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.
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