In Charlottesville right now, people are poring over videos of fights from August 12, trying to figure out who should be charged with what kind of assault. I’m not going to talk about any particular case, but let me lay out a few of the principles. And let me say in advance that these concepts are vastly over-simplified. If you want to quibble with me, hire me and we can argue with the meter running,
Assault and Battery, defined
Although we speak of the crime of “assault and battery,” those are really two different concepts. We really should talk about the crime of “assault OR battery.”
In Virginia, in a prosecution for battery, the Commonwealth must prove, beyond a reasonable doubt, that the defendant (1) willfully touched another without legal justification or excuse and (2) that the touching was done in an angry, rude, insulting, or vengeful manner.
An assault can be thought of as an attempt to commit a battery — a punch that doesn’t land is the best example. Technically, it is an overt act intended to do bodily harm to another together with the present ability to cause such harm, or an overt act that is intended to, and that actually does, put someone in fear of bodily harm.
Malicious wounding, defined
In a prosecution for malicious wounding (or, more generally, malicious bodily injury), the Commonwealth must prove that the defendant shot, stabbed, cut, wounded, or caused bodily injury to someone with the intent to maim, disfigure, disable or kill, and that he did so with malice.
Unlawful wounding, defined
In a prosecution for unlawful wounding (or, more generally, unlawful bodily injury), the Commonwealth must prove that the defendant shot, stabbed, cut, wounded, or caused bodily injury to someone with the intent to maim, disfigure, disable or kill, but that he did so without malice.
Malicious wounding and unlawful wounding are both generally within the category of “felonious assault,” in the sense that they allege an assault that is being prosecuted as a felony, but in Virginia the term “felonious assault” really doesn’t mean anything. You will note that the difference between malicious and unlawful wounding is the presence of “malice.” If there is one issue that juries hang up on more than any other, it is this definition of “malice.” I’ll touch briefly on this later, but it will not be a detailed treatment; the topic is too complex.
One little subtlety here — a magistrate will almost never write a warrant for unlawful wounding, unless specifically requested to do so by the Commonwealth’s Attorney. The magistrate will issue a warrant for malicious wounding, and then let the defendant persuade the judge or jury that it should be reduced to unlawful wounding. If a warrant is issued for unlawful wounding, that is a decent hint that the Commonwealth’s Attorney has already been involved and sees the complexities in the case.
self-defense
If someone is being attacked without any kind of provocation at all, she fears that she is “in imminent danger of bodily harm,” and she uses “no more force, under the circumstances as they appear to her, than was reasonably necessary to protect herself from the perceived harm,” a judge or jury can acquit her.
If she provoked the attack — even just by words — she has to retreat and try to withdraw from the fight; if she does so, and the attacker still continues, she may fight back with reasonable force.
The notion of “reasonable force” can be summarized briefly — if you are not being attacked with deadly force, you do not have the right to respond with deadly force. Generally speaking, if someone is attacking you with their fists, you don’t have the right to counter-attack with a weapon. If someone pushes you, you don’t have a right to shoot them. If someone punches you repeatedly so that you are in fear of serious bodily harm from their attack, you have the right to pull out a deadly weapon, and you may be justified in using it. If someone has a deadly weapon that they are threatening to use on you, you have a right to respond with deadly force. If you have defended yourself and you have knocked the person to the ground, you don’t get to keep attacking the guy on the ground.
Defense of others
The same principles apply if you see someone being attacked; you have the right to come to their rescue. But there are a few important caveats:
- You can still only use reasonable force to defend your friend.
- If you join a fight generally, you may take on the posture of the person you are helping. So if your friend was the initial aggressor, you might not have a defense available to you. I put this vaguely, because while there is old caselaw in Virginia (see Lamb v. Commonwealth, 141 Va. 481, 488-89, 126 S.E. 3 (1925)) that says that if you join a fight, your rights are limited to the rights of the person on whose side you are joining, there is more modern authority in Virginia (Foster v. Commonwealth, 13 Va.App. 380, 386, 412 S.E.2d 198 (1991)) that says that your “defense-of-others” claim depends on your own knowledge or belief. So if it appeared to you that your friend was not at fault, and you join the fight on his side, you could be OK.
- When the other person is not a danger, you have to stop hitting him.
Transferred intent
If I take a swing at you, and I don’t hit you but I hit someone that I am not mad at, I don’t get off just because my aim is bad. If I was wrong in trying to hit you, I am guilty of battery if I hit the innocent bystander. By the same token, if I am defending myself against deadly force, and I shoot at my attacker and miss but hit an innocent bystander, I am probably still not guilty.
use of a deadly weapon
One factor that judges and prosecutors look at is whether someone uses a “deadly weapon.” Virginia law defines a deadly weapon as
… any object or instrument, not part of the human body, that is likely to cause death or great bodily injury because of the manner and under the circumstances in which it is used.
That would NOT include a fist, though it could include brass knuckles. It would NOT include a kick, unless there was something particularly dangerous about the shoes or boots worn. It could include a gun, a knife, a rock, a cement block, a metal baseball bat, a metal pole… etc.
concert of action and group liability
If you and 10 of your buddies are out together on your way to a prayer service, and one of your friends attacks an innocent bystander, you are presumably not guilty of his action, because it was not foreseeable that your buddy the monk would go crazy. If you and 10 of your buddies are armed to rob a bank, and one of your buddies shoots the bank guard, you could be punished for that action, because it was entirely foreseeable that if you are going to rob a bank with guns, someone might get shot. If you and 10 of your buddies are walking up Market Street getting into arguments with an opposing faction walking up Market Street, and one of your buddies attacks one of the other group, you may not be guilty of that initial assault just because you happen to be present, but if you encourage or assist him, you can be found guilty for assisting him in his crime. If you watch the assault, and say nothing — even if you secretly hope that your friend beats up the other guy — you are not guilty. If you see the assault happening and you gather around and say, “Yeah, get him! Take him out!” you may be guilty of assault even if you don’t actually throw a punch. If you and your buddies forma a conscious plan to wander around town trying to see who you can attack, and the government can prove that you had made an agreement to commit assaults, you can be prosecuted for conspiracy to commit assaults, even if no one actually gets attacked — it is the agreement that is getting prosecuted when a conspiracy charge is brought.
If these different scenarios seem confusing, trust me — they are. And there are other concepts in there that get worse… but I’m not going there.
intent needed for either felony assault
Both malicious wounding and unlawful wounding require proof of an intent to maim, disfigure, disable or kill. Those four terms are all serious — to maim is to sever a body part; to disfigure is to inflict a permanent disfigurement; to disable is to inflict a permanent disability, and to kill is self-explanatory.
All criminal assaults have to be with the intent to cause harm. There has to be something extra to make it a felony. So one punch thrown has been held by the Virginia Supreme Court to not demonstrate an intent to maim, disfigure, disable or kill, unless accompanied by a statement like, “Now I’m going to kill you.” One kick to the body, or even a few kicks to the body, have been held not to demonstrate the necessary intent, but a kick to the head, particularly if carried out with ferocity, can be. Use of a weapon is just about always going to be sufficient to prove the necessary felonious intent.
malice
I’m not going to try to explain all the ins-and-outs of malice — the term “malicious” or “maliciously” is used more than 30 times in the Virginia Code, and they are not used with any sense of consistency. But here is the basic definition, from the jury instruction:
Malice is that state of mind which results in the intentional doing of a wrongful act to another without legal excuse or justification, at a time when the mind of the actor is under the control of reason. Malice may result from any unlawful or unjustifiable motive including anger, hatred or revenge. Malice may be inferred from any deliberate, willful, and cruel act against another, however sudden.
Heat of passion excludes malice when that heat of passion arises from provocation that reasonably produces an emotional state of mind such as hot blood, rage, anger, resentment, terror or fear so as to cause one to act on impulse without conscious reflection. Heat of passion must be determined from circumstances as they appeared to defendant, but those circumstances must be such as would have aroused heat of passion in a reasonable person.
If a person acts upon reflection or deliberation, or after his passion has cooled, or there has been a reasonable time or opportunity for cooling, then the act is not attributable to heat of passion.
I’m only going to touch on a couple of issues in here — the ones that come up most often:
- If you have been provoked, and you react out of passion, that provocation may be sufficient to negate malice.
- Words are not sufficient provocation to justify attacking anyone.
- If you are afraid, but for some reason the jury doesn’t think that you quite qualify for “self-defense,” that fear, if reasonable, may negate malice. This is sometimes referred to as “imperfect self-defense.”
- If you use a deadly weapon, the jury can infer that you were acting out of malice.
So as you read news accounts of the different cases as people are being arrested, be very wary of people — particularly non-lawyers — expressing certainty about who is guilty of what. No case is ever what it seems from the press reports or even from the videos.
