The word assault conjures many images, such as Marines jumping off fast-moving HUMVEES, rifles raised, eyes steely and resolute, advancing towards the enemy in a hail of bullets; a fist smashing into a man’s jaw during a barroom brawl, or; a figure lurking in the shadows grabbing the early morning jogger as she rounds a bend in the trail. All three of these images are assaults as defined in common usage. But legally, an assault requires absolutely no physical contact whatsoever.
Do you think you can be convicted of an assault for throwing a rock in the direction of a man walking away from you, even if the man never knew you threw the rock? Do you think you could be convicted of an assault for pretending to throw a rock at a man walking toward you? What if you started throwing before you realized the man was even there? Let’s say in the first example you deliberately missed once you realized someone was there and in the second you stopped yourself before releasing the rock. Could you still be convicted of assault? The answer, sadly, is yes, depending on the circumstances.
Virginia Code § 18.2-57 states, in part, the following: “Any person who commits a simple assault … shall be guilty of a Class 1 misdemeanor… .” But what exactly is an assault? Per instructions given to members of the jury in Virginia, an assault can be either of the following two things:
- An overt act intended to do bodily harm to another together with the present ability to cause such harm, or;
- An overt act intended to place a person in fear or apprehension of bodily harm that creates in him a reasonable fear or apprehension.
In the first definition, the person being assaulted doesn’t even have to know they are in any danger! For example, if a man is walking down the street with his back to you and you throw a rock in his direction, you could be charged with an assault if someone saw you. The man walking could be none the wiser and it could still be an assault. The overt act would be the thrown rock. Whether you meant to hit the man or not is a matter of intent. So even if you deliberately missed after realizing the man was there, you could be convicted of assault.
In the second definition, you wouldn’t even have to throw the rock! Now, instead of walking away, say the man is walking towards you. You could simply pick up the rock and start to throw it but then stop. The overt act would be the feigned rock throwing and now the intent would be whether you meant to scare the man. Actually, scare is too strong a word– as apprehension can be suspicion or nervousness. If the walking man actually became nervous, that’s technically enough to constitute an assault.
In both cases, the Commonwealth would have to prove your intent. And here is where it gets complicated. What if the government’s witness testifies she was sure you meant to hit the man walking with his back to you? What if the walking man and you have a history of bad blood? What if the man walking towards you is certain you were trying to scare him because last week he reported you to your Home Owner’s Association? Will the judge essentially call the prosecutor’s witness or the alleged “victim” a liar to their face?
The preceding examples are over-simplified but illustrative. There is nothing simple about a “simple assault.” Real life scenarios are usually more complicated, and thus more difficult to defend. In the end, justice may require your case be heard by a jury of your peers. That’s why you need a trial attorney at every stage of the criminal justice process to protect your rights, defend your innocence, and fight to make sure your voice is heard.
The criminal defense lawyers at Livesay & Myers, P.C. represent clients throughout Northern Virginia, with a special emphasis on assault and battery cases. If you or a loved one have been charged with a crime, contact us to schedule your free consultation with an experienced criminal defense attorney today.