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Assault & Battery

The difference between assault and battery in Virginia

Even though they are often charged together, assault and battery (Virginia Code §18.2-57) are actually two different offenses. Assault is the threat to harm another individual with the potential to actually execute said harm, whereas battery is the execution of unwanted physical contact or harm onto another. To illustrate, let’s say you are walking down the street and you notice an individual walking towards you and carrying a hammer. As the person approaches you start to worry that he or she will strike you. The person has done nothing to indicate that they intend to strike anyone, even though you may feel threatened, no assault has been perpetrated. However, if that same individual approaches you and raises the hammer as if to strike you, then he or she has committed assault. If the person actually lands a blow to you with the hammer, then he or she has also committed battery.

Assault and battery charges can range in severity from a Class 1 Misdemeanor to a Class 5 Felony. The actual charge and associated penalties are assessed by the following:

  1. Who was the victim of the assault and/or battery?

  2. Was the assault and/or battery committed because of race, religion, ethnicity or sexual orientation?

  3. How severe was the bodily injury caused by the battery?

Misdemeanor simple assault and domestic violence

Misdemeanor simple assault is the lowest level assault charge in Virginia. The charge usually applies when the victim of the alleged assault is not a member of law enforcement or fire rescue. In simple assault offenses, the victim is usually not seriously injured from the assault. This charge also implies that the alleged assault was not a hate crime and weapons were not used. Even though it is Virginia’s lowest grade assault charge, it is still considered a Class 1 Misdemeanor and carries potential penalties that include up to twelve (12) months in jail and/or a maximum fine of $2,500.

While the penalties and offense level are the same as a simple assault, assault on a family member, sometimes known as domestic violence is a different charge. One of the most important distinctions between simple assault and domestic violence is the involvement of the Commonwealth. In domestic violence cases, the Commonwealth reserves the right to press charges even if the victim does not wish to do so. If you are charged with this offense, and it is your first domestic violence offense, you may be eligible for a first-time offender program. It is very important that you contact an attorney to help you apply for this program.

Assault as a hate crime
When assault or battery occurs because of a person’s race, religion, sexual orientation, or ethnicity, it is considered to be a hate crime. Assault as a hate crime has greater penalties than simple assault.If the offense is assault without battery then the offense is still a Class 1 Misdemeanor, but this offense carries a penalty of six months in jail with a 30 day mandatory minimum. If the battery resulted in injury to the victim, then the offense level escalates to a Class 6 Felony. 

If you have been charged with this offense then the prosecution must prove that you intentionally targeted the victim specifically because they are a member of a certain group. For example, if during your assault you began shouting slurs about a group to which the victim belongs, then there is probable cause that you committed the offense solely because of the victim’s membership of that group.

Assault on a police officer or fire and rescue personnel
Virginia code classifies assault and battery against a member of law enforcement, fire/rescue personnel, or a public servant as a Class 6 Felony. In order to be convicted of this offense, the state must prove that you knew, at the time of the alleged offense, that the victim was a member of one of these protected groups and that the victim was engaged in official duties at the time of the offense.

Defense of assault and battery

In order for you to be convicted of assault and battery in Virginia Courts, the State has to prove two things.

  1. That you intentionally touched another individual without prompt.

  2. That the manner of touching was offensive.

A common defense for assault or battery charges in Virginia is that the touching was in response to an assault by the complaining witness or that the touching occurred in self-defense. Common defenses are:

  • Consent: This defense would claim that the alleged victim gave consent to some form of physical contact. Mutual combat, or an agreement to fight, is a form of consent. 
  • Self Defense: In Virginia, you can help prove self defense by proving the record of the complaining witness for violence. In some cases, you do not even need to have been aware of the past history to use it in proving self defense.
  • Public Authority: This defense would apply if you are a member of law enforcement and needed to engage in unwanted physical contact in order to arrest an individual.

There are certainly other defenses that can be used to protect your rights. We encourage you to contact a Roanoke criminal lawyer to discuss the details of your case and what can be done to better your situation.

Facing assault & battery charges in Virginia?

If you’ve been charged with a crime related to assault & battery in Virginia, the experienced criminal defense attorneys at Copenhaver, Ellett & Derrico can help evaluate the details of your case and your options. For an appointment at our Roanoke office, call us at .