What is the Difference Between Assault and Battery?

Many people use assault and battery interchangeably. Indeed, Va. Code § 18.2-57 speaks of “assault and battery” as if it is one offense, and defines them as Class 1 misdemeanors. If convicted, a defendant faces up to a year in jail, a fine up to $2,500, and full restitution.

At Bain Sheldon, we represent men and women who have been accused of assault or battery. We use our detailed knowledge of the law to pick apart the prosecutor’s case and seek the most favorable resolution for our clients. Contact one of our Virginia criminal defense attorneys today to schedule a free consultation.

Identifying Battery

Virginia law calls battery “assault and battery,” but we will call it battery for the sake of simplicity. Battery is easy to identify. It consists of touching someone willfully or in anger and without their consent. A defendant can also batter a victim with an object. Striking someone with a baseball bat or throwing a frisbee and hitting them can also qualify.

The most common example of battery would be punching or slapping someone during an emotional altercation. However, technically, any touching done without someone’s permission could qualify as battery, so long as it was done intentionally (instead of accidentally).

Of course, the prosecutor would be busy if she brought a battery charge against anyone who puts a hand on someone else’s shoulder without permission. Consequently, we tend to see battery charges only brought when someone offensively touches another person out of anger or another ill motivation, such as harassment or sexual gratification.

The victim does not need to suffer serious injury for there to be charges—though, here too, the likelihood of charges goes up with the severity of the injury. Virginia has other laws that kick in when a victim suffers a devastating injury by cutting, stabbing, or shooting, such as unlawful wounding or malicious wounding (Va. Code § 18.2-51).

Defining Assault

Assault differs from battery in a key way: there does not have to be an offensive touching for there to be an assault. An assault consists of taking an overt act with the intent to harm someone or the intent to make them fear bodily harm. For example, someone who takes a swing at another person has committed assault even if the defendant ultimately misses the victim or stops just short of his nose. Swinging a crowbar around someone is also assault if the defendant commits the action with the intent of making the victim afraid of physical injury.

The defendant must have the means to inflict the harm, and the victim’s fear must be reasonable. Aggressive threats to harm someone in the future do not qualify as assault (though they could be illegal under a different statute). Taking a swing from halfway across a room is not assault, either, though throwing an object to try and hit them could be.

Assault and Battery as Hate Crimes

The law increases penalties for a conviction if the defendant committed an assault or battery as a hate crime. Specifically, punishments increase when the defendant selects the victim because of his or her, gender, gender identity, sexual orientation, race, color, religion, disability, or national origin.

If the defendant committed simple assault as a hate crime, he faces a minimum of six months of confinement. If the victim is injured in the attack, then the defendant can be charged with a Class 6 felony and faces at least six months of confinement.

Contact One of Our Virginia Criminal Defense Lawyers

There is nothing simple about assault or battery cases. Witnesses often tell conflicting stories, and sometimes a defendant’s actions were merely accidental.

For help pulling together a defense, please contact Bain Sheldon today. Our case evaluations are free and confidential.