Although each state defines felony assault* somewhat differently, it’s fair to say all states base their definition of felonious assault upon the following premise:
A felony assault occurs when the perpetrator willfully or with intent to cause serious bodily injury or death strikes another person, or places that person in fear of imminent bodily injury or death.”
* Some states use the term “Aggravated Assault,” or “Assault and Battery,” which describes the actual striking of the victim.
Three factors constitute felonious assault:
- The perpetrator (or “actor”) must have the intent to cause serious bodily injury.
For example, when a perpetrator carries a knife into a fight with the intention to use it on another person, the perpetrator has the required intention to cause serious bodily harm.
- The perpetrator must actually have the ability to carry out the assault.
For example, a wheelchair-bound person may intend to cause serious bodily harm, but the combination of his immobility and lack of a gun, knife, etc. make it clear he doesn’t have the ability to carry out the assault.
- The assault is unlawful.
For example, someone is about to sexually assault a woman. To fend off the attack, she takes out a knife and stabs the attacker. Although the woman clearly intends to cause serious bodily injury or death to her assailant, the woman is acting in self-defense. Self-defense makes an assault lawful.
Can a felony assault occur if no one is injured?
Yes. Contrary to what many people believe, a physical assault isn’t necessary to qualify as felonious assault. A felonious assault takes place when a victim merely believes the assailant is about to inflict serious bodily injury or death, even if the physical assault never occurs.
Example: Domestic assault with an iron
After Judith and Max married, Max began to abuse Judith. The police arrested him several times on prior occasions for slapping and “roughing up” Judith. This day, they were in the middle of a heated argument. During the argument, Max picked up an iron and threw it at Judith. It struck her in the head, leaving a deep gash requiring several stitches.
This is clearly a felony assault. Max’s intention when he picked up the iron and threw it at Judith was to inflict upon her serious bodily harm.
Let’s change the facts a bit. In the same example, Max picked up the iron and threw it toward Judith. This time Max’s intention wasn’t to actually strike Judith. Instead, he wanted to intimidate and scare her. Max purposely threw the iron a few inches to the left of Judith’s head.
Although Judith had no physical injuries, because of Max’s previous abuse, she believed Max’s intention was to throw the iron directly at her head. There was no physical assault, but because of Max’s previous abuse, Judith believed Max intended to cause her seriously bodily injury, so Max’s actions still constituted a felony assault.
Other examples of felonious assault include:
- Assault on children and the elderly
- Sexual assault and attempted sexual assault
- Murder and attempted murder
- Manslaughter (voluntary and involuntary)
There are other sub-types of assaults. In some states, assault is a felony, while in others it’s a misdemeanor. Some include assaults on public servants (police officers, prosecutors, letter carriers, probation officers, etc.), domestic abuse, and drunk driving injuries to pedestrians.
While a felonious assault requires the actual infliction of serious bodily injury or death to another person, or the threat of serious bodily injury or death, a misdemeanor assault is generally something like minor touching of another person when the victim doesn’t welcome or invite the touching. A misdemeanor assault might include a slap in the face, pushing, or shoving.
The next higher class of misdemeanor might include a more serious striking of a person, resulting in minimal bruises, or a threat of minor injury. In some states, there’s a third level of misdemeanor usually reserved for domestic abuse injuries and more serious bruising, breaking of bones, etc.
Typically, punishment for a misdemeanor assault includes incarceration in a city or county jail for anywhere from six to 18 months, with fines ranging from $500 to $2,000. While punishments for felonious assaults usually range from two years to life in prison, depending on the type and severity of the assault.
Groups and Single Offenders – The Law of Parties
Each state has its own definition of the law of parties. Basically, the law of parties means any one member of a group involved in a crime is equally liable for the crime committed by any other member of the group.
Example: Group mugging
A group of 6 marauding bullies roamed the streets of a town. One evening, the group approached a young man leaving a convenience store. The group intended to threaten the man so he’d turn over his wallet. After surrounding the young man, members of the marauders began to taunt him, demanding he turn over his wallet.
Suddenly, and without preplanning, one member of the marauding group stepped forward and struck the young man over the head with a piece of pipe. The young man fell to the ground, sustaining serious head injuries.
While the other group members had no idea one of them was going to hit the young man, the legal system charged and convicted every member of the group of felonious assault and attempted robbery.
Even though only one of the members of the group physically assaulted the young man, under the law of parties, every other member of the group was equally liable and punishable in the eyes of the law. Additionally, every member of the group was subject to the prison term associated with the crime.
Liability: Who pays for the victim’s damages?
Serious injuries normally require extensive hospitalization and medical care. They may require stitches, dental work, or plastic surgery. Some seriously injured victims can’t work during their recovery, and the pain and suffering they endure is often compelling. A victim’s medical bills, out-of-pocket expenses for medicines, crutches, etc., lost wages, and pain and suffering, are all compensable.
Those who commit felonious assaults are not only criminally liable, but civilly as well. This means the felon may serve prison time, or the court may order him to pay restitution (oftentimes money) for the victim’s damages. Interestingly enough, if the felon receives a prison sentence, he normally doesn’t have to pay the victim’s damages. Theoretically, the prison sentence is supposed to stand in for the monetary restitution.
When the judge or jury doesn’t send a defendant to prison, but instead gives probation, it’s likely the terms and conditions of his probation will include an order to pay restitution for the victim’s damages. If the guilty party fails to pay restitution, the court can possibly revoke his probation and force him to serve his full prison term.
Unfortunately, in criminal plea bargain cases, neither the prosecutor nor the judge has the authority to force the defendant to pay any amount in restitution for pain and suffering.
Civil Liability: Suing the Perpetrator
Unfortunately, the kind of person who commits felonious assault often doesn’t have many assets. If he did have assets and was convicted of the assault, the conviction would make a prima facie (on first look) case of liability, and as a result, the victim could easily win a lawsuit against the assailant.
There is, though, some good news about restitution. Under the victims’ rights acts enacted in each state, crime victims have the right to consult with the prosecuting attorney (assistant district or county attorney) about some matters affecting the disposition of the case. If you’re the victim of a felony assault and battery, the prosecutor must consult with you about the nature and cost of the crime and your damages.
This becomes especially important when the prosecutor enters into plea bargain negotiations with the defendant’s attorney. If there’s a chance the defendant will get an offer of probation, meaning instead of going to prison he can go free under special conditions, it’s essential the plea bargain includes a provision stating the defendant must pay restitution for your damages.
Victim Impact Statement
In a felony case, the victim has a right to a victim impact statement. The probation officer makes a report and summarizes how the felony affects you (the victim). The report is confidential, and with some exceptions, only the judge reviews it. The impact statement will discuss the personal effect the crime has on you and your loved ones.
The statement also includes the nature and amount of your damages. As a victim, you must ensure the probation officer and the prosecutor have a complete and detailed list of all of your damages. Include copies of medical records to substantiate your statement.
In addition to medications, crutches, bandages, etc., you can add a prorated amount for gasoline you used to drive back and forth to doctors’ appointments, and parking costs at the doctors’ offices. Be sure to have a letter typed on your employer’s letterhead verifying the amount of wages you lost as a result of the assault and your recovery.
With the victim impact statement in hand, the court should only approve a felony plea bargain if it includes restitution for your damages. That’s why it’s so important to make sure the prosecutor and probation officer have all your information before the defendant receives his sentence.
Victim Compensation Fund
Fortunately, as a victim, you don’t have to depend on whether or not the defendant pays his court-ordered restitution. That’s because compensation for your damages is not dependent on the defendant’s restitution payments. If he doesn’t pay, that’s between him and the court. Instead, you can ask for restitution directly from your state or county’s victim compensation fund.
As a direct result of crime victims’ rights acts, all states now have a form of victim’s compensation fund. The fund’s purpose is to give victims of violent crimes, including felony assault and battery, funds to help pay for some, if not all of their damages.
In most states, victim’s compensation funds cover medical bills, out-of-pocket expenses, lost wages, and funeral expenses. Although each state is different, available funds for each injured victim can range up to $75,000.
To qualify as a victim entitled to funding, you must first exhaust your available medical insurance or worker’s compensation benefits. In some states, the fund factors your personal financial assets into the formula determining the net amount you’re eligible to receive.
What to do if you’re the victim of assault…
If you’re the victim of a felony assault (battery), first call 911. Don’t try to pursue the assailant on your own. That’s dangerous and may only lead to further violence. The police are well-equipped to deal with criminals. If your injuries are serious enough to require hospitalization, make sure you get copies of all your records.
Keep receipts for everything: your entire out-of-pocket expenses for medications, crutches, slings, gasoline used when driving to and from doctor appointments, bus or train fare, etc. You also need a letter from your employer verifying your lost wages. Make sure you let the prosecutor know you require restitution for your damages. The prosecutor should guide you to the victims’ compensation fund and any other funds available for restitution.
How Much is Your Injury Claim Worth?
Find out now with a FREE case review from an attorney…
Visitor Questions on Assault, Abuse & Other Crimes
Search for a Previously Answered Question
During a heated argument, my 19-year old daughter (who suffers from depression and PTSD) flew into an uncontrollable rage and punched me in the face twice. I was bleeding profusely from what was eventually determined to be a broken nose. I called 911. The police arrested my daughter and I was taken to the hospital... Read More.
My 15 year old niece (honor student, never had issues in the school) was in gym class and scored in soccer. Then, in one side of the gym, a group of girls approached her and were upset that she won, so they jumped her. We have not taken her to the hospital yet but she... Read More.
A black male this morning walked into my shop and grabbed my cell phone laying on the counter and fled. I saw him take it so I pursued him. When I caught up to him I grabbed his shirt and demanded my cell phone back. He then assaulted me. I was hit around the head... Read More.
On July 12th 2012, I was brutally assaulted by a man I had been dating. He beat me with a gun repeatedly for over 3 hours and had my life threatened, while I was held against my will. I was taken to a hospital and he was arrested. He ended up pleading guilty and was... Read More.
My sister’s boyfriend tried stabbing me with a knife in front of my mom, my sister, and my two nephews inside my mom’s house. Fortunately, he didn’t get to touch me because my mom got in the middle, and kicked him and my sister out of the house. This incident was caused by my mom... Read More.
I was walking through the public park when employees who were setting up for an event told me I couldn’t walk on through because they were setting up for an event, “Outsideland” which is a music festival due to start next weekend. I told them the sign said it was closed to vehicles not pedestrians.... Read More.
MY 24 year old son was verbally attacked at my parents’ home by a former friend and his parents. They came in a car yelling “f—ing ni–er!” The dad was shoving my son on my parents’ front porch and it became a brawl, where my son was in a choke hold by the dad while... Read More.
I was verbally and physically assaulted by my sister’s husband while trying to stop him from physically disciplining my minor cousin with a belt. I was slammed against a wall and as a result my back was injured. I also suffered nerve damage in my left leg as a result of the slamming. I am... Read More.
I had a house built in October of 2015. Since then I have had to have work done on my water heater due to improper wiring. Last night the electric outlets quit working in my spare bedroom. I passed the man’s business that wired my house and told him about the problem. He said he... Read More.
I was recently assaulted while shopping at my local chain grocer in a mini mall type environment. The attackers were not store employers, just random strangers. However, none of the staff in the store stepped in to assist, even after I had begun being assaulted. On top of it all, the person in charge that... Read More.
I was assaulted at a mall in front of my mother, sister, and 8 year old niece. I was hit behind the head while I was walking to the parking lot. The person hit me and did not steal anything from me or my family, but had a hand in his backpack as if he... Read More.
My kid was roughly grabbed by the back of his neck by a manager at the Family Recreation Center and then forced to walk to his office by the scruff of his neck. Three of my kid’s friends witnessed the assault. Beforehand the kids were goofing around and play fighting. Is this assault? Is there... Read More.
My son was at a night club and was hit with a gun in the face and hospitalized with severe injuries requiring surgery. The police talked to the attacker who said he didn’t have a gun and had a friend of his state that he was a witness. The friend said he hit him with... Read More.
My 13 year old nephew was protesting outside of a non profit organization in which our family has a membership. He asked to use the rest room and was told he could by a volunteer security guard if he left his sign outside since he is usually an avid volunteer. The Executive Director, however, saw... Read More.
I was assaulted by someone in a private parking lot near my home. I have never seen or met this person before. Here is what happened… I had just parked the car, and there were clearly three open spaces next to me, three behind me, and 50 other spaces around us. I opened my car... Read More.
My son was attacked at school from behind by another student. He suffered a very bad concussion and doctor bills totaling $3000. I filed bankruptcy which included the doctor bills. After my bankruptcy case the victim was ordered to pay restitution. Basically, that is all that happened to her child – he had to pay... Read More.
I was at a club last week & around 1:30am our group was kicked out because a few girls in our group were really drunk. Roughly 45 min later I was across the street from the club & got into an argument with my sister. Club security had just got off work & started to... Read More.
I was assaulted and had several bones broken, one required surgery. I have not been able to retain an attorney on this matter, so I will pursue the matter personally. I have 2 questions about this. The first question is how can I write a demand letter to the person responsible for assaulting me? The... Read More.
I face two charges, both stemming from the same occasion: one charge of a threat and another of misdemeanor one (A and B). For the threat, I literally said “I will wrap a medal around your neck.” That’s where a medal goes, presumably. How this was construed as a threat, rather than meaning ‘good on... Read More.
A week ago, I was punched in the face without provocation by an acquaintance who appeared to be highly intoxicated and very angry. Because of the incident, I suffered a cut on my face, requiring three stitches. Also, there is other damage to my nose and facial area, as there is numbness and difficulty breathing... Read More.
I have been verbally attacked by my housemate’s boyfriend. The housemate is also the homeowner, so in effect is my landlord. Three weeks after the threats, she gave her boyfriend a key to the dwelling. I am moving out on the 10th of October, six months before a date she and I agreed on. I... Read More.
I spend a great amount of time in Baja California (Mexico). A few weeks ago I had a confrontation with a woman. I was very upset and I wanted to hit this woman. I was restrained by a few guys who grabbed me and prevented me from attacking her. After being restrained, this other guy... Read More.
I was violently assaulted when verbally redirecting a violent autistic student for assaulting another school employee. He lunged at me and was very strong. I fought back with self defense techniques and was physically assaulted as I struggled. Biting, scratching, etc. No one came to my aid but just stood there and watched. Finally three... Read More.
A few days ago I was pushed about 10 feet sideways inside a well-known electronics store by a customer. The customer was angry for whatever reason and shoved me as hard as he could. My hip has been hurting ever since. I remember feeling something pop when it happened. I also have MS (Multiple Sclerosis)... Read More.
During a fight with my ex-boyfriend he let his pitbulls into the room to attack/intimidate me. I have been attacked by them once before and he knew what the outcome would be if he let them in. I was attacked and suffered injuries. He did eventually take them off of me but I had been... Read More.
My mother was at the shopping mall when she was attacked by three teens. During the time of the attack the mall security didn’t come to help my mother at all. My mother’s eye was badly injured in the attack. Can my mother sue the mall? Does she have any other options? Thanks for any... Read More.
I was sitting in a parked car when the owner of the car assaulted me and caused me injuries inside of the car. I suffered neck and back injuries. My question is, if I was assaulted in a parked car, is the car owner’s auto insurance company liable for my injuries resulting from the assault?... Read More.
On a Sunday in Knoxville, Tennessee, my wife and I took our 4 children to their elementary school community park to play. With four courts there, there was one open on the other end from where about fifteen black adults and teens were playing. We started shooting hoops and about fifteen minutes went by, and... Read More.
My 15 year old daughter was at the movie with friends. Two females, 19 & 21 approached my daughter and her friends, yelling at them for something they didn’t do. My daughter told the girls they didn’t need to talk to her friends that way. The 21 year old then hit my daughter in the... Read More.
I was having a verbal dispute with my landlord when he came up to me and said, “you’re fixing to get an ass beating.” Then he threw both his hands to the side of my face as hard as he could and shook my head. I reported him to police but I wanted to know... Read More.
I was assaulted by someone and ended up with a broken nose, 13 stitches, and three fractured teeth. We were both drunk and I had a BAC (Blood Alcohol Content) of 0.19%. If I reveal my BAC in court will it weigh heavily against me? Is there anything else you think I could to to... Read More.
My adult son was assaulted and received a broken jaw by another adult male at a local gas station in broad daylight. My son did not strike back but immediately entered the gas station and called the police. While doing this, the person who assaulted him verbally in front of witnesses stated, “If you file... Read More.
I am an exotic dancer and a customer 5 times my size attacked me causing both physical and emotional damage. I wanted to know if the club is liable for my doctor’s bills and my pain and suffering? Would I even have a case worth pursuing? Thanks. Read More.
I was at a New Year’s Eve party when I was assaulted. I got drunk and spilled some beer and got kicked out. Upon me leaving this kid sidelined me and fractured my jaw. I never hit anybody or do any physical harm to anyone. I now have my mouth wired shut and have to... Read More.
I leased a building for 2 years from this person and while at their home paying my monthly lease, I informed him that I would not be leasing the property anymore after Dec 31, 2011, which is when the lease ends. He went into a rage, screaming and cursing at me to get off his... Read More.
I am a female and got punched in the face by a male. He broke my nose and was arrested. The court found him guilty. He has a felony with one strike already on his file. A few days ago the perpetrator’s homeowners insurance called me and wants to settle the case by paying. I... Read More.
I took a car to a shop for break repair. I was given my car back with the same old break pads on and was charged $100 bucks. I initially paid for the service and left without noticing what they had done, but when I took the car home I saw the same old break... Read More.
My son was at a Halloween party speaking with other guests. An older man came up and punched him in the face without provocation, breaking his nose and orbital socket. He now has to have surgery to repair the broken bones. My son did not in any way antagonize or retaliate the other person. Can... Read More.
My wife came to the local strip mall to pick me up from a pub. We were having trouble unlocking the car door so she got out to unlock it with the key. Suddenly several juveniles came running out in order to attack another man, who is 62. My wife, who is also 62 turned... Read More.
I was assaulted by my landlord after the state came in and found that the apartment I was renting for 2 years was an illegal residence. During the assault he grabbed my key chain that was around my neck and got into his car and dragged me down the street (in turn my neck was... Read More.
On 10/9/11 my son was riding his bike in our neighborhood past an elementary school where there were dozens of kids hanging out. They were apparently waiting for a “fight” between two kids to take place. One of the kids didn’t show up and so the other boy(s) and their “posse” of about 15 kids... Read More.
I got assaulted by 1 guy and then 2 more guys jumped in and beat me up. After that, in addition to the bruises and other minor injuries I received, my knee wasn’t functioning correctly. I went to the doctor who told me I had a broken knee. I’m just wondering if I can file... Read More.
On Saturday Aug 6, 2011 my husband’s ex wife came to my house and started a fight with me and my 13 year old daughter. It was around 11:10pm when she came with my husband’s kids and two of her friends. They started cursing and one of them threw rocks from my garden at me... Read More.
I was punched in the face and had to be airlifted to Edmonton for surgery. I received a metal plate for a fractured skull. I now have constant pain and numbness. The person who did this got out on probation. This person also has no money or very little. Do I have any options for... Read More.