Self-Defense vs. Assault and Battery in Virginia


Posted on September 5th, 2012, by Benjamin Griffitts in Criminal Defense. Comments Off

As a criminal defense lawyer, I commonly confront individuals charged with assault and battery who feel that they were the real victims of the altercation. In some cases there is evidence to support their claim: for example, they may have been the one to call police, may have looked to be in worse shape after the fight, or the other person may have unquestionably instigated the altercation. What each of these stories share is a common belief from each accused that they are the true victims of the crime. That they were acting in self-defense.

So what, exactly, is self-defense? To answer that, one must first understand what constitutes assault and battery, which we explain in our guide to Assault and Battery Defense in Virginia. As explained there, an assault under Virginia law is defined as basically any “overt act” to another person that is done with the intention of creating fear of harm. Battery, on the other hand, is defined as “the willful touching of another, without legal excuse or justification, done in an angry, rude, insulting or vengeful manner.”

Self-defense is an affirmative defense against an allegation of assault and/or battery. A person claiming self-defense admits that an “overt act to place a person in fear” and/or a “willful touching of another” took place, but claims that he or she had a “legal excuse or justification” for their actions (the overt act and/or willful touching).

One kind of self-defense is where the defendant did not instigate the altercation and, according to the Model Jury Instructions, had reasonable fear “that he was in imminent danger of bodily harm,” and used only the amount of force “that was reasonably necessary to protect himself from the perceived harm.”

For example, if a person hits you, and looks like he will hit you again, so you push him back to escape the situation, you could rightly claim that you used reasonable force and thus that your pushing was justified. If a person is on top of you, and you knee him in the groin to get yourself free, that may be justified. However, if a person is holding onto your arm, and you slap him to get yourself free, but then you continue to slap him, that may be excessive or unreasonable.

A second kind of self-defense under the Model Jury Instructions may apply where the defendant played a role in instigating the altercation, but then attempted in good faith to “abandon the fight” and “retreated as far as he safely could under the circumstances,” spoke or acted in way that “made known his desire for peace,” had a reasonable fear of “imminent danger of bodily harm,” and used only enough force as was “reasonably necessary to protect himself from the perceived harm.”

For example, imagine you’re in the bedroom with your spouse and an argument breaks out. You call each other names and say things you later regret. Your spouse begins slapping you, but you back away from her, put your hands up and tell her to stop. She moves toward you apparently in order to slap you again—so you push her away. That may be self-defense. But if you push her so hard that she falls and hits the back of her head on the nightstand, things become much more complicated. Maybe that amount of force was still reasonably necessary—or maybe it will now be considered excessive.

The reality is that these situations are always unfortunate and often complicated. There are rarely independent witnesses. An experienced criminal attorney can assist you in properly raising your self-defense claim and ensure that the truth prevails.

The criminal lawyers at Livesay & Myers, P.C. are experienced in defending against charges of assault and battery and many other criminal offenses. We represent clients in Fairfax, Alexandria, Arlington, Manassas, Woodbridge, Prince William County, Fredericksburg, Spotsylvania, Stafford, and throughout Northern Virginia. If you have been charged with a crime, contact us to schedule your free consultation with an experienced criminal attorney today.

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About 

Ben Griffitts is a senior associate attorney at Livesay & Myers. An attorney since 2004, he has years of experience defending clients on criminal charges in Northern Virginia—from serious felonies, violent crimes, and drug charges to traffic offenses and misdemeanors. As an experienced personal injury attorney, he has also handled every type of automobile accident case in Virginia.



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