There are many misconceptions about what constitutes assault. The greatest of these is the importance of intent. However there are many aspects of assault that can be confusing or misinterpreted. Here are three things about assault charges you probably didn’t know.
A person commits an assault when, without justification, the person does any of the following:
- Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
- Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
- Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
For an assault to take place, the assaulter must intend to cause fear of immediate physical contact resulting in:
- injury; or
The perception of intent or offense taken by the alleged victim is not enough to constitute an assault. Actual intent of the accused is what matters. Neither is fear, discomfort or insult that is felt, but which the defendant did not intend.
In several cases, protective no contact orders have been reversed by the appellate courts because the alleged victim was unable to prove that the defendant “intended to place her in fear of immediate physical contact which would be painful, injurious, insulting, or offensive.” An inadvertent or incidental touch is not enough. Furthermore, even a threat is insufficient to constitute an assault, if there is no apparent ability to immediately execute the threat, such as if the defendant is elsewhere. There is no such thing as a telephonic or electronic assault. However, threats of violence can be considered harassment, and such a criminal charge could lead to a no contact order being instituted.
Physical contact is not a requirement for an assault charge. As stated above, assault can be the act of causing fear of physical contact – not just the contact itself. If you are within arm’s reach of someone, make a fist and draw your arm back as if to fire a punch at them, that places them in fear of immediate physical contact with the apparent ability to execute the act, and your intent to do so potentially can be inferred from such facts, which can lead to an assault charge.
While assault doesn’t require physical contact, it does require the threat of immediate physical contact. This means that an assaulter must have intent to cause immediate physical contact or to put the person in reasonable fear of such, and to have the apparent ability to execute the action at that moment.
Assault cannot take place on the phone or via email, online messaging, or text messages alone. None of these supports the ability to take immediate action to execute the act, and therefore such threats made would not be considered assault.
In one case, a protection order was reversed because the victim could not produce proper evidence that the defendant intended to cause “fear of ‘immediate physical contact’ and that [the defendant] had the ‘apparent ability to execute the act.’ ” The interaction took place over the phone, which is not chargeable as assault.