Malicious Wounding & Unlawful Wounding in Virginia
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 is the Difference Between Malicious & Unlawful Wounding?
What sets malicious wounding apart from unlawful wounding is the criminal mindset called “malice.” The term malice describes a certain mindset, one of purpose while in control of your reason. To commit an offense with malice is to intentionally act at a time when you were not provoked to act in the heat of passion. If the wounding occurred without malice—for example in the presence of some factor that provoked the defendant to rage or anger—then it would likely be charged as unlawful wounding.
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.
See also: Strangulation in Virginia.
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