangulation does not cause a wounding or bodily injury—at least in the way those terms are defined for the other felony assault crimes. Again, many acts of strangulation are committed with a body part (the hands) and do not break the skin—and thus don’t constitute “wounding.” And many of them are done without leaving a serious visible injury or causing the victim to require medical attention, and so do not amount to causing “bodily injury.”
And yet, to secure a conviction for strangulation under the law enacted in Virginia in 2012, a prosecutor must prove that the choking resulted in a wounding or bodily injury. Does this mean that those terms are to be defined differently for purpose of strangulation? For example, is one level of bodily injury required for strangulation but a higher level of bodily injury required for maliciously or unlawfully causing bodily injury? Or is this just a case of legislative intent not meeting the language of the code provision that actually became law?
Because the strangulation law in Virginia was just passed in 2012, there is an across-the-board lack of familiarity with the law, its elements and its application—among judges, prosecutors, law enforcement and defense attorneys. If you find yourself charged with the felony of strangulation, you should seek out an attorney who is intimately familiar with each element of the crime, and knows how to pick apart the government’s case.
Robbery is defined in Virginia as the taking of money or property from another person by injuring or threatening to injure that person. Robbery carries a punishment range in Virginia of five years to life in prison. Robbery is essentially the crime of larceny combined with an assault or battery. A defendant who takes money or property from another person but not by injuring or threatening to injure may have committed larceny, but is not guilty of robbery. The specific factors of a particular theft, including where the theft took place, whether a weapon was involved, whether the victim was threatened or physically harmed, etc., must all be examined in determining whether the theft amounted to robbery or perhaps “merely” larceny.
The specific circumstances of the robbery also help determine the likely punishment if the defendant is convicted. An unarmed defendant with no prior criminal record who robs a victim on the street by merely threatening harm, without actually inflicting harm, will likely see a relatively light punishment. In such a situation, the Virginia Sentencing Guidelines actually recommend probation or up to a six-month jail sentence. However, a defendant who uses a weapon in a robbery automatically increases their punishment range under the guidelines, and faces the possibility of years of incarceration. [Keep in mind that the guidelines only serve to advise the judge; a jury sentencing a defendant convicted or robbery does not consider the guidelines, but merely punishes the defendant according to the five years to life in prison range.] Virginia only has one robbery statute, Virginia Code Section 18.2-58. There is no difference between a bank robbery, street robbery, strong arm robbery or armed robbery. All are considered robbery.
Robbery vs. Larceny From the Person
Robbery and larceny from the person are two distinct crimes under Virginia law, but it is sometimes tricky to distinguish between the two. In general, larceny from a person is a crime focused on the perpetrator’s intent, while robbery is a crime focused on the effect on the victim.
Larceny is defined in Virginia Code Sections 18.2-95 and 18.2-96. It normally involves theft of property from a location, but can also be larceny of property directly from a person. Larceny from a location of property with a value of $200 or more is a felony, while larceny of property worth less then $200 from a location is a misdemeanor. For larceny of property from a person the dividing line between felony and misdemeanor is much lower: just $5. Larceny of property with a value of just $5 or more directly from a person is a felony in Virginia.
One reason why larceny from a person is treated so seriously in Virginia may be that the act comes very close to being a robbery.
To convict a defendant of larceny from a person in Virginia, the prosecutor must prove that the defendant took money or property from a person, and also that the defendant took the money or property intentionally, with the intent to permanently deprive the owner of that property. The victim does not even need to know that their property has been stolen for a larceny of the person to occur.
To convict a defendant of robbery, the prosecutor must prove all of those elements of a larceny—that the defendant intentionally took money or property from a person, with the intent to permanently deprive the owner of the property—but also that the taking was done with violence or intimidation.
Thus, a person may not know that a defendant has committed a larceny from their person (think about a skilled pickpocket), but would certainly know that they have been robbed.
Here are some examples that illustrate the differences between robbery and larceny from the person in Virginia:
Example 1. Joe is walking down the street with his headphones on, oblivious to the world around him. Joe stops at a busy crosswalk. Ralph snatches Joe’s wallet from his back pocket and begins to run off. Joe notices the commotion, feels his back pocket and realizes his wallet is gone. Ralph has most likely committed the crime of larceny from the person. He used stealth and guile, not violence or intimidation, to deprive Joe of his property.
Example 2. Joe is walking down the street with his headphones on, oblivious to the world around him. Joe reaches a crosswalk, where Ralph bumps Joe with his shoulder, pulls the wallet out of Joe’s pocket and begins to run. Because of Ralph’s act of violence directly preceding the taking, Ralph’s crime will likely be charged as a robbery.
Example 3. Joe is in his home. Ralph breaks in and verbally threatens to harm Joe if he doesn’t give Ralph all his valuable electronic equipment. Based upon the threat, Joe agrees to let Ralph take his television. Ralph leaves the residence without ever touching Joe. Ralph’s threat of harm, directly linked to Joe’s turning over the property, makes this a robbery.
Example 4. Joe’s cousin, John, is a soldier, home on leave. John is in the bedroom of his home when Ralph breaks in and tries to steal the television from John’s living room. Alerted by the noise, John makes his way to the living room where he makes his presence known to Ralph. Ralph turns and threatens to shoot John if he comes any closer. A quick survey of the situation leads John to conclude that Ralph has no weapon, and so John continues to approach Ralph. Ralph grabs the television and tries to run out of the house. John pursues Ralph and tackles him outside the home. John later tells the police who arrive on the scene that he was not afraid of Ralph’s threat because it was clear Ralph was unarmed. In this scenario, there is a good possibility that Ralph would be charged with larceny (or breaking and entering) rather than robbery, because John never exhibited or expressed any fear or apprehension of harm. On the other hand, if Ralph had actually pointed a gun, even if John had expressed that he was not afraid, then Ralph would likely be prosecuted for robbery—because pointing a firearm at another person is considered an act of violence.
Example 5. Joe’s other cousin, Jack, is a teller at a bank. Ralph, wearing a ski mask, walks into the bank, hands Jack a bag and instructs him to fill it with cash. Jack complies. Although Ralph has made no direct threat, and Jack was not necessarily placed in any fear of harm, Ralph’s conduct clearly intimidated Jack into complying with the demand to put money in the bag. Ralph would thus be charged with robbery.